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Divided PTAB Panel Denies Issue Joinder as a Matter of Law

Target Corp. v. Destination Maternity Corp.

by Donna M. Haynes

Interpreting the statutory provision regarding the one-year time limitation and joinder of parties, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) issued a divided 3-2 expanded panel decision denying petitioner’s petition as barred by the one-year time limitation and denying petitioner’s motion for joinder as a matter of law, finding that 35 U.S.C. § 315(c) permits joinder of parties, but precludes joinder of issues raised by the same party.  Target Corp. v. Destination Maternity Corp., Case No. IPR2014-00508 (PTAB, Sept. 25, 2014) (Fitzpatrick, APJ) (Green, APJ, dissenting). 

The patent owner, Destination Maternity, sued petitioner Target in district court for infringement of its patent.  Within the allotted one-year time limitation, petitioner filed two IPR petitions seeking invalidation of all of the claims of the patent.  The PTAB instituted both IPR petitions on all but one of the challenged claims.

Section 315(b) provides an exception to the time bar, stating that the one-year bar does not apply to a request for joinder under § 315(c), which allows the PTAB to join “any person who properly files a petition” in an instituted IPR.  After the lapse of the time bar, petitioner filed a third IPR petition concurrent with a joinder motion ...

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