The Federal Circuit decides appeals addressing patent law, government contracts, trade disputes, tax appeals, suits against the federal government, veterans’ benefits, and federal employment cases. Federal Circuitry takes a data-driven look at the Federal Circuit. Our <a href="/statistics" target="_self">Federal Circuit Statistics</a> empirically analyze appeal timing, outcomes, and other quantifiable aspects of the Court.  Our <a href="/trackers/en-banc-tracker" target="_self">En Banc Tracker</a> shows pending and past petitions where the Court has called for a response. Our <a href="/trackers/substantive-orders-tracker" target="_self">Substantive Order Tracker</a> allows you to search for less-discussed and hard-to-find orders that affect practice before the Court. Check back weekly for <a href="/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>.<h2>About Morrison Foerster's Appellate + Supreme Court Practice</h2>Morrison Foerster’s market-leading <a href="https://www.mofo.com/capabilities/appellate-supreme-court.html">Appellate and Supreme Court practice</a> wins appeals with deep strategic thinking, clear writing, and forceful oral advocacy. Our work spans the Supreme Court of the United States, every federal court of appeals, and state appellate courts in California, New York, and elsewhere. And we handle appeals in every area of law—from intellectual property to class actions, arbitration to antitrust, environmental law to ERISA. We are consistently ranked as one of the top appellate and Supreme Court practices in the country by Chambers USA and Legal 500 USA, and our practice has been named to the National Law Journal’s Appellate Hot List multiple times.<h2>About Morrison Foerster's Patent Litigation Practice</h2>We are a global <a href="https://www.mofo.com/capabilities/patent-litigation.html">IP litigation</a> powerhouse, dedicated to fiercely protecting innovation in high-stakes and complex patent litigation matters. While we are skilled at resolving disputes short of trial, some cases do see the inside of a courtroom. When they do, our trial lawyers stand out for their superb knowledge of patent law, experience with judges in high-volume patent venues, facility with explaining cutting-edge technologies to juries, and history defending against patent assertion entities and other habitual plaintiffs. From cross-border matters and multiparty disputes to global litigation management and NPE litigations, we develop novel solutions to protecting and enforcing some of the most prized patents in the world.<h2>About Morrison Foerster</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Brian Matsui co-chairs Morrison Foerster’s Appellate and Supreme Court practice. Brian is a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Brian has a nationwide appellate practice. He has argued many cases in federal and state appellate courts throughout the country, winning appeals involving federal preemption, securities litigation and enforcement, consumer class actions, and intellectual property. He has led appeals in the D.C., Second, Fourth, Fifth, Ninth, Eleventh, and Federal Circuits. His arguments include significant victories in class action appeals and in appeals for leading financial services companies, with multiple victories in the Ninth Circuit, where he clerked. Brian recently has gone five for five when representing appellants, including a precedential victory in the Ninth Circuit in a licensing dispute concerning alleged patent misuse. He also argued and won a D.C. Circuit appeal against the Securities and Exchange Commission (SEC) about the retroactivity of part of the Dodd-Frank Act. As a result of Brian’s win, the SEC had to change its enforcement practices against certain securities industry professionals.Clients frequently turn to Brian for his substantial experience with appeals in the Federal Circuit, praising him as “an invaluable advocate in patent matters” (Chambers USA). Brian has won 13 of his last 14 appeals in that Court. His arguments before the Federal Circuit include winning appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. He has handled appeals in a myriad of industries, including mobile devices, pharmaceuticals, medical devices, semiconductors, and software.Brian also plays a key role on trial teams, advising clients on both critical legal issues and appellate preservation. He recently argued and prevailed against a summary judgment invalidity motion in a case involving Chugai Pharmaceutical Co. Ltd.’s revolutionary antibody recycling technology, which ultimately led to a $775 million settlement on the eve of trial for Chugai.A former law clerk for the United States Supreme Court, Brian has authored many briefs in that Court, including on important constitutional and statutory interpretation issues. He often represents clients’ interests in amicus briefs in significant Supreme Court cases affecting the business community.Leading publications have recognized Brian for his appellate skills. The Legal 500 US recommends him for appellate litigation, and the National Law Journal named Brian a “Minority 40 Under 40.”Brian is an editor of Morrison Foerster’s <a href="https://federalcircuitry.mofo.com/" target="_blank">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Brian also dedicates significant time to pro bono matters. He argued and won two significant appeals—in the Second and Ninth Circuits—obtaining reversals of judgments that had denied private rights of action under the Child Welfare Act in precedential decisions. Brian also led the Morrison Foerster team who co-counseled a successful Eighth Amendment challenge to Florida’s imposition of a “life without the possibility of parole” sentence to a juvenile offender convicted of a non-homicide crime.For years, Brian chaired the ABA’s seven-person Standing Committee for Amicus Curiae Briefs. He served on the American Intellectual Property Law Association’s amicus committee and co-chaired the National Asian Pacific American Bar Association’s amicus committee. Brian served as an appellate lawyer representative for the Ninth Circuit. Brian also serves on the board of directors for the Lawyers’ Committee for Civil Rights Under Law.Before entering private practice, Brian clerked on the United States Supreme Court for Justice Anthony M. Kennedy. He also clerked for Judge Pamela Ann Rymer in the Ninth Circuit and Judge David F. Levi in the Eastern District of California.While in law school, Brian served as managing editor of Volume 51 of the Stanford Law Review and was elected to the Order of the Coif.<h4>Representative Oral Arguments</h4><ul><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1260_02102023.mp3" target="_blank">SNIPR Technologies Ltd. v. Rockefeller University </a>(Fed. Cir.) Prevailed in a precedential decision reversing the Patent Office’s interpretation of the America Invents Act (AIA) that subjected patents post-dating the Act to pre-AIA interference proceedings. The decision revived five of SNIPR’s patents related to CRISPR technology.</li><li><a href="/resources/video-audio/220114-broadcom-corporation-v-renesas-matsui" target="_blank">Renesas Electronics Corporation v. Broadcom Corporation</a> (12:40) (Fed. Cir.) Successfully argued and briefed multiple appeals from an International Trade Commission (ITC) decision and several Patent Trial and Appeal Board decisions related to an ITC investigation initiated by Broadcom involving systems-on-chip powering automobile infotainment systems.</li><li><a href="/resources/video-audio/210706-cr-bard-v-medline-industries" target="_self">C.R. Bard Inc. v. Medline Industries, Inc.</a> (0:45) (Fed. Cir.) Won vacatur of three Patent Trial and Appeal Board decisions on obviousness.</li><li><a href="https://oralarguments.cafc.uscourts.gov/default.aspx?fl=21-1745_03102022.mp3" target="_blank">Advanced Voice Recognition Systems, Inc. v. Apple Inc.</a> (14:30) (Fed. Cir.) Secured a complete victory in appeal from Patent Trial and Appeal Board that all challenged patent claims were unpatentable.</li><li><a href="/resources/video-audio/200515-william-paulus-v-ocera-therapeutics-inc.html" target="_self">William Paulus v. Ocera Therapeutics, Inc.</a> (13:25) (9th Cir.) Successfully argued and briefed appeal in a putative shareholder class action involving a tender offer.</li><li><a href="/resources/video-audio/200410-kurtz-v-costco.html" target="_blank">Kurtz v. Costco Wholesale Corporation </a>(9:23) (2d Cir.) Successfully petitioned for review of a class certification decision, then argued and obtained a remand for the district court to reconsider its certification decision and an eventual reversal on an injunctive class certification decision.</li><li><a href="/resources/video-audio/161117-gregory-bartko-v-sec.html" target="_self">Gregory Bartko v. SEC</a> (0:53) (D.C. Cir.) Successfully argued and obtained precedential ruling that the Securities and Exchange Commission could not retroactively apply Dodd-Frank’s industry-wide sanctions on securities professionals for certain securities violations.</li></ul>

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Partner

Brian Matsui is a partner in Morrison Foerster’s Appellate and Supreme Court practice. For nearly 20 years, Brian has been a go-to appellate advocate for sophisticated clients in complex appeals nationwide. Clients turn to Brian for his substantial experience in patent appeals in the Federal Circuit. He has argued more than 10 times in that Court, winning appeals from both district courts and the Patent Trial and Appeal Board. Brian excels at applying significant legal principles to complex technologies in a way that distills them for the Court. He has done so for companies in a myriad of industries, including mobile device manufacturers, pharmaceutical companies, medical device companies, memory manufacturers, movie studios, and software companies.

Brian Matsui

Seth Lloyd, a member of Morrison Foerster’s Appellate and Supreme Court practice, has been counsel in more than a hundred appeals in federal and state courts nationwide. Seth has presented oral arguments in the U.S. Courts of Appeals for the D.C. Circuit, the Seventh Circuit, the Ninth Circuit, and the Federal Circuit, as well as in the New Jersey Appellate Division.Seth has particular experience in patent appeals before the Federal Circuit. He has authored successful briefs for both patentees and defendants on a wide range of technologies, from medical devices to pharmaceuticals to computer hardware and software. His practice includes appeals from district courts, the Patent Trial and Appeal Board, and the International Trade Commission. Seth also has argued five times in the Federal Circuit. His winning arguments include a successful reversal of three PTAB decisions in a consolidated appeal for a computer memory designer. Seth is co-chair of the Federal Circuit Bar Association’s Administrative Law & Regulatory Committee. And he is an Editor of Morrison Foerster’s <a href="https://federalcircuitry.mofo.com/" target="_blank">Federal Circuitry</a> blog, which takes a data-driven approach to analyzing the Federal Circuit and its decisions.Seth regularly practices in the United States Supreme Court. He has drafted petitions and amicus briefs at the certiorari stage, as well as party and amicus briefs at the merits stage. Seth also moots members of the bar for Supreme Court arguments through the Georgetown Supreme Court Institute and is a member of the Edward Coke Appellate Inn of Court.Seth’s clients and peers recognize his expertise. Legal 500 named Seth a Key Lawyer; Super Lawyers called him a Rising Star; and Best Lawyers in America added him to its Ones to Watch list, all for appellate practice. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School, where he worked on two successful certiorari petitions and one successful merits case through Stanford’s Supreme Court Litigation Clinic.Seth also holds a Ph.D. and M.S. in electrical engineering from Stanford University. During his graduate studies, he received the National Defense Science and Engineering Graduate Fellowship, published 10 peer-reviewed articles, and co-invented the subject matter of five U.S. patents.<h4>Appellate Arguments</h4><ul><li><a href="/resources/video-audio/220114-renesas-electronics-v-broadcom-corporation" target="_self">Renesas Electronics Corp. v. Broadcom Corp.</a> (00:10) (Fed. Cir.) Argued and won affirmance for inter partes review petitioner in challenge to electronic device claims</li><li><a href="/resources/video-audio/170609-netlist-inc-v-diablo-technologies" target="_self">Netlist, Inc. v. Diablo Technologies, Inc.</a> (02:56) (Fed. Cir.) Argued and won reversal for owner of computer memory patents in appeals from three consolidated inter partes reviews</li><li><a href="/resources/video-audio/200610-google-llc-v-netlist-inc" target="_self">Google LLC v. Netlist, Inc.</a> (13:15) (Fed. Cir.) Argued and won affirmance for owner of computer memory patents in consolidated appeals from decade-long reexamination</li><li><a href="/resources/video-audio/220309-apple-inc-v-mph-technologies" target="_self">Apple Inc. v. MPH Technologies Oy</a> (00:16) (Fed. Cir.) Argued for inter partes review petitioner in challenge to computer security claims</li><li><a href="/resources/video-audio/180808-netlist-inc-v-sandisk-llc" target="_self">Netlist, Inc. v. SanDisk LLC</a> (01:53) (Fed. Cir.) Argued for patent owner in consolidated appeals raising APA challenges to inter partes review decisions</li><li><a href="/resources/video-audio/201026-nicole-k-v-stigdon" target="_self">Nicole K. v. Stigdon</a> (00:16) (7th Cir.) Argued for children in Indiana foster care raising constitutional due process claims</li><li><a href="/resources/video-audio/200306-strike-3-holdings" target="_self">Strike 3 Holdings, LLC v. Doe</a> (21:40) (D.C. Cir.) Argued as court-appointed amicus defending an order refusing a subpoena to unmask an internet subscriber’s identity</li><li><a href="/resources/video-audio/161118-harris-v-mangum" target="_self">Harris v. Mangum</a> (00:02) (9th Cir.) Argued as court-appointed amicus defending indigent prisoner’s right to a guardian ad litem</li></ul><h4>Additional Representative Matters</h4><ul><li>SNIPR Technologies Ltd. v. Rockefeller University (Fed. Cir.) Revived five SNIPR patents related to CRISPR technology after prevailing in a precedential decision that reversed the Patent Office’s interpretation of the America Invents Act (AIA), under which post-AIA patents could be subjected to pre-AIA interference proceedings</li><li>Broadcom Corp. v. International Trade Commission (Fed. Cir.) Successfully defended ITC’s determination of no Section 337 violation in case involving multiple patents directed to system-on-chip technology for automobile infotainment systems</li><li>Chugai Pharmaceutical Co. v. Alexion Pharmaceuticals (D. Del.) Successfully beat back defendant’s push for summary judgment of invalidity for lack of written description on pharmaceutical genus claims, ultimately helping to secure a $775 million settlement for the patent owner</li><li>C.R. Bard Inc. v. AngioDynamics, Inc. (Fed. Cir.) Secured reversal of district court judgment of non-infringement, no willfulness, and invalidity, reviving Bard’s infringement case on three patents</li><li>Washington University v. Wisconsin Alumni Research Foundation (3d Cir.) Successfully defended trial victory for breach of patent licensing agreement and further won judgment entitling Washington University to prejudgment interest</li><li>Nevro Corp. v. Boston Scientific Corp. (Fed. Cir.) Secured reversal for Nevro of district court judgment of invalidity for indefiniteness</li><li>Federal National Mortgage Association v. Zabriskie (9th Cir.) Won reversal for Fannie Mae of a Fair Credit Reporting Act judgment</li><li>Henson v. Santander Consumer USA Inc. (S. Ct.) Represented U.S. Chamber of Commerce and others as amici supporting respondent in unanimous affirmance of Fair Debt Collection Act decision</li><li>BASF Corp. v. Johnson Matthey Inc. (Fed. Cir.) Won reversal of an invalidity ruling against patentee BASF, reviving its patent claims</li><li>C.R. Bard Inc. v. Medline Industries, Inc. (Fed. Cir.) Won vacatur for petitioner of three Patent Trial and Appeal Board decisions on obviousness for patents to medical device technology</li><li>Altayyar v. Etsy, Inc. (2d Cir.) Secured dismissal of securities fraud case for failure to adequately plead falsity</li><li>Bridge & Post, Inc. v. Verizon Communications, Inc. (Fed. Cir.) Secured dismissal because asserted patents claimed unpatentable subject matter</li><li>Sam Francis Foundation v. Christie’s, Inc. (S. Ct.) Successfully preserved Sotheby’s en banc win at the Ninth Circuit based on the dormant Commerce Clause</li><li>Phigenix, Inc. v. Genentech, Inc. (Fed. Cir.) Secured total victory of noninfringement for Genentech</li><li>Deason v. Fujifilm Holdings Corp. (New York Appellate Division, First Department) Secured reversal in major shareholder challenge to corporate acquisition</li><li>V.L. v. E.L. (S. Ct.) As counsel for children’s guardian ad litem, secured reversal of Alabama Supreme Court’s refusal to grant full faith and credit to Georgia judgment recognizing lesbian mother as legal parent</li></ul>

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Of Counsel

Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd is an associate in Morrison Foerster’s Appellate and Supreme Court Practice with broad experience briefing and arguing appeals. Seth has particular experience in patent appeals before the Federal Circuit. He has been a primary author of successful briefs on a wide range of technologies, from medical devices to chemistry to computer hardware and software. He also has successfully argued multiple times in that Court, including obtaining reversal of three Patent Trial and Appeal Board decisions in a consolidated appeal for a computer memory designer. Before joining Morrison & Foerster, Seth served as a law clerk for Judge Richard G. Taranto of the Federal Circuit. He earned his J.D. from Stanford Law School and also holds a Ph.D. in electrical engineering from Stanford University.

Seth Lloyd

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Federal Circuitry is a data-driven Federal Circuit blog. Our <a href="https://federalcircuitry.mofo.com/statistics">Federal Circuit Statistics</a> empirically analyze quantifiable aspects of the Court. Our <a href="https://federalcircuitry.mofo.com/trackers/en-banc-tracker">En Banc Tracker</a> highlights pending and past petitions. Our <a href="https://federalcircuitry.mofo.com/trackers/substantive-orders-tracker">Substantive Order Tracker</a> allows you to search less-discussed orders. Check back weekly for <a href="https://federalcircuitry.mofo.com/topics/last-week-in-the-federal-circuit" target="_self">Last Week in the Federal Circuit</a> and monthly for our <a href="https://federalcircuitry.mofo.com/topics/oral-argument-recap" target="_self">Oral Argument Recap</a>. Follow us on Twitter <a href="https://twitter.com/Fed_Circuitry" target="_blank">@Fed_Circuitry</a>.

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Last Week in the Federal Circuit (August 31-September 4): Same-Party Joinder Still Not Thryv-ing

Last Week in the Federal Circuit (August 31-September 4): Same-Party Joinder Still Not Thryv-ing | Federal Circuitry

Last Week in the Federal Circuit (August 31-September 4): Same-Party Joinder Still Not Thryv-ing | Federal Circuit Blog - News & Statistics | Federal Circuitry

Brian R. Matsui

Last week was September Court week, marking the unofficial end of summer for Federal Circuit practitioners. The Court issued a total of 25 decisions, including 8 Rule 36 summary affirmances in cases argued last week, as well as some opinions in September submitted cases and older cases. As you’ll <a target="_blank" href="https://federalcircuitry.mofo.com/topics/Observations-on-Cancelled-Argument-Cases--Appellees-Always-Win-Right--Mostly.html">recall</a>, the Court submitted fewer cases on the briefs this session, which probably led to the higher number of Rule 36s. Below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.Precedential opinions: 6Non-precedential opinions: 11Rule 36: 8 (all in argued cases)Longest pending case from argument: <a target="_blank" href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1400.OPINION.9-4-2020_1647920.pdf">Facebook, Inc. v. Windy City Innovations, LLC</a>, No. 18-1400 (394 days) (opinion modified after petition for rehearing)Shortest pending case from argument (non-Rule 36): <a target="_blank" href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1568.OPINION.9-2-2020_1646627.pdf">Google LLC v. Blackberry Ltd.</a>, No. 19-1568 (30 days)Case of the week: <a target="_blank" href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1400.OPINION.9-4-2020_1647920.pdf">Facebook, Inc. v. Windy City Innovations, LLC</a>, No. 18-1400 (issued Mar. 18, 2020; modified Sept. 4, 2020)Panel: Chief Judge Prost and Judges Plager and O’Malley, with Chief Judge Prost writing the opinion, and all three judges together filing “additional views.”You should read this case if: You have a matter involving an IPR joinder issue.As we mentioned in our <a target="_blank" href="https://federalcircuitry.mofo.com/topics/200904-orders-of-interest-roundup.html">previous post</a>, the Federal Circuit has been responding to the Supreme Court’s recent decision in Thryv, Inc. v. Click-to-Call Technologies, LP. That case held that the Patent Trial and Appeal Board’s determinations about whether an IPR petition is time-barred are not subject to judicial review. In our case of the week, the Federal Circuit modified a pre-Thryv opinion to explain that Thryv did not deprive it of jurisdiction to review the IPR joinder decision it had addressed.A brief statutory overview: 35 U.S.C. § 315(b) provides that an IPR may not be instituted if the petition is filed more than 1 year after the petitioner is served with a complaint alleging infringement of the challenged patent. But it specifies that this time limitation “shall not apply to a request for joinder under subsection (c).” Section 315(c), in turn, provides that after an IPR has been instituted, the Director (or the Board, to whom the Director has delegated authority), “in his or her discretion, may join as a party to that [IPR] any person who properly files a petition . . . that the Director . . . determines warrants the institution of an” IPR. And § 314(d) provides that “[t]he determination by the Director whether to institute an [IPR] under this section shall be final and nonappealable.”Next, a brief recap for readers who missed the earlier iteration of the decision: the plaintiff sued for patent infringement, but before the one-year deadline to file an IPR neared, the plaintiff had not yet specified which claims it was asserting. On the last day of the one-year window, the defendant filed IPR petitions challenging some (but not all) claims of the asserted patents, which the Board instituted. Several months later, the plaintiff identified its asserted claims. The defendant then filed two more IPR petitions challenging additional claims and asked the Board to join those proceedings to the already-instituted IPRs under § 315(c). The Board agreed, citing a precedential Board opinion interpreting § 315(c) to permit same-party joinder, and added the newly challenged claims to the existing proceedings. The Board eventually held some challenged claims unpatentable but upheld other claims. As relevant here, the plaintiff cross-appealed the Board’s joinder decision.The Court began with the “threshold issue” on which the defendant had sought rehearing and the Court had requested supplemental briefing after Thryv: whether it had jurisdiction to review the Board’s joinder decision. Answer: yes. The Court summarized Thryv as holding that decisions “closely related to” the Board’s “decision whether to institute” an IPR are nonappealable under § 314(d), but that decisions about “the manner in which the agency’s review proceeds once instituted” fall outside § 314(d)’s review bar.The Court went on to explain that joinder under § 315(c) requires “two different decisions.” First, the Director must determine whether the joinder applicant’s IPR petition “warrants” institution under § 314. The Court explained that § 314(d) bars review of this first decision, whether for timeliness or for the petitioner’s likelihood of success on the merits. Second, the Director must exercise his discretion to decide whether to “join as a party” the joinder applicant. This determination, the Court reasoned, is a “separate and subsequent decision” to the institution decision; it affects how an already-instituted IPR proceeds rather than the institution of an IPR. Thus, § 314(d) does not bar review of this second decision. Since the cross-appeal challenged whether the Board exceeded its statutory authority in making this latter, reviewable decision, the Court concluded that it had jurisdiction.The rest of the reissued opinion reiterated the Court’s pre-Thryv decision. The Court held that § 315(c) does not authorize joinder of a person to a proceeding in which that person is already a party. It primarily relied on § 315(c)’s text, which permits the Director to “join as a party to [an IPR] any person who” meets certain threshold requirements. The Court reasoned that the phrase “join as a party” could not be read as referring to persons who were already parties to the proceeding.The Court also held that § 315(c) does not permit joinder of new issues, such as new claims or new grounds. The Court noted that § 315(c) by its terms only authorizes joinder of a person “as a party” to an already instituted IPR, and the existing IPR “is governed by its own petition and is confined to the claims and grounds challenged in that petition.” Thus, the Court explained, § 315(c) “does not permit the joined party, by virtue of the joinder decision alone, to bring new issues from a second proceeding into the existing proceeding.” The Court also pointed out that § 315(d) specifically contemplates “consolidation” of two proceedings. It reasoned that “[c]onstruing § 315(c) to permit joinder of proceedings, and all the new issues therein, would render superfluous the reference to consolidation in § 315(d).”Because the Court determined that “the clear and unambiguous language of § 315(c)” compelled these statutory constructions, it concluded that it need not defer to the Board’s contrary interpretation. But in “additional views” following the opinion for the Court, all three panel members explained that they would reach the same result even if the statute were ambiguous. (Such “additional views” joined by all three judges are pretty unusual, though not unheard of; see, e.g., <a target="_blank" href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1559.Opinion.6-14-2019.pdf">this opinion</a> last year from Judges Dyk, Wallach, and Hughes.) They explained that the Board’s interpretation should not receive Chevron deference because the AIA does not expressly delegate authority to either the Director or the Board to undertake statutory interpretation through precedential Board opinions. And they also declined to give the Board’s interpretation Skidmore deference because, in their view, that interpretation was unpersuasive and inconsistent with the statute’s plain text.With the modification to the panel’s decision, the Court denied the defendant’s petition for rehearing en banc. So any further review will have to await the Supreme Court.Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.