Roche Molecular Systems, Inc.v.Illumina, Inc.

Patent Trial and Appeal Board

Oct 30, 2015

10177727 (P.T.A.B. Oct. 30, 2015)

Trials@uspto.gov Paper No. 18
571.272.7822 Entered: October 30, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

ROCHE MOLECULAR SYSTEMS INC.,
Petitioner,

v.

ILLUMINA, INC.,
Patent Owner.
____________

Case IPR2015-01091
Patent 7,955,794 B2
____________

Before LORA M. GREEN, ZHENYU YANG, and TINA E. HULSE,
Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION
Denying Motion for Joinder
and Denying Institution of Inter Partes Review
37 C.F.R. § 42.108; 37 C.F.R. § 42.122(b)

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INTRODUCTION I.
On April 24, 2015, Roche Molecular Systems, Inc. (“Roche,”
“Petitioner”) filed a Petition requesting an inter partes review of claims
1–22 of U.S. Patent No. 7,955,794 B2 (Ex. 1001, “the ’794 patent”). Paper
3 (“Pet.”). Petitioner filed a Motion for Joinder concurrently with the
Petition. Paper 2 (“Mot. Joinder”). Illumina, Inc. (“Illumina,” “Patent
Owner”) filed a Preliminary Response to the Petition (Paper 13, “Prelim.
Resp.”), as well as an Opposition to the Motion for Joinder (Paper 9, “Opp.
Mot. Joinder”). Upon request from the panel, Petitioner filed a Reply to
Patent Owner’s Preliminary Response. Paper 15 (“Reply”).
We have jurisdiction under 35 U.S.C. § 314, which provides that an
inter partes review may not be instituted “unless . . . there is a reasonable
likelihood that the petitioner would prevail with respect to at least 1 of the
claims challenged in the petition.” 35 U.S.C. § 314(a).
The statute grants the Board discretion to deny a petition, even when
the conditions for review may have been met. See id. (stating only that the
Director may not institute review unless certain conditions are met). For the
reasons that follow, in light of the totality of circumstances presented in this
case, we deny the Petition. 35 U.S.C. §§ 314(a), 325(d); see also 35 U.S.C.
§ 316(b) (noting that the rules for inter partes review proceedings shall take
into account the “regulation on the economy, the integrity of the patent
system, the efficient administration of the Office, and the ability of the
Office to timely complete proceedings”), 37 C.F.R. § 42.108(b) (“At any
time prior to institution of inter partes review, the Board may deny some or
all of the grounds for unpatentability.”).
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A. Related Proceedings
Petitioner states that the ’794 patent is the subject of the copending
district court case, Illumina, Inc. v. Ariosa Diagnostics, Inc., Case No. 3:14-
cv-01921 (N. D. Cal.), which has been consolidated with Verinata Health,
Inc. v. Ariosa Diagnostics, Case No. 3:12-cv-05501-SI (N.D. Cal.). Pet. 2.
In addition, this IPR is related to IPR2014-01093, to which Petitioner
is seeking joinder. Specifically, we instituted an inter partes review in
IPR2014-01093 on January 8, 2015, on the ground that claims 1–22 are
anticipated by Fan.
1
Ariosa Diagnostics, Inc. (“Ariosa”) is the nominal
Petitioner in IPR2014-01093, while Roche is the nominal Petitioner in the
instant proceeding. Roche, however, was added as a real party-in-interest in
IPR2014-01093 (IPR2014-01093, Paper 35), and Ariosa was named as a real
party-in-interest in the instant proceeding (Paper 4).
B. The ’794 Patent
The ’794 patent issued on June 7, 2011, with Mun-Jui Richard Shen,
Arnold Oliphant, Scott L. Butler, John E. Stuelpnagel, Mark S. Chee,
Kenneth M. Kuhn, and Jian-Bing Fan as listed co-inventors. Ex. 1001. The
’794 patent provides “a number of methods directed to the multiplexing
amplification and/or genotyping reactions of target sequences to create
amplicons that can subsequently be detected on an array.” Id. at 1:54–57.
Specifically, the ’794 patent discloses “a variety of compositions and
methods directed to multiplexed analysis of nucleic acids.” Id. at 5:32–34.
The ’794 patent states “[a]s used herein, the phrase ‘multiplex’ or
grammatical equivalents refers to the detection, analysis or amplification of

1
Fan et al. (“Fan”), Pub. No. US 2002/0172946 A1, published Nov. 21,
2002 (IPR2014-01093, Ex. 1004).
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more than one target sequence of interest.” Id. at 5:61–64. As taught by the
’794 patent, the methods generally include steps of complexity reduction,
specificity, and amplification. Id. at 5:47–49. The nucleic acid to be
detected, that is, the target sequence, may be DNA or RNA. Id. at 8:9–17.
C. Illustrative Claim
Petitioner challenges claims 1–22 of the ’794 patent. Claim 1, the
only independent claim, is illustrative, and is reproduced below:
1. A multiplex method for determining whether a sample
contains at least 100 different target sequences, comprising:
a. providing a sample which may contain at least 100
different single-stranded target sequences attached to a first
solid support;
b. contacting said target sequences with a probe set
comprising more than 100 different single-stranded probes,
wherein each of said more than 100 different probes
comprises:
i) a first universal priming site, wherein each of said more
than 100 different probes has identical universal priming
sites, and
ii) a target specific domain, such that different double
stranded hybridization complexes are formed, each of the
different hybridization complexes comprising one of said
more than 100 different single-stranded probes and one of
the different single-stranded target sequences from the
sample;
c. removing unhybridized probes;
d) contacting said probes of the hybridization complexes
with a first enzyme and forming different modified probes;
e. contacting said modified probes with:
i) at least a first primer that hybridizes to said universal
priming site;
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ii) NTPs; and
iii) an extension enzyme;
wherein said different modified probes are amplified
and forming different amplicons;
f. immobilizing said different amplicons to a second solid
support, and
g. detecting said different amplicons immobilized to said
second solid support, thereby determining whether the
sample contains at least 100 different target sequences.
D. The Asserted Grounds of Unpatentability
Petitioner challenges the patentability of claims 1–22 of the ’794
patent on the following grounds:
Reference(s) Basis Claim(s) challenged
Shuber
2
§ 102 1–3, 5–8, 14, 15, 17
Shuber § 103 1–3, 5–8
Straus
3
§ 102 1–3, 5–9, 11, 13–15, 17,
21
Shuber and Fodor
4
§ 103 4
Strauss and Fodor § 103 4
Shuber and Backman
5
§ 103 9–11, 13–15, 17
Shuber and Straus § 103 9–11, 13–15, 17

2
Shuber, US 5,834,181, issued Nov. 10, 1998 (Ex. 1003).
3
Straus, Pub. No. US 2002/0086289 A1, published Jul. 4, 2002 (Ex. 1004).
4
Fodor et al. (“Fodor”), US 6,197,506 B1, issued Mar. 6, 2001 (Ex. 1005).
5
Backman et al. (“Backman”), US 5,792,607, issued Aug. 11, 1998
(Ex. 1006).
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Reference(s) Basis Claim(s) challenged
Shuber and Diamandis
6
§ 103 12
Shuber, Backman, and
Diamandis
§ 103 12
Shuber, Straus, and Diamandis § 103 12
Shuber and Walt
7
§ 103 15–18
Straus and Walt § 103 15–18, 21, 22
Shuber, Backman, and Walt § 103 15–18, 21, 22
Shuber, Straus, and Walt § 103 15–18, 21, 22
Shuber and Backman § 103 19 and 20
Straus and Backman § 103 19 and 20
Shuber, Straus, and Backman § 103 19 and 20

MOTION FOR JOINDER II.
An inter partes review may be joined with another inter partes
review, subject to the provisions of 35 U.S.C. § 315(c), which governs
joinder of inter partes review proceedings:
(c) JOINDER.—If the Director institutes an inter partes review,
the Director, in his or her discretion, may join as a party to that
inter partes review any person who properly files a petition
under section 311 that the Director, after receiving a
preliminary response under section 313 or the expiration of the
time for filing such a response, determines warrants the
institution of an inter parties review under section 314.

6
Eleftherios P, Diamandis and Theodore K. Christopoulos (“Diamandis”),
The Biotin—(Strept)Avidin System: Principles and Applications in
Biotechnology, 37 CLIN. CHEM. 625–636 (1991) (Ex. 1008)
7
Walt et al. (“Walt”), US 6,327,410 B1, issued Dec. 4, 2001 (Ex. 1007).
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As the moving party, Petitioner bears the burden of proving that it is
entitled to the requested relief. 37 C.F.R. § 42.20(c). A motion for joinder
should: (1) set forth the reasons joinder is appropriate; (2) identify any new
grounds of unpatentability asserted in the petition; and (3) explain what
impact (if any) joinder would have on the trial schedule for the existing
review. See Kyocera Corp. v. Softview LLC, IPR2013-00004, slip op. at 4
(PTAB April 24, 2013) (Paper 15); Frequently Asked Question (“FAQ”) H5
on the Board’s website at http://www.uspto.gov/ip/boards/bpai/prps.jsp.
The Petition in this proceeding has been accorded a filing date of
April 24, 2015. Paper 5. IPR2014-01093 was instituted on January 8, 2015.
IPR2014-01093, Paper 14. The Petition and Motion for Joinder in the
instant proceeding, therefore, fail to satisfy the joinder requirement of being
filed within one month of our instituting a trial in IPR2014-01093.
37 C.F.R. § 42.122 (“Any request for joinder must be filed . . . no later than
one month after the institution date of any inter partes review for which
joinder is requested.”).
Petitioner contends that the Board should exercise its discretion, and
waive the one month requirement for filing the Motion for Joinder. Mot.
Joinder 1 (citing Sony Corp. of Am. v. Network-1 Sec. Solutions, Inc.,
IPR2013-00495, slip. op. at 4 (PTAB Sept. 16, 2013) (Paper 13) (exercising
discretion to waive the one-month requirement under 37 C.F.R.
§ 42.122(b)). Specifically, Roche argues that it announced its acquisition of
Ariosa on December 2, 2014, which acquisition was not complete until
January 12, 2015. Id. at 1, 4. Thus, Roche argues, it had no input as to the
challenges that were filed in IPR2014-01093, as it had no interest in Ariosa
when the Petition in that IPR was filed. Id. at 1–2.
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Petitioner notes that once it had completed acquisition of Ariosa, it
conducted its own assessment of the validity of the ’794 patent. Id. at 4.
Petitioner states that even though the Petition in the instant proceeding is not
barred under 35 U.S.C. § 315(b), it is seeking joinder in order to avoid the
possibility of estoppel under 35 U.S.C. § 315(e) if a final decision were to be
issued in IPR2014-01093 before the conclusion of the instant proceeding.
Id. at 5.
Specifically, Petitioner contends that joinder is appropriate because:
(1) it obviates the concern that Roche may unjustly face
estoppel based on a final written decision in the Ariosa IPR
despite the fact that Roche had no input on the grounds
presented in that proceeding, (2) the petitions address the same
claims in the ’794 patent, and (3) joinder simplifies the issues
by addressing the validity of the ’794 patent in one proceeding.
Id. at 3. Petitioner notes that it “is willing [to] work with Illumina to arrive
at a mutually agreeable schedule that reduces any prejudice due to delays in
[IPR2014-01093].” Id. at 7–8. Petitioner suggests a schedule that would
allow for completion of IPR2014-01093 within eighteen months, which
would be permitted in the case of joinder. Id. at 8.
Patent Owner opposes joinder. Opp. Mot. Joinder. According to
Patent Owner, trial was instituted in IPR2014-01093 on January 8, 2015, and
on January 20, 2015, Ariosa informed the District Court that Roche is an
entity interested in the outcome of the litigation. Id. at 3 (citing Ex. 2008).
On February 2, 2015, the District Court stayed the pending litigation
pending the outcome of IPR2014-01093. Id. (citing Ex. 2010). Petitioner,
Patent Owner argues, then waited until after it cross-examined Patent
Owner’s experts in IPR2014-01093 to file the Petition in the instant
proceeding on April 24, 2015. Id. at 4.
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Patent Owner asserts further that before Ariosa ever filed its Petition
in IPR2014-01093, Ariosa and Petitioner were already in acquisition
discussions. Id. Specifically, the Petition in IPR2014-01093 was filed on
July 2, 2014, while Petitioner and Ariosa were in discussion as of June 6,
2014. Id. (citing Ex. 2014). Moreover, according to Patent Owner,
Dr. John Stuelpnagel, one of the inventors of the ’794 patent, represented
Ariosa in the acquisition discussions. Id. Roche announced it was acquiring
Ariosa on December 2, 2014, which was before trial was instituted in
IPR2014-01093. Id. (citing Ex. 2016). Petitioner’s acquisition of Ariosa
was completed on January 12, 2015. Id. (citing Paper 2, 4).
Patent Owner argues that IPR2014-01093 is at an advanced stage. Id.
at 3. Thus, Patent Owner argues, joinder would significantly affect the
schedule in IPR2014-01093. Id. at 5. In fact, Patent Owner asserts, the
institution decision in the instant proceeding would be due more than two
months after oral argument was held in IPR2014-01093. Id.
Patent Owner argues further that Petitioner’s Motion for Joinder is
untimely, as it was filed nearly four months after trial was instituted in
IPR2014-01093. Id. Patent Owner asserts that any special circumstances
that would justify waiving the one month time limit for the filing of the
Motion for Joinder were of Petitioner’s own making. Id. at 6.
Mr. Dan Zambrowski, head of Roche Tissue Diagnostics and Roche
Sequencing Unit, “acknowledged that Roche knew about Ariosa’s litigation
with Illumina, stating that Roche ‘went into this agreement with our eyes
wide open.’” Id. at 7 (citing Ex. 2017, 3). In addition, Petitioner completed
its acquisition of Ariosa on January 12, 2015, only four days after trial was
instituted in IPR2014-01093, which would have left Petitioner a month to
prepare and file its petition and motion for joinder. Id. at 7–8. Rather,
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Patent Owner argues, Petitioner waited nearly three and half months before
filing. Id. at 8.
Petitioner responds that the Petition in IPR2014-01093 was filed on
July 2, 2014, which was more than 6 months before its acquisition of Ariosa
was completed. Paper 11, 3. Specifically, Petitioner argues:
Although Roche was aware of Ariosa’s litigation with Illumina,
Roche was not in a position to develop invalidity positions or to
influence the grounds selected in Ariosa’s petition, and indeed,
the Ariosa transaction could have fallen through at any time
before the deal closed on January 12, 2015. Illumina’s view as
to what Roche should have done during the negotiations before
the deal closed, and before Roche and Ariosa had any
substantive relationship, would impose an unworkable burden
on parties engaged in business discussions.
Id. at 3–4.
Joinder is not automatic, but is discretionary based on the particular
circumstances of each proceeding. See Unified Patents, Inc. v. Personalweb
Techs., LLC and Level 3 Commc’ns, LLC, Case IPR2014-00702, slip. op. at
4 (PTAB Jan. 13, 2015) (Paper 12). In the instant proceeding, we agree with
Patent Owner that joinder with IPR2014-01093 would not promote the
efficient resolution of those proceedings.
After carefully considering both Petitioner’s and Patent Owner’s
evidence and argument, we deny Petitioner’s Motion for Joinder. As noted
by Patent Owner, Roche announced the acquisition of Ariosa at least as early
as December 2, 2014. Ex. 2017. And as also noted by Patent Owner, at that
time, Roche was aware that “Ariosa . . . [was] embroiled in a number of
patent infringement lawsuits, including with . . . Illumina[ ] and Illumina’s
Verinata Health business, and Roche will continue to defend the company in
court, Zambrowski said, adding that Roche ‘went into this agreement with
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our eyes wide open.’” Id. Given that Petitioner had announced the
acquisition of Ariosa as early as December 2, 2014, noting that it went into
the agreement to acquire Ariosa with its eyes wide open, Petitioner has not
provided a persuasive reason as to why it waited until April 24, 2015, to file
the instant Petition.
Moreover, Patent Owner has provided evidence that “Roche acquiring
Ariosa was first raised on or around June 6, 2014,” with the “primary people
involved in these discussions were Dr. Ken Song, Dr. John Stuelpnagel [a
listed inventor on the ’794 patent], and Mr. Dan Pickett from Ariosa and Dr.
Dan Zabrowski and Mr. Jonathan Seaton from Roche.” Ex. 2014, 7.
Petitioner has not provided any persuasive reasons as to why one month was
not sufficient time for Roche to file the instant Petition after trial was
instituted in IPR2014-01093, because Roche already was well aware of the
litigation between Ariosa and Illumina from its discussions over acquiring
Ariosa, which began as early as June of 2014. Petitioner could have also
filed its own petition at any time, as there is no standing requirement to file a
petition for inter partes review. See 35 U.S.C. § 311(a) (noting that “a
person who is not the owner of a patent may file with the Office a petition to
institute an inter partes review”); see also Coalition for Affordable Drugs VI,
LLC v. Celgene Corp., IPR2015-01092, slip. op. at 3–4 (PTAB Sept. 25,
2015) (Paper 19) (noting that in contrast to covered business method
reviews, which require a party or privy to have been sued or charged with
infringement of the patent, any person who is not the owner of the patent
may file a petition for inter partes review of a patent).
Petitioner’s reliance on Sony Corp. of America v. Network-1 Security
Solutions, Inc., IPR2013-00495, slip. op. at 4 (PTAB Sept. 16, 2013) (Paper
13), does not convince us otherwise. In that proceeding, the petitioner
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asserted grounds that were identical to those on which the Board had already
instituted trial, and, thus, joinder did not require any change to the trial
schedule and added no burden to the existing parties. Id. at 9. Those
circumstances are not present in the instant case, as Petitioner has presented
eighteen new challenges, none of which are the challenge on which review
was instituted in IPR2014-01093.
INSTITUTION OF INTER PARTES REVIEW III.
The Board has discretion to deny a petition, even when the conditions
for review may have been met. See 35 U.S.C. §§ 314(a), 316(b); 37 C.F.R.
§ 42.108(b). One factor the Board may take into account when exercising
that discretion is whether “the same or substantially the same prior art or
arguments previously were presented to the Office.” 35 U.S.C. § 325(d)
(“[i]n determining whether to institute or order a proceeding” for inter partes
review, “the Director may take into account” that factor, and “reject the
petition” on that basis).
Petitioner seeks inter partes review of claims 1–22 of the ’794 patent
for, what is, essentially, a second time. Pet. 1. Petitioner notes that a
separate petition for inter partes review of the ’794 patent was filed by
Ariosa in IPR2014-01093, but contends that it had no control over the
content of that petition. Id. at 1–2. Although that may be technically true,
both the Petitioner in this case, Roche, and the Petitioner in IPR2014-01093,
Ariosa, are both designated as real parties-in-interest in both proceedings.
And, as discussed above, while Petitioner in the instant proceeding may have
made a calculated business decision to wait to file the instant petition, it
knew as early as June 2014 that it may acquire Ariosa, and it could have
filed its own petition at any time, as there is no standing requirement to file a
petition for inter partes review. Thus, there was no need for Roche to wait
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to file its petition, as there was no bar to the filing of its petition within a
month of institution of trial in IPR2014-01093.
Patent Owner contends that the petition should be denied as it raises
the same or substantially the same arguments presented in the IPR2014-
01093 Petition. Prelim. Resp. 15. Specifically, as to the challenges that rely
on Straus, Patent Owner argues that the Straus reference is “substantively
identical” to the Straus reference relied upon by Ariosa in IPR2014-01093.
Id. at 15–16. According to Patent Owner, the Straus reference relied upon in
the instant proceeding “is the parent application of, and is substantively
identical” to the Straus references cited in IPR2014-01093, arguing that
Petitioner has not provided a meaningful explanation as to the differences
between the two references. Id. at 16–17. As to the reliance on Shuber in
the instant Petition, Patent Owner argues that Petitioner presents no
argument that it was not aware of Shuber when the IPR2014-01093 Petition
was filed. Id. at 18–19.
Patent Owner argues further that Petitioner is using the instant Petition
as a means to remedy the deficiencies of the IPR2014-01093 Petition. Id. at
19–21. In particular, Patent Owner argues that Petitioner waited until after
Patent Owner had filed its Response, and after it had the opportunity to
cross-examine Patent Owner’s experts in IPR2014-01093, before filing the
instant Petition. Id. at 20. According to Patent Owner, “Petitioners have
gained an unfair advantage in the present IPR by delaying until Illumina and
Petitioners’ experts have taken specific positions in the ’093 IPR as part of
the ‘feedback loop’ to remedy the defects of the ’093 IPR.” Id. at 20–21
(citing Travelocity.com L.P. v. Chronos Techs., LLC., CBM2015-00047,
slip. op. at 13 (PTAB June 15, 2015) (Paper 7) (stating that the Board’s
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decisions “are not simply part of a feedback loop by which a petitioner may
perfect its challenges through a subsequent filing.”)).
Petitioner responds that “it is objectively unreasonable to suggest that
Ariosa could have raised the Shuber patent in its Petition [in IPR2014-
01093].” Paper 16, 3. Specifically, Petitioner asserts that the field is
crowded, with over 300 references cited on the face of the ’794 patent,
which did not include a listing of the Shuber patent. Id. Moreover,
Petitioner asserts that Shuber uses unorthodox language, and, thus, “[t]he
fact that three interested participants failed to find the Shuber patent in this
crowded field demonstrates, if anything, it would be unreasonable to suggest
that Ariosa could have raised it in its Petition.” Id. at 3–4.
We approach our discretion to deny a petition on a case-by-case basis.
As explained above, one factor that favors denial of the instant Petition is
that it raises “substantially the same” arguments as the Petition in IPR2014-
01093. 35 U.S.C. § 325(d). We have compared the prior art and arguments
raised in the instant Petition to those raised in the Petition filed in IPR2014-
01093. Based on the information presented, we are persuaded that the
instant Petition raises, at minimum, “substantially the same . . . arguments”
that “previously were presented to the Office” in the Petition filed in
IPR2014-01093. 35 U.S.C. § 325(d). That is one factor, contributing to the
totality of circumstances in this case, that informs our decision to exercise
our discretion to deny the Petition.
On that point, Patent Owner observes that the Straus reference cited
by Petitioner in the instant proceeding is the parent of Straus cited in the
Petition in IPR2014-01093. Petitioner notes that it cited the parent to correct
the failure of the Petition in IPR2014-01093 to demonstrate that the Straus
reference relied upon in that proceeding was prior art. Pet. 18 n.4.
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Petitioner does not explain, however, why the Straus reference cited in the
instant Petition could not have been relied upon in the IPR2014-01093
Petition.
As to Shuber, Petitioner notes that it is prior art under 35 U.S.C.
§ 102(b), and “provides an actual example of detection of more than 100
different target nucleic acids.” Pet. 59. Other than those statements,
Petitioner does not point specifically to differences between the teaching of
Shuber and Fan, on which trial was instituted in IPR2014-01093. Moreover,
although Petitioner explains why Shuber may have been difficult for Ariosa,
Illumina, and the Examiner to locate, that does not obviate the fact that the
instant Petition, is in effect, a second chance for Ariosa to perfect the
Petition it filed in IPR2014-01093. Paper 16, 3–4. In addition, Petitioner,
other than as to the Shuber reference, does not argue that any of the
additionally cited references relied upon by the instant Petition were
unknown or unavailable at the time of filing the Petition in IPR2014-01093.
That fact supports a reasonable inference that those references were known
and available to Ariosa when review was requested the first time. On this
record, interests of fairness, economy, and efficiency tip the balance in favor
of denial.
Another factor that tips the balance in favor of denying institution of
inter partes review is the timing of the filing of the instant Petition. As
noted by Patent Owner, Petitioner had the advantage of the Patent Owner’s
response in IPR2014-01093 (Prelim. Resp. 20), as well the depositions of
Patent Owner’s expert in that proceeding, which were conducted by counsel
for Roche (id. at 8). Essentially, the only reason that Petitioner has provided
for waiting until April of 2015 to file the instant Petition is that it did not
complete its acquisition of Ariosa until January 12, 2015. However, as
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discussed above, Petitioner was aware of the possibility of acquiring Ariosa
as early as June of 2014, and announced its acquisition as early as December
of 2014. Petitioner has not provided any persuasive reason as to why it
could not have filed the Petition earlier, much less why the Petition could
not have been filed within one month of institution of IPR2014-01093.
On this record, we are persuaded that our resources are better spent
addressing matters other than Petitioner’s belated, and essentially, second
attempt to raise a plurality of duplicative grounds against the same patent
claims. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (when deciding
whether to take action in a particular matter, an agency must determine
whether its resources are best spent on one matter or another). Petitioner
provides no persuasive reason why we should institute inter partes review in
light of the above facts. Based on the totality of circumstances before us, we
exercise our discretion and deny institution of inter partes review.
35 U.S.C. §§ 314(a), 316(b), 325(d); 37 C.F.R. § 42.108(b).
IV. ORDER
In consideration of the foregoing, it is hereby
OREDERED that Petitioner’s Motion for Joinder is denied; and
FURTHER ORDERED that the Petition is denied.

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For PETITIONER:

David Cavanaugh
Owen Allen
William Kim
Wilmer Cutler Pickering Hale and Dorr LLP
David.cavanaugh@wilmerhale.com
Owen.allen@wilmerhale.com
William.kim@wilmerhale.com

For PATENT OWNER:

Kerry Taylor
Michael L. Fuller
KNOBBE, MARTENS, OLSON & BEAR, LLP
2KST@knobbe.com
2MLF@knobbe.com