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Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc

This case from the United States Patent Trial and Appeal Board returns to us for a third time. In its final written decision, the Board, in the underlying inter partes review proceeding, rejected patent owner Bennett Regulator Guards, Inc.’s argument that petitioner Atlanta Gas Light Company was time barred from petitioning for inter partes review under 35 U.S.C. § 315(b). It then determined that the challenged claims were unpatentable over the prior art. Bennett appealed. In that first appeal, we disagreed with the Board’s time-bar determination, holding that Atlanta Gas should have been barred; vacated the Board’s unpatentability determination; and remanded with directions to dismiss the IPR and to further consider a sanctions order that the Board had not yet finalized.

Before the Board acted on our mandate, however, the Supreme Court held that time-bar determinations were unreviewable in Thryv, Inc v. Click-To-Call Technologies, LP, 140 S. Ct. 1367 (2020), and vacated our decision overruling the Board’s time-bar determination. On remand from the Supreme Court, we affirmed the Board’s unpatentability determination on the merits (while saying nothing about the time bar) and again remanded for the Board to reconsider and finalize its order regarding sanctions.

On remand from this court, the Board terminated the proceeding due in part to its reconsideration of its decision on the time bar. Atlanta Gas appeals. We conclude that we lack jurisdiction to review the Board’s decision to vacate its institution decision, a decision it made based in part on its evaluation of the time bar and changed Patent and Trademark Office policy. Accordingly, we dismiss Atlanta Gas’s appeal for lack of jurisdiction.

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