Yesterday, the United States Supreme Court ruled that the Director of the United States Patent and Trademark Office (USPTO), by and through his designees, the Patent Trial and Appeal Board (PTAB), has the unchallengeable authority to institute inter partes review (IPR) proceedings even when they are brought outside the statute of limitations. Indeed, it is difficult to believe the above characterization of the Supreme Court’s decision could be accurate, but sadly it is—and it is no longer open for debate or discussion. The above description, as improbable and ludicrous as it sounds, is a fair, accurate and unassailably correct summary of the Supreme Court’s decision in Thryv, Inv. The stupefying nature of the decision comes about because of an extraordinary interpretation of one statute that has consistently been read to trump all logic, reason and accountability; i.e., that in 35 U.S.C. So, what if the PTAB were to institute an IPR proceeding on a petition filed more than one year after the petitioner was sued for patent infringement? Even the Supreme Court says they are helpless to stop a rogue PTAB panel that might openly disregard something as fundamental and basic as a statute of limitations. Clearly, the Federal Circuit wouldn’t want to run afoul of the real judicial power in the patent system. Such high fees to institute IPR proceedings guarantees that those with money can bring these challenges against upstart innovators, while those upstart innovators who have little funding (as is the case at the beginning of every enterprise) have no ability to challenge the bad, bogus, clearly unpatentable claims and patents issued to tech giants and pharmaceutical companies. Charging exorbitant fees to file IPR petitions does nothing less than pick winners and losers and prevent those without money, but knowledge of egregious Patent Office mistakes, from helping to liberate non-inventions from the clutches of evil monopolists. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC .
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