Last week the Court of Appeals for the Federal Circuit (CAFC)
issued its decision in Nidec Motor Corp. v. Zhongshan
Broad Ocean Motor Co.
(here) The decision affirmed the USPTO's Patent
Trial & Appeal Board cancellation of certain claims of
Nidec's U.S. patent 7,626,349 (IPR2014-01121 &
IPR2015-00762). In this regard, the opinion was rather
unremarkable. Of particular interest to PTAB critics, however, was
the Court's discussion of the Board's expanded panel
practices in its concurring opinion.
Although conceding it had no impact on the outcome of the case,
the concurrence took issue with the Board's expansion of a
rehearing panel for the stated purpose of reversing the earlier
decision. That is, in order to consistently treat questions
of issue joinder under 35 U.S.C. § 315(c), the PTAB
expanded a panel to include judges that had ruled differently on
the same question of statutory interpretation. As a result, the
expanded panel reversed the earlier decision and
