Parties considering pooling resources to file a single petition for post-issuance trial should take note of a recent decision by the Patent Trial and Appeal Board. The Board recently advised 35 petitioners identified as real parties-in-interest on a single petition that they must chose a single attorney to represent them as lead counsel, and must speak with one voice before the Board. This decision may influence how defendants accused of infringing a common patent want to think about sharing the expense of filing a single petition for IPR. In Agilysys, Inc. v. Ameranth, Inc., CBM2014-00015, Paper 12 (Feb. 11, 2014) and Agilysys, Inc. v. Ameranth, Inc., CBM2014-00016, Paper 11 (Feb. 11, 2014), the Board explained that “although thirty-five companies are identified in the petition as ‘Petitioners’ and real parties-in-interest, the thirty-five companies collectively constitute only a single party in this proceeding before the Board. Consequently, the designation in the petition of fifteen pairs of lead and backup counsel, one pair of reach of fifteen groupings of the thirty-five companies must speak with a uniform voice, whether in writing or orally in a conference call, hearing, or deposition.”
“37 C.F.R. § 42.2 . . . defines ‘Petitioner’ as a single party by referring to ‘the party filing a petition,’ but also prejudicial to Patent Owner, who potentially would have to respond to thirty-five different, possibly inconsistent, positions on every issue. Nor would the Board’s interests in the speedy and efficient resolution of post-grant proceedings be served by permitting the presentation of inconsistent positions based on the filing of a single petition.” See also Fandango, LLC v. Ameranth, CBM2014-00013, Paper 14 (Feb. 11, 2014).