`Entered: January 5, 2015
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`FUJITSU NETWORK COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CAPELLA PHOTONICS, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00726
`Patent RE42,368 E
`____________
`
`
`Before JOSIAH C. COCKS, KALYAN K. DESHPANDE, and
`JAMES A. TARTAL, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`
`On December 11, 2015, Patent Owner submitted an email to the
`
`Board seeking “guidance” with respect to its effort to obtain discovery from
`
`Petitioner of “notes, comments, and edits that the late Dr. Drabik made with
`
`regard to his draft declarations and all documents he reviewed in preparing
`
`them.” Ex. 2039. In response, the Board informed Patent Owner that it
`
`understood Patent Owner to request authorization to file a motion for
`
`additional discovery, and that no motion was authorized at that time. Id.
`
`On December 30, 2015, Patent Owner proceeded to file a document
`
`purporting to be a “Request for Rehearing of the Board’s Order Denying
`
`Authorization to Move for Discovery.” Paper 24. In substance, the
`
`document filed by Patent Owner is a motion for discovery which was not
`
`authorized. Accordingly, Paper 24 submitted by Patent Owner is expunged.
`
`The circumstances concerning the death of Dr. Drabik are discussed
`
`in detail in our decision granting Petitioner’s Motion to File Supplemental
`
`Information (Paper 19) and our decision denying Patent Owner’s Request
`
`for Rehearing of that decision (Paper 23). The Board has explained
`
`repeatedly to Patent Owner that, although the panel relied on Dr. Drabik’s
`
`Declaration in instituting trial, “going forward, the panel will not consider
`
`the content of that Declaration as a part of any Final Written Decision.”
`
`Paper 19, 4–5; Paper 23, 4. We understand Petitioner no longer relies on
`
`the declaration testimony of the late Dr. Drabik, and thus evidence
`
`concerning that testimony is not directly related to factual assertions now
`
`advanced by any party in this proceeding. Accordingly, any discovery
`
`sought by Patent Owner concerning any declaration of the late Dr. Drabik is
`
`not relevant to this proceeding, and Patent Owner’s requests for
`
`2
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`
`authorization to otherwise obtain or compel such discovery have been
`
`denied.
`
`It is
`
`Order
`
`ORDERED that Paper 24 submitted by Patent Owner is expunged.
`
`
`
`
`
`
`
`3
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`
`For PETITIONER:
`
`Christopher Chalsen
`Lawrence Kass
`Nathaniel Browand
`Suraj Balusu
`MILBANK, TWEED, HADLEY & MCCLOY LLP
`cchalsen@milbank.com
`lkass@milbank.com
`nbrowand@milbank.com
`sbalusu@milbank.com
`
`For PATENT OWNER:
`
`Jason D. Eisenberg
`Robert Greene Sterne
`Jon E. Wright
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`jasone-PTAB@skgf.com
`rsterne-PTAB@skgf.com
`jwright-PTAB@skgf.com
`
`
`4
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