Court Finds Issue Joinder Inconsistent with AIA Statute

As I predicted back in August, the Federal Circuit has now effectively reversed the PTAB’s first Precedential Opinion Panel (POP) decision in Proppant Express Investments v. Oren Technologies, Case IPR2018-00914 (PTAB Mar. 13, 2019) (Paper 38)  In this decision, the POP held that 35 U.S.C. § 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).

In  Facebook, Inc. v. Windy City Innovations, LLC, the Federal Circuit held that 315(c) was not ambiguous—an existing “party” to a proceeding cannot be joined as a party— and, as such there was no reason to even consider the earlier POP precedent for according any Chevron or Skidmore deference.  However, the Court then went on to explain that even if there were ambiguity, the POP decision would not be accorded deference in accordance with administrative law principles.
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