UnifiedOnline Inc fka UOIP

[SonamKapoor]

SG filed brief today in Arris v Chanbond says case is different than Thyrv b/c board never issued a final written decision due to time bar. Also, SG adds no need for court to wait for itself on its Thryv decision...

My emphasis below on what SG is saying today is difference btw Thryv and Arris (v Chanbond), pg 13 and 14. www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-455.html

If this Court concludes in Thryv that Section 314(d)
precludes judicial review of the USPTO’s Section 315(b)
determinations on appeal from a final written decision,
that holding would provide an additional ground for
concluding that the Federal Circuit lacked jurisdiction
to review petitioner’s challenges to the USPTO’s noninstitution decisions here. But even if this Court renders a contrary holding in Thryv, its decision is unlikely
14

to cast doubt on the Federal Circuit’s dismissal of petitioner’s appeals. The question in Thryv is whether, in
exercising its jurisdiction to review the Board’s final
written decision on the merits of patentability, the court
of appeals can consider the patent holder’s contention
that Section 315(b) barred the review. Here, by contrast, the Board never issued an appealable final written decision because the USPTO declined to institute the requested review.

Because the Board never issued a final written decision, this case (unlike Thryv) does not present any questions concerning the scope of the Federal Circuit’s review authority under Section 319. And as explained above, the Federal Circuit’s decision in this case rests
on the independent ground that no provision in the AIA
or the APA affirmatively authorizes judicial review of
the USPTO’s non-institution decision. Dismissal of the
appeals on that ground was correct, regardless of
whether or how Section 314(d) applies to Section 315(b)
determinations. There is accordingly no need for the
Court to hold the petition in this case pending the
Court’s disposition of Thryv.

CONCLUSION

The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
MELISSA N. PATTERSON
SARAH E. WEINER
Attorneys

DECEMBER 2019