`571-272-7822
`
`
`
`Paper 17
`Date: November 12, 2013
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NEW BAY CAPITAL, LLC
`Petitioner
`
`v.
`
`VIRNETX, INC.
`Patent Owner
`____________
`
`Case IPR2013-00376 (Patent 7,490,151 B2)
`____________
`
`Before SALLY C. MEDLEY, MICHAEL P. TIERNEY, KARL D. EASTHOM,
`and STEPHEN C. SIU, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`JUDGMENT
`Termination of the Proceeding
`37 C.F.R. § 42.73
`
`On November 6, 2013, Petitioner New Bay Capital, LLC (“New Bay”) filed
`an unopposed motion to terminate this proceeding, representing that New Bay is
`abandoning the contest. Paper 16 at 1. New Bay’s abandonment of the contest is
`construed as a request for entry of adverse judgment. 37 C.F.R. § 42.73(b)(4); see
`
`VIRNETX EXHIBIT 2040
`RPX v. VirnetX
`Trial IPR2014-00172
`
`Page 1 of 3
`
`
`
`also 35 U.S.C. § 325(d) (describing effects of “the same or substantially the same
`prior art or arguments previously . . . presented to the Office”).
`This case is in the preliminary proceeding stage; no institution of a trial has
`been made.1 Based on the facts of this case, it is appropriate to enter judgment.2
`Therefore, the motion to terminate the proceeding is granted.
`Accordingly, it is
`ORDERED that New Bay’s unopposed motion to terminate is granted;
`FURTHER ORDERED that the proceeding is terminated.
`
`
`1 A preliminary proceeding begins with the filing of a petition for instituting a trial
`and ends with a written decision as to whether a trial will be instituted. 37 C.F.R.
`§ 42.2.
`2 A judgment means a final written decision by the Board, or a termination of a
`proceeding. 37 C.F.R. § 42.2.
`
`2
`
`Page 2 of 3
`
`
`
`For PETITIONER:
`Robert M. Asher
`rasher@sunsteinlaw.com
`
`Jeffrey T. Klayman
`jklayman@sunsteinlaw.com
`
`For PATENT OWNER:
`
`Joseph E. Palys
`joseph.palys@finnegan.com
`
`Naveen Modi
`naveen.modi@finnegan.com
`
`3
`
`Page 3 of 3
`
`