PTO revival rulings are not subject to third party collateral challenge. Here, for example, the decision to revive a PCT national stage entry application for “unintentional” delay was found to be unreviewable by a third party challenger.
Background / Facts: The patent being challenged here by way of petition to the PTO is a national stage entry of a PCT application. The patentee failed to file the required materials to enter the U.S. national stage prior to the statutorily prescribed 30-month date from priority, and consequently the application was initially deemed abandoned. One month later, the patentee filed and the PTO accepted a petition to revive the application, stating that the delay was “unintentional,” using the form provided by the PTO for revival requests. In response to commencement of infringement litigation against it, the third party challenger here petitioned the PTO to “reconsider and withdraw” its revival of the national stage application and to cancel the issued patent.
Issue(s): Whether a third party has the right to challenge, by way of the Administrative Procedure Act (APA), a ruling of the PTO reviving a patent application that had become abandoned by failure to meet a filing schedule established by the Patent Cooperation Treaty and its implementing statute.
Holding(s): No. “We conclude that Congress did not intend to permit judicial review for challenges such as the one brought here. … The Patent Act’s ‘intricate scheme for administrative and judicial review of PTO patentability determinations,’ and ‘the Patent Act’s careful framework for judicial review at the behest of particular persons through particular procedures’ demonstrate that third party challenge of PTO revival rulings under the APA is not legislatively intended.”