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CAFC Holds PTAB Joinder Decisions Reviewable

Back in March, the Windy City panel (Prost, Plager, and O’Malley) originally held that § 315(c) was unambiguous that an existing “party” to a PTAB proceeding cannot be joined as a party.  Thereafter, the SCOTUS considered the scope of the PTAB appeal bar in its Thryv decision, holding that potential violations of § 315(b) were too closely related to the institution determination of the agency to escape § 314(d)’s appeal bar.

Last week, in view of Thryv, the Federal Circuit modified its opinion in Facebook, Inc. v. Windy City Innovations, LLC to make clear that joinder issues were outside of the appeal bar.
Continue Reading CAFC Finds PTAB Joinder Appealable After All

Settlement by Amendment Scenario Thwarted in PTAB Rehearing Reversal

Last March, I explained the strange scenario playing out in ZTE USA Inc., & LG Electronics Inc. v. Cywee Group LTD. (IPR2019-00143).  In ZTE, the original petitioner was joined upon institution by a second petitioner.  As is often the case, the joined petitioners were competitors.  (A joined petitioner takes an understudy role in AIA trial proceedings, absent a settlement between the original petitioner and the patent owner).

Rather than settle, the original petitioner in ZTE decided not to oppose the Patent Owner’s amended claims, or for that matter, even request oral argument.  And, given that the original petitioner was at least still present in the proceeding, the PTAB refused to allow the second petitioner to step in and oppose the amended claims. My previous post pointed out that this was bad policy that could lead to anticompetitive behavior in joinder scenarios.

Last Friday, the PTAB reconsidered its initial decision, and in the wake of Hunting Titan, reversed its earlier decision to allow the amendment opposition of the second petitioner.
Continue Reading PTAB Allows Joined Party to Oppose Amendment in Place of Original Petitioner