Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Here's what's cracking today.

• Some takeaways from Monday's Supreme Court decision in Thryv v. Click-to-Call.

• Latham defeats patent attack on wireless heart sensing monitor.

• IBM, Microsoft, HPE and other tech giants pledge their IP to the fight against COVID-19.

Special note to Skilled in the Art readers! My book at ALM is temporarily expanding. Consequently, Skilled in the Art will reduce frequency from twice weekly to once. I'll be on hiatus this Friday. Then beginning next week, you'll receive Skilled in the Art on Fridays only. I'll do my best to make each week's edition must-read IP.

Justices Neil Gorsuch and Ruth Bader Ginsburg.

Five Takeaways From Thryv v. Click-to-Call

The Supreme Court issued Thryv v. Click-to-Call on Monday. The court held that PTAB decisions that are "closely related" to decisions to institute IPRs, including the one-year time bar, are final and non-appealable. This conclusively answered a question that had bedeviled the Federal Circuit (in part because of the vagueness of a previous Supreme Court ruling).

So that's one question answered. Here are five other takeaways from reading the opinion:

>>What happened to fairness and process? Justice Ruth Bader Ginsburg, of all people, grounded her decision in both the statutory language and the "purpose and design" of the America Invents Act. The central goal of the AIA, according to Ginsburg, is "to weed out bad patent claims efficiently." After all, Ginsburg pointed out, patent owners only raise timeliness on appeal if they lose on the merits. If the appeal is successful, "then the agency's work will be undone and the canceled patent claims resurrected."

This is true—just as it's true that if an obviously guilty criminal proves he was deprived of a fair trial, the prosecutor, the judge and a new jury may have to go through the process of holding another trial. This is "totally from the perspective of we need to get rid of bad patents, as opposed to whether this was fair to the owner of the patent," said Womble Bond Dickinson partner Brent Babcock. And fairness and process are also part of the AIA.

>>Justice Neil Gorsuch is the Supreme Court's new patents champion. Question for readers: Who is the last Supreme Court justice you would describe as unabashedly pro-patents? I can't think of any offhand, but Justice Neil Gorsuch seems to gunning for that role. We can say at the very least that he really doesn't care for the Patent Trial and Appeal Board. He dissented from Monday's decision giving the board more power over decisions to institute, and he dissented two years ago in Oil States v. Greene's Energy, arguing that the PTAB represents an unconstitutional encroachment on Article III.

Is he destined to be a lonely voice in the wilderness, or will he occasionally muster majorities as he did in SAS Institute v. Iancu? All I can say is that if the Supreme Court grants cert in the Arthrex appointments clause case, watch out.

>>Congratulations are in order to Adam Charnes. The Kilpatrick Townsend & Stockton partner who represented petitioner Thryv had good case law to rely on from the court's 2016 Cuozzo v. Lee. But Gorsuch had written more recently in SAS Institute that the AIA's bar on appellate review is narrow. The challenge at oral argument was critiquing the SAS language "in a way that wouldn't offend Justice Gorsuch, or any of the other justices," Charnes said. "That was an interesting aspect of it."

Though Charnes joined the team just recently, the Kilpatrick firm has been on an odyssey with Thryv and its predecessors stretching back to the PTAB in 2013. The journey includes a previous trip to the Supreme Court that ended with a grant-vacate-and-remand, and en banc proceedings before the Federal Circuit. "It's good that it's finally over," Charnes said Monday.

>>So what happens now with the Federal Circuit case law on decisions to institute? For the last few years the Federal Circuit has been operating on the assumption that Cuozzo permitted review of time-bar and related issues. The court has built up a body of case law on timeliness, real parties and joinder, among other things. Will the PTAB now pretend as if that law never existed?

The consensus answer Monday was no, at least not immediately. McDonnell Boehnen Hulbert & Berghoff partner Kevin Noonan doesn't think the PTAB is "popping champagne corks" over its new-found power. "The thing that's still cabining them is Oil States, where the court talked about due process issues," Noonan said. "I don't see this as being the Wild West." Ropes & Gray partner Matthew Rizzolo said he wouldn't anticipate any significant changes in the short term. But "you could see it changing when the [PTO] director changes."

>>Facebook looks poised to win its case on joinder. The Federal Circuit ruled last month that the PTAB should not have let Facebook join its own earlier-filed IPR proceedings to get around the one-year time bar. But that decision isn't final yet, and Facebook now argues that the Federal Circuit didn't have jurisdiction to rule, because joinder was "closely related" to the institution decision.

Earlier today, Cooley partner Heidi Keefe submitted a supplemental brief for Facebook citing Thryv. "Applying the jurisdictional bar to institution/joinder determinations avoids (as occurred here) 'unwind[ing] the agency's merits decision,' thereby 'wasting the resources spent resolving patentability and leaving bad patents enforceable,'" Keefe wrote, quoting RBG.

Latham Defends Wireless Heart Sensing Monitor

Latham & Watkins has defused a patent infringement lawsuit aimed at the only FDA-approved wireless heart sensing monitor on the market.

Competitor Integrated Sensing Systems sued Abbott Laboratories last year, accusing the company of infringing an ISS patent on an implantable microfabricated sensor device for measuring blood pressure or blood flow.

ISS alleged that it had had business discussions with Abbott in 2014 and 2015 about the technology, and provided a clinical study showing that St. Jude Medical's CardioMEMS product infringed ISS's 6,926,670 patent.

"Less than six months later, on April 20, 2016, and with full knowledge of ISS's '670 Patent, Abbott Labs announced the acquisition of St. Jude Medical for $25 billion," ISS, represented by Brinks Gilson & Lione, alleged in an April 23, 2019, complaint.

Latham obtained a stay of the proceedings while filing IPR petitions that alleged the claimed sensors were "taught by multiple prior art references not before the examiner and by the admitted prior art." Last Wednesday, ISS requested adverse judgment from the PTAB, which effectively cancels the asserted claims, and dismissed its district court suit without prejudice.

Latham's team was led by partners Mike Morin, Tara Elliott, Giri Pathmanaban, and Jon Strang, with associates Allison Harms, Bradley Hyde, and Blake Davis.

Tech Heavyweights Take the Open COVID Pledge

The Open COVID Pledge is gaining steam and adding flexibility.

On Monday the initiative announced that IBM Corp., Microsoft Corp., Amazon.com Inc., Facebook Inc., Hewlett Packard Enterprise Co. and Sandia National Laboratories have signed on, pledging free use of their intellectual property to fight COVID-19 during the pandemic.

They join a growing list of tech companies and academic institutions that already included Intel Corp., Stanford and University of Utah law schools, and Berkeley and the University of California, San Francisco's Innovative Genomics Institute.

The organizers have been refining the license template too, with three versions now presented. One extends until a year after the World Health Organization declares an end to the COVID-19 pandemic. A second extends until then or January 23, whichever comes first. And a third covers patent rights only and not copyrights.

Open COVID also supports alternative licenses, including one fashioned by Intel.

I have more background on the new signatories here.

I also should note that Harvard, MIT and Stanford have organized a similar framework, which they're calling the COVID-19 Technology Access Framework.

That's all from Skilled in the Art this week. I'll see you all again on Friday, May 1.