`571-272-7822 Entered: May 8, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TARGET CORPORATION,
`Petitioner,
`
`v.
`
`DESTINATION MATERNITY CORPORATION,
`Patent Owner.
`
`
`
`Case IPR2013-005331
`Patent RE43,531 E
`
`
`
`Before MICHAEL P. TIERNEY, LORA M. GREEN, JONI Y. CHANG,
`THOMAS L. GIANNETTI, JENNIFER S. BISK,
`MICHAEL J. FITZPATRICK, and MITCHELL G. WEATHERLY,
`Administrative Patent Judges.
`
`
`
`Opinion for the Board filed by Administrative Patent Judge GREEN.
`Opinion Dissenting-in-part filed by Administrative Patent Judge
`FITZPATRICK, in which Administrative Patent Judges, BISK and
`WEATHERLY, join.
`
`
`JUDGMENT
`Request for Adverse Judgment
`37 C.F.R. § 42.73(b)
`
`
`
`1 Case IPR2014-00509 has been joined with this proceeding.
`
`
`
`
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`
`
`The Board instituted inter partes review of claims 1 and 24–29 of
`
`U.S. Patent No. RE43,531 E on February 19, 2014. Paper 11, 2. On
`February 12, 2015, inter parties review was instituted on claims 18 and 19 in
`IPR2014-00509 (“the ’509 IPR”), which proceeding was joined with the
`instant proceeding. The ’509 IPR, Paper 31, 1. On April 20, 2015, Patent
`Owner filed a Motion for Adverse Judgment, asking that the Board cancel
`all claims on which trial was instituted, i.e., claims 1, 18, 19, and 24–29, and
`enter judgment against Patent Owner. Paper 81, 2.
`Under 37 C.F.R. § 42.73(b), a party may request judgment against
`itself at any time during a proceeding. Cancellation or disclaimer of one or
`more claims such that the patent owner has no remaining claim in the trial is
`construed to be a request for adverse judgment. 37 C.F.R. § 42.73(b)(2).
`Patent Owner has not only requested cancellation of all claims on which trial
`was instituted in this inter partes review, such that after the cancellation it
`will have no remaining claim in the trial, but has also expressly requested
`entry of adverse judgment.
`Accordingly, it is hereby
`ORDERED that Patent Owner’s Motion for Adverse Judgment is
`granted;
`FURTHER ORDERED Patent Owner’s request that claims 1, 18, 19,
`and 24–29 of U.S. Patent No. RE43,531 E be cancelled is granted;
`FURTHER ORDERED that IPR2013-00533 and IPR2014-00509 are
`hereby terminated; and
`FURTHER ORDERED that a copy of this Decision be entered into
`the file of Case IPR2014-00509.
`
`
`
`
`
`2
`
`
`
`
`
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`
`
`Opinion Dissenting-in-part filed by Administrative Patent Judge
`FITZPATRICK, in which BISK and WEATHERLY, Administrative Patent
`Judges, join.
`
`
`Claims 18 and 19 would not be before us but for a prior decision
`granting rehearing, which ultimately resulted in institution of an inter partes
`review of claims 18 and 19 based on a petition filed in IPR2014-00509 and
`joinder of that inter partes review with IPR2014-00533. See Papers 29–31
`in IPR2014-00509. For the reasons we previously set forth in our dissents
`from the decisions granting rehearing, institution, and joinder (i.e., Papers
`29–31 in IPR2014-00509), claims 18 and 19 are not properly before us.
`We respectfully dissent-in-part from the majority opinion supra, as it
`pertains to claims 18 and 19.
`
`
`
`
`
`
`3
`
`
`
`
`
`
`
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`
`For Petitioner:
`R. Trevor Carter
`trevor.carter@faegrebd.com
`
`Daniel Lechleiter
`daniel.lechleiter.ptab@faegrebd.com
`
`For Patent Owner:
`Paul Taufer
`paul.taufer@dlapiper.com
`
`Michael Burns
`michael.burns@dlapiper.com
`
`Stuart Pollack
`stuart.pollack@dlapiper.com
`
`
`4
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