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Do Not Pass Go? U.S. Supreme Court to Review Federal Circuit's Finding of Justiciability
The U.S. Supreme Court is set to determine just how "final and nonappealable" a decision to institute an inter partes review is. The highest court is primed to render yet another opinion related to patent and administrative law in Thryv, Inc. v. Click-to-Call Techs., L.P., No. 19-916 (2019) after oral arguments were heard on Dec. 9, 2019.
Since the Leahy-Smith America Invents Act (AIA) was enacted in 2011, parties accused of patent infringement have had new avenues of challenging patent validity outside of Article III courts. The most popular choice for litigants has been inter partes review (IPR). IPR allows the Patent Trials and Appeals Board (PTAB or Board) to expedite a litigation-like experience between parties to determine issues of patentability that could ultimately lead to a prior-granted patent being killed by the same agency that once gave it life.
In some instances, a party accused of infringing a patent in a district court action may get two opportunities to challenge the validity of the asserted patent. An IPR can be filed no later than 12 months after a complaint was filed, and an IPR petition takes, at a statutory maximum, 18 months to completion. Accordingly, if the district court action does not get stayed pending IPR, the accused infringer will be able to challenge the validity of the patent in both the district court and at the Patent Office. Parties who do not plan carefully are not eligible for IPRs at all. 35 U.S.C. §315(b) makes IPRs unavailable for a party who is accused of infringing a patent and has waited over 12 months after being served with a complaint to file. See, 35 U.S.C. §315(b) ("[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.").
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