(Co-authored by Stuart Duncan Smith)
The statute that created inter partes review (IPR) defines certain situations when IPR is not available. For example, IPR is not available if the petitioner was served with a complaint alleging infringement of the challenged patent more than a year earlier. But if the PTAB institutes an IPR that the statute does not permit, does the patent owner have any way to challenge that institution decision? The obvious answer might seem to be appealing the institution decision to the Federal Circuit Court of Appeals, but the same statute also says the PTAB’s institution decision is “final and nonappealable.” Next month in Thryv, Inc. v. Click-to-Call, the Supreme Court will consider whether patent owners can ask the Federal Circuit to keep IPR within its statutory confines.
