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Federal Circuit Modifies Facebook IPR Joinder Ruling
On September 4, the United States Court of Appeals for the Federal Circuit modified its March 18, 2020 opinion in Facebook v. Windy City Innovations, LLC, after Facebook's petition for rehearing. See, Facebook v. Windy City Innovations, LLC, No. 2018-1400, 2020 U.S. App. LEXIS 28187 (Fed. Cir. Mar. 18, 2020).
In June 2016, "exactly one year after being served with Windy City's complaint," Facebook petitioned for inter partes review (IPR) of several claims of each of the four asserted patents and the Patent Trial and Appeal Board (PTAB) instituted the proceedings. Critically, when Facebook petitioned for the IPRs, Windy City had not yet identified which claims it was asserting against Facebook in district court. Id. at 2. Facebook later filed additional petitions for IPR of the claims Windy City subsequently identified in the district court litigation. Facebook filed motions for joinder of its newly filed IPRs to the already instituted IPRs.
The §315(b) one-year time bar had already passed, but the Board instituted Facebook's two new IPRs, and granted Facebook's motions for joinder. Ultimately, the Board found some, but not all, of the challenged claims unpatentable as obvious. Windy City cross-appealed to the court the Board's joinder decisions and its decision to allow Facebook to include new claims in the joined proceedings.
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