On July 8th, in Fitbit, Inc. v. Valencell, Inc., the
Federal Circuit appeared to telegraph that it will vacate its
decision in
Facebook, Inc. v. Windy City Innovations, LLC.
Will the PTAB follow its former precedent if it is
reinstated?
As a reminder, Windy City held that 315(c) was
unambiguous that an existing "party" to a proceeding
cannot be joined as a party. And, despite the precedential decision
of the PTAB, given the clear language of the statute, there was no
reason to even consider the earlier precedent for purposes of
according any Chevron or Skidmore deference.
(then the court volunteered that they wouldn't defer to such
decisions anyway)
In Fitbit (
here), Apple filed an IPR petition challenging claims 1-13 of a
Valencell paten, and the Board instituted review of claims 1, 2,
and 6-13. After institution, Fitbit filed a copycat petition and
moved to join the Apple IPR. The Board granted Fitbit's
petition and motion for joinder.
