Paper
`Filed on behalf of: BONUTTI SKELETAL INNOVATIONS LLC
`Date: July 18, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`By: Cary Kappel, Lead Counsel
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`William Gehris, Backup Counsel
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`Davidson, Davidson & Kappel, LLC
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`485 Seventh Avenue
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` New York, NY 10018
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`Telephone (212) 736-1257
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`(212) 736-2015
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`Facsimile (212) 736-2427
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`E-mail:
`ckappel@ddkpatent.com
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`wgehris@ddkpatent.com
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`ZIMMER HOLDINGS, INC.,
`ZIMMER INC.
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`Petitioner,
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`BONUTTI SKELETAL INNOVATIONS LLC
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`Patent Owner
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`v.
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`
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`
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`Case: IPR2014-01080
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` Patent 7,806,896
`_______________
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`PATENT OWNER’S OPPOSITION TO PETIONER’S
`MOTION FOR JOINDER
`
`
`Filed on behalf of: BONUTTI SKELETAL INNOVATIONS LLC
`Date: July 18, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`By: Cary Kappel, Lead Counsel
`
`William Gehris, Backup Counsel
`
`Davidson, Davidson & Kappel, LLC
`
`485 Seventh Avenue
`
` New York, NY 10018
`
`Telephone (212) 736-1257
`
`
`
`(212) 736-2015
`
`Facsimile (212) 736-2427
`
`E-mail:
`ckappel@ddkpatent.com
`
`
`
`wgehris@ddkpatent.com
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`
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`ZIMMER HOLDINGS, INC.,
`ZIMMER INC.
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`Petitioner,
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`BONUTTI SKELETAL INNOVATIONS LLC
`
`Patent Owner
`
`v.
`
`
`
`
`
`Case: IPR2014-01080
`
` Patent 7,806,896
`_______________
`
`PATENT OWNER’S OPPOSITION TO PETIONER’S
`MOTION FOR JOINDER
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`I. Introduction
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`Patent Owner respectfully opposes the Motion for Joinder filed by Petitioner
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`(Paper 3).
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`Petitioner, having waited until the last day of its one year deadline before filing
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`IPR204-0321 on the '896 patent ('321 IPR), and having failed to move for
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`reconsideration of the Board's Decision not to institute review of claim 43 of the '896
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`patent, seeks to use the joinder provisions of 37 C.F.R. § 42.122 to reargue the same
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`grounds previously denied, with a new 35 page Petition, and a new 60 page Expert
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`Declaration. In order to accommodate their extraordinary request, and after taking
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`full advantage of the time periods allowed by the rules for filing its two petitions and
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`its motion for joinder, Petitioner argues that the schedule in the '321 IPR need not be
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`delayed because Patent Owner can simply be ordered to file its Patent Owner
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`Preliminary Response and its Patent Owner Response to Petitioner's 95 page
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`submission in a fraction of the time contemplated by the rules.
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`Joinder under these facts is not warranted under 35 U.S.C. § 315(c). First,
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`joinder is untimely under 37 C.F.R. § 42.122(b). The instant petition and motion
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`were accorded a filing date of July 10, 2014, more than one month after the June 2,
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`2014 Institution Decision in IPR2014-00321. Second, the Board has repeatedly
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`denied joinder in cases where the Petitioner sought review of claims which had
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`previously been denied review, and should do so in this case as well. See Microsoft
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`Corp. v. Surfcast Inc., IPR2014-00271, Paper 20 (denying joinder as "not justified"
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`1
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`where "Petition does not identify any new grounds of unpatentability" but "[i]nstead .
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`. . reasserts two grounds of unpatentability previously asserted"); Shaw Industries
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`Group v. Automated Creel Sys. Inc., IPR2013-00584, Paper 20 (denying joinder).
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`Further, as set forth in more detail below, joinder would be highly prejudicial to
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`Patent Owner, leaving it with a Hobson's choice: either agree to respond to the
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`instant IPR 2014-00180 in a fraction of the time contemplated by the rules, thereby
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`substantially prejudicing its ability to defend its patent claims; or delay the hearing in
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`the '321 IPR by five or more months, while its litigation, already 18 months old and
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`under a stay at Petitioner's request, is delayed for at least another year. Patent Owner
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`should not be placed in this position to accommodate Petitioner's extraordinary
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`request for a second review of grounds previously denied by this Board.
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`II. Response to Petitioner's Statement of Facts
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`With one exception that is not germane to this motion,1 Patent Owner does not
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`dispute the facts set forth in Petition's Motion for Joinder. Rather, Patent Owner
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`believes that the facts compel denial of Petitioner's Motion for Joinder.
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`Petitioner admits that it filed the '321 IPR on the 364th day of its one year
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`deadline under 35 U.S.C. § 315(b) (Motion for Joinder, Paper 3, Fact 3); admits that
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`its Petition raises the same grounds of unpatentability that it previously raised in the
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`1 Patent Owner denies paragraph 5 of Petitioner's Statement of Facts. As a non-
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`limiting example, Zimmer was provided with a presentation setting forth Patent
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`Owner's basis for alleging infringement of claim 40 in May 2013.
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`2
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`'321 IPR (Id., Facts 9-16), and admits that it knows no more about Patent Owner's
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`infringement contentions that it did when it filed the '321 IPR (Id., Facts 4-5).
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`Petitioner admits that it has filed its new petition and new evidence to "directly
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`address the issue that caused the Board to decline to institute trial on claim 43 in IPR
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`2014-00321" (Id., Fact 15). Petitioner does not contend that the new petition or new
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`declaration contain information that was unknown or unavailable to Petitioner when
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`it filed the '321 IPR.
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`Rather, Petitioner's complaint is that the Board was unconvinced by
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`Petitioner's arguments regarding claim 43 in the '321 IPR, so they would like to try
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`again, with a new 35 page Petition, and a new 60 page Expert Declaration, directed
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`solely to claim 43 (Id., Facts 13-18).
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`III. Petitioner's Motion for Joinder is Untimely
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`Petitioner's Motion for Joinder should be denied as untimely under 37 C.F.R. §
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`42.122(b). The instant petition and motion were accorded a filing date of July 10,
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`2014, more than one month after the June 2, 2014 Institution Decision in IPR2014-
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`00321.
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`IV. Joinder Is Not An Appropriate Mechanism To Seek
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`Reconsideration of a Denial of Inter Partes Review of a Claim
`Joinder may only be authorized when warranted, and the burden is on the
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`Petitioner to establish entitlement to joinder. See Shaw Industries Group, IPR2013-
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`00584, Paper 20 at p. 3. Further, the decision to grant joinder is discretionary and
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`when exercising that discretion, "the Board is mindful that patent trial regulations,
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`3
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`including the rules for joinder, must be construed to secure the just, speedy, and
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`inexpensive resolution of every proceeding. " Id. (emphasis added).
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`Allowing joinder in this proceeding is not warranted, and would be neither just
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`nor speedy.
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`A. 35 U.S.C. § 315(c) Does not Provide for Joinder of Multiple
`Proceedings Brought by the Same Party Where no New Grounds are
`Advanced
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`The Board should not grant Petitioner’s motion for joinder because the plain
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`
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`language of 35 U.S.C. § 315(c) does not provide for joinder in the case of a later
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`proceeding that involves the same parties (and no additional parties) as the
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`proceeding that is sought to be joined, and surely not where no new grounds of
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`invalidity are advanced.
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`35 U.S.C. § 315(c) (“JOINDER”) states (emphasis added):
`If the Director institutes an inter partes review, the Director, in his or her
`discretion, may join as a party to that inter partes review any person who
`properly files a petition under section 311 that the Director, after receiving
`a preliminary response under section 313 or the expiration of the time for
`filing such a response, determines warrants the institution of an inter partes
`review under section 314.
`The instant petition and the '321 IPR involve the same two parties. Accordingly,
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`Petitioner in the instant proceeding cannot be joined “as a party” to the '321 IPR
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`because it is already a party to that proceeding. Further, Petitioner is advancing no
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`new grounds of invalidity in the instant proceeding that would warrant joinder with
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`the '321 IPR. To the contrary, it is advancing the same grounds that were denied in
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`4
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`the '321 IPR.
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`The legislative history to 35 U.S.C. § 315(c) is consistent with Patent Owner’s
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`position. For example, the remarks of Senator Kyl that address Section 315(c)
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`contemplate the following grounds for joinder, each of which assumes that joinder is
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`being sought by a new party and/or where there is a need to adjudicate additional
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`grounds of invalidity not previously considered:
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`1. “[I]f an inter partes review is instituted on the basis of a petition, for example,
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`a party that files an identical petition will be joined to that proceeding, and thus
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`allowed to file its own briefs and make its own arguments.”
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`2. “If a party seeking joinder also presents additional challenges to validity that
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`satisfy the threshold for instituting a proceeding, the Office will either join that party
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`and its new arguments to the existing proceeding, or institute a second proceeding for
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`the patent.” 157 CONG. REC. S1376 (March 8, 2011).
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`In the instant proceeding, Petitioner is not a new party that has filed an identical
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`petition as an original petitioner and is now seeking leave to make additional
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`arguments. Nor is Petitioner in this case even presenting additional challenges to
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`validity that were not already brought in the '321 IPR.
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`Rather, Petitioner is requesting that grounds previously rejected be reviewed a
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`second time by this Board, and seeks to use the joinder provisions to circumvent the
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`one-year bar on filing a petition for inter partes review.
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`This is contrary to the purpose of the joinder provisions of 35 U.S.C. § 315(c),
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`5
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`and is inconsistent with the regulatory framework which already provides time limits
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`and page and content restrictions on motions for reconsideration which Petitioner
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`chose to forego.2
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`As explained in ZTE Corp. v. ContentGuard Holdings Inc., IPR2013-00454,
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`paper 12, the "Board is concerned about encouraging, unnecessarily, the filing of
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`petitions which are partially inadequate, " and "[a] decision to institute review on
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`some claims should not act as an entry ticket, and a how-to guide" for a petitioner
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`who "is outside of the one-year statutory period, for filing a second petition to
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`challenge those claims which it unsuccessfully challenged in the first petition."3
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`Similar concerns are addressed in the Final Rules published in the Federal
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`Register, where, in response to a comment regarding "piecemeal challenges" in the
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`analogous context of joinder in post-grant review, the U.S.P.T.O. states that "[t]he
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`Office . . . will exercise its authority under 35 U.S.C. 325(d), where appropriate, to
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`deny petitions that submit the same or substantially the same prior art or arguments
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`previously presented to the Office." Changes to Implement Inter Partes Review
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`Proceedings, Post-Grant Review Proceedings, and Transitional Program for Covered
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`2 "A party dissatisfied with a decision may file a request for rehearing . . . within 14
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`days . . " 37 C.F.R. § 42.71(d).
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`3 In ZTE, the motion for joinder was denied because the first IPR had terminated
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`after the motion for joinder was filed. However, the policy concerns expressed by
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`the Board apply equally to the instant case.
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`6
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`Business Method Patents (Final Rules), 77 Fed. Reg. 48680, 48702 (August 14,
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`2012).
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`The Board expressed similar policy concerns in Redline Detection, LLC v. Star
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`Envirotech, Inc., IPR2013-00106, Paper 24, p. 4, in the context of a motion to file
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`supplemental information:
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`Under 37 C.F.R. § 42.123, a party may file a motion to submit
`supplemental information . . .. Nothing in the rule suggests, however,
`that such a motion would be granted no matter the circumstance. We do
`not read 37 C.F.R. § 42.123 as permitting a petitioner to wait for the
`Board to narrow the grounds submitted in the petition in order to create
`a more focused declaration at less expense that will bolster its position
`in the chosen grounds. . . .This is particularly true if the evidence
`contained in the declaration was reasonably available at the time of
`filing of the petition. “The filing of a petition for inter partes review
`should not be turned into a two-stage process,” first to get the Board to
`narrow the issues, and second to complete the petition based on the
`issues left in the case.
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`Petitioner cites to two cases in which the Board granted a motion for joinder of
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`a new inter partes review proceeding ("IPR") with a prior IPR filed by the same
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`party: Microsoft Corp. v. Proxyconn, Inc., IPR2013-00109, Paper 15; and Ariosa
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`Diagnostics v, Insis Innovation Ltd., IPR2013-00250, Paper 24.
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`However, neither case involved using joinder to allow a second petition directed
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`to the identical set of grounds previously denied, and in both cases, other factors
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`militated in favor of joinder, and those factors are not present here.
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`7
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`In Microsoft Corp. v Proxyconn Inc., IPR2013-00109, Paper 15, Petitioner did
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`not seek review on grounds for which inter partes review was denied in the first
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`petition. Rather, the Board granted joinder of two IPR’s involving the same parties
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`where, in a related litigation, the patent owner had later asserted additional claims
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`that had not been contested in the first IPR. Id., Paper 15, p. 3. The second IPR
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`challenged claims 6, 7, and 9 which were not challenged in the first IPR, and also
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`challenged previously challenged claims 11, 12, and 14 but on new grounds. Id.,
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`Paper 7, pp. 2-3. In granting joinder the Board began by explaining that patent owner
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`"does not oppose, and in fact encourages joinder." Id., Paper 15, p. 2. Further, Patent
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`owner not only consented to and encouraged joinder, but voluntarily waived its
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`preliminary response. Id., Paper 9, p. 2. In the instant proceeding, Petitioner admits
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`that Patent Owner has not asserted any new grounds of infringement in the
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`concurrent litigation (Facts 5) and Patent Owner does not consent to joinder or
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`consent to waiving its preliminary response.
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`In Ariosa Diagnostics, IPR2013-00250, Petitioner initially sought review of
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`"claims 1, 2, 4, 5, 8, 19-22, 24, and 25" in a first IPR filed in September 2012, and
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`after review was instituted on March 19, 2013, filed a second IPR along with a
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`motion for joinder, alleging that "Petitioner launched a new product in March 2013
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`and Patent Owner may assert claims 3, 12, 13, 15 and 18 against that new product in
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`the litigation." Id., Paper 4, pp. 2-3.4 Thus, in Ariosa, the Petitioner sought review
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`4 In Ariosa, only one ground was reasserted and with respect to only one claim, and
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`8
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`of additional claims based on a product launch that coincided with the Institution
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`Decision. It did not merely seek joinder on grounds for which inter partes review
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`was denied in the first petition.
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`In sharp contrast, in Microsoft Corp. v. Surfcast Inc., IPR2014-00271, Paper 20,
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`the Board denied joinder in a case which is indistinguishable from the instant
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`Petition. In Microsoft, after the Board denied review of certain claims in a first IPR
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`filed by Petitioner, Petitioner filed a Request for Rehearing and also "filed a new
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`Petition . . . in the instant proceeding seeking inter partes review based on the same
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`grounds of unpatentability on which it sought rehearing." Id. at p. 5. The Board
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`denied joinder explaining:
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` . . . Petitioner was served with a complaint asserting infringement of the
`ʼ403 patent more than one year before filing this petition. Thus, absent
`joinder of this proceeding with IPR2013-00292, the petition would be
`barred.
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`We are not persuaded that Petitioner has shown that joinder is justified.
`As Patent Owner correctly points out, the Petition does not identify any
`new grounds of unpatentability. . . . Instead, it reasserts two grounds of
`unpatentability previously asserted in IPR2013- 00292. Moreover,
`joinder would have a significant impact on the schedule of IPR2013-
`00292, and we are not persuaded by Petitioner’s assertion that the Board
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`the Board explained that the sole basis for their original denial of that ground was a
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`failure to include a listed exhibit in the original papers filed. Ariosa Diagnostics,
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`IPR2012-00022, Paper 104, pp. 6-7.
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`9
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`can manage the joined proceeding in a way that does not impact the
`scheduling or conduct of the proceedings.
`Id. at pp. 7-8.
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`Joinder is just as inappropriate in the instant proceeding as it was in
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`Microsoft Corp. v. Surfcast Inc.. The Board should not grant Petitioner's
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`extraordinary request to use the joinder provisions to provide it with a second
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`opportunity to argue grounds of invalidity for which inter partes review has
`
`already been denied.
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`B. Joinder Would Severely Prejudice Patent Owner and
`Substantially Delay the '321 IPR
` Joinder may only be authorized when warranted, the decision to grant joinder
`
`is discretionary, and the Board has frequently stressed that joinder must "secure the
`
`just, speedy, and inexpensive resolution of every proceeding. " (emphasis added).
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`Shaw Industries Group, IPR2013-00584, Paper 20 at p. 3. Granting joinder in the
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`instant proceeding would not be just. To the contrary, it would severely prejudice
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`Patent Owner.
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`
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`First, Petitioner's request is fundamentally unjust in that it seeks to provide
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`Petitioner with a second chance, with an additional 35 page brief and 60 page expert
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`declaration, to convince the Board of the merits of its original grounds of
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`unpatentability, whereas Patent Owner receives no second chances, and gets but a
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`single response to Petitioner's massive two-stage filing. See Redline Detection, LLC
`
`v. Star Envirotech, Inc., IPR2013-00106, Paper 24, p. 4 ("The filing of a petition for
`
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`10
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`inter partes review should not be turned into a two-stage process . . .")
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` Second, Petitioner, through its actions, seeks to amplify, rather than mitigate,
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`the prejudice to Patent Owner. Petitioner, after taking full advantage of the one year
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`afforded by the rules for filing its first petition, and after taking full advantage of the
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`one month provided in the rules for filing a motion for joinder, seeks in its proposed
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`scheduling order to deny Patent Owner the time periods set forth in the rules for its
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`response. Under the default time periods provided by the rules, Patent Owner should
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`have: i) until July 31, 2014, 21 days from the petition service date, to file its
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`Mandatory Disclosures; 37 C.F.R. § 42.8(a)(2); ii) until August 10, 2014, one month
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`from the motion service date, to respond to a motion for joinder; 37 C.F.R. §
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`42.25(a)(1); iii) until October 15, 2014, three months from the notice of accorded
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`filing date, to file a preliminary response; 37 C.F.R. § 42.107(b) ; and iv) under 37
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`C.F.R. § 42.120(b), three months from an institution decision to file its patent owner
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`response, which would be in March 2015 if the Board acted within two months of
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`Patent Owner's Preliminary response. Notably, in the final rules, the time periods for
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`the preliminary response and patent owner response were increased from two months
`
`to three months because the U.S.P.T.O. agreed with public comments that argued
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`that two months was too short. See Changes to Implement Inter Partes Review
`
`Proceedings, Post-Grant Review Proceedings, and Transitional Program for Covered
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`Business Method Patents (Final Rule), 77 Fed. Reg. 48680, at 48701 (response to
`
`comment 49) and 48704 (response to comment 69) (August 14, 2012).
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`11
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`Nevertheless, in its proposed modification to the scheduling order, Petitioner
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`seeks an order that by September 5th, just over two months from date Petitioner
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`initiated the instant proceeding : the Patent Owner prepare and file a preliminary
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`response; the Board consider the preliminary response and petition and issue an
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`institution decision; and the Patent Owner depose Petitioner's expert and prepare its
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`patent owner response with expert evidence. Incredibly, in the same proposed order,
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`Petitioner affords itself seven weeks to prepare its 15 page Reply Brief (Adjusted
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`Date 2).
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`Although Petitioner attempts to minimize the burden joinder places on the
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`Patent Owner and the Board on the grounds that claim 43 is a dependent claim,
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`Petitioner ignores that all six of the claims at issue in the '321 IPR are dependent
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`claims. Moreover, the subject matter of claim 43, which is directed to the
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`dimensions of the guide surface of the cutting guide relative to the cut bone, is not
`
`touched upon by the claims in the '321 IPR. If this were not the case, Petitioner
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`would not need an additional reference, a 35 page Petition and an additional 60 page
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`Expert Declaration to address it.
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`It would be unjust and prejudicial for the Board to require Patent Owner to
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`respond to the instant petition in a fraction of the time provided for by the rules, after
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`the Petitioner has already taken nearly every day allowed by the rules in preparing its
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`two petitions and its motion for joinder.
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`In addition to being extremely prejudicial to Patent Owner, Petitioner's
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`12
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`proposed schedule is completely unrealistic. Indeed, even if Patent Owner were to
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`waive its preliminary response (and it will not), it seems unlikely the Board would
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`even reach a decision regarding institution in this proceeding by September 5th.
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`There is simply no way that Patent Owner can be expected to effectively respond to
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`an institution decision in this proceeding by September 5th, by October 5th, or even by
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`November 5th.
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`Rather, as discussed in Section V infra, in order to provide Patent Owner with
`
`a meaningful opportunity to defend its patent in the instant proceeding, the oral
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`hearing in the '321 IPR would need to be delayed by at least five months, and a final
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`decision in this case would most likely not occur until the fall of 2015. Such a delay
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`is itself highly prejudicial because Patent Owner's concurrent litigation against
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`Petitioner (already 18 months old) is under a stay at Petitioner's request (Motion for
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`Joinder, Facts 2, 6, 7). Patent Owner should not be placed in this position to
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`accommodate Petitioner's extraordinary request for a second review of grounds
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`previously denied by this Board.
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`In contrast, Petitioner suffers no prejudice if its Motion for Joinder is denied.
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`Petitioner has already been afforded an opportunity to seek inter partes review on the
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`very same grounds sought in this proceeding, and Petitioner chose not to seek
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`reconsideration of the Board's Institution Decision in the '321 IPR. Petitioner also
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`chose to wait until the 364th day of its one-year deadline before filing its initial
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`petition, thus leaving it no opportunity to file additional inter partes reviews outside
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`13
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`of the narrow exception provided by the joinder procedure. Accordingly, Petitioner
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`suffers no prejudice from a denial of its joinder motion. Rather, it suffers only the
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`consequences of its own tactical decisions.
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`If Joinder Is Nevertheless Granted, the Board Should Adjust The
`V.
`Schedule To Minimize the Prejudice to Patent Owner
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`The instant Petition raises significant new issues that are not present in the
`
`
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`instituted grounds of the '321 patent. In particular, the instant Petition includes a new
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`35 page Petition, a new 60 page declaration, and a prior art reference that was not
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`part of the instituted grounds of the '321 patent. Further, the claim challenged in the
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`instant Petition, claim 43, is directed to the dimensions of the guide surface of the
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`cutting guide relative to the cut bone, a feature that is not touched upon by the claims
`
`in the '321 IPR. Further, the schedule needs to afford Patent Owner time to prepare
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`and file a Preliminary Response, and for the board to consider the Petition, Motion of
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`Joinder and Preliminary Response and to prepare and issue an Institution Decision
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`and a Decision on the Motion for Joinder. It is only after these preliminary
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`proceedings are complete that Patent Owner can begin preparing its arguments and
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`evidence in response to any decision instituting review of claim 43.
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`
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`Accordingly, if the Board is decides to grant Petitioner's Motion for Joinder,
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`the Board should exercise its discretion to adjust the scheduling order by
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`approximately 5 months in order to minimize the prejudice to Patent Owner:
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`Action
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`
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`Original Date
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`Adjusted Date
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`14
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`Preliminary Response
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`October 15, 2014
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`September 12, 2014
`
`Institution Decision (expected)
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`January 12, 2015
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`November 14, 2014
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`Due Date 1
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`Due date 2
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`Due Date 3
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`Due Date 4
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`Due Date 5
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`Due Date 6
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`Due Date 7
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`
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`August 6, 2014
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`January 16, 20155
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`October 10, 2014
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`March 13, 2015
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`November 10, 2014
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`April 3, 2015
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`December 1, 2014
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`April 24, 2015
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`December 15, 2014
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`May 8, 2015
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`December 22, 2014
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`May 15, 2015
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`January 9, 2015
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`June 2, 2015
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`For all of the foregoing reasons, Patent Owner respectfully requests that the
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`Board deny Petitioner's Motion for Joinder.
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`July 18, 2014
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`Respectfully submitted,
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`By: /Cary Kappel/
`Cary Kappel, Reg. 36,561
`William Gehris, Reg. 38,156
`Davidson, Davidson & Kappel, LLC
`485 Seventh Avenue
`New York, NY 10018
`Counsel for Patent Owner
`BONUTTI SKELETAL INNOVATIONS LLC
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`5 Adjusted Dates 1-7 assume that the Board issues an Institution Decision in the
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`instant IPR by November 14th. In the event that the decision is issued earlier or later,
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`Dates 1-7 be adjusted accordingly.
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`15
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 18th day of July, 2014, a true and correct copy of
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`the foregoing PATENT OWNER’S OPPOSITION TO MOTION FOR JOINDER
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`was served by electronic mail pursuant to Petitioner's consent to email service, upon
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`the following counsel of record for Petitioners:
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`Walter C. Linder
`Faegre Baker Daniels LLP
`2200 Wells Fargo Center
`90 S. Seventh St.
`Minneapolis, MN 55402
`Walter.Linder@FaegreBD.com
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`Daniel Lechleiter
`Faegre Baker Daniels LLP
`300 N. Meridian St.
`Suite 2700
`Indianapolis, IN 46204-1750
`Daniel.Lechleiter@FaegreBD.com
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`/Cary Kappel/
`Cary Kappel
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`16
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