Addressing the scope of review of the Patent Trial and Appeal Board’s (PTAB’s) application of the one-year time bar of 35 USC § 315(b) in deciding whether to institute an inter partes review (IPR) proceeding, the Supreme Court of the United States held that application of the time bar by the PTAB is nonappealable. Thryv, Inc. v. Click-to-Call Techs., LP, Case No. 18-916 (Supr. Ct. Apr. 20, 2019) (Ginsburg, Justice) (Gorsuch, Justice, joined in part by Sotomayor, Justice, dissenting). The Court explained that an appeal based on the PTAB’s application of the time bar for filing an IPR petition is prohibited under 35 USC § 314(d), which states that the PTAB’s decision on institution “shall be final and nonappealable.”
Notwithstanding the jurisdictional nature of the time bar under § 315(b), the US Court of Appeals for the Federal Circuit determined that a party may waive a time bar argument if it failed to raise the issue with the Patent Trial and Appeal Board (PTAB) during the inter partes review (IPR) proceeding. Acoustic Tech. Inc. v. Itron Networked Solutions, Inc., Case No. 19-1061 (Fed. Cir. Feb. 13, 2020) (Reyna, J.).