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