United States Court of Appeals 

for the Federal Circuit ______________________ 

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

______________________ 

2016-2321

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Nos. IPR2014-

01121, IPR2015-00762.

______________________ 

Decided: August 22, 2017

______________________ 

SCOTT R. BROWN, Hovey Williams LLP, Overland 

Park, KS, argued for appellant. Also represented by 

MATTHEW B. WALTERS; CHRISTOPHER MICHAEL HOLMAN, 
2 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

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 for the court filed PER CURIAM. 

Concurring opinion filed by Circuit Judge DYK, in which

Circuit Judge WALLACH joins.

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 
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 3

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). 
4 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

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 
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 5

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 request to join the proceeding with the earlierinstituted IPR. 

On May 9, 2016, the Board, consisting of the expanded panel, issued a Final Written Decision in the joined 

proceedings. The Board determined that all of the challenged claims are unpatentable under 35 U.S.C. § 103 as 

obvious over Bessler and Kocybik and that all of the 

challenged claims are unpatentable under 35 U.S.C. § 102

as anticipated by Hideji. 

Nidec appealed the Board’s joinder decision as well as 

the Board’s conclusions as to obviousness and anticipation. Broad Ocean responded, and the Director intervened to support the Board’s joinder decision. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

We review the Board’s legal conclusions de novo and 

its factual findings for substantial evidence. In re Affinity 

Labs of Tex., LLC, 856 F.3d 883, 889 (Fed. Cir. 2017). 

I 

Both Broad Ocean and the Director argue that the 

Board properly applied the joinder and time bar statutes 

to allow joinder and institution in this case. Nidec disagrees. We need not resolve this dispute. Nor need we 

address the Director’s and Broad Ocean’s arguments that 

the Board’s joinder determination is non-appealable in 

light of 35 U.S.C. § 314(d)’s bar of judicial review for 

institution decisions or Nidec’s argument that the Board’s 

practice of expanding panels violates due process. For the 
6 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

reasons set forth below, we affirm the Board’s conclusion 

that all of the challenged claims are unpatentable as 

obvious over Bessler and Kocybik. Because there is no 

dispute that Broad Ocean timely filed the First Petition 

(containing the obviousness ground), the issues on appeal 

relating only to the Board’s joinder determination as to 

anticipation ultimately do not affect the outcome of this 

case. Both parties agree that, if we affirm as to obviousness, we need not address Nidec’s argument that various 

procedural aspects of the Board’s joinder decision require 

reversal of its holding concerning anticipation by Hideji. 

See Oral Arg. at 1:28–2:33 (June 8, 2017), available at

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20

16-2321.mp3 (Nidec agreeing that we need not address 

the anticipation ground based on Hideji in any respect if 

we determine that the Board was correct in its obviousness determination under Bessler and Kocybik).

II

Nidec argues that the Board erred in concluding that 

the challenged claims would have been obvious to a 

person of ordinary skill in the art based on the combination of Bessler and Kocybik. Obviousness is a question of 

law based on underlying questions of fact. Belden Inc. v. 

Berk-Tek LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015). 

Nidec submits that claim 1 is representative of the independent claims at issue, and Nidec does not raise 

patentability arguments that are specific to any dependent claims. Claim 1 is reproduced below: 

1. A heating, ventilating and/or air conditioning 

(HVAC) system comprising a system controller, a 

motor controller, an air-moving component, and a 

permanent magnet motor having a stationary assembly, a rotatable assembly in magnetic coupling 

relation to the stationary assembly, and a shaft 

coupled to the air-moving component, wherein the 

motor controller is configured for performing sin-
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 7

ewave commutation, using independent values of 

Q and d axis currents, in response to one or more 

control signals received from the system controller 

to produce continuous phase currents in the permanent magnet motor for driving the air-moving 

component. 

’349 Patent, col. 5 ll. 34–45.

Nidec does not appear to dispute that the claimed elements are described in the prior art. In general, Bessler 

describes an HVAC system that includes a thermostat, a 

motor controller (or microprocessor), and an electronically 

commutated motor that turns a fan (or a “blower ECM 

motor”). See, e.g., J.A. 223, col. 4 ll. 35–68 (thermostat); 

id. col. 5 ll. 45–48 (microprocessor); id. col. 5 l. 23 (blower 

ECM motor). Bessler does not describe the claimed 

sinewave commutation or the use of independent Q and d 

axis currents. However, the Board determined—and 

Nidec does not dispute—that Kocybik describes sinewave 

commutation as well as the use of independent Q and d 

axis currents in electric motors, although Kocybik does 

not mention HVAC systems. And Kocybik does not limit 

the application of such commutation to “high precision 

control tasks,” as Nidec contends. Nidec Reply Br. 7.

The Board determined that “a person of ordinary skill 

in the art would have effected the combination proposed”—“configuring the system of Bessler to perform 

sinewave commutation in the manner described in Kocybik.” J.A. 29. The Board concluded that “the use of 

sinewave commutation and independent Q and d axis 

currents would have provided predictable results to 

address known problems associated with other types of 

motors.” J.A. 29. Nidec asks us to reweigh the evidence 

the Board used to make its determination, which we may 

not do. See In re Warsaw Orthopedic, Inc., 832 F.3d 1327, 

1334 (Fed. Cir. 2016).
8 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

Nidec makes two arguments as to why the Board’s 

conclusion was erroneous. First, Nidec argues that the 

Board wrongly construed the term “HVAC system” in the

claim preambles to be non-limiting. J.A. 21. Whether or 

not Nidec is correct, the result does not change. The 

Board specifically addressed the issue by stating, “[o]ur 

conclusion would be unaffected by a determination that 

the preambles of the claims reciting an HVAC system are 

limiting. Although Kocybik is not directed specifically to 

HVAC systems, Petitioner relies on Bessler for such a 

teaching.” J.A. 34 n.10. There is no dispute that Bessler 

teaches an HVAC system as recited in the claims. Because we need only construe terms “that are in controversy, and only to the extent necessary to resolve the 

controversy,” Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 

200 F.3d 795, 803 (Fed. Cir. 1999), we need not construe 

the claim preambles here where the construction is not 

“material to the [obviousness] dispute,” id. We see no 

error in the Board’s decision in this regard.

Second, Nidec argues that Bessler teaches away from 

the asserted combination. Nidec argues that the purpose 

of Bessler is to reduce the complexity of HVAC systems by 

eliminating the need for a conventional system controller. 

According to Nidec, incorporating sinewave commutation 

into an HVAC system only increases complexity, which is 

contrary to the fundamental goal of Bessler. Thus, Nidec 

urges that a person of ordinary skill in the art would not 

have combined the teachings of Bessler and Kocybik. We 

disagree. 

There is nothing in Bessler that “criticize[s], discredit[s], or otherwise discourage[s]” the use of sinewave 

commutation in HVAC systems. Meiresonne v. Google, 

Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017) (quoting Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. 

Cir. 2013)). As Nidec has conceded, Bessler does not even 

mention sinewave commutation. Oral Arg. at 13:32–

13:47. Instead, Bessler states only that “[i]t is an object of 
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 9

this invention to provide a central [HVAC] system which 

does not require a system controller.” J.A. 222, col. 2 

ll. 3–5. This statement does not teach away from sinewave commutation. 

For support, Nidec points out that each challenged 

claim requires a “system controller” and that Bessler 

teaches away from the use of a system controller that is 

separate from a motor controller and that receives and 

processes system demand signals. But this argument has 

limited relevance to sinewave commutation. In fact, the 

challenged claims make clear that it is the “motor controller” (not the system controller eliminated in Bessler) that 

performs sinewave commutation. See, e.g., ’349 Patent, 

col. 5 ll. 39–41 (claim 1 reciting “wherein the motor controller is configured for performing sinewave commutation”). Nidec does not dispute that Bessler teaches a 

motor controller.1 

And the ’349 Patent specification uses the term “system controller” in a different sense than in Bessler. The 

’349 Patent states that “the system controller . . . may be 

a thermostat.” Id. col. 4 ll. 35–36. There is no dispute 

that Bessler teaches the use of a thermostat in an HVAC 

system as opposed to the eliminated system controller 

1 Nidec argues that a motor controller capable of 

achieving sinewave commutation requires an advanced 

microprocessor, such as a “digital signal processor” (DSP), 

and that Bessler teaches away from the use of such hardware. In fact, however, Bessler does not limit or suggest 

limiting the types of microprocessors that might be used, 

and Kocybik teaches the use of DSPs with permanent 

magnet motors. Kocybik explains that “[m]ass production 

[of DSPs] has [led] to a decrease in prices; leading to a 

whole range of reasonably priced and well-tested devices 

available to implement digital control strategies.” 

J.A. 267.

 
10 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

which receives and processes signals from a thermostat. 

See J.A. 223, col. 4 ll. 31–68 (Bessler describing the functions of a “conventional thermostat” in a preferred embodiment).

However, Nidec argues that Bessler’s thermostat is 

too primitive to qualify as the system controller required 

by the ’349 Patent claims. Specifically, the claimed system controller must be capable of sending “one or more 

control signals” to the claimed motor controller. E.g., ’349 

Patent, col. 5 l. 42 (claim 1); see also id. col. 6 l. 50 (claim 

19 reciting “at least one control signal from a system 

controller”). Nidec points to a portion of the ’349 Patent 

specification that explains, “[s]uch control signals may 

represent, for example, a desired torque or speed of the 

motor 406. Alternatively, the control signals may represent a desired airflow to be produced by the air-moving 

component 410.” Id. col. 3 l. 66–col. 4 l. 2. By contrast, 

Bessler’s thermostat only “generat[es] a two state (on/off) 

signal.” J.A. 223, col. 4 ll. 42–43. Thus, Nidec argues, 

Bessler’s thermostat is incapable of generating the “control signals” required by the claims of the ’349 Patent. 

Nidec too narrowly construes the “control signals” limitation. In an IPR involving an unexpired patent, the 

“broadest reasonable construction” standard governs. 

Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–

45 (2016); 37 C.F.R. § 42.100(b). The ’349 Patent specification explains that “torque,” “speed,” and “airflow” are 

provided only as examples of the types of control signals 

that might be used; it is not an exhaustive list. See ’349 

Patent, col. 3 l. 66–col. 4 l. 2. (“for example, a desired 

torque or speed” and “[a]lternatively, the control signals 

may represent a desired airflow” (emphases added)). 

Moreover, analysis of the dependent claims supports a 

broader construction than that advanced by Nidec. For 

instance, dependent claim 20 provides in relevant part,

“wherein receiving includes receiving at least one control 

signal representing a desired airflow for the blower, a 
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 11

desired torque of the permanent magnet motor, or a 

desired speed of the permanent magnet motor.” Id. col. 6 

ll. 57–60 (emphases added). This limitation confirms that 

the “control signals” limitation recited in the independent 

claims encompasses other signals in addition to “torque,” 

“speed,” and “airflow.” An on/off signal amounts to a 

control signal because a motor controller cannot carry out 

its claimed function of “performing sinewave commutation 

. . . in response to one or more control signals” if it does 

not receive at least an “on” signal from the thermostat. 

’349 Patent, col. 5 ll. 40–42. Indeed, Nidec concedes that 

“Bessler . . . describes . . . a motor controller that is directly responsive to a two-state (on/off) temperature signal 

provided by a thermostat.” Nidec Opening Br. 12.

We conclude that the Bessler thermostat is a “system 

controller” and that the on/off signals it generates are

“control signals” encompassed by the ’349 Patent’s claims. 

The Board did not err in concluding that the challenged 

claims would have been obvious over the combination of 

Bessler and Kocybik.2 

CONCLUSION

In summary, we conclude that the Board correctly determined that challenged claims 1–3, 8, 9, 12, 16, and 19 

of the ’349 Patent are invalid under § 103 as obvious over 

the combination of Bessler and Kocybik. We reach no 

2 Although the Board invalidated dependent claim 

12, it is not clear from Nidec’s briefs whether claim 12 is 

at issue on appeal. See, e.g., Nidec Opening Br. 23 (omitting reference to claim 12); id. at 10–11 (omitting summary of claim 12 and identification of claim 12 as one of 

the claims-at-issue); but see id. at 19, 20, 69, Nidec Reply 

Br. 31 (arguing that the Board erred in invalidating, inter 

alia, claim 12). In any event, both at the Board level and 

on appeal, claim 12 was not separately argued.

 
12 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

conclusion as to the Board’s determinations involving the 

anticipation ground based on Hideji.

AFFIRMED

COSTS

Costs to appellee.
United States Court of Appeals 

for the Federal Circuit ______________________ 

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

______________________ 

2016-2321

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in Nos. IPR2014-

01121, IPR2015-00762.

______________________ 

DYK, Circuit Judge, joined by Circuit Judge WALLACH, 

concurring.

Although we join the per curiam decision in full, we 

write separately to express our concerns as to the United 

States Patent and Trademark Office’s (“PTO”) position on 

joinder and expanded panels since those issues are likely 
2 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

to recur. Although we do not decide the issues here, we 

have serious questions as to the Board’s (and the Director’s) interpretation of the relevant statutes and current 

practices. 

First, the IPR joinder statute provides:

(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 partes review under section 314.

35 U.S.C. § 315(c). Thus, joinder is only permissible if the 

Director determines that a petition “warrants the institution of an inter partes review.” Id.

The IPR time-bar statute provides,

(b) Patent owner’s action.—An inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after

the date on which the petitioner, real party in interest, or privy of the petitioner is served with a 

complaint alleging infringement of the patent. 

The time limitation set forth in the preceding sentence shall not apply to a request for joinder under 

subsection (c). 

35 U.S.C. § 315(b) (emphasis added). Particularly relevant to this appeal is the second sentence, which provides 

an exception to the 1-year time limit for “a request for 

joinder under subsection (c).” Id.

The joinder dispute in this case turns on the relationship between the joinder provision of § 315(c) and the

exception to the time bar in § 315(b). Section 315(b)
NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 3

ordinarily bars a petitioner from proceeding on a petition 

if it is filed more than one year after the petitioner is sued 

for patent infringement. Id. Without the exception to 

that rule described in the second sentence of § 315(b), an 

untimely petition would still be barred even if it raised 

the same issues as those involved in an existing proceeding that had been timely initiated by a different petitioner. But the exception makes clear that the time bar “shall 

not apply to a request for joinder under subsection (c).” 

Thus, the exception to the time bar for “request[s] for 

joinder” was plainly designed to apply where time-barred 

Party A seeks to join an existing IPR timely commenced 

by Party B when this would not introduce any new patentability issues. This is supported by the legislative 

history for the joinder provision, § 315(c). See H.R. Rep. 

No. 112-98, pt. 1, at 76 (2011) (explaining that under 

§ 315(c), “[t]he Director may allow other petitioners to join 

an [IPR]”). 

The issue in this case is whether the time bar provision allows a time-barred petitioner to add new issues, 

rather than simply belatedly joining a proceeding as a 

new party, to an otherwise timely proceeding. Section 

315(c) does not explicitly allow this practice. We think it 

unlikely that Congress intended that petitioners could 

employ the joinder provision to circumvent the time bar 

by adding time-barred issues to an otherwise timely 

proceeding, whether the petitioner seeking to add new 

issues is the same party that brought the timely proceeding, as in this case, or the petitioner is a new party.

Second, we are also concerned about the PTO’s practice of expanding administrative panels to decide requests 

for rehearing in order to “secure and maintain uniformity 

of the Board’s decisions.” Director Br. 27. Here, after a 

three-member panel of administrative judges denied 

petitioner Broad Ocean’s request for joinder, Broad Ocean 

requested rehearing and requested that the rehearing be 

decided by an expanded panel. Subsequently, “[t]he 
4 NIDEC MOTOR CORP. v. ZHONGSHAN BROAD OCEAN MOTOR CO. 

Acting Chief Judge, acting on behalf of the Director,” J.A. 

933 n.1, expanded the panel from three to five members, 

and the reconstituted panel set aside the earlier decision. 

Nidec alleges that the two administrative judges added to the panel were chosen with some expectation that 

they would vote to set aside the earlier panel decision. 

The Director represents that the PTO “is not directing 

individual judges to decide cases in a certain way.” Director Br. 21 (quotation marks omitted). While we recognize 

the importance of achieving uniformity in PTO decisions, 

we question whether the practice of expanding panels 

where the PTO is dissatisfied with a panel’s earlier decision is the appropriate mechanism of achieving the desired uniformity. But, as with the joinder issue, we need 

not resolve this issue here. Nor need we address the 

predicate issue of appealability.