Joinder Denied

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Athrex, Inc. v. Bonutti Skeletal Innovations LLC, IPR2013-00632, Paper 23 (April 16, 2014), petitioner moved to joint IPR2014-00632 with IPR2014-00633 to avoid any estoppel effect if a decision is renedered in one proceeding before the other. The patent owner opposed the motion, arguing that petitioner made a tactical decision to file two petitions, and cannot claim prejudice from the result of its decisions.  The Board denied joinder, finding the harm speculative because the proceedings are synchronized.  The Board further noted that although the cases involve the same patent and claims, the prior art is not identical, and the exhibits for each case are not consistently numbered, so joining the two cases would require renumbering and relabeling some of the exhibits. Finally, the Board noted that the parties can avoid duplication of work common to both cases by agreeing to, e.g., depose each expert witness one time for both cases.


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