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February 14, 2019

Comments

There is a lot here, but let’s focus for a second on:

“The Federal Circuit's affirmance was written by Judge Lourie joined by Judges Bryson and Wallach and first addressed the issue of standing, wherein all the appellants had joined the IPR more than one year after being sued by Patent Owner under 35 U.S.C. § 319. The panel held that the Board had exercised its discretion to permit joinder (permitted under 35 U.S.C. § 315(c)) and the absence of Petitioner Argentium (which would have lacked standing to bring this appeal for lack of Article III standing) vitiates the remaining Petitioners' capacity to pursue the appeal. (Interestingly, these parties apparently agreed that Argentium would not have had standing to appeal.) The Court agreed with the remaining Petitioners that, once joined under § 319,...”

While there may be no doubt that ONCE JOINED, the court’s logic is firm.

But getting to that point, the court’s logic is indeed shaky.

Reading the pertinent sections, the discretion afforded to the Director has a condition precedent. That condition applies not just to the original Petitioner that may have lacked Article III standing for the dual-fora IPR regime, BUT ALSO applies a condition precedent to the parties for which joinder may apply.

There is clear legal error here.

The condition precedent could NOT have been met by any of the parties so joined, and thus the court had erred in allowing discretion beyond that which the AIA provides.

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