Background
Click-to-Call Technologies held a patent on a system for making telephone calls over the internet by clicking a number displayed on a web page. Thryv filed an IPR petition challenging the patent. Click-to-Call argued that Thryv’s petition was time-barred under 35 U.S.C. § 315(b), which provides that an IPR petition may not be filed more than one year after the date on which the petitioner (or a privy of the petitioner) is served with a complaint alleging infringement of the challenged patent. Click-to-Call contended that an earlier lawsuit served on Thryv’s predecessor company triggered the one-year bar.
The PTAB disagreed with Click-to-Call and instituted the IPR, finding the petition was not time-barred. After the PTAB cancelled several claims, the Federal Circuit held that judicial review of the time-bar determination was available and that the PTAB had erred in its § 315(b) analysis. The Supreme Court granted certiorari to resolve whether courts could review the PTAB’s § 315(b) time-bar determinations.
The Court’s Holding
The Supreme Court reversed, 7-2. The majority held that § 314(d) — which states that the PTAB’s institution decision “shall be final and nonappealable” — bars judicial review of the PTAB’s § 315(b) time-bar determination. The Court read § 314(d) broadly: it bars review not only of the PTAB’s threshold patentability determination for institution, but of all determinations made as part of the institution decision — including the § 315(b) time bar, which is a condition the PTAB must evaluate to decide whether to institute review. The Court extended Cuozzo Speed’s reasoning: Congress wanted the PTAB’s institution decisions to be final, and time-bar determinations are part of the institution analysis.
Justice Gorsuch’s dissent argued that § 314(d) should apply only to the patentability threshold question at the core of the institution decision, not to collateral statutory eligibility conditions like § 315(b). The dissent warned that the majority’s broad reading would leave patent holders with no judicial recourse when the PTAB incorrectly accepts untimely IPR petitions.
Key Takeaways
- The § 314(d) bar on judicial review of PTAB institution decisions extends to § 315(b) time-bar determinations — courts cannot review whether the PTAB correctly or incorrectly found an IPR petition timely under the one-year limitation.
- Patent holders who believe an IPR petition was time-barred under § 315(b) have no judicial recourse to challenge the PTAB’s timeliness finding — the PTAB’s determination is final and unreviewable.
- The decision extends the broad non-reviewability principle from Cuozzo Speed beyond the threshold patentability determination to procedural eligibility conditions that are part of the institution analysis.
- Petitioners and patent holders should carefully analyze and develop complete records on all § 315(b) arguments before and during PTAB proceedings, since there will be no federal court review of the PTAB’s time-bar ruling.
Why It Matters
Thryv v. Click-to-Call continued the Supreme Court’s consistent pattern of broadly construing § 314(d)’s non-reviewability provision to insulate most PTAB institution decisions from judicial review. The decision significantly weakened a procedural protection that patent holders had relied upon — the § 315(b) time bar — as a means of limiting the window during which IPR petitions could be brought after litigation began. By making the time-bar determination unreviewable, the Court eliminated a judicial backstop against untimely petitions.
The ruling has practical significance for patent litigation strategy: defendants planning to file IPR petitions should do so promptly after being served with an infringement complaint, but even if they wait, they face reduced risk that courts will subsequently reverse a favorable PTAB timeliness ruling. For patent owners, the decision highlighted the importance of raising § 315(b) arguments aggressively and early in PTAB proceedings — the PTAB’s decision is the last word.