`Tel: 571-272-7822
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` Paper 37
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` Entered: August 29, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`CALLIDUS SOFTWARE INC.
`Petitioner
`
`v.
`
`VERSATA SOFTWARE, INC. and
`VERSATA DEVELOPMENT GROUP, INC.
`Patent Owner
`____________
`
`Cases CBM2013-00052 (Patent 7,904,326 B2)
`CBM2013-00053 (Patent 7,958,024 B2)
`CBM2013-00054 (Patent 7,908,304 B2)1
`
`
`
`Before HOWARD B. BLANKENSHIP, SALLY C. MEDLEY, and
`KEVIN F. TURNER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5
`
`
`1 This order addresses an issue that is identical in all three cases. Therefore, we
`exercise discretion to issue one order to be filed in each of the three cases. The
`parties, however, are not authorized to use this style heading in subsequent papers
`since doing so may cause confusion.
`
`
`
`CASES CBM2013-00052, 00053, 00054
`Patents 7,904,326; 7,958,024; 7,908,304
`
`
`
`On August 28, 2014, a conference call was held involving counsel for the
`
`parties and Judges Blankenship, Medley, and Turner. Patent Owner requested the
`
`conference call to discuss the late filing of Petitioner’s reply and Exhibit 1026 in
`
`CBM2013-00053, and Petitioner’s late service of certain papers that were filed in
`
`each of the three proceedings.
`
`
`
`According to counsel for Petitioner, Petitioner ran short of time when it filed
`
`its papers in the three proceedings, resulting in the late filing of the reply, a
`
`corrected reply, and Exhibit 1026 in CBM2013-00053. Petitioner did not contact
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`the Board to receive authorization to file the documents late, nor did Petitioner
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`contact the Board to receive authorization to file a corrected reply. Patent Owner
`
`requests the Board to sua sponte expunge the reply, the corrected reply, and
`
`Exhibit 1026. Alternatively, Patent Owner seeks authorization to file a motion to
`
`expunge those late–filed documents.
`
`A late action will be excused on a showing of good cause or upon a Board
`
`decision that consideration on the merits would be in the interests of justice. 37
`
`C.F.R. § 42.5(c)(3). Petitioner should have alerted the Board to the late filing and
`
`should have sought prior authorization to file a corrected version of its reply.
`
`Nonetheless, upon weighing the prejudice to Patent Owner of the one day late
`
`filing versus the prejudice to Petitioner if we do not consider, on the merits, the
`
`corrected reply2 and Exhibit 1026 filed in CBM2013-00053, we determine that it is
`
`in the interests of justice to consider the late–filed documents.
`
`
`2 The original reply (Paper 31) in CBM2013-00053 will be expunged from the
`
` 2
`
`
`
`
`
`CASES CBM2013-00052, 00053, 00054
`Patents 7,904,326; 7,958,024; 7,908,304
`
`
`
`
`According to counsel for Petitioner, the parties had agreed, some time ago,
`
`to serve electronically using electronic mail. Although Petitioner filed its papers
`
`and evidence in the three proceedings on August 22nd and 23rd, Petitioner served,
`
`through electronic mail, the replies and evidence on August 26, 2014. As
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`discussed, the date from which any objection to evidence submitted in connection
`
`with the replies is five days from August 26, 2014. 37 C.F.R. § 42.64(b)(1).
`
`In consideration of the foregoing, it is hereby:
`
`ORDERED that Patent Owner’s request to file a motion to expunge is
`
`denied;
`
`FURTHER ORDERED that the date from which any objection to the
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`evidence submitted in connection with the replies is five days from August 26,
`
`2014; and
`
`FURTHER ORDERED that Paper 31 (Petitioner’s Reply to Patent Owner’s
`
`Response) be expunged from the record of CBM2013-00053.
`
`
`record.
`
` 3
`
`
`
`
`
`CASES CBM2013-00052, 00053, 00054
`Patents 7,904,326; 7,958,024; 7,908,304
`
`
`
`
`PETITIONER:
`
`Deborah Fishman
`fishmand@dicksteinshapiro.com
`
`
`
`Jeffrey Miller
`millerj@dicksteinshapiro.com
`
`
`
`Michael Tonkinson
`tonkinsonm@dicksteinshapiro.com
`
`
`
`
`PATENT OWNER:
`
`Kent Chambers
`kchambers@tcchlaw.com
`
`
`David O’Brien
`david.obrien.ipr@haynesboone.com
`
`John Russell Emerson
`russell.emerson.ipr@haynesboone.com
`
`Raghav Bajaj
`raghav.bajaj.ipr@haynesboone.com
`
` 4
`
`
`
`
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