Non-precedential Decision Faults Long-Standing PTAB Practice

Securing additional IPR discovery at the Patent Trial & Appeal Board is a challenge. This is because, such discovery is not accorded as a matter of right, but in the interests of justice. And, frequently, such requests are speculative attempts to add unnecessary complexity to an otherwise streamlined proceeding.

Often times, the Board simply denies requests to authorize a motion on additional discovery via teleconference. That is, the call to receive authorization to file the motion also functions as a hearing of sorts on the merits of the requested motion.

Earlier this week, the Federal Circuit faulted the Board’s practice of denying motion practice in this manner, holding that parties have a right to file motions.
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Mere Existence of JDG Found to be Enough

It can be an uphill battle to secure additional discovery at the Patent Trial & Appeal Board (PTAB) given the “interests of justice” standard of IPR proceedings. For this reason, Patent Owners seeking discovery on petitioner relationships — to discover unnamed parties in RPI/privity disputes — are frequently turned away absent “smoking gun” evidence of such a relationship.

However, a recent decision of the Board appears to take a far more liberal view of multi-defendant relationships where a Joint Defense Group (JDG) is known to exist.
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