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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARRIS GROUP, INC.
`Petitioner
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`v.
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`C-CATION TECHNOLOGIES, LLC
`Patent Owner
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`Case IPR2014-00746
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`Patent 5,563,883
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`PETITIONER’S UNOPPOSED MOTION TO EXPUNGE ORIGINALLY-
`FILED EXHIBIT 1009 AND TO ACCEPT REPLACEMENT EXHIBIT 1009
`FILED MAY 15, 2014
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`Petitioner ARRIS Group, Inc. respectfully moves the Board for an order: (1)
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`accepting the filing of replacement Exhibit 1009, filed May 15, 2014 as if it were
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`filed May 13, 2014, and (2) expunging originally-filed Exhibit 1009 pursuant to 37
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`C.F.R. § 42.104(c). Authorization to file this motion was provided via email dated
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`June 9, 2014. Petitioner has conferred with Patent Owner and Patent Owner has
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`indicated it does not oppose the relief sought by this Motion.
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`I.
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`LEGAL BASIS FOR REQUESTED RELIEF
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`Under 37 C.F.R. § 42.104(c), a party may file a motion to correct a clerical
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`or typographical mistake in the petition. Since Rule 42.104(c) is remedial in
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`nature, the Board has construed it liberally. See ABB, Inc. v. ROY-G-BIV, Corp.,
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`IPR2013-00063, Paper 21, (PTAB Jan. 16, 2013). In applying section 42.104(c),
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`the Board has held that inadvertent uploading incorrect appendices constituted a
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`correctable clerical error. Google Inc. v. Walker Digital, LLC, CBM2014-00002,
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`Paper 14 (PTAB Nov. 12, 2013). As the movant, the burden is on Petitioner to
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`show that it is entitled to relief. See 37 C.F.R. § 42.20(c).
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`II.
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`FACTUAL BASIS FOR RELIEF
`The original petition for inter partes review in this proceeding was filed by
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`the undersigned on May 13, 2014. While preparing the final documents for
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`submission to the Board, the undersigned inadvertently numbered the same
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`excerpts from Newton’s Telecom Dictionary as both Exhibits 1005 and 1009,
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`rather than including separate dictionary definitions with each exhibit. See Ex.
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`1024 (Sommer Decl.), ¶¶ 4-5. This error was due in part to the fact that the
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`undersigned had made a decision when finalizing the petition not to renumber all
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`of the exhibits when he realized that two exhibits were from the same resource:
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`Newton’s Telecom Dictionary. Id. at ¶ 3. On May 13, 2014, the undersigned did
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`not notice that he had given two identical excepts from Newton’s Telecom
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`Dictionary different exhibit numbers; thus a final review of the exhibits for
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`compliance with the Board’s rules before filing did not lead the undersigned to
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`appreciate the clerical mistake that had been made when the exhibits were
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`numbered when the petition was filed on May 13, 2014. Id. at ¶ 5.
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`The day after the original petition for IPR was filed, counsel for Petitioner
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`learned of the error and promptly took steps to correct it. Id. at ¶ 6. The error was
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`not intentional and is clerical in nature due to the incorrect numbering of the
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`exhibits and the inadvertent omission of the correct exhibit. Id. at ¶ 5; 42.104(c);
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`Google Inc. v. Walker Digital, LLC, CBM2014-00002, Paper 14 (PTAB Nov. 12,
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`2013). The clerical nature of the error is further demonstrated by the fact that the
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`Petition and supporting declaration include quotations of the definitions that were
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`inadvertently omitted when exhibit 1009 was filed. Specifically, the missing
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`dictionary definitions included as part of the proper version of Exhibit 1009 (the
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`definitions of “head end” and “load leveling”) are quoted in the originally-filed
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`2
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`petition at pages 19-20 and 36, as well as in the Declaration of Stuart Lipoff at
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`page 32, note 2 (definition of “CATV”), page 82, note 4 (“head end”), and page 94
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`(“load leveling”).
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`The Patent Owner will not be prejudiced by the grant of this motion. Not
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`only has Patent Owner indicated it does not oppose the relief sought, but within
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`two days of the submission of the original petition, the undersigned filed and
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`served a replacement copy of Exhibit 1009 (at the direction of the Board). Ex.
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`1024 (Sommer Decl.) ¶ 6. And, as discussed above, the missing dictionary
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`definitions included as part of the proper version of Exhibit 1009 were each
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`included in the documents filed on May 13, 2014. Therefore, Patent Owner will
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`not be prejudiced should the relief sought be granted.
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`III. CONCLUSION
`Given the foregoing, Petitioner respectfully requests that the Board enter an
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`order accepting the filing of Exhibit 1009 as filed on May 15, 2014 and expunging
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`Exhibit 1009 filed on May 13, 2014.
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`3
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`Dated: June 10, 2014
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`Respectfully submitted:
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`/s/ Andrew R. Sommer
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`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`T: (202) 282-5000
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`Jonathan E. Retsky (Reg. No. 34,415)
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601-9703
`T: (312) 558-5600
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`Attorneys for Petitioner
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`4
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`CERTIFICATE OF SERVICE
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`I certify that PETITIONER’S UNOPPOSED MOTION TO EXPUNGE
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`ORIGINALLY-FILED EXHIBIT 1009 AND TO ACCEPT REPLACEMENT
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`EXHIBIT 1009 FILED MAY 15, 2014 and the DECLARATION OF ANDREW
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`R. SOMMER IN SUPPORT THEREOF were served June 10, 2014 by
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`electronic mail upon:
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`Lewis V. Popoviski
`lpopoviski@kenyon.com
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`Jeffrey S. Ginsberg
`jginsberg@kenyon.com
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`David J. Kaplan
`djkaplan@kenyon.com
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`David J. Cooperberg
`dcooperberg@kenyon.com
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`5
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`/s/ Andrew R. Sommer/
`Andrew R. Sommer
`Reg. No. 53,932
`Attorney for Petitioner
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