Trial@uspto.gov
`571-272-7822
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` Paper 85
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` Entered: April 1, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`____________
`
`Case CBM2012-00003
`Patent 8,140,358
`____________
`
`
`
`
`Before JAMESON LEE, JONI Y. CHANG, and MICHAEL R. ZECHER,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge
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`DECISION
`Liberty’s Request for Rehearing
`37 C.F.R. § 42.71
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`
`571-272-7822
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` Paper 85
`
`
`
`
` Entered: April 1, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`____________
`
`Case CBM2012-00003
`Patent 8,140,358
`____________
`
`
`
`
`Before JAMESON LEE, JONI Y. CHANG, and MICHAEL R. ZECHER,
`Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge
`
`
`
`
`
`
`
`DECISION
`Liberty’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`Case CBM2012-00003
`Patent 8,140,358
`
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`INTRODUCTION
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`Liberty Mutual Insurance Company (“Liberty”) requests rehearing of the
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`final written decision (Paper 78), holding claims 2-18 of U.S. Patent No. 8,140,358
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`(“the ’358 patent”) unpatentable. Paper 81 (“Req.”). Progressive Casualty
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`Insurance Company (“Progressive”) filed an opposition to Liberty’s request for
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`rehearing. Paper 84 (“Opp.”).1
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`A request for rehearing must be in the form of a motion. 37 C.F.R.
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`§ 42.20(a). The request must identify specifically all matters the party believes the
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`Board misapprehended or overlooked, and the place where each matter was
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`addressed previously. 37 C.F.R. § 42.71(d). For the reasons stated below,
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`Liberty’s request for rehearing is denied.
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`ANALYSIS
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`On March, 28, 2013, we instituted the instant covered business method
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`patent review as to claims 1-20 of the ’358 patent. Paper 15. We also instituted a
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`review in CBM2013-00009 with respect to claims 1-20 of the ’358 patent. Liberty
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`Mutual Insurance Co. v. Progressive Casualty Insurance, Co., CBM2013-00009,
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`Paper 10. In response to the parties’ joint request, we synchronized the trial
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`schedules for both reviews, as they involved the same patent and parties. Papers
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`29-30; CBM2013-00009, Papers 16-17. During the trials, the parties also merged
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`and conducted discovery for both proceedings at the same time (see, e.g., Paper 25,
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`Ex. 2016; CBM2013-00009, Paper 36, Ex. 2029) and conducted conference calls
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`
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`1 We authorized Progressive to file an opposition to Liberty’s request for rehearing.
`Paper 83.
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`2
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`
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`Case CBM2012-00003
`Patent 8,140,358
`
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`with the Board for both proceedings concurrently (see, e.g., Papers 53-54;
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`CBM2013-00009, Papers 37-38). The oral hearings for both reviews were merged
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`and conducted at the same time, and the transcript for the oral hearing was made
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`useable for both reviews. Papers 62, 76; CBM2013-00009, Papers 47, 65. We in
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`effect consolidated the reviews, at the request of the parties, except that papers and
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`exhibits are stored in separate files for case management. See 35 U.S.C. § 325(d).
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`In a prior Order, we stated: “The parties can expect that the final written
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`decision for the two cases will issue on the same date, as that has been the plan
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`according to the formal schedule.” Paper 75, p. 2. The parties did not object to the
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`advance notice to the parties that the final written decisions for the two cases will
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`issue on the same date. Pursuant to 35 U.S.C. § 328(a), the Board issued the final
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`written decision in the instant proceeding and the final written decision for
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`CBM2013-00009 on February 11, 2014, concurrently. Paper 78 at 3 (“A final
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`written decision in CBM2013-00009 is entered concurrently with this decision.”);
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`CBM2013-00009, Paper 68 at 2 (“A final written decision in Case CBM2012-
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`00003 is entered concurrently with this decision.”).
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`In its request for rehearing, Liberty seeks the following relief:
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`In the event that this Board denies Progressive’s rehearing
`request in Case CBM2013-00009, Petitioner respectfully requests that
`the Board deny Petitioner’s rehearing requests concurrently for both
`CBM2012-00003 and CBM2013-00009. In the event that the Board
`grants rehearing in Case CBM2013-00009, Petitioner requests that the
`Board issue a single combined final decision for both CBM2012-
`00003 and CBM2013-00009, effective February 11, 2014.
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`Req. 2.
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`3
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`
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`Case CBM2012-00003
`Patent 8,140,358
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`Liberty filed a similar request for rehearing in CBM2013-00009 (Paper 73).
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`In its opposition filed in the instant proceeding, Progressive counters that Liberty’s
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`request is not a proper rehearing request because “it seeks relief contingent on how
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`the Board will in the future rule on the rehearing request filed by [Progressive] in
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`CBM2013-00009, Paper 71.” Opp. 1 (emphasis omitted); see also Opp. 2-3.
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`We have reviewed Liberty’s request for rehearing, as well as Progressive’s
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`arguments submitted in its opposition. We agree with Progressive that Liberty has
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`not shown that the final written decision misapprehended or overlooked any
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`matter. Liberty’s request that we should issue a single combined final written
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`decision is moot because we deny Progressive’s request for rehearing (see
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`CBM2013-00009, Paper 78). Liberty’s request that we should issue the decisions
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`denying its requests for both proceedings concurrently also is not necessary in light
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`of the previous Order granting the parties’ joint request to synchronize the trial
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`schedules for both proceedings (Papers 29-30; CBM2013-00009, Papers 16-17).
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`Consistent with that Order, we hereby issue the instant decision on Liberty’s
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`request for rehearing and the decision on Liberty’s request for rehearing filed in
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`CBM2013-00009 concurrently.
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`Liberty has not shown that the final written decision misapprehended or
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`CONCLUSION
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`overlooked any matter. See 37 C.F.R. § 42.71(d).
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`Liberty’s request for rehearing is denied.
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`4
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`Case CBM2012-00003
`Patent 8,140,358
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`PETITIONER:
`
`J. Steven Baughman
`James R. Myers
`Nicole M. Jantzi
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`james.myers@ropesgray.com
`nicole.jantzi@ropesgray.com
`
`
`PATENT OWNER:
`
`Calvin P. Griffith
`James L. Wamsley, III
`John V. Biernacki
`JONES DAY
`cpgriffith@jonesday.com
`jlwamsleyiii@jonesday.com
`
`5
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