On December 9, 2019, the U.S. Supreme Court will hear arguments in Thryv Inc. v. Click-to-Call Technologies, LP. The high court’s decision will determine the extent to which Patent Trial and Appeal Board decisions instituting review of a patent are subject to appellate review and puts a spotlight on the power of administrative agencies. In the article “High Court to Scrutinize Appeals of PTAB Time-Bar Decisions,” Law360 turned to Intellectual Property partner Edwin Getz for insight into the case.
The industry publication reports that the case could take on political dimensions at the high court. The patent owner’s argument that the board shouldn’t be able to make decisions that no court can review may resonate with conservative members of the court, like the newest Justices Neil Gorsuch and Brett Kavanaugh, who have expressed skepticism of the power of administrative agencies.
“They have somewhat of a predisposition, by virtue of their writings, toward believing that judicial review of agency determinations is a favorable course,” said Getz.
The publication also reports that the hearing is likely to focus on whether the justices feel it is acceptable to overturn PTAB decisions finding a patent invalid based on timing issues that have nothing to do with invalidity.
“The argument is that it would allow the patent owner to get off, in essence, on a technicality, and therefore be in a position to enforce patents for which claims have been found in the expertise of the administrative patent judges to be invalid,” Getz added.