`571-272-7822
`
`Paper 27
`Entered: April 1, 2016
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., EVENTBRITE INC., STARWOOD HOTELS & RESORTS
`WORLDWIDE, INC., EXPEDIA, INC., FANDANGO, LLC, HOTELS.COM,
`L.P., HOTEL TONIGHT, INC., HOTWIRE, INC., KAYAK SOFTWARE CORP.,
`OPENTABLE, INC., ORBITZ, LLC, PAPA JOHN’S USA, INC., STUBHUB,
`INC., TICKETMASTER, LLC, LIVE NATION ENTERTAINMENT, INC.,
`TRAVELOCITY.COM LP, WANDERSPOT LLC, AGILYSYS, INC.,
`DOMINO’S PIZZA, INC., DOMINO’S PIZZA, LLC, HILTON RESORTS
`CORPORATION, HILTON WORLDWIDE, INC., HILTON INTERNATIONAL
`CO., MOBO SYSTEMS, INC., PIZZA HUT OF AMERICA, INC., PIZZA HUT,
`INC., and USABLENET, INC.,
`Petitioner,
`
`STARBUCKS CORPORATION,
`Petitioner
`
`v.
`
`AMERANTH, INC.,
`Patent Owner.
`____________
`
`CBM2015-00080 (Patent 6,384,850 B1)1 CBM2015-00082 (Patent 6,871,325 B1)2
`CBM2015-00091 (Patent 6,384,850 B1) CBM2015-00099 (Patent 6,871,325 B1)
`____________
`
`
`Before MEREDITH C. PETRAVICK, RICHARD E. RICE, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`1 CBM2015-00096 has been consolidated with this proceeding.
`2 CBM2015-00097 has been consolidated with this proceeding.
`
`
`
`CBM2015-00080 (Patent 6,384,850 B1) CBM2015-00082 (Patent 6,871,325 B1)
`CBM2015-00091 (Patent 6,384,850 B1) CBM2015-00099 (Patent 6,871,325 B1)
`
`
`PETRAVICK, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`On March 31, 2016, a conference call was held between counsel for
`Petitioner in CBM2015-00080 and CBM2015-00082 (“Apple”),3 counsel for
`Petitioner in CBM2015-00091 and CBM2015-00099 (“Starbucks”), counsel for
`Patent Owner, and Judges Petravick, Rice, and White. Patent Owner requested the
`call to seek authorization to file a motion to strike and a sur-reply in each of the
`proceedings. Patent Owner provided a court reporter to transcribe the conference
`call and indicated it would file the transcript when it became available.
`Patent Owner requested authorization to file motions to strike portions of
`Petitioners’ replies and many of the accompanying exhibits in each of these
`proceedings. According to Patent Owner, arguments in the Petitioners’ replies and
`exhibits are outside the proper scope of a reply. See 37 C.F.R. § 42.23(b) (“A
`reply may only respond to arguments raised in the corresponding . . . patent owner
`response.”). Petitioners denied that their replies and exhibits were of improper
`scope. After considering the parties’ arguments presented during the call, the
`Board denied Patent Owner’s request for authorization to file motions to strike.
`The Board will determine for itself whether arguments in the replies and the
`
`
`3 Counsel for the petitioner in CBM2015-00096 and CBM2015-00097 also was
`present on the conference call.
`
`2
`
`
`
`
`CBM2015-00080 (Patent 6,384,850 B1) CBM2015-00082 (Patent 6,871,325 B1)
`CBM2015-00091 (Patent 6,384,850 B1) CBM2015-00099 (Patent 6,871,325 B1)
`
`exhibits are outside the appropriate scope and, if so, not consider those arguments
`and exhibits.
`Additionally, Patent Owner requested authorization to file a sur-reply in
`each proceeding to address arguments and evidence pertaining to claim
`construction and arguments and evidence pertaining to secondary considerations.
`Upon considering the information presented during the call, the Board authorized
`Patent Owner to file a five page sur-reply, no later than April 7, 2016, in each
`proceeding. The sur-reply is limited to the secondary considerations issue and may
`not be accompanied by any new evidence.
`
`
`ORDER
`
`It is:
`ORDERED that Patent Owner’s request for authorization to file motions to
`strike in each of these proceedings is denied; and
`FURTHER ORDERED that Patent Owner may file a sur-reply, no later than
`April 7, 2016, the sur-reply is limited to five pages addressing the secondary
`considerations issue only.
`
`3
`
`
`
`
`CBM2015-00080 (Patent 6,384,850 B1) CBM2015-00082 (Patent 6,871,325 B1)
`CBM2015-00091 (Patent 6,384,850 B1) CBM2015-00099 (Patent 6,871,325 B1)
`
`
`PETITIONER:
`James M. Heintz
`Robert C. Williams
`Ryan W. Cobb
`ameranthcbmservice@dlapiper.com
`robert.williams@dlapiper.com
`ryan.cobb@dlapiper.com
`
`Bing Ai
`Patrick J. McKeever
`Matthew C. Bernstein
`Yun L. Lu
`perkinsServiceStarbucks-CBM@perkinscoie.com
`ai-ptab@perkinscoie.com
`pmcKeever@perkinscoie.com
`mbernstein@perkinscoie.com
`llu@perkinscoie.com
`
`PATENT OWNER:
`John W. Osborne
`Michael D. Fabiano
`josborne@osborneipl.com
`mdfabiano@fabianolawfirm.com
`
`
`4
`
`
`
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