In Target Corp. v. Destination Maternity Corp., the Patent Trial and Appeal Board (PTAB) held that joinder under 35 USC 315(c) applies only to different parties and not to petitions filed by the same party.
Under 35 USC 315(b), inter partes review may not be instituted if the petition requesting it is filed more than one year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.
Target had filed a second petition for inter partes review after the one-year window to attack a patent claim that was excluded from the trial order of its first petition. Target requested under 35 USC 315(c) that the Director exercise discretion to join it as "any party" to that first inter partes review.
The PTAB held the petition was too late under 35 U.S.C. § 315(b) and denied joinder stating a petitioner filing a second petition after the one-year window cannot join as "any party" to its first petition because it is already a party.
The PTAB also stated absence from the statute of an express prohibition against joining another petition to an instituted inter partes review does not inform whether the authority to do so has been granted.
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