Concerns Raised Regarding PTAB Rules on Joinder and Expanded Panels

In Nidec Motor Co. v. Zhongshan Broad Ocean Motor Co., No. 16-2321 (Fed. Cir. Aug. 22, 2017), the Federal Circuit affirmed the Patent Trial and Appeal Board’s (PTAB’s) decision that claims directed to a low-noise HVAC system were invalid as obvious.  In doing so, Judges Dyk and Wallach issued a concurring opinion calling into question the PTAB’s view that the joinder provision of 35 U.S.C. § 315(c) allows a petitioner to add time-barred new issues to its own timely-filed inter partes review.  The judges also questioned whether the PTAB may properly achieve uniformity in its decisions by expanding its panels, adding judges to the panels in the hope that those judges will tip the balance toward a different result than the original panel.