RPI Status Does Not Require Unilateral Veto: Director Squires Kills a PGR Over an Unnamed Owners

Client Alert

August 2026

By: Greg Cordrey

Background

On August 19, 2026, Director John Squires denied institution of Viance, LLC's post-grant review petition against Koppers Performance Chemicals, Inc.'s Patent 12,370,716 B2, confirming a Notice he had issued on August 6, 2026. The reason: Viance failed to name its majority corporate owner, Venator, as a real party in interest, and that omission could not be cured because correcting it would push the petition's filing date outside the nine-month statutory window for seeking PGR.

Director Squires grounded the decision in the Board's long-standing real-party-in-interest doctrine and his own recent precedent on the issue. See Corning Optical Communications RF, LLC v. PPC Broadband Inc., IPR2014-00440, Paper 68 at 4 (PTAB Aug. 18, 2015) (precedential except for § II.E.1); Tianma Microelectronics Co., Ltd. v. LG Display Co., Ltd., IPR2025-01579, Paper 12 at 8 n.6, 9–10 (Director Mar. 18, 2026) (precedential). Patent Owner Koppers argued that Venator was an unnamed RPI on three grounds: Venator's majority ownership stake, its status as the clear financial beneficiary of the proceeding, and its ability to exercise control over the proceeding.

The Decision

The ownership numbers were fatal. Koppers established that Venator owns 50.001% of Viance, with the remainder held by Lanxess, and that Viance's own mandatory notices acknowledged both companies as joint owners without naming either as an RPI. The Director noted that the Office expects every petitioner to identify any parent, entity, or person owning 10% or more of the petitioner's stock, shares, or membership interests, a threshold Venator's majority stake cleared by a wide margin.

Viance's defense rested on a declaration from its own CFO, Jonathan Moyes, who testified that

it is my understanding and belief that neither Venator nor Lanxess is able to exert unilateral control over Viance and that neither of Venator or Lanxess has the ability to control Viance's operations.

Moyes Decl. ¶ 7. The Director was not persuaded:

RPIs are not limited to entities that are actually funding and controlling the proceeding but include entities that have the ability to control the proceeding. . . . Petitioner argues that its two owners do not have unilateral control of Petitioner. However, unilateral control is not the standard, and control of Petitioner is vested solely in its two owners as members of the Board of Directors.

Because control sat exclusively with Venator and Lanxess as Viance's only two board members, the absence of a unilateral veto right was irrelevant. The capacity to control jointly through board membership was enough.

The timing consequence made the error fatal rather than merely correctable. Koppers argued, and the Director agreed, that adding an RPI now would require a new filing date, and a new filing date would fall outside PGR's nine-month window measured from the patent's grant. The Director relied on his own recent decision denying institution on the identical ground. See Sun Pharm. Indus., Inc. v. Biofrontera, Inc., PGR2026-00021, Paper 12 at 4 (Director May 26, 2026) (denying PGR petition where petitioner did not name all RPIs within the statutory window for filing). There was no mechanism left to fix the petition. The proceeding simply could not go forward.

The Director left Viance one door open. Because PGR and IPR analyze RPI and time-bar issues differently, and because a corrected RPI filed with a new IPR petition is not barred by PGR's nine-month clock, Viance may refile as an IPR naming Venator and Lanxess, and that filing will not be treated as a repeat challenge for discretionary-denial purposes.

Key Takeaways

  • A 50.001% owner with board-level authority is an RPI regardless of what the parties privately understand about day-to-day autonomy.
  • The standard is the ability to control, not the exercise of it. A declaration disclaiming unilateral control does not answer that question.
  • PGR petitioners who misses an RPI after the nine-month window closes has no petition left to amend.
  • Diligence on corporate ownership and governance structure belongs as a threshold issue of a PGR filing.

Viance, LLC v. Koppers Performance Chemicals, Inc., Case No. PGR2026-00023, Paper 32 (PTAB Aug. 19, 2026) (Director Squires).

The author is a patent trial lawyer and member of the Intellectual Property Litigation Group at Stradling Yocca Carlson & Rauth LLP. Stradling represents inventors, patent owners, and technology companies in patent licensing and litigation in U.S. District Courts and before the United States Patent and Trademark Office, including IPRs and EPRs pending before the PTAB. Whether pursuing patent violations or defending infringement claims, we are aggressive and effective advocates for our clients. For more information contact Greg Cordrey at 949-725-4151 or GCordrey@stradlinglaw.com.