`571-272-7822
`
`Paper 11
`Date: April 15, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`ZTE CORPORATION and ZTE (USA) INC.,
`Petitioners,
`
`v.
`
`E-WATCH, INC.,
`Patent Owner.
`_______________
`
`Case IPR2015-00412
`Case IPR2015-013661
`Patent 7,365,871 B2
`_______________
`
`Before JAMESON LEE, GREGG I. ANDERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`DECISION
`Motion for Stay of Proceeding
`Request for Authorizing Motion to Chief Administrative Patent Judge
`37 C.F.R. § 42.20
`
`1 IPR2015-01366 has been joined with IPR2015-00412. There are two
`petitioners.
`
`
`
`IPR2015-00412 and IPR2015-01366
`Patent 7,365,871 B2
`
`
`
`
`A conference call was held on April 11, 2016. The participants were
`
`
`
`respective counsel of the parties and Judges Lee, Anderson, and Clements.
`
`The purpose of the conference was twofold. Patent Owner requests
`
`(1) permission by this panel for Patent Owner to file a motion for a stay of
`
`proceeding for 6-7 weeks beyond the current statutory due date of a final
`
`written decision on May 11, 2016, to await a decision by the United States
`
`Supreme Court in Cuozzo Speed Technologies, LLC v. Lee, No. 15-446
`
`(S. Ct. 2016), which is expected by the end of June, 2016, and
`
`(2) authorization by the panel for Patent Owner to file a motion to the Chief
`
`Administrative Patent Judge to request a 6-7 week extension of the one-year
`
`time period to complete trial under 37 C.F.R. § 42.100(c).
`
`We instructed Patent Owner to make its Motion for Stay, directed to
`
`the Board, verbally in the conference call, and gave Patent Owner as much
`
`time as it needed to present its reasoning. We further noted that whether we
`
`would authorize a motion, directed to the Chief Administrative Patent Judge,
`
`depends on whether Patent Owner is successful in persuading us to stay the
`
`proceeding beyond the current due date of a final written decision. A
`
`motion directed to the Chief Administrative Patent Judge to extend the one-
`
`year period within which to complete trial is not meaningful unless the panel
`
`is persuaded to grant a stay of proceeding to beyond that one-year period.
`
`According to Patent Owner, the Supreme Court in Cuozzo may
`
`change the standard of claim construction before the Board in inter partes
`
`reviews, and Patent Owner objects to the Board’s applying the rule of
`
`broadest reasonable interpretation (“BRI”) in this proceeding, if the Supreme
`
`Court were to determine that BRI should not apply in inter partes reviews.
`
`2
`
`
`
`
`IPR2015-00412 and IPR2015-01366
`Patent 7,365,871 B2
`
`
`
` We heard arguments from Patent Owner. Petitioners opposed both
`
`
`
`requests. We denied Patent Owner’s motion for a stay of proceeding, as
`
`well as Patent Owner’s request for authorization to file a motion for the
`
`Chief Administrative Patent Judge to extend the one-year period within
`
`which to complete trial. The decisions were made primarily on the basis that
`
`the situation is not unique to Patent Owner and that Patent Owner still has
`
`other potential recourse to have the case remanded back to the Board from
`
`our reviewing court, if Petitioner prevails and Patent Owner appeals our
`
`final written decision, in light of any decision by the Supreme Court that the
`
`rule of broadest reasonable construction should not be applied. The
`
`decisions also were made on the basis that Patent Owner has not articulated
`
`any difference in the reading of the claims onto the prior art even if BRI
`
`were not applied.
`
`
`
`Patent Owner indicated that a fully developed opinion for our
`
`decisions is not necessary, so long as we make of record Patent Owner’s
`
`objection to the application of BRI if the Supreme Court determines that
`
`BRI should not be applied in inter partes reviews. It is so noted.
`
`
`
`
`
`It is
`
`ORDERED that Patent Owner’s (1) motion for the panel to stay this
`
`proceeding for 6-7 weeks beyond the current statutory due date of a final
`
`written decision on May 11, 2016, to await a decision by the Supreme Court
`
`in Cuozzo Speed Technologies, LLC v. Lee, No. 15-446 (S. Ct. 2016), which
`
`is expected by the end of June, 2016, and (2) request for authorization by the
`
`panel for Petitioner to file a motion to the Chief Administrative Patent Judge
`
`for a 6-7 week extension of the one-year period within which to complete
`
`trial under 37 C.F.R. § 42.100(c), are both denied.
`
`3
`
`
`
`
`
`
`IPR2015-00412 and IPR2015-01366
`Patent 7,365,871 B2
`
`FOR PETITIONER:
`
`
`
`Brian Buroker
`Blair Silver
`Gibson, Dunn & Crutcher LLP
`bburoker@gibsondunn.com
`bsilver@gibsondunn.com
`
`FOR PATENT OWNER:
`
`Robert C. Curfiss
`bob@curfiss.com
`
`David O. Simmons
`IVC Patent Agency
`dsimmons@sbcglobal.net
`
`FOR PETITIONER IN IPR2015-01366:
`
`Steve Moore
`Richard Thill
`Barry Shelton
`Brian Nash
`Pillsbury Law LLP
`steve.moore@pillsburylaw.com
`richard.thill@pillsburylaw.com
`barry.shelton@pillsburylaw.com
`brian.nash@pillsburylaw.com
`
`4
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