Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 13
`Entered: November 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`STARBUCKS CORPORATION,
`Petitioner,
`
`v.
`
`AMERANTH, INC.,
`Patent Owner.
`_______________
`
` Case CBM2015-00091 Patent 6,384,850 B11
`Case CBM2015-00099 Patent 6,781,325 B1
`_______________
`
`
`
`Before MEREDITH C. PETRAVICK, RICHARD E. RICE, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`1 This order addresses a similar issue in the both cases. Therefore, we exercise
`discretion to issue one order to be filed in each case. The parties, however, are not
`authorized to use this style of heading in subsequent papers.
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 13
`Entered: November 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`STARBUCKS CORPORATION,
`Petitioner,
`
`v.
`
`AMERANTH, INC.,
`Patent Owner.
`_______________
`
` Case CBM2015-00091 Patent 6,384,850 B11
`Case CBM2015-00099 Patent 6,781,325 B1
`_______________
`
`
`
`Before MEREDITH C. PETRAVICK, RICHARD E. RICE, and
`STACEY G. WHITE, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`1 This order addresses a similar issue in the both cases. Therefore, we exercise
`discretion to issue one order to be filed in each case. The parties, however, are not
`authorized to use this style of heading in subsequent papers.
`
`
`
`CBM2015-00091 Patent 6,384,850 B1
`CBM2015-00099 Patent 6,781,325 B1
`
`
`SUMMARY
`
`Patent Owner, Ameranth, Inc., requests rehearing of the Board’s decisions
`
`(Paper 92, “Decision to Institute or Dec.”, CBM2015-00099 Paper 11), entered
`
`September 14, 2015, instituting covered business method patent review of claims
`
`12–16 of U.S. Patent No. 6,384,850 B1 on two grounds of obviousness and
`
`instituting a covered business method patent review of claims 11–13 and 15 of
`
`U.S. Patent No. 6,781,325 B1 on four grounds of obviousness. Paper 11 (“Req.
`
`Reh’g”); CBM2015-00099 Paper 9. For the reasons that follow, Patent Owner’s
`
`requests for rehearing are denied.
`
`DISCUSSION
`
`The applicable standard for granting a request for rehearing of a petition
`
`decision is abuse of discretion. 37 C.F.R. § 42.71(c). The requirements for a
`
`rehearing are set forth in 37 C.F.R. § 42.71(d), which provides in relevant part:
`
`A party dissatisfied with a decision may file a request for rehearing,
`without prior authorization from the Board. The burden of showing a
`decision should be modified lies with the party challenging the
`decision. The request must specifically identify all matters the party
`believes the Board misapprehended or overlooked, and the place
`where each matter was previously addressed in a motion, an
`opposition, or a reply.
`
`Patent Owner argues that the Decisions to Institute “should be modified
`
`because the Board relied on the incomplete Petitioner exhibit (Exhibit 1035,
`
`comprising portions of the Dittmer reference), the incompleteness of which
`
`contributed to the Board’s misapprehending and overlooking key, and
`
`2 For the purposes of this Decision, the Institution Decisions, Requests for
`Rehearing, Petitions, Preliminary Responses, and supporting documents do not
`differ in a material way. Unless otherwise indicated, for ease of reference, we will
`refer to the filings in CBM2015-00091.
`
` 2
`
`
`
`
`
`
`
`CBM2015-00091 Patent 6,384,850 B1
`CBM2015-00099 Patent 6,781,325 B1
`
`
`contradictory, evidence that is found in the complete Dittmer book.” Req. Reh’g 2.
`
`Patent Owner argues that no trial should have been instituted because the complete
`
`version of Dittmer “clearly confirms that ‘hospitality applications’ do not include
`
`‘car rentals’ or other travel/transportation functions.” Id.
`
`We are not persuaded that Patent Owner has identified any matters that we
`
`misapprehended or overlooked. Instead, Patent Owner’s requests present evidence
`
`that was not of record during the institution phase of these proceedings. See id 2
`
`n. 6 (arguing that Exhibit 2040 is not new evidence but rather a complete version
`
`of Exhibit 1035). According to Patent Owner, this evidence was not obtained by
`
`Patent Owner until five days after our September 14, 2015 Decision to Institute.
`
`Id. at 2 n.7 (stating that Patent Owner obtained Exhibit 2040 on September 19,
`
`2015). A request for rehearing cannot be based on evidence that was not of record
`
`during the institution phase. For institution purposes, we assessed the
`
`persuasiveness of Petitioner’s evidence while “recognizing that [we are] doing so
`
`without all evidence that may come out at trial.” New England Braiding Co. v.
`
`A.W. Chesterton Co., 970 F.2d 878, 883 (Fed. Cir. 1992) (reviewing a decision on
`
`a preliminary injunction where patentee has the burden of demonstrating “that it
`
`will likely succeed on all disputed liability issues at trial”). Here, we have not
`
`made a final determination as to claim construction, and Patent Owner is free to
`
`contest this issue during the trial, if desired. We are not persuaded of error in our
`
`Decisions on Institution.
`
`CONCLUSION
`
`Patent Owner has not persuaded us that the determination to institute
`
`covered business method reviews was an abuse of our discretion, or that we
`
`misapprehended or overlooked any matter. Accordingly, we deny the requests for
`
` 3
`
`
`
`rehearing.
`
`
`
`
`
`CBM2015-00091 Patent 6,384,850 B1
`CBM2015-00099 Patent 6,781,325 B1
`
`
`ORDER
`
`For the reasons given, it is
`
`ORDERED that the requests for rehearing are denied.
`
`
`
`PETITIONER:
`
`Bing Ai
`Ai-ptab@perkinscoie.com
`
`
`
`PATENT OWNER:
`
`John Osborne
`josborne@osborneipl.com
`
`Michael Fabiano
`mdfabiano@fabianolawfirm.com
`
`
` 4
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