`Entered: June 24, 2015
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`E-WATCH, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00411
`Patent 7,365,871 B2
`____________
`
`Before JAMESON LEE, GREGG I. ANDERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`DECISION
`On Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`IPR2015-00411
`Patent 7,365,871 B2
`
`
`
`Introduction
`Petitioner requests rehearing of the Board’s Decision declining to institute
`trial in this proceeding. Paper 13 (“Req. Rehg.”). The bases for the request are:
`The Decision is contrary to authority: In re NTP,
`1.
`654 F.3d 1268 (Fed. Cir. 2011), Rackspace US, Inc. v. PersonalWeb
`Techs., LLC, IPR2014-00058 (PTAB April 15, 2014)(Paper 10), and
`Sehgal v. Reval, 81 USPQ2d 1181, 1186 (BPAI 2005); and
`2.
`The Decision failed to recognize the distinction between
`grounds of unpatentability asserted in the Petition and challenges
`directed to Patent Owner’s priority date.
`
`Req. Rehg. 1–2. The request does not support a modification of the Decision.
`
`Discussion
`1.
`None of NTP, Rackspace US, and Sehgal involved a prior decision of the
`
`Office on an Applicant’s petition to revive an abandoned application.
`Additionally, Sehgal was an interference proceeding, and 37 C.F.R. § 41.121(c)(2)
`authorizes consideration by the Board, in an interference proceeding, of a party’s
`contention under 37 C.F.R. § 1.137(b). The cited authorities are inapposite.
`2.
`The Board did not fail to distinguish grounds of unpatentability from
`
`challenges to priority date. The Decision did not “dismiss” the Petition for lack of
`jurisdiction of the Board to consider the grounds of unpatentability alleged by
`Petitioner. Rather, we considered the merits of the Petition and denied the Petition.
`Conclusion
`Petitioner’s request is denied.
`
`
`
`
`
`2
`
`
`
`
`
`
`
`IPR2015-00411
`Patent 7,365,871 B2
`
`FOR PETITIONER:
`Brian Buroker
`Blair Silver
`bburoker@gibsondunn.com
`bsilver@gibsondunn.com
`
`FOR PATENT OWNER
`
`Robert C. Curfiss
`David O. Simmons
`bob@curfiss.com
`dsimmons1@sbcglobal.net
`
`
`
`3
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