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Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd.

United States Court of Appeals, Federal Circuit

August 22, 2017

NIDEC MOTOR CORPORATION, Appellant
v.
ZHONGSHAN BROAD OCEAN MOTOR CO. LTD., BROAD OCEAN MOTOR LLC, BROAD OCEAN TECHNOLOGIES LLC, Appellees JOSEPH MATAL, PERFORMING THE FUNCTIONS AND DUTIES OF THE UNDER SECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DIRECTOR, U.S. PATENT AND TRADEMARK OFFICE, Intervenor

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2014-01121, IPR2015-00762.

          Scott R. Brown, Hovey Williams LLP, Overland Park, KS, argued for appellant. Also represented by Matthew B. Walters; Christopher Michael Holman, University of Missouri-Kansas City School of Law, Kansas City, MO.

          Steven F. Meyer, Locke Lord LLP, New York, NY, argued for appellees. Also represented by JOSEPH Anthony Farco; Charles Baker, Houston, TX.

          Nathan K. Kelley, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA argued for intervenor. Also represented by FRANCES Lynch, Joseph Matal, Scott Weidenfeller.

          David R. Marsh, Arnold & Porter Kaye Scholer LLP, Washington, DC, for amicus curiae Biotechnology Innovation Organization. Also respresented by Sean Michael Callagy, San Francisco, CA.

          Before Dyk, Reyna, and WALLACH, Circuit Judges.

          OPINION

          PER CURIAM.

         Nidec Motor Corporation ("Nidec") appeals a final written decision of the Patent Trial and Appeal Board ("Board") in an inter partes review ("IPR"). The Board determined that claims 1-3, 8, 9, 12, 16, and 19 of U.S. Patent No. 7, 626, 349 (the "'349 Patent") are invalid as anticipated or obvious. We affirm.

         Background

         Appellant Nidec owns the '394 patent, which is directed to low-noise heating, ventilating, and air conditioning ("HVAC") systems. The patented HVAC system includes a permanent magnet electric motor that turns a fan in order to move air through ductwork. As compared to conventional HVAC systems, the invention achieves quieter operation of the motor due to improvements in the motor controller. Specifically, the improved motor controller performs sinewave commutation instead of more conventional square-wave commutation. Commutation refers generally to the repeated sequencing of electrical currents applied to windings within the permanent magnet motor that causes the motor to rotate. Square-wave commutation involves abrupt changes in the voltage applied to a given winding as the sequence progresses, similar to repeatedly flipping a switch between three voltage states: positive, zero, and negative. Sinewave commutation, by contrast, involves more gradual and continuous oscillations in applied voltage, similar to sliding a dimmer switch between those states. As compared to square-wave commutation, sinewave commutation results in less vibration and noise generated from the electric motor.

         Appellees Zhongshan Broad Ocean Motor Co., Ltd.; Broad Ocean Motor LLC; and Broad Ocean Technologies, LLC (collectively, "Broad Ocean") filed an IPR petition challenging claims 1-3, 8, 9, 12, 16, and 19 of the '349 patent (the "challenged claims"). In a revised petition ("First Petition"), Broad Ocean asserted that the challenged claims are invalid as obvious over the combination of U.S. Patent No. 5, 410, 230 ("Bessler") and a published doctoral thesis by Peter Franz Kocybik ("Kocybik"). Broad Ocean also asserted that the challenged claims are invalid as anticipated by Japanese Patent Publication JP 2003-348885 ("Hideji").

         On January 21, 2015, the Board instituted review on the ground of obviousness over Bessler and Kocybik. The Board declined to institute review on the ground of anticipation by Hideji, however, because Broad Ocean had failed to provide an affidavit attesting to the accuracy of the submitted translation of Hideji as required by 37 C.F.R. § 42.63(b).

         About a month later, Broad Ocean filed a second petition for IPR ("Second Petition"), again asserting that the challenged claims are anticipated by Hideji. This time, Broad Ocean included the required affidavit. At the same time, Broad Ocean requested that the Board join the Second Petition with Broad Ocean's already-instituted IPR involving the First Petition pursuant to 35 U.S.C. § 315(c) (allowing for joinder in an IPR at the discretion of the Director of the United States Patent and Trademark Office ("Director")).

         On July 20, 2015, a panel of three Administrative Patent Judges again declined to institute review on the ground that Hideji anticipates. The panel majority determined that Broad Ocean had been served with a complaint alleging infringement of the '349 patent on September 25, 2013-more than one year before Broad Ocean filed the Second Petition-and, therefore, the Second Petition was time barred under 35 U.S.C. § 315(b). The majority further held that the exception to the time bar for requests for joinder under 35 U.S.C. § 315(b), (c), did not apply here because, according to the majority's interpretation, the joinder provision does not permit a party to join issues to a proceeding to which it is already a party.

         Broad Ocean requested a rehearing of the panel's decision, which was granted by an expanded panel of five Administrative Patent Judges. The expanded administrative panel set aside the original panel's decision and concluded that

§ 315(c) permits the joinder of any person who properly files a petition under § 311, including a petitioner who is already a party to the earlier instituted [IPR]. We also conclude that § 315(c) encompasses both party joinder and issue joinder, and, as such, permits joinder of issues, including new grounds of unpatentability, presented in the petition that accompanies the request for joinder.

J.A. 936 (citations omitted). Having determined that the joinder provision is broad enough to permit joinder with respect to the Second Petition, the expanded panel instituted review of the Second Petition and granted Broad Ocean's ...


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