A few weeks ago, I covered a PTAB case that illustrates why the PTO’s proposed rule on who bears the burden on amended claims in IPRs is fatally flawed. In that case, ZTE challenged a CyWee patent and LG joined the ZTE petition. But CyWee filed an amended claim that ZTE wasn’t concerned by. ZTE chose not to oppose this amendment, which makes sense—but it’s also actively refusing to allow LG to step in to oppose the amendment. LG argued that they should be allowed to step in, and that the only reason ZTE was blocking them was because of some type of side arrangement between ZTE and CyWee.
The PTAB panel in the case decided that LG would not be permitted to oppose, claiming the public benefits when a new claim is proposed at the PTAB and no one is permitted to oppose it. They also refused to inquire (or allow LG to inquire) into whether there was a side agreement of the type LG alleged.
LG has now requested rehearing by the Board.