Is the 315(b) Time Bar Particular to a “Patent Owner?”

Earlier this year the Patent Trial & Appeal Board (PTAB) instituted trial in Sling TV, L.L.C. et al. v. Realtime Adaptive Streaming, LLC, IPR2018-01331, Paper 9 (PTAB January 31, 2019). In doing so it created a new exception to the 315(b) time bar. The exception explained that the trigger for 315(b) — service of the complaint — was ineffective if the true patent owner was not responsible for the filing.

At the time, I questioned whether this exception made sense given that exclusive licensees commonly assert patents. And, the statutory language and legislative history did not seem to strongly support such a narrow interpretation.

My post was cited in a request for rehearing in a different case, GoPro Inc. v., 360 Heroes Inc., IPR2018-1754, Paper 19 (PTAB April 17, 2019) (here). Today, the Board’s Precedential Opinion Panel (POP) has accepted this case for rehearing. (here)

Amicus curiae filings are due to the Board by May 24th.

Scott A. McKeown is an author of the Patents Post Grant