AIPLA Asks Supreme Court to Hold That § 314(d) Allows Appeal of PTAB Institution Decisions

For Immediate Release


Arlington, VA. The American Intellectual Property Law Association filed an amicus brief with the Supreme Court today in Thryv, Inc. v. Click-to-Call Technologies, LP, No. 18-916, a case involving which issues can be appealed in inter partes review proceedings. The brief argues that the “No Appeal” rule of Section 314(d) of the America Invents Act (AIA) should not preclude appellate review of the Patent Trial and Appeal Board’s (Board’s) time-bar determinations under Section 315(b).

Section 315(b) places a limit on the Board’s ability to institute inter partes review where the petitioner has been served with a complaint alleging infringement of the challenged patent more than one year prior to filing the petition. As the brief notes, the Board’s time-bar determinations are akin to jurisdictional questions and should be subject to appellate review. The brief further explains that in implementing the AIA, Congress did not intend Section 314(d) to provide the Board with the unchecked ability to define the scope of its authority to institute inter partes review. According to AIPLA, judicial review of Section 315(b) determinations therefore is necessary “to ensure that an inter partes review proceeds in accordance with the law’s demands,” citing SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018).

The full brief is available here.

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AIPLA, the American Intellectual Property Law Association, was founded in 1897 to maintain a high standard of professional ethics. AIPLA’s mission includes helping establish and maintain fair and effective laws and policies that stimulate and reward innovation while balancing the public’s interest in healthy competition, reasonable costs, and basic fairness. AIPLA is a national bar association of approximately 13,500 members in private and corporate practice, in government service, and in the academic community.

AIPLA Contact:

Kemahl Franklyn