United States Court of Appeals for the Federal Circuit ______________________ CLICK-TO-CALL TECHNOLOGIES, LP, Appellant v. INGENIO, INC., YELLOWPAGES.COM, LLC, Appellees ANDREI IANCU, UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR OF THE UNITED STATES PATENT AND TRADEMARK OFFICE, Intervenor ______________________ 2015-1242 ______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2013- 00312. ______________________ Decided: August 16, 2018 ______________________ PETER J. AYERS, Law Office of Peter J. Ayers, Austin, TX, for appellant. STANLEY JOSEPH PANIKOWSKI, III, DLA Piper US LLP, San Diego, CA, argued for all appellees. Appellees Ingen- io, Inc., YellowPages.com, LLC represented by MITCHELL 2 CLICK-TO-CALL TECHNOLOGIES, LP v. INGENIO, INC. G. STOCKWELL, Kilpatrick Townsend & Stockton LLP, Atlanta, GA. Appellee YellowPages.com, LLC also repre- sented by DAVID CLAY HOLLOWAY. MOLLY R. SILFEN, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for intervenor. Also represented by SARAH E. CRAVEN, MARY L. KELLY, THOMAS W. KRAUSE. ______________________ Before O’MALLEY and TARANTO, Circuit Judges, and STARK, Chief District Judge *. Opinion for the court filed by Circuit Judge O’MALLEY, in which TARANTO, Circuit Judge, and STARK, Chief District Judge, join. Footnote 3 of the opinion is joined by PROST, Chief Judge, NEWMAN, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES, and STOLL, Circuit Judges. Opinion concurring in footnote 3 of the opinion filed by Circuit Judge TARANTO. Opinion dissenting from footnote 3 of the opinion filed by Circuit Judge DYK, in which Circuit Judge LOURIE joins. O’MALLEY, Circuit Judge. This long-marooned case returns to us after a voyage alongside two others interpreting the scope of 35 U.S.C. § 314(d)’s “No Appeal” provision and its applicability to time-bar determinations under 35 U.S.C. § 315(b): Cuoz- zo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016), and Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364 (Fed. Cir. 2018) (en banc). Because we have held en banc *The Honorable Leonard P. Stark, Chief District Judge, United States District Court for the District of Delaware, sitting by designation. CLICK-TO-CALL TECHNOLOGIES, LP v. INGENIO, INC. 3 “that the time-bar determinations under § 315(b) are appealable,” Wi-Fi One, 878 F.3d at 1367, we address for the first time the merits of Appellant Click-to-Call Tech- nologies, LP’s (“CTC”) contention that the Patent Trial and Appeal Board (“Board”) erred in determining that an inter partes review (“IPR”) petition challenging claims of CTC’s patent was not time-barred under § 315(b). We conclude that the Board committed legal error in rendering its § 315(b) determination, and reject the proposed, alternative grounds for affirmance. Because the subject petition was time-barred, the Board lacked jurisdiction to institute the IPR proceedings. Accordingly, we vacate the Board’s Final Written Decision in Oracle Corp. v. Click-to-Call Technologies LP, No. IPR2013- 00312 (P.T.A.B. Oct. 28, 2014), Paper No. 52 (Final Writ- ten Decision), and remand with instructions to dismiss IPR2013-00312. I. BACKGROUND A. The District Court Actions On June 8, 2001, Inforocket.Com, Inc. (“Inforocket”), the exclusive licensee of U.S. Patent No. 5,818,836 ...
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