Down to the Wire: POP Finds Petition Payment Timely, PTAB Litigation Blog
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On January 14, 2022, the PTAB issued a precedential opinion granting a request for rehearing of a denial of an IPR petition that had previously found a petition to be time-barred because the wire transfer had not been timely paid. Toshiba America Electronic Components, Inc. v. Momentum Peak Ventures, LLC, Case IPR2021-00330, Paper No. 20 (PTAB Jan. 14, 2022). In the original decision, the panel had denied institution even though the Petitioner had timely paid the petition fee via the Federal Reserve Fedwire System (“Fedwire”) and received a same-day confirmation of receipt of the funds by Treasury NYC, the USPTO’s bank, because the PTAB found that Fedwire’s “settlement date” did not occur until two days later, and thus the USPTO did not receive payment of the petition fee until after the Petitioner’s statutory bar deadline. On rehearing, the PTAB’s Precedential Opinion Panel held that “Fedwire confirmation of payment constitutes sufficient evidence to demonstrate that the required fee “accompan[ies] a petition” as required by 35 U.S.C. § 312(a)(1) and that “payment is received” under 37 C.F.R. § 42.103(b). Thus, the PTAB found that the petition at issue was timely filed.
