When an Idemnifying Party Can Be Considered a "Real Party in Interest"

When filing an Inter Partes Review (IPR) petition, the petitioner must identify the “real party in interest” to the proceeding. The “real party in interest” is not clearly defined by statute, but the PTAB Trial Guide defines this party as “the petitioner itself, and/or it may be the party or parties at whose behest the petition has been filed.” See 77 Fed. Reg. 48,759 (Aug. 14, 2012). Identifying this party is important because, under 35 U.S.C. §§ 315(e) and 325(e), the real party in interest may be estopped from asserting the same invalidity arguments in corresponding litigation. Also, if the real party in interest is not identified in the original petition, the petition may lose its filing date and a renewed petition may be filed after the one year deadline for filing an IPR petition (i.e., one year after being served with a complaint for patent infringement). 

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