On Monday, the U.S. Supreme Court granted a petition for writ of certiorari to take up Dex Media Inc. v. Click-to-Call Technologies, LP on appeal from the Court of Appeals for the Federal Circuit. The case will ask the nation’s highest court to determine whether 35 U.S.C. § 314(d), which states that decisions to institute inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB) are final and non-appealable, permits appeal of IPR institution decisions upon a finding that the one-year time bar under 35 U.S.C. § 315(b) doesn’t apply.
In Hamilton Beach Brands v. F’Real Foods, the Federal Circuit found that under the Administrative Procedure Act, the Patent Trial and Appeal Board’s adopted claim construction in an IPR need not be identical to a construction proposed by a party so long as the construction is “similar enough” to provide notice for the parties to argue for or against the construction.