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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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`ORACLE CORPORATION,
`NETAPP INC. and
`HUAWEI TECHNOLOGIES CO., LTD
`Petitioners
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`v.
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`CROSSROADS SYSTEMS, INC.
`Patent Owner
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`____________
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`Case IPR2014-01209
`Patent 7,051,147
`____________
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`PATENT OWNER’S UNOPPOSED MOTION TO DEEM FILING OF
`PATENT OWNER’S RESPONSE AS TIMELY
`37 C.F.R. § 42.5(c)(3)
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`Patent Owner Crossroads Systems, Inc. requests the Board deem the filing of
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`its Patent Owner’s Response and all accompanying exhibits timely pursuant to its
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`authority under 37 C.F.R. § 42.5(c)(3). That section provides that “[a] late action
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`will be excused either on a showing of good cause or upon a Board decision that
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`consideration on the merits would be in the interests of justice.” This rule must be
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`construed to secure the just, speedy, and inexpensive resolution of every proceeding.
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`37 C.F.R. § 42.1(b).
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`Good Cause
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`For good cause, Patent Owner shows as follows:
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`Patent Owner’s Response in this proceeding, and in four related proceedings
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`(IPR2014-01197, -01207, -01463, and -01544) were due on May 26, 2015. On the
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`afternoon of May 26, Ms. Amber Collins, a paralegal with the Wong Cabello firm
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`that has extensive experience with the PRPS system, successfully filed the Response
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`and all accompanying exhibits in related proceeding IPR2014-01197. Ex. A ¶¶ 1, 3.
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`The response and its exhibits took approximately forty minutes to upload into the
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`PRPS filing system, and filing was completed at 6:25 PM Central on May 26. Id. ¶
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`3. Based on this and past experiences in making similar filings in PRPS, counsel
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`allocated approximately 45 minutes of time to file each response and all exhibits in
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`the -1207 and -1209 proceedings. Id. ¶ 10.
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`At approximately 10:30 P.M. Eastern, Ms. Collins began filing the Response
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`and accompanying exhibits in the -1209 proceeding. Id. ¶ 4. Around 11:15 Eastern,
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`she informed counsel that the PRPS system was behaving unusually slowly, and had
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`effectively ceased accepting upload of the remaining exhibits. Id. At that time,
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`approximately 15 exhibits had been uploaded. Id. At 11:30 Eastern, counsel
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`determined that the filings could not be completed on time in the -1207 and -1209
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`proceedings given the technical difficulties. Id. ¶ 5. The on-going filing of the -1209
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`Response and exhibits, which had not progressed further, was aborted. Id. Ms.
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`Collins then filed the Patent Owner’s responses in both proceedings, without
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`exhibits, completing both by 11:37 PM Eastern. Id. She then continued to attempt to
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`file exhibits in the -1207 proceeding. Id. Counsel served all documents, including
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`the unfiled exhibits, on Petitioner via e-mail (pursuant to agreement) at 11:52
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`Eastern, and notified the Board of this issue at 12:05 A.M on Tuesday May 27. Ex.
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`B.
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`By 12:16 A.M. Eastern (39 minutes since beginning at 11:37), Ms. Collins
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`had successfully uploaded 15 exhibits to PRPS. Ex. A ¶ 6. At that time, the system
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`once again slowed and refused to accept additional exhibits. Id. The exhibits
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`successfully uploaded to that point were then filed. Id. Additional efforts were then
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`made to upload additional exhibits. Id. When it became clear that those efforts would
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`be unsuccessful, counsel determined that no more could be accomplished and that
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`additional attempts would be made the next day. Id.
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`2
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`On the morning of Tuesday, May 27, Ms. Collins again attempted to file the
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`unfiled exhibits in the -1207 proceeding, and experienced the same issues. Id. ¶ 7.
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`The PRPS system would not complete acceptance of an uploaded exhibit. Id. Ms.
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`Collins then contacted the PRPS help desk, but was not able to immediately speak
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`with anyone. Id. In the afternoon, counsel and Ms. Collins spoke with Maria at the
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`PTAB, who suggested a modification to the computer settings. Id. This was done
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`and slightly improved the speed with which exhibits were uploaded. Id. Ms. Collins
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`again began the process of uploading exhibits for the -1207 proceeding at
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`approximately 4:00 PM Eastern. Id. However, the system speed was still much lower
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`than had been experienced on prior occasions. Id. Finally, at 6:22 PM Eastern, the
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`remaining exhibits were successfully filed. Id.
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`At around 5:30 PM Eastern, Patent Owner’s counsel also began attempting to
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`upload the exhibits in the -1209 proceeding from a different location. Id. ¶ 8. All
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`exhibits for the -1209 proceeding were uploaded by 7:55 P.M. Eastern. Id.
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`Based on Ms. Collins’ experience (Ex. A ¶ 10), as well as that of undersigned
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`counsel, the filings of Patent Owner’s responses and all accompanying exhibits in
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`the -1207 and -1209 proceedings was expected to take at most forty-five minutes
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`each. The filings were begun with sufficient time to accomplish this before the filing
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`deadline. Had the PRPS system been as responsive as it has been in the past, Patent
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`Owner’s filings would have been completely timely. Accordingly, there is good
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`3
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`cause for the Board to deem the filings timely and excuse the late filings pursuant to
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`37 C.F.R. § 42.5(b)(3).
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`Consideration on the Merits is in the Interests of Justice
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`Even if there were not good cause to deem Patent Owner’s filing timely,
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`consideration of Patent Owner’s response on the merits is in the interests of justice.
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`First, the timeliness of the Response must be considered in the context that Due Date
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`1 is not a statutory deadline but rather an intermediate deadline that may be changed
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`by agreement of the parties. Furthermore, Patent Owner has not filed a motion to
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`amend and has thus eliminated the need for Due Date 3. Second, Petitioners’ counsel
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`was timely served via e-mail, pursuant to prior agreement, and given immediate
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`access to complete filings in the -1207 and -1209 proceedings. Ex. B. Thus,
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`Petitioners suffered no prejudice as they had all documents on their due date.
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`Weighing this lack of prejudice to Petitioners against the prejudice to Patent Owner
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`of not considering the entirety of its Response (which could result in cancellation of
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`some or all of the claims of the ‘147 Patent), it would be in the interests of justice to
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`excuse the late filing, especially given that the tardiness was the result of
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`unanticipated and unusual technical difficulties with PRPS.
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`The Board has Previously Granted Similar Motions
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`The Board has granted requests from parties facing similar circumstances in
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`the past. For example, in Standard Innovation Corp. v. Lelo, Inc., IPR2014-00148,
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`Paper 19 (PTAB Sept. 15, 2014), the patent owner began filing its response only 15
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`minutes before the midnight deadline, but due to technical difficulties was unable to
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`complete the filing in time. Id. at 2-3. The Board determined that it would be in the
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`interests of justice to excuse the late filing. Id. at 3. Likewise, in Microsoft Corp. v.
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`Biscotti Inc., IPR2014-01459, Paper 10 (PTAB Jan. 8, 2015), patent owner
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`encountered multiple difficulties with the PRPS system in attempting to file its
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`preliminary response, resulting in late filing by one day. Id. at 2. In this case, the
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`patent owner only began the process of uploading files ten minutes prior to the
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`deadline. Id. at 2-3. However, the Board determined that the prejudice to the patent
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`owner of not considering the response outweighed the prejudice to the petitioner and
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`granted the motion to deem the filing timely. Id. at 3.
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`In the instant case, Patent Owner began filing the late filed responses 90
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`minutes before the deadline, allocating 45 minutes for each filing, and would have
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`completed both filings had there been no technical difficulties. Furthermore,
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`Petitioner was timely served with all documents and therefore suffered no prejudice.
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`There is good cause to deem the filings timely, and it is in the interest of justice to
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`consider the filings timely. Accordingly, Patent Owner respectfully requests the
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`Board grant its motion and deem Patent Owner’s Response and all exhibits thereto
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`timely filed.
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`Respectfully submitted,
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`/James H. Hall/
`James H. Hall
`Registration No. 66,317
`Counsel for Patent Owner
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`Dated: June 1, 2015
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service of June 1, 2015, with Exhibits A and B, on
`counsel for Petitioners by e-mail pursuant to agreement at the following addresses:
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`Greg Gardella
`cpdocketgardella@oblon.com
`Scott McKeown
`cpdocketmckeown@oblon.com
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`Oblon
`1940 Duke Street
`Alexandria, VA 22314
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` /James H. Hall /
`James H. Hall
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`By:
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`EXHIBIT A
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`EXHIBIT A
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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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`CROSSROADS SYSTEMS, INC.
`
`Patent Owner
`
`____________
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`Patent No. 7,051,147
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`____________
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`DECLARATION OF AMBER COLLINS
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`I, Amber Collins, state and declare as follows:
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`1.
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`I am employed by the law firm of Wong, Cabello, Lutsch, Rutherford
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`& Brucculeri, LLP in Houston Texas, as a paralegal. I have been an employee of
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`Wong Cabello for two years. I have worked as a paralegal since 1999.
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`2.
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`I have extensive experience filing documents through the PRPS
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`system, and with only a few exceptions have personally filed all such documents
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`filed by the Wong Cabello firm in IPR proceedings before the PTAB. I estimate
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`that, prior to filing the Patent Owner’s responses in this and other related IPR
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`proceedings involving Crossroads, I had performed at least fifty separate filings
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`(with each filing usually consisting of multiple documents). I have previously filed
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`Petitions, Patent Owner’s Preliminary Responses, Patent Owner’s Responses, and
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`other documents in IPR proceedings. The first time I filed a document with PRPS
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`was December 2013.
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`3.
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`On the afternoon of May 26, I filed the Patent Owner’s Response and
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`all accompanying exhibits in IPR2014-01197. The Response and exhibits took
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`approximately forty minutes to upload into the PRPS filing system, and filing was
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`completed at 6:25 PM Central. In my experience, this amount of time was
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`somewhat slower than my previous experience in filing documents via PRPS, but
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`not extraordinarily so.
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`4.
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`At approximately 9:30 P.M. Central, I began filing the Patent
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`Owner’s Response and accompanying exhibits in the -1209 proceeding. Initially,
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`the filing proceeded at roughly the same pace as the -1197 filing, but I soon
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`noticed that the system was taking a very long amount of time to upload each
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`exhibit. Around 10:15 Central, I informed Mr. James Hall, the attorney overseeing
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`the filing, that the PRPS system was behaving unusually slowly, and had
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`effectively ceased accepting upload of the remaining exhibits. At that time,
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`approximately 15 exhibits (of 59) had been uploaded. Had the PRPS system been
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`operating at speeds that I have previously experienced I believe the filing of the -
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`1209 response and its exhibits would have been completed by that time.
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`5.
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`At 10:30 Central, Mr. Hall determined that the filings could not be
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`completed by midnight Eastern time in the -1209 proceeding (or in the -1207
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`proceeding, for which filing had not yet started), given the technical difficulties.
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`He instructed me to abort the filing of the -1209 Response and exhibits, which had
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`not progressed any further, and to try and file the Patent Owner’s Responses in
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`both the -1207 and -1209 Proceedings without exhibits. I successfully did so and
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`received confirmation that both had been filed at 10:37 PM. I then continued to
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`attempt to file exhibits in the -1207 proceeding.
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`6.
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`By 11:16 PM Central, after about 40 minutes I had successfully
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`uploaded 15 exhibits to PRPS. At that time, the system again slowed and refused
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`to accept additional exhibits. Mr. Hall instructed me to submit the exhibits that had
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`been uploaded to that point, which I did. I then continued to attempt to upload
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`additional exhibits, but the PRPS system would not successfully upload the next
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`exhibit. At approximately 11:40 PM Central, after Mr. Hall and I agreed that there
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`was no indication we could successfully upload another exhibit, he instructed me
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`to stop trying and go home, and to begin trying again the next morning.
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`7.
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`On the morning of Tuesday, May 27, I again attempted to file the un-
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`filed exhibits in the -1207 proceeding, and experienced the same issues. The PRPS
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`system would not complete acceptance of an uploaded exhibit. I called the PRPS
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`help line, but was not able to immediately speak to anyone there. In the afternoon,
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`Mr. Hall and I spoke with Maria at the PTAB, who suggested a modification to the
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`computer settings. This was done, and appeared to slightly improve the speed with
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`which exhibits were uploaded. I again began the process of uploading exhibits for
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`the -1207 proceeding at approximately 3:00 PM Central. The system speed was
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`still much lower than I have experienced on prior occasions. I successfully
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`uploaded the remaining unfiled exhibits and submitted them for filing, receiving a
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`confirmation e-mail at 5:22 PM Central.
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`8.
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`During this latter attempt, Mr. Scott Crocker, Patent Owner’s counsel
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`working for the Sprinkle IP Law Group in Austin, Texas, also began attempting to
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`upload the exhibits in the -1209 proceeding from his office. Mr. Crocker began
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`this process at approximately 4:30 PM Central. He successfully uploaded the
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`exhibits for the -1209 proceeding, and I received a confirmation e-mail at 6:55
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`P.M.
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`9.
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`In my experience, the PRPS system’s behavior on the night of May
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`26 was unusually slow, and I have never experienced the delays that we
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`experienced that night. Even the next day, after changing my computer’s settings
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`as instructed by the help desk, the system took much longer to upload documents
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`than normal. The time that it took Mr. Crocker to file the exhibits in the -1209
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`proceeding, almost two and a half hours, was also extremely slow.
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`10. Based on my past experience, I believe that under normal conditions
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`we could have completed filing the Patent Owner’s Responses and all
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`accompanying exhibits in the -1207 and -1209 proceedings in approximately forty-
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`five minutes each. If we had been able to do this, we would have successfully filed
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`all documents by the deadline of 12:00 Eastern.
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`I declare under penalty of perjury under the laws of the United States of America
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`that the foregoing is true and correct.
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`Executed on: June 1, 2015
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`Amber Collins
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`EXHIBIT B
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`EXHIBIT B
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`From: 
`Sent: 
`To: 
`Cc: 
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`Subject: 
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`
`James Hall 
`Tuesday, May 26, 2015 11:05 PM 
`trials@uspto.gov 
`CrossroadsIPR; crossroadsipr; CP Docket Gardella; CP Docket McKeown; 'Greg 
`H. Gardella'; Scott McKeown 
`Patent Owner's Responses and Accompanying Exhibits in IPRs 2014‐1207 and 
`IPR 2014‐1209 
`
` 
`Your Honors: 
`Patent Owner’s responses in the referenced proceedings, and three other related proceedings, are due 
`today, May 26. Due to technical difficulties with the PRPS system, we have been unable to complete the 
`filings for these two proceedings before 12 AM Eastern. We are experiencing extremely slow upload 
`times of all documents, regardless of size, which has been much slower than we have ever experienced. 
`Accordingly, we have filed the Patent Owner’s responses in each proceeding, and served Petitioners’ 
`counsel with all documents (see forwarded e‐mail below). We will continue to attempt to file the 
`exhibits this evening and in the morning. We request the Board grant Patent Owner permission to file a 
`motion deeming the filings timely. Given the urgency of the situation and their expected unavailability at 
`this hour, we have not yet conferred with Petitioners’ counsel, but will do so on Wednesday and inform 
`the Board of Petitioners’ position regarding that motion. 
`Please let me know if you have any questions.  
` 
` 
`James H. Hall 
`Partner 
`Wong Cabello 
`20333 SH 249 Suite 600, Houston, Texas 77070 
`Direct: 832.446.2493 | jhall@counselip.com 
` 
`
` 
`From: James Hall  
`Sent: Tuesday, May 26, 2015 10:52 PM 
`To: CP Docket Gardella; CP Docket McKeown; 'Greg H. Gardella'; Scott McKeown 
`Cc: CrossroadsIPR; crossroadsipr 
`Subject: Patent Owner's Responses and Related Filings in IPRs 2014‐01197, ‐1207, ‐1209 
` 
`Counsel, 
`Copies of Patent Owner’s Responses, accompanying exhibits, Patent Owner’s Motion to Seal, and 
`Standing Protective Order have been uploaded to the following FTP site for you: 
` 
`The main page is http://counselip.sharefile.com    <‐Use a web browser 
`The login is 
`Username:  CR‐IPR@Counselip.com 
`Password:  [REDACTED]  <‐ Case sensitive 
` 
`Please note that the exhibits for the ‐1207 and ‐1209 proceedings are identical, and therefore only one 
`copy has been uploaded. 
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