By a 7-2 decision, the US Supreme Court ruled this week that the US Patent and Trademark Office has sole authority to determine whether the statutory one-year time bar for petitioning under the America Invents Act (AIA) has been triggered in an inter partes review (IPR).
Womble Bond Dickinson IP litigation attorney and PTAB practice chair Brent Babcock discussed the Supreme Court’s decision in Thryv v. Click-to-Call Technologies with Law.com. Some patent practitioners say the Court handed too much decision-making authority to the USPTO, particularly with respect to the proper interpretation of a statute. The one-year time bar prevents patent petitioners from filing an IPR petition more than one year after the petitioner is served with a complaint alleging infringement of the patent at issue. It is one of the few restrictions on IPR filings.
Babcock said he doesn’t expect dramatic changes to how the USPTO handles one-year time bar decisions. But he said giving the agency sole decision-making power to interpret a statute removes an important layer of checks and balances.
“When you say to a judge, ‘You’re not going to be reviewed on this,’ it creates a sense of unfairness” for any losing party, whether they’re right or wrong,” Babcock tells Law.com.
Brent Babcock represents high-technology clients in every aspect of intellectual property disputes, focusing on federal district court litigation throughout the country, trials and post-grant patent proceedings before the USPTO's Patent Trial and Appeal Board and alternative dispute resolution (ADR) proceedings, including domestic and international arbitrations. His practice also includes pre-litigation counseling, pre-interference and post-grant proceeding consulting, and appellate briefing and oral argument before the United States Court of Appeals for the Federal Circuit.