Issue Joinder Debate Comes Full Circle
As previously discussed, the Patent Trial & Appeal Board’s (PTAB) new Precedential Opinion Panel (POP) has considered its first case in Proppant Express Investments v. Oren Technologies, Case IPR2018-00914 (PTAB Mar. 13, 2019) (Paper 38)
The POP reversed the earlier (divided) panel decision in Proppant Express (which conflicted with the earlier consensus of Target Corp. v. Destination Maternity), holding that 35 U.S.C. § 315(c) permits issue joinder. More specifically, the POP held that 315(c) provides discretion to allow a petitioner to be joined to a proceeding in which it is already a party and provides discretion to allow joinder of new issues into an existing proceeding (here).
That is, we are right back where we started in Target.