PTAB'S EXPANDEd PANEL OVERTURNS JOINDER DECISION

On Feb. 12, 2015, an expanded panel of the PTAB granted a rehearing request and effectively overturned an earlier panel's decision to deny a joinder motion.  Target Corp. v. Destination Maternity Corp., IPR2014-00508, Paper No. 28 (PTAB Feb. 12, 2015). In March 2014, petitioner Target filed a petition for IPR with a joinder motion to join the petition to one of its instituted IPR trials on the same patent.  The newly filed petition was outside the one-year window for filing IPRs, and therefore the grant of the new petition was contingent on both the substantive merits of the petition and the grant of the joinder motion.  On Sept. 25, 2014, a divided panel denied Target's joinder motion, and the petition itself.  The majority concluded that the joinder provision of Section 315(c) applies to joining petitions filed by other parties and not to joining petitions brought by the same party to avoid the one-year bar date.  Subsequently, Target filed a request for rehearing.  In granting the rehearing request, the majority of an expanded panel concluded that the joinder provision does not forbid a party from joining itself across two petitions and found the phrase "any person" of the statute to be ambiguous. The majority then looked at legislative history and policy considerations to reach the conclusion that a single party may join two proceedings and that the Board's earlier decision based on a narrow interpretation of Section 315(c) was erroneous.