from the United States Patent and Trademark Office, Patent
Trial and Appeal Board in No. IPR2013-00312.
J. Ayers, Law Office of Peter J. Ayers, Austin, TX, for
Stanley Joseph Panikowski, III, DLA Piper U.S. LLP, San
Diego, CA, argued for all appellees. Appellees Ingen-io,
Inc., YellowPages.com, LLC represented by Mitchell
Stockwell, Kilpatrick Townsend & Stockton LLP, Atlanta,
GA. Appellee YellowPages.com, LLC also represented by David
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.
O'Malley and Taranto, Circuit Judges, and Stark, Chief
O'MALLEY, CIRCUIT JUDGE.
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 "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
Technologies, 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).
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 Written
Decision), and remand with instructions to dismiss
District Court Actions
8, 2001, Inforocket.Com, Inc. ("Inforocket"), the
exclusive licensee of U.S. Patent No. 5, 818, 836 ("the
'836 patent"), filed a civil action in the United
States District Court for the Southern District of New York.
Compl., Inforocket.Com, Inc. v. Keen, Inc., CA No.
1:01-cv-05130-LAP (S.D.N.Y.), ECF No. 1 (Inforocket
Action). Inforocket served a complaint asserting
infringement of the '836 patent on defendant Keen, Inc.
("Keen") on September 14, 2001. Affidavit of
Service, Inforocket Action, ECF No. 4.
thereafter, Keen brought its own infringement suit against
Inforocket based on U.S. Patent No. 6, 223, 165, which
proceeded before the same district judge as the
Inforocket Action. See generally Keen, Inc. v.
Inforocket.Com, Inc., CA No. 1:01-cv-8226-LAP (S.D.N.Y.)
(Keen Action). In the Keen Action, the
district court granted Inforocket's motion for summary
judgment of noninfringement and entered judgment in favor of
Inforocket in July 2002. See Order Granting
Inforocket's Mot. for Summ. J., Keen Action, ECF
No. 47; Judgment, Keen Action, ECF No. 48. Keen
filed a Notice of Appeal to this court on August 23, 2002.
Notice of Appeal, Keen Action, ECF No. 49.
2003, while its appeal was pending, Keen acquired Inforocket
as its wholly-owned subsidiary. Thereafter, subject to the
terms of the merger, Inforocket and Keen stipulated to a
voluntary dismissal of both suits "without
prejudice," and the district court dismissed both
actions on the same day-March 21, 2003. See
Stipulation and Order of Dismissal, Inforocket
Action; Stipulation and Order of Dismissal, Keen
Action. Later in 2003, Keen changed its name to
Ingenio, Inc. ("Ingenio").
April 20, 2004, Ingenio requested ex parte
reexamination of claims 1-21 of the '836 patent. The
Director of the Patent & Trademark Office
("Director") granted Ingenio's request, and
issued an ex parte reexamination certificate on
December 30, 2008. Several claims were cancelled, others were
determined to be patentable as amended, and new claims 22-30
in late 2007, non-party AT&T announced its plan to
acquire Ingenio and integrate Ingenio and YellowPages.com,
also owned by AT&T. In January 2008, Ingenio was acquired
by a subsidiary of AT&T Inc. and its name was changed to
Ingenio, LLC (also "Ingenio"). In April 2012,
AT&T sold its interest in YellowPages.com and Ingenio.
subsequently acquired the '836 patent, and, on May 29,
2012, asserted patent infringement claims against multiple
parties in the United States District Court for the Western
District of Texas. Compl., Click-to-Call Techs. LP v.
AT&T, Inc., No. 1:12-cv-00465-LY (W.D. Tex.), ECF
No. 1 (AT&T Action); Compl., Click-to-Call
Techs. LP v. Oracle Corp., No. 1:12-cv-00468-LY (W.D.
Tex.), ECF No. 1 (Oracle Action). Among the
defendants named in the AT&T Action was Ingenio,
which subsequently changed its name to YP Interactive LLC
("YP Interactive"). Both the AT&T
Action and the Oracle Action are currently
28, 2013, Ingenio, together with Oracle Corp., Oracle OTC
Subsidiary LLC, and YellowPages.com LLC (together,
"Petitioners" or "Appellees"),
filed a single IPR petition challenging claims of the
'836 patent on anticipation and obviousness grounds. CTC
filed its Preliminary Response on August 30, 2013,
contending, among other things, that § 315(b)
statutorily barred institution of IPR proceedings, and that
Ingenio lacked standing under 37 C.F.R. § 42.101(b). In
its Preliminary Response, CTC presented evidence that Ingenio
was served with a complaint alleging infringement of the
'836 patent in 2001.
Board held a conference call with counsel for CTC and
Petitioners in September 2013, in part to discuss CTC's
§ 315(b) argument. The Board then issued an order
pursuant to 37 C.F.R. § 42.5 in which it requested
additional briefing addressing the terms of the dismissal of
the Inforocket Action. Both parties submitted
additional briefing in compliance with the Board's
Board issued its Institution Decision on October 30, 2013.
With respect to the § 315(b) issue, the Board
acknowledged that Ingenio was served with a complaint
alleging infringement of the '836 patent on June 8, 2001
and found CTC's timeline of events "helpful in
determining whether Ingenio, LLC is barred from filing an
inter partes review of the '836 patent."
J.A. 287. The Board then recited the language of §
315(b), and stated that the "statute requires that the
service date of the complaint be more than one year before
the petition was filed-in this case more than one year before
May 28, 2013." J.A. 288.
the above, the Board concluded that CTC "has not
established that service of the complaint in the
[Inforocket Action] bars Ingenio, LLC from pursuing
an inter partes review for the '836 patent"
because that infringement suit was "dismissed
voluntarily without prejudice on March 21, 2003, pursuant to
a joint stipulation under Fed.R.Civ.P. 41(a)." J.A.
288-89. The Board wrote that "[t]he Federal Circuit
consistently has interpreted the effect of such dismissals as
leaving the parties as though the action had never been
brought," citing this court's decisions in
Graves v. Principi, 294 F.3d 1350 (Fed. Cir. 2002),
and Bonneville Associates, Ltd. Partner- ship v.
Barram, 165 F.3d 1360 (Fed. Cir. 1999). J.A. 289. The
Board also relied on Wright & Miller's Federal
Practice and Procedure treatise for the proposition that,
"as numerous federal courts have made clear, a voluntary
dismissal without prejudice under Rule 41(a) leaves the
situation as if the action never had been filed." J.A.
289 (quoting 9 Wright, Miller, Kane, and Marcus, Federal
Prac. & Proc. Civ. § 2367 (3d ed.)). The Board
concluded by determining that "the dismissal of the
infringement suit brought by Inforocket against Keen-now
Ingenio, LLC-nullifies the effect of the service of the
complaint and, as a consequence, does not bar Ingenio, LLC or
any of the other Petitioners from pursuing an inter
partes review of the '836 patent." J.A. 289. In
light of this determination, the Board did not address the
following two contingent questions: (1) whether the patent at
issue in the Inforocket Action is the same patent at
issue in the IPR due to amendments made in the interim; and
(2) whether § 315(b)'s time bar should be determined
on a "petitioner-by-petitioner" basis. J.A. 289-90.
requested rehearing of this § 315(b) determination, but
the Board denied its request. CTC filed its Patent Owner
Response on January 16, 2014, addressing the merits of
Petitioners' unpatentability arguments and again
requesting dismissal of the petition because the Board lacked
statutory authority to review the '836 patent under
§ 315(b), and because Petitioners lacked standing under
37 C.F.R. § 42.101(b).
Board issued its Final Written Decision on October 28, 2014,
reaffirming its conclusion that Petitioners were not barred
from filing an IPR petition by stating that, "because
[the Inforocket Action] was dismissed without
prejudice, Federal Circuit precedent interprets such a
dismissal as leaving the parties in the same legal position
as if the underlying complaint had never been served."
Final Written Decision at *7. The Board also
determined that claims 1, 2, 8, 12, 13, 15, 16, 19, 22, 23,
26, 29, and 30 either were anticipated by or would have been
obvious in view of certain prior art references. Id.
at *14. Those merits determinations are not at issue in this
History of this Appeal
filed its Notice of Appeal on November 25, 2014, and briefing
commenced shortly thereafter. In April 2015, the Director
intervened solely to address the § 315(b) time bar
issue. See Intervenor Docketing Statement, No.
15-1242 (Fed. Cir. Apr. 1, 2015), ECF No. 28.
October 12, 2015, counsel for Appellees submitted a Rule
28(j) letter informing the court of our decision in
Achates Reference Publishing, Inc. v. Apple Inc.,
803 F.3d 652 (Fed. Cir. 2015), arguing that Achates
mandates dismissal of the appeal for lack of appellate
jurisdiction. Rule 28(j) Citation of Suppl. Authority, No.
15-1242 (Fed. Cir. Oct. 12, 2015), ECF No. 64. In light of
Achates, this panel subsequently waived oral
argument, and, on November 12, 2015, issued an order
dismissing CTC's appeal for lack of jurisdiction.
Click-to-Call Techs., LP v. Oracle Corp., 622
Fed.Appx. 907 (Fed. Cir. 2015) (per curiam)
petitioned for writ of certiorari, and, on June 27, 2016, the
Supreme Court granted the petition, vacated this court's
judgment in Click-to-Call I, and remanded for
further consideration in light of its opinion in
Cuozzo. Click-to-Call Techs., LP v. Oracle
Corp., No. 15-1014 (June 27, 2016). We directed the
parties to file supplemental briefs and the parties complied
with our directive.
September 21, 2016, counsel for Appellees filed a second
letter regarding supplemental authority, this time informing
the court of our decision in Wi-Fi One, LLC v. Broadcom
Corp., 837 F.3d 1329 (Fed. Cir. 2016). Rule 28(j)
Citation of Suppl. Authority, No. 15-1242 (Fed. Cir. Sept.
21, 2016), ECF No. 83. In this letter, Appellees argued that,
because Wi-Fi One confirmed that Achates
remained good law, CTC's appeal should again be dismissed
for lack of appellate jurisdiction. We agreed with Appellees
that we were bound by our precedents in Wi-Fi One
and Achates, and on November 17, 2016, dismissed
CTC's appeal for a second time. Click-to-Call Techs.,
LP v. Oracle Corp., No. 15-1242, 2016 WL 6803054 (Fed.
Cir. Nov. 17, 2016) (Click-to-Call II).
December 5, 2016, CTC filed a petition for en banc rehearing,
principally arguing that Achates and Wi-Fi
One should be overruled. Pet. for Reh'g En Banc, No.
15-1242 (Fed. Cir. Dec. 5, 2016), ECF No. 91. Less than one
month later, CTC's wish was partially granted when this
court agreed to consider en banc whether it should overrule
Achates and hold that judicial review is available
for a patent owner to challenge the Director's
determination that the petitioner satisfied the timeliness
requirement of 35 U.S.C. § 315(b). Order, Wi-Fi One,
LLC v. Broadcom Corp., Nos. 2015-1944, -1945, -1946
(Fed. Cir. Jan. 4, 2017) (en banc), ECF No. 67. The panel in
this case subsequently held CTC's petition for rehearing
in abeyance pending the outcome of Wi-Fi One.
January 8, 2018, we issued our en banc decision in Wi-Fi
One, expressly overruling Achates and holding
that time-bar determinations under § 315(b) are
appealable. 878 F.3d at 1367. We subsequently granted
CTC's petition for rehearing en banc, which we construed
as a petition for panel rehearing, and authorized
supplemental briefing regarding the merits of the Board's
compliance with § 315(b). Order, No. 15-1242 (Fed. Cir.
Jan. 19, 2018), ECF No. 99. CTC, Petitioners, and the
Director, as Intervenor, all filed supplemental briefs in
February and March of this year.
jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
Section 315(b) and Voluntary Dismissals Without Prejudice
principal question on appeal is whether the Board erred in
interpreting the phrase "served with a complaint
alleging infringement of [a] patent" recited in §
315(b) such that the voluntary dismissal without prejudice of
the civil action in which the complaint was served "does
not trigger" the bar. Final Written Decision,
slip op. at 12. We hold that it did.
review the Board's statutory interpretation pursuant to
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), Auer v.
Robbins, 519 U.S. 452 (1997), and United States v.
Mead Corp., 533 U.S. 218, 229-30 (2001).
Chevron requires that a court reviewing an
agency's construction of a statute it administers first
discern "whether Congress has directly spoken to the
precise question at issue." 467 U.S. at 842. If the
answer is yes, the inquiry ends, and the reviewing court must
give effect to Congress's unambiguous intent.
Id. at 842-43. If the answer is no, the court must
consider "whether the agency's answer [to the
precise question at issue] is based on a permissible
construction of the statute." Id. at 843. The
agency's "interpretation governs in the absence of
unambiguous statutory language to the contrary or
unreasonable resolution of language that is ambiguous."
United States v. Eurodif S.A., 555 U.S. 305, 316
(2009) (citing Mead, 533 U.S. at 229-30).
statute expressly grants an agency rulemaking authority and
does not "unambiguously direct[ ]" the agency to
adopt a particular rule, the agency may "enact rules
that are reasonable in light of the text, nature, and purpose
of the statute." Cuozzo, 136 S.Ct. at 2142
(citing Mead, 533 U.S. at 229, and Chevron,
467 U.S. at 843). When the Director does adopt rules,
"[w]e accept the [Director's] interpretation of
Patent and Trademark Office regulations unless that
interpretation is plainly erroneous or inconsistent with the
regulation." In re Sullivan, 362 F.3d 1324,
1326 (Fed. Cir. 2004) (quoting Eli Lilly Co. v. Bd. of
Regents of the Univ. of Wash., 334 F.3d 1264, 1266 (Fed.
Cir. 2003) (citing Auer, 519 U.S. at 461-62, and
Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945))) (internal quotations omitted).
an agency instead engages in "interpretive," rather
than "formal," rulemaking, a lower level of
deference might apply. See Mead, 533 U.S. at 230-31
(describing notice-and-comment as "significant . . . in
pointing to Chevron authority"); Reno v.
Koray, 515 U.S. 50, 61 (1995) (according "some
deference" to an interpretive rule that "do[es] not
require notice and comment" (citations omitted)). The
Supreme Court has explained that "[t]he fair measure of
deference to an agency administering its own statute has been
understood to vary with circumstances, and courts have looked
to the degree of the agency's care, its consistency,
formality, and relative expertness, and to the persuasiveness
of the agency's position." Mead, 553
U.S. at 228 (footnotes omitted) (citing Skidmore
v. Swift & Co., 323 U.S. 134, 139-40 (1944)).
Chevron Step One
begin our analysis of the Board's interpretation of
§ 315(b) by construing the provision. "As in any
case of statutory construction, our analysis begins with the
language of the statute." Hughes Aircraft Co. v.
Jacobson, 525 U.S. 432, 438 (1999) (internal quotation
marks and citation omitted). "The first step 'is to
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute in
the case.'" Barnhart v. Sigmon Coal Co.,
Inc., 534 U.S. 438, 450 (2002) (quoting Robinson v.
Shell Oil Co., 519 U.S. 337, 340 (1997)). In doing so,
we "must read the words 'in their context and with a
view to their place in the overall statutory
scheme.'" King v. Burwell, ___ U.S. ___,
135 S.Ct. 2480, 2489 (2015) (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
This is because statutory "[a]mbiguity is a creature not
of definitional possibilities but of statutory context."
Brown v. Gardner, 513 U.S. 115, 118 (1994).
Importantly, we may not conclude that a statutory provision
is ambiguous until we conclude that resort to all standard
forms of statutory interpretation are incapable of resolving
any apparent ambiguity which might appear on the face of the
statute. See Chevron, 467 U.S. at 843 n.9. And, in
discerning whether a statute is ambiguous, we must take care
not to weigh competing policy goals, for "[i]t is
Congress's job to enact policy and it is th[e]
[c]ourt's job to follow the policy Congress has
prescribed." SAS Inst., Inc. v. Iancu, 138
S.Ct. 1348, 1358 (2018).
Plain and Unambiguous Language
"[s]tart where the statute does." SAS, 138
S.Ct. at 1355. Section 315(b), titled "Patent
Owner's Action," provides that an IPR "may not
be instituted if the petition requesting the proceeding is
filed more than 1 year after the date on which the
petitioner, real party in interest, or privy of the
petitioner is served with a complaint alleging
infringement of the patent." 35 U.S.C. § 315(b)
(emphasis added). The statute does not contain any exceptions
or exemptions for complaints served in civil actions that are
subsequently dismissed, with or without prejudice. Nor does
it contain any indication that the application of §
315(b) is subject to any subsequent act or ruling. Instead,
the provision unambiguously precludes the Director from
instituting an IPR if the petition seeking institution is
filed more than one year after the petitioner, real party in
interest, or privy of the petitioner "is served with a
complaint" alleging patent infringement. Simply put,
§ 315(b)'s time bar is implicated once a party
receives notice through official delivery of a complaint in a
civil action, irrespective of subsequent events.
"ordinary, contemporary, common meaning[s]" of the
operative terms "served" and "complaint"
support the understanding that it is wholly irrelevant to the
§ 315(b) inquiry whether the civil action in which the
complaint was filed is later voluntarily dismissed without
prejudice. Black's Law Dictionary defines
"serve" as "[t]o make legal delivery of (a
notice or process)" or "[t]o present (a person)
with a notice or process as required by law," and
defines "service" as "[t]he formal delivery of
a writ, summons, or other legal process[.]" Black's
Law Dictionary 1491 (9th ed. 2009). It defines
"complaint" as "[t]he initial pleading that
starts a civil action and states the basis for the
court's jurisdiction, the basis for the plaintiff's
claim, and the demand for relief." Id. at 323.
These definitions confirm that the plain meaning of the
phrase "served with a complaint" is "presented
with a complaint" or "delivered a complaint"
in a manner prescribed by law. Indeed, at least one Board
decision has interpreted the phrase "served with a
complaint" in precisely this manner: "the
legally-charged text 'served with a complaint' is
used ordinarily in connection with the official delivery of a
complaint in a civil action." Amkor Tech., Inc. v.
Tessera, Inc., No. IPR2013-00242, slip op. at 9
(P.T.A.B. Jan. 31, 2014), Paper No. 98.
reading of § 315(b) is confirmed by our en banc decision
in Wi-Fi One, in which we held that the provision
sets forth a "condition precedent to the Director's
authority to act," based on the "timely filing of a
petition." 878 F.3d at 1374. Indeed, we observed that,
"if a petition is not filed within a year after a real
party in interest, or privy of the petitioner is served with
a complaint, it is time-barred by § 315(b), and the
petition cannot be rectified and in no
event can IPR be instituted." Id. at 1374
n.9 (emphases added). This is so because § 315(b)'s
time bar concerns "real-world facts that limit the
agency's authority to act under the IPR scheme,"
reflecting Congress's "balancing [of] various public
interests." Id. at 1374; see id. at
1377 (O'Malley, J., concurring) (explaining that
"§ 315(b) codifies one of the 'important
procedural rights' that Congress chose to afford patent
owners in the IPR context" (quoting Lindahl v.
Office of Pers. Mgmt., 470 U.S. 768, 791 (1985))). It is
impossible to square Wi-Fi One's "cannot be
rectified" and "in no event" language with the
possibility that subsequent events in the civil action might
operate to "nullify" service of the complaint for
the purpose of § 315(b)'s time bar.
adopting the Board's preferred construction of the phrase
"served with a complaint" in § 315(b)
"would impose additional conditions not present in the
statute's text." Return Mail, Inc. v. U.S.
Postal Serv., 868 F.3d 1350, 1363 (Fed. Cir. 2017)
(citing Norfolk Dredging Co. v. United States, 375
F.3d 1106, 1111 (Fed. Cir. 2004), for its holding that courts
must avoid "add[ing] conditions" to the
applicability of a statute that do not appear in the
provision's text). Congress specifically addressed the
effect of a dismissal of an IPR petitioner's district
court action in § 315(a)(2), but did not include any
similar language in § 315(b). Congress also demonstrated
that it knew how to provide an exception to the time bar by
including a second sentence in the provision: "The time
limitation set forth in the preceding sentence shall not
apply to a request for joinder under subsection (c)." 35
U.S.C. § 315(b). Similarly, Congress could have chosen
to include a variation of the phrase "unless the action
in which the complaint was served was later dismissed without
prejudice," but it did not do so. We reject the
Board's effort to graft this additional language into
§ 315(b). Cf. Return Mail, 868 F.3d at 1363
(rejecting appellant's argument, in part, because
"Congress could have easily specified the phrase
'sued for infringement' to require being sued for
infringement under 35 U.S.C. § 271 or otherwise excluded
[28 U.S.C.] § 1498 suits from the definition of
'sued for infringement,' but it did not do so").
legislative history of § 315(b) further supports the
understanding that its time bar concerns only the date on
which the complaint was formally served. For example, during
the March 2011 Senate debates, Senator Kyl made clear that,
under the version of § 315(b) then being considered,
"if a party has been sued for infringement and wants to
seek inter partes review, he must do so within 6
months of when he was served with the infringement
complaint." 157 Cong. Rec. S1375 (daily ed. Mar. 8,
2011) (statement of Sen. Kyl) (emphases added). This
unequivocal reference to the date on which an accused
infringer was served suggests that Congress did not
contemplate subsequent events "nullifying" §
315(b)'s time bar.
legislative history also clarifies that Congress chose the
date of service, as opposed to some other event, as the
trigger for § 315(b)'s time bar because service of a
complaint is the seminal notice-conferring event in a
district court action. As the Supreme Court has explained,
"the core function of service is to supply
notice of the pendency of a legal action, in a
manner and at a time that affords the defendant a fair
opportunity to answer the complaint and present defenses and
objections." Henderson v. United States, 517
U.S. 654, 672 (1996) (emphasis added). During the September
2011 Senate debates, Senator Kyl offered the following
justification for extending the previously contemplated
six-month time bar to one year. He observed that companies,
in particular those in the high-technology sector, "are
often sued by [patentees] asserting multiple patents with
large numbers of vague claims, making it difficult to
determine in the first few months of the litigation which
claims will be relevant and how those claims are alleged to
read on the defendant's products." 157 Cong. Rec.
S5429 (daily ed. Sept. 8, 2011) (statement of Sen. Kyl).
Recognizing that "[c]urrent law imposes no deadline on
seeking inter partes reexamination," he reasoned that,
"in light of the present bill's enhanced estoppels,
it is important that the section 315(b) deadline afford
defendants a reasonable opportunity to identify and
understand the patent claims that are relevant to the
litigation." Id. (emphasis added). Congress, in
"balancing various public interests," decided to
use the "real-world fact" of when a petitioner,
real party in interest, or privy of the petitioner was
"served with a complaint" to trigger § 315(b).
Wi-Fi One, 878 F.3d at 1374.
Conclusion Regarding Chevron Step One
a statute's text is Congress's final expression of
its intent, if the text answers the question, that is the end
of the matter." Timex V.I., Inc. v. United
States, 157 F.3d 879, 882 (Fed. Cir. 1998) (citations
omitted); see also Cuozzo, 136 S.Ct. at 2142
("Where a statute is clear, the agency must follow the
statute."). Here, the text of § 315(b) clearly and
unmistakably considers only the date on which the petitioner,
its privy, or a real party in interest was properly served
with a complaint. Because "the statutory language is
unambiguous and 'the statutory scheme is coherent and
consistent, '" our inquiry ceases and we need not
proceed to Chevron's second step.
Barn-hart, 534 U.S. at 450 (quoting
Robinson, 519 U.S. at 340). Simply put, there is no
gap to fill or ambiguity to resolve: "[w]here a
statute's language carries a plain meaning, the duty of
an administrative agency is to follow its commands as
written, not to supplant those commands with others it may
prefer." SAS, 138 S.Ct. at 1355 (citing
Soc. Sec. Bd. v. Nierotko, 327 U.S. 358, 369
Board's Contrary Reasoning Is Unpersuasive
the absence of any facial ambiguity in the phrase
"served with a complaint," the Board concluded that
CTC "has not established that service of the complaint
in the infringement suit brought by Inforocket against Keen
bars Ingenio, LLC from pursuing an inter partes
review for the '836 patent." JA. 288. To support
this conclusion, the Board wrote that the "Federal
Circuit consistently has interpreted the effect of such
dismissals as leaving the parties as though the action had
never been brought," and cited this court's
decisions in Graves, 294 F.3d at 1356, and
Bonneville, 165 F.3d at 1364, and a section of
Wright and Miller's Federal Practice and Procedure
treatise. Id. The Board concluded that,
"[a]ccordingly, the dismissal of the infringement suit
brought by Inforocket against Keen-now Ingenio, LLC-
nullifies the effect of the service of the complaint
and, as a consequence, does not bar Ingenio, LLC or any of
the other Petitioners from pursuing an inter partes
review of the '836 patent." Id. (emphasis
Board misunderstood that the text of § 315(b) is
agnostic as to the "effect" of the service-i.e.,
what events transpired after the defendant was served. The
provision only probes whether the petitioner, real party in
interest, or privy of the petitioner was served with
a complaint alleging patent infringement more than one year
before the IPR ...