UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`HTC CORPORATION and HTC AMERICA, INC.
`Petitioners
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`v.
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`E-WATCH, INC. and E-WATCH CORPORATION
`Patent Owner
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`CASE: IPR2014-00987
`Patent No. 7,365,871 B2
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`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
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`December 23, 2014
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`HTC CORPORATION and HTC AMERICA, INC.
`Petitioners
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`v.
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`E-WATCH, INC. and E-WATCH CORPORATION
`Patent Owner
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`CASE: IPR2014-00987
`Patent No. 7,365,871 B2
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`PETITIONER’S REQUEST FOR REHEARING
`UNDER 37 C.F.R. § 42.71(d)
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`December 23, 2014
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`PTAB Case No. IPR2014-00987
`Patent 7,365,871 B2
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`TABLE OF CONTENTS
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`B.
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`C.
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`I. INTRODUCTION ................................................................................ 1
`II.
`LEGAL STANDARDS ........................................................................ 3
`III. ARGUMENT ....................................................................................... 3
`A.
`35 U.S.C. § 314(a) does not provide statutory authority
`for the Board’s decision ............................................................. 3
`The application of 37 C.F.R. § 42.108(a) in this
`proceeding was an abuse of discretion ...................................... 8
`The estoppel effects of an inter partes review petition
`mandate full consideration of Ground 2 .................................... 9
`35 U.S.C. § 315(d) suggests that multiple grounds of
`rejection should be substantively evaluated ............................. 11
`Ground 2 is not redundant or duplicative ................................ 13
`It would be premature for the Board to deny Ground 2
`without the trial ........................................................................ 15
`IV. CONCLUSION .................................................................................. 16
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`D.
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`E.
`F.
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`-i-
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`I.
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`INTRODUCTION
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`PTAB Case No. IPR2014-00987
`Patent 7,365,871 B2
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`Petitioners HTC Corporation and HTC America, Inc. (collectively
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`“Petitioners”) request rehearing, under 37 C.F.R. § 42.71(d)(1), of the Board's
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`December 9, 2014 Decision (Paper 6) (“Institution Decision”) authorizing inter
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`partes review with respect to claims 1–8 and 12–15 of U.S. Patent No. 7,365,871
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`on the ground that claims 1–8 and 12–15 are unpatentable under 35 U.S.C. §
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`103(a) as obvious over Wilska and Yamagishi-114 (Ground 1), but denying inter
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`partes review with respect to the Ground 2 presented in the petition that argued
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`claims 1-8 and 12-15 are obvious by McNelley and Yamagishi-992 under 35
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`U.S.C. § 103(a). Grounds 1 and 2 were the only two grounds presented in the IPR
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`Petition.
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`In the Institution Decision, the Board provided the following explanation
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`for its decision to decline to institute a trial on the above grounds, stating in part:
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`“We have discretion to institute inter partes review as to some asserted grounds
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`and not others. 37 C.F.R. § 42.108(a); see also 35 U.S.C. § 314(a) (authorizing
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`institution of inter partes review under particular circumstances, but not requiring
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`institution under any circumstances). … [F]or reasons of administrative necessity,
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`and to ensure timely completion of the instituted proceeding, we exercise our
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`discretion and do not institute a review based on obviousness over McNelley and
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`1
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`Patent 7,365,871 B2
`Yamagishi-992.” (Paper 6, Dec. 9, 2014 Institution Decision at 11 (emphasis
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`added).)
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`The Board cited 35 U.S.C. §314(a) and 37 C.F.R. § 42.108(a) in support of
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`this conclusion. Id.
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`Petitioners respectfully request that the Board reconsider its decision with
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`respect to the non-instituted Ground 2 and initiate inter partes review for both
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`Grounds 1 and 2.
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`Petitioners also submit this rehearing request in order to clearly restate their
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`position on the Board’s application of 35 U.S.C. §314(a) and 37 C.F.R. §
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`42.108(a) to deny institution of trial on Ground 2, without substantive analysis of
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`the proposed facts in Ground 2, apparently because trial has been instituted on
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`Ground 1. Petitioners respectfully submit that Ground 2 is entitled to substantive
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`analysis by the Board and that denying institution of Ground 2 without substantive
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`analysis is improper.
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`Notably, the law on the denied grounds in an instituted trial is still
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`developing and evolving as evidenced by the pending appeals in the Cuozzo and
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`SAP matters before the Federal Circuit. Petitioner makes this filing to document
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`and preserve Petitioners’ position with respect to the denied Ground 2 and the
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`application of 35 U.S.C. § 314(a) and 37 C.F.R. § 42.108(a) in this proceeding, for
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`2
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`potential appeal to the Federal Circuit after a final written decision is rendered in
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`this trial.
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`II. LEGAL STANDARDS
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`When rehearing a decision on a petition to institute an inter partes review,
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`the Board “will review the decision for an abuse of discretion.” 37 C.F.R.
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`§ 42.71(c). The party requesting rehearing has the burden of showing the decision
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`should be modified, and “[t]he request must specifically identify all matters the
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`party believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” 37
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`C.F.R. § 42.71(d).
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`"An abuse of discretion occurs where the decision is based on an erroneous
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`interpretation of the law, on factual findings that are not supported by substantial
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`evidence, or represents an unreasonable judgment in weighing relevant factors."
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`Lacavera v. Dudas, 441 F.3d 1380, 1383 (Fed. Cir. 2006).
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`III. ARGUMENT
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`A.
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`35 U.S.C. § 314(a) does not provide statutory authority for the
`Board’s decision
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`The decision not to institute trial on Ground 2 is not supported by 35 U.S.C.
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`§ 314(a), the statutory authority cited in the Institution Decision. The Board’s
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`reliance on this statute in support of its decision not to substantively consider and
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`3
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`not to institute trail based on Ground 2 is an error, and thus, an abuse of
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`discretion.
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`The Board cites 35 U.S.C. § 314(a) as one statutory authority that allows it
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`to deny instituting a trial on Ground 2, without substantive analysis of the facts
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`presented in Ground 2, when trial was instituted on the same claims in Ground 1.
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`Specifically, the Institution Decision provides the following statement in denying
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`Ground 2:
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`We have discretion to institute inter partes review as to some asserted
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`grounds and not others. 37 C.F.R. § 42.108(a); see also 35 U.S.C. §
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`314(a) (authorizing institution of inter partes review under particular
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`circumstances, but not requiring institution under any circumstances).
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`This discretion is consistent with the requirement that the regulations
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`for inter partes review proceedings take into account “the efficient
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`administration of the Office” and “the ability of the Office to timely
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`complete [instituted] proceedings,” 35 U.S.C. § 316(b), as well as
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`with the requirement that the rules for inter partes review proceedings
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`be “construed to secure the just, speedy, and inexpensive resolution of
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`every proceeding.” 37 C.F.R. § 42.1(b). Accordingly, for reasons of
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`administrative necessity, and to ensure timely completion of the
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`instituted proceeding, we exercise our discretion and do not institute a
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`4
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`review based on obviousness over McNelley and Yamagishi-992.
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`(Paper 6, Dec. 9, 2014 Institution Decision at 10-11.) The text of 35 U.S.C. §
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`314(a) is quoted below:
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`(a) Threshold.— The Director may not authorize an inter partes
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`review to be instituted unless the Director determines that the
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`information presented in the petition filed under section 311 and any
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`response filed under section 313 shows that there is a reasonable
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`likelihood that the petitioner would prevail with respect to at least 1 of
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`the claims challenged in the petition.
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`(35 U.S.C. § 314(a) (2012).) This section sets the minimum threshold
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`requirement for institution of an IPR trial and explains that the Director may not
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`authorize a trial unless “there is a reasonable likelihood that the petitioner would
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`prevail with respect to at least 1 of the claims challenged in the petition.” 35
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`U.S.C. § 314(a), in its plain language, does not give the Director the discretionary
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`authority to refuse to institute a trial on more than one ground per challenged
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`claim without first reviewing the substance of an additional ground.
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`Notably, the Institution Decision interprets 35 U.S.C. § 314(a) as
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`“authorizing institution of inter partes review under particular circumstances, but
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`not requiring institution under any circumstances” (emphasis added). (Paper 6,
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`Dec. 9, 2014 Institution Decision at 10.) This interpretation of 35 U.S.C. § 314(a)
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`has no basis in the plain language of 35 U.S.C. § 314(a) because, as explained
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`above, 35 U.S.C. § 314(a) sets a minimum threshold of “a reasonable likelihood
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`that the petitioner would prevail with respect to at least 1 of the claims challenged
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`in the petition” for the Board to institute an IPR trial. The Institution Decision
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`does not provide any authority for the above quoted Board’s interpretation of 35
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`U.S.C. § 314(a). Moreover, the Institution Decision does not cite any legislative
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`history to support the above Board’s interpretation of 35 U.S.C. § 314(a), and
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`specifically, that the Board could simply not institute trials under “any
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`circumstances” and point to this interpretation as a justification for not instituting
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`a trial. This directly conflicts with Congress’ intent to make the inter partes
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`review process to be a “cost effective alternative[] to litigation.” H.R. Rep. No.
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`112-98, at 48 (2011).
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`In absence of any guidance in the Institution Decision on the above quoted
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`Board’s interpretation of 35 U.S.C. § 314(a), Petitioners conducted a limited
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`review of selected PTAB institution decisions with the same or similar
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`interpretation of 35 U.S.C. § 314(a) in denying a proposed ground for trial. In
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`institution decisions in IPR2014-00730 and IPR2014-00732 issued on October 28,
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`2014, the same interpretation of 35 U.S.C. § 314(a) was used in denying other
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`asserted grounds. See, e.g., IPR2014-00732, Paper 8, Oct. 28, 2014 Institution
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`Decision at 13-14. Those two decisions also did not provide any explanation or
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`6
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`authority for the above interpretation of 35 U.S.C. § 314(a).
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`Beyond the plain language of 35 U.S.C. § 314(a), AIA provides other
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`sections specifically addressing the authority of the USPTO in conducting IPR
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`trials. For example, 35 U.S.C. § 316(a)(2) provides the Director’s authority to
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`make regulations with respect to 35 U.S.C. § 314(a) and explains that this
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`authority is for the purpose of “setting forth the standards for the showing of
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`sufficient grounds to institute a review under section 314(a).” 35 U.S.C. §
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`316(a)(2) illustrates that the purpose of Section 314(a) is related to the “reasonable
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`likelihood to prevail” standard for institution of an inter partes review trial. 35
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`U.S.C. § 316(a)(2) does not instruct the Director to prescribe regulations based on
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`35 U.S.C. § 314(a) that would allow the Board to deny institution of a trial on
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`more than one ground per challenged claim.
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`For another example, explained in further detail below, the USPTO allows a
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`single petitioner to file multiple IPR proceedings against the same patent. See 35
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`U.S.C. § 315(d). Section 315(d) further suggests that invalidity challenges against
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`a patent on multiple grounds by a single petitioner is also within the objectives of
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`the AIA.
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`Petitioners respectfully submit that the Board erred in its reliance on 35
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`U.S.C. § 314(a) to support its decision not to institute trial on Ground 2.
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`Reconsideration and institution of the trial on Ground 2 are requested.
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`7
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`The application of 37 C.F.R. § 42.108(a) in this proceeding was
`an abuse of discretion
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`B.
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`The Board also cites 37 C.F.R. § 42.108(a) as the rule that allows it to deny
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`instituting a trial on Ground 2, without substantive analysis of the facts presented
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`for Ground 2, when trial was instituted on the same claims in Ground 1. (Paper 6,
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`Dec. 9, 2014 Institution Decision at 10-11.) The rule cited by the Board states:
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`(a) When instituting inter partes review, the Board may authorize the
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`review to proceed on all or some of the challenged claims and on all
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`or some of the grounds of unpatentability asserted for each claim.
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`37 C.F.R. § 42.108(a). In light of the AIA provisions, the spirit of AIA and the
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`congressional intent in AIA, the permissive wording “may” in 37 C.F.R. §
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`42.108(a) does not give the Board an unfettered and absolute discretion to deny a
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`ground for trial for any reason, without reviewing the substance of the ground
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`simply because another ground has been instituted against the same claim or
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`claims. Under the specific circumstances of this petition, the application of the
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`rule in denying Ground 2 without substantive review is an abuse of discretion.
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`Specifically, it is improper to merely cite to the above rule as a basis for denial of
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`a ground without providing statutory support for the application of this rule in this
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`fashion.
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`In the instant case, there is no statutory authority that supports an
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`interpretation of 37 C.F.R. § 42.108 (a) that would allow the Board to arbitrarily
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`deny one or more additional grounds of rejection1, without substantive analysis of
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`a ground this denied for trial, if a trial has been instituted on the challenged claims
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`on one ground of rejection presented in the same petition.
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`Reconsideration and institution of the trial on Ground 2 are requested.
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`C. The estoppel effects of an inter partes review petition mandate
`full consideration of Ground 2
`In mandating a 60 page limit for inter partes review petitions, the USPTO
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`stated “the Board’s experience is that the presentation of an overwhelming
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`number of issues tends to detract from the argument being presented, and can
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`cause otherwise meritorious issues to be overlooked or misapprehended.” 77 Fed.
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`Reg. 6868, 6872 (Feb 9, 2012). The USPTO also explained that page limits
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`imposed by Federal Courts encourage “effective writing” and “ease the burden on
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`both the parties and the courts.” Id.
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`Here, Petitioners did not provide an “overwhelming” number of references
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`or issues. Only two grounds of rejection were presented, using a limited set of
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`prior art references with different technical teachings to enable the Board to
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`1 Petitioner recognizes that the Institution Decision generally referred to 37 C.F.R.
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`§ 42.1(b). Sections C through F of this document discuss considerations of
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`efficient administration of the Office and the ability of the Office to timely
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`complete an instituted proceedings.
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`9
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`Patent 7,365,871 B2
`efficiently review both Grounds 1 and 2 on their merits. Petitioners are mindful
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`that the final determination in an inter partes review be issued not later than 1
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`year after the date on which the Director notices the institution of a review under
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`this chapter, except for a six month extension for good cause. For this reason,
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`Petitioners crafted Grounds 1 and 2 of rejection in a clear and precise manner to
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`meet the 60 page limit and facilitate the efficient processing of the petition in
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`order to meet the final determination deadline articulated in the 35 U.S.C. §
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`316(a)(11).
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`Congress intended the inter partes review process to be a “cost effective
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`alternative[] to litigation.” H.R. Rep. No. 112-98, at 48 (2011). The estoppel
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`provision of 35 U.S.C. § 315(e)(2) deprives Petitioners of any opportunity to raise
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`Ground 2 before a Federal Court, once a final written decision is issued by the
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`Board on Ground 1. Thus, this proceeding now is the only forum under which
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`Petitioners may seek to invalidate this patent “on any ground that the petitioner
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`raised or reasonably could have raised during that inter partes review.” 35 U.S.C.
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`§ 315(e)(2). As a practical matter, the institution decision in this trial suggests
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`that a petitioner is only entitled to substantive review of one ground of rejection --
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`that is, once a ground of rejection is adopted by the Board, the only other ground
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`(Ground 2) will not be considered and no specific and substantive reasons for
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`denying Ground 2 will be provided. Under this ruling, a petitioner risks wasting
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`10
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`valuable pages in an inter partes review petition presenting one or more additional
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`grounds of rejection which may never be substantively considered. This ruling
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`contradicts with the congressional intent of designing AIA trials as alternatives to
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`litigation, and reducing the difficulty in challenging questionable patents. H.R.
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`Rep. No. 112-98, at 45, 48 (2011).
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`While the USPTO cites to Federal Court authority to justify a 60 page limit
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`for petitions, the USPTO cites to no comparable authority in Federal Courts that
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`would allow partial consideration of a petition paper that complied with page limit
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`requirements set by a court or tribunal, or a Federal Court rule that would deny
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`consideration of more than one prior art reference combination at trial. The
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`Board’s decision to deny substantive consideration of Ground 2 violates
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`Petitioners’ due process rights to have full consideration of all grounds presented
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`in their petition. Reconsideration and institution of the trial on Ground 2 are
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`requested.
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`D.
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`35 U.S.C. § 315(d) suggests that multiple grounds of rejection
`should be substantively evaluated
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`The AIA contemplates multiple, simultaneous invalidity challenges to a
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`patent on separate grounds, via the filings of separate IPR petitions. 35 U.S.C. §
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`315(d) explains that “during the pendency of an inter partes review, if another
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`proceeding or matter involving the patent is before the Office, the Director may
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`determine the manner in which the inter partes review or other proceeding or
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`11
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`matter may proceed, including providing for stay, transfer, consolidation, or
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`termination of any such matter or proceeding.” While the Director has the
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`authority to terminate other proceedings, it is clear that Congress intended to give
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`the Director power to “decline requests for repeated proceedings on the same
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`question” -- such as when the same reference combination is presented to the
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`USPTO in a new petition, which could constitute harassment of the Patent Owner.
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`H.R. Rep. No. 112-98, at 76 (2011) (emphasis added); IPR2014-00757, Paper 8,
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`at 13.
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`Therefore, under 35 U.S.C. § 315(d), Petitioners could have filed multiple
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`inter partes review petitions, with each petition containing one ground of
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`rejection, to have caused the Board to evaluate the substance of all proposed
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`grounds of rejection. Other petitioners have filed multiple petitions on the same
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`patent, where separate trials have been instituted, and thus, where multiple
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`grounds of rejection are being considered by the Board in parallel. See, e.g., IPR-
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`2014-01037, IPR-2014-01069, IPR-2014-01071 (three instituted IPR proceedings
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`filed by the same Petitioner against the same patent).
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`In view of this, it is an abuse of discretion for the Board not to substantively
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`consider both grounds of rejection presented by Petitioners, merely because
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`Petitioners could efficiently present both grounds in a single petition.
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`Petitioners appreciate that the inter partes review process is still relatively
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`12
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`new, and the public is learning and continues to learn about the PTAB trial
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`practices and mechanisms to present invalidity challenges to the Board. In light of
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`the subsection entitled “No Appeal” under 35 U.S.C. § 315(d), if the Board would
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`prefer the public to present one invalidity ground per inter partes review petition,
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`then it would be helpful to provide advance guidance and notice of this to the
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`public so that a petitioner can structure its future filings accordingly. However,
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`Petitioners in this proceeding cannot file replacement or additional petitions to
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`restructure their invalidity positions this way, because of the one-year bar
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`provision of 35 U.S.C. § 315(b) practically prevents additional filings.
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`Petitioners suggest that for this proceeding and other similarly situated
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`proceedings, the Board, in the interests of justice and fairness, should consider the
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`substance of reasonably presented additional grounds of rejection in a single
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`petition.
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`E. Ground 2 is not redundant or duplicative
`The Board has not stated in the institution decision in this proceeding that
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`Ground 2 is duplicative or cumulative. However, in other proceedings, the Board
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`has refused to institute trials on certain presented grounds of rejection, where the
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`references in separate grounds of rejection were by the same author and were
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`relied on for the same facts. (IPR2012-00006, Paper 43 at pages 11-12.)
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`Petitioners present arguments related to this issue in the event that the Board may
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`13
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`reach this conclusion for the first time in its decision on this request for rehearing.
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`This proceeding is factually distinguishable from IPR2012-00006. In this
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`proceeding, the reference combinations for Grounds 1 and 2 were presented in the
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`petition because of their particular and non-overlapping technical teachings of the
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`claimed subject matter from different perspectives and facts. The teachings of the
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`different combinations in Grounds 1 and 2 are different and the reasons or
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`analyses of why the challenged claims are invalid based those grounds are distinct
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`and different. The often cited non-precedential Liberty Mutual standard stemmed
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`from an extremely unusual circumstance in that 422 grounds of rejection were
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`presented in a single petition. IPR2013-00088, Paper 9, at 1. This Petition has
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`only two grounds of rejection and is nowhere near the redundancy issue in the
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`Liberty Mutual situation.
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`In addition, section V(C) of the HTC petition as filed is entitled
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`“DIFFERENT INVALIDITY POSITIONS AGAINST EACH CLAIM ARE
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`INDEPENDENT, DISTINCTIVE AND NOT REDUNDANT” and provides a
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`substantive analysis of the different perspectives of invalidity of claims 1-8 and
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`12-15 under different prior teachings in Ground 1 and Ground 2 and, in particular,
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`explicitly explained the unique aspects of the teaching in the combination of
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`McNelley and Yamagishi-992 under the non-instituted Ground 2. See HTC
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`Petition in IPR2014-00987, Paper 1, at 12-14.
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`PTAB Case No. IPR2014-00987
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`Therefore, Ground 2 is independent, distinctive and not redundant. Ground
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`2 should be instituted along with Ground 1 in this proceeding to promote overall
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`efficiency in fully addressing the defectives in the claims in light of the prior art
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`references cited in the HTC petition.
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`F.
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`It would be premature for the Board to deny Ground 2 without
`the trial
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`At this stage of the proceeding, where Patent Owner has not presented all of
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`its arguments in favor of patentability, and where discovery is about to begin, it is
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`premature for the Board not to evaluate the substance of Ground 2 and deny
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`Ground 2 for trial while conducting the entire trial on Ground 1 alone.
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`For example, by the conclusion of this trial, an application of a limitation or
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`construction of a claim term may result in a finding of patentability over Ground
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`1, where Ground 2 may contain a different technical teaching under which the
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`claim would be found invalid. If Ground 2 is never substantively considered,
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`there is no opportunity for the Petitioner to ask the Board to reconsider Ground 2,
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`and Petitioners would be denied the opportunity to present this Ground in Federal
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`Court under the broad estoppel under 35 U.S.C. § 315(e). The Board’s refusal to
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`consider all grounds of rejection under this scenario would result in a deprivation
`
`of due process rights and an injury to the Petitioners.
`
`
`
`15
`
`
`
`PTAB Case No. IPR2014-00987
`Patent 7,365,871 B2
`
`IV. CONCLUSION
`
`Based on the foregoing, the Board should reconsider its December 9, 2014
`
`Decision denying Ground 2 and include Ground 2 as part of the institute trial so
`
`that both Ground 1 and Ground 2 can be reviewed in a single proceeding to
`
`promote efficiency.
`
`Respectfully submitted,
` /Bing Ai/
`Lead Counsel,
`Bing Ai, Reg. No. 43,312
`HTC Corporation and HTC America, Inc.
`
`
`
`
`Dated: December 23, 2014
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`
`
`
`16
`
`
`
`PTAB Case No. IPR2014-00987
`Patent 7,365,871 B2
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true copy of the foregoing
`
`
`
`PETITIONER’S REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d)
`
`has been served in its entirety this 23rd day of December 2014 by electronic mail
`
`as agreed upon by the parties on the Patent Owner via its attorneys of record:
`
`
`Robert C. Curfiss
`19826 Sundance Drive
`Humble, Texas 77346-1402
`bob@curfiss.com
`
`David O. Simmons
`IVC Patent Agency
`P.O. Box 26584
`Austin, Texas 77755
`Dsimmons1@sbcglobal.net
`
`Respectfully submitted,
` /Bing Ai/
`Lead Counsel,
`Bing Ai, Reg. No. 43,312
`HTC Corporation and HTC America, Inc.
`
`
`
`
`
`
`
`Dated: December 23, 2014
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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