Paper 83
`Trials@uspto.gov
`571-272-7822 Entered: November 18, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC., ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Cases IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)12
`Cases IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Cases IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`____________
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FINK, Administrative Patent Judge.
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be entered in each case. The parties, however, are not
`authorized to use this caption for any subsequent papers.
`2 Bungie, Inc., who filed Petitions in IPR2016-00933, IPR2016-00934,
`IPR2016-00935, IPR2016-00936, IPR2016-00963, and IPR2016-00964, has
`been joined as a Petitioner in these proceedings.
`
`
`Trials@uspto.gov
`571-272-7822 Entered: November 18, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACTIVISION BLIZZARD, INC., ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioner,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`____________
`
`Cases IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)12
`Cases IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`Cases IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`____________
`
`
`Before SALLY C. MEDLEY, LYNNE E. PETTIGREW and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FINK, Administrative Patent Judge.
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be entered in each case. The parties, however, are not
`authorized to use this caption for any subsequent papers.
`2 Bungie, Inc., who filed Petitions in IPR2016-00933, IPR2016-00934,
`IPR2016-00935, IPR2016-00936, IPR2016-00963, and IPR2016-00964, has
`been joined as a Petitioner in these proceedings.
`
`
`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`On November 15, 2016, Petitioner contacted the Board by e-mail
`requesting a conference call seeking permission to file motions to strike
`regarding “Issue 1 . . . Patent Owner’s new antedating arguments with
`respect to the Lin reference in its reply in support of its motions to amend”
`and “claim charts that are incorporated by reference.” Petitioner also seeks
`permission to file motions to strike regarding “Issue 2 . . . Patent Owner’s
`substitute claims submitted with its reply briefs in support of the motions to
`amend in IPR2015-01964 and -01966.” Finally, Petitioner seeks guidance
`regarding “Issue 3 . . . the deposition of a third party declarant resident in
`France,” which Patent Owner submits is untimely and the issue briefed in
`Motions to Exclude. A conference call is not necessary.
`Motions to Strike
`Regarding Issues 1 and 2, it is within the Board’s discretion whether a
`reply contains evidence or argument that is outside the scope of a reply, see
`Apotex Corp. v. Viiv Healthcare Co. et al., Case IPR2014-00876 (PTAB
`June 25, 2015) (Paper 39) (denying authorization to file a motion to strike
`allegedly improper reply arguments), or whether the reply improperly
`incorporates claim charts by reference, see Arctic Cat, Inc. v. Polaris Indus.,
`Inc., Case IPR2015-01781 et al. (PTAB Aug. 25, 2016) (Paper 31) (denying
`authorization to strike declaration allegedly improperly incorporated by
`reference). Specifically, upon review of the full record, we will determine
`
`2
`
`
`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`whether arguments and evidence are outside the scope of the proper reply or
`whether the reply improperly incorporates claim charts by reference. See
`Apotex, slip op. at 2–3; Arctic Cat, slip op. at 2. Accordingly, we decline to
`authorize Petitioner to file the requested motions to strike.
`Foreign, Third-Party Deposition
`Regarding Issue 3, uncompelled testimony outside the United States
`may only be taken by agreement of the parties or as the Board specifically
`directs. See 37 C.F.R. § 42.53(b)(3). In other words, unless otherwise
`agreed to by the parties, the taking of uncompelled, foreign testimony is at
`the Board’s discretion.
`In this case, the proceedings are in their final stages with Oral Hearing
`about three weeks away (i.e., December 7, 2016). Moreover, the requested
`deposition apparently relates to an issue in Patent Owner’s motions to
`exclude for which Petitioner’s oppositions are due within the next week (i.e.,
`November 23, 2016).3 However, Petitioner should have been on notice as to
`any such issue from Patent Owner’s previously filed objections on either
`April 7, 2016 or October 21, 2016. See, e.g., IPR2015-1951, Paper 77, 1
`(referring to objections). Since then, we have had at least one conference
`call (i.e., last week) to address a variety of disputed issues, see IPR2015-
`1951, Paper 70, at which time the need for an additional deposition could
`also have been addressed without need for an additional call and with more
`time to avoid burdening the Board and Patent Owner. Accordingly, for the
`
`
`3 Indeed, Petitioner’s oppositions are the only Petitioner-filed papers
`remaining in these proceedings.
`
`3
`
`
`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`foregoing reasons, we determine that it would not be in the interests of
`justice to authorize Petitioner’s request for a foreign, third-party deposition
`at this late juncture of these proceedings. See 37 C.F.R. § 42.5(c)(3).
`ORDER
`
`
`
`It is:
`ORDERED that no call will be scheduled at this time;
`FURTHER ORDERED Petitioner’s requests for authorization to file
`motions to strike are denied; and
`FURTHER ORDERED that the requested deposition of a foreign,
`third-party witness is denied.
`
`FOR PETITIONER:
`J. Steven Baughman
`Andrew Thomases
`James L. Davis, Jr.
`Daniel W. Richards
`Matthew R. Shapiro
`Joseph E. Van Tassel
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`andrew.thomases@ropesgray.com
`james.l.davis@ropesgray.com
`daniel.w.richards@ropesgray.com
`matthew.shapiro@ropesgray.com
`joseph.vantassel@ropesgray.com
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`4
`
`
`
`IPR2015-01951, IPR2015-01953 (Patent 6,714,966 B1)
`IPR2015-01964, IPR2015-01996 (Patent 6,829,634 B1)
`IPR2015-01970, IPR2015-01972 (Patent 6,701,344 B1)
`
`Michael Tomasulo
`Michael Murray
`Andrew Sommer
`WINSTON & STRAWN LLP
`mtomasulo@winston.com
`mmurray@winston.com
`asommer@winston.com
`
`FOR PATENT OWNER:
`James Hannah
`Michael Lee
`Shannon Hedvat
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`jhannah@kramerlevin.com
`mhlee@kramerlevin.com
`shedvat@kramerlevin.com
`
`5
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