February 18, 2015
On February 12, 2015, in Target Corporation v. Destination Maternity Corporation, after granting a rehearing request, a split expanded panel of the Patent Trial and Appeal Board (PTAB) held that a petition for inter partes review (IPR) filed after the one-year deadline specified in 35 U.S.C. 315(b) could be joined with an earlier petition filed by the same party. The PTAB concluded that 35 U.S.C. 315(c), which authorizes “any person” to petition to join a pending IPR proceeding, allows a party to join its own earlier-filed IPR proceeding. The statute provides for joinder at the discretion of the U.S. Patent and Trademark Office Director; in this case, the PTAB concluded that joinder was warranted.
The decision was not designated as precedential and is subject to appeal to the Federal Circuit. If the decision stands, it will raise certain strategic implications for parties who have instituted an IPR proceeding.
Fitch Even attorneys will report on any future developments relating to the joinder issue in a future alert.
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