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Click-To-Call Technologies, LP v. Ingenio, Inc.

United States Court of Appeals, Federal Circuit

August 16, 2018

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

          Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2013-00312.

          Peter J. Ayers, Law Office of Peter J. Ayers, Austin, TX, for appellant.

          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

          G. Stockwell, Kilpatrick Townsend & Stockton LLP, Atlanta, GA. Appellee YellowPages.com, LLC also represented 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

          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 "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).

         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 Written 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 ("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.

         Shortly 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.

         In 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.[1] Later in 2003, Keen changed its name to Ingenio, Inc. ("Ingenio").

         On 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 were added.

         Meanwhile, 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.

         CTC 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 stayed.

         B. The IPR Proceedings

         On May 28, 2013, Ingenio, together with Oracle Corp., Oracle OTC Subsidiary LLC, and YellowPages.com LLC (together, "Petitioners" or "Appellees"), [2] 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.

         The 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 request.

         The 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.

         Notwithstanding 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.

         CTC 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).

         The 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 appeal.

         C. The History of this Appeal

         CTC 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.

         On 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) (Click-to-Call I).

         CTC 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.

         On 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).

         On 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.

         On 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.

         We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

         II. Discussion

         A. Section 315(b) and Voluntary Dismissals Without Prejudice

         The 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.[3]

         1. Legal Standards

         We 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).

         When a 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).

         Where 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)).

         2. Chevron Step One

         We 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).

         a. Plain and Unambiguous Language

         We "[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.

         The "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.

         This 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.[4]

         Moreover, 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").

         b. Legislative History

         The 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.

         The 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.

         c. Conclusion Regarding Chevron Step One

         "Because 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 (1946)).

         2. The Board's Contrary Reasoning Is Unpersuasive

         Notwithstanding 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 added).

         The 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 ...


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