As we noted earlier this week, the PTAB denied NetApp’s motion to join its petition for IPR (2013-00319), with EMC Corporation’s earlier IPR (2013-00082). See IPR 2013-00319, No. 18 (P.T.A.B. July 22, 2013). Now, the PTAB has declined to institute IPR 2013-00319 under its “discretion under 35 U.S.C. § 314 and 37 C.F.R. § 42.108(b).” See IPR2013-00319, No. 19 (P.T.A.B. July 25, 2013).

Remember, NetApp’s IPR petition was filed more than one year from service of a complaint, so would be barred under 35 U.S.C. § 315 but for the motion for joinder that accompanied the petition. However, this motion for joinder was subsequently denied by the PTAB. The decision to not institute the IPR does not squarely address the issue of whether in certain circumstances it would be permissible to institute an IPR requested more than one year from the service of a complaint following the denial of a motion for joinder.