Expanded PTAB Panel Holds That 35 U.S.C. § 315(c) Permits Joinder of Petitions, Not Just Parties

The Board granted the petitioner's motion for rehearing an earlier order denying its motion for joinder because the denial was "based on an erroneously narrow interpretation of 35 U.S.C. § 315(c)." "[A]lthough the plain language of the statute mentions joinder of a party,' and does not mention specifically the joinder of issues, the statute states that 'any person who properly files a petition under section 311' may be joined at the Director’s discretion. Filing a petition under § 311 is, therefore, a predicate to joinder. As noted by Petitioner, § 311(a) specifies who can file a petition for inter partes review. Under that section, 'a person who is not the owner of a patent may file with the Office a petition to institute an inter partes review of the patent.' Thus, when 'any person' is read in light of § 311(a), the only person excluded by the language is the owner of the patent at issue. More specifically, the statute does not exclude a person who is already a petitioner in an instituted review proceeding that is the subject of the joinder analysis. The choice of Congress to exclude only Patent Owners is telling. . . . If the legislature meant to exclude joining the same petitioner to an instituted inter partes review, it is unclear why it used the word 'any' in the statute, such that 'any person' who properly files a petition may be joined. Congress could have specified 'any non-party' instead of 'any person.' An interpretation that requires us to read 'any party' as excluding a same petitioner, in essence, reads the word 'any' out of the statute and ignores the statutory language of § 311(a)."

Petition for Inter Partes Review by Target Corporation, IPR2014-00508 (PTAB February 12, 2015, Order) (Green, APJ)