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ARTICLE · 05 APRIL 2020

PTAB Focuses On IPR Control To Determine RPI

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In three related final written decisions, the PTAB ruled that Bayer Healthcare ("Bayer") was not a real party in interest ("RPI") to IPR petitions filed by NOF Corporation, even though Bayer had a ...

United StatesIntellectual Property
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In three related final written decisions, the PTAB ruled that Bayer Healthcare ("Bayer") was not a real party in interest ("RPI") to IPR petitions filed by NOF Corporation, even though Bayer had a business relationship with NOF and stood to benefit from the IPR proceedings. NOF Corporation v. Nektar Therapeutics, IPR2019-01394, Paper 22 (PTAB Feb. 5, 2020); IPR2019-01397, Paper 24 (PTAB Feb. 10, 2020), IPR2019-01398, Paper 17 (PTAB Feb. 12, 2020).

Nektar Therapeutics had challenged NOF's IPR petitions contending that NOF failed to identify Bayer as an RPI. Nektar contended that the petitions were now time barred under 35 U.S.C. § 315(b) and should be dismissed. Citing the Federal Circuit's precedential Applications in Internet Time ("AIT") decision, Nektar argued that Bayer is an RPI because Bayer "is a clear beneficiary that has a preexisting, established relationship with the petitioner." The PTAB acknowledged that AIT's broad statement of what constitutes an RPI

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