`Trials@uspto.gov
`571-272-7822 Entered: November 22, 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)1,2
`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
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`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 guidance regarding “the deposition of a
`
`third party declarant resident in France.” The e-mail further stated, “Patent
`
`Owner’s position is that the deposition is untimely and the issue will be
`
`briefed in the Motions to Exclude.” Based on these statements, we denied
`
`the request for a conference call and denied what we understood to be
`
`Petitioner’s request for a deposition of a foreign, third-party witness. See,
`
`e.g., IPR2015-01951, Paper 82.3
`
`Petitioner filed a request for rehearing, asserting that we
`
`misapprehended the facts concerning the requested deposition guidance. See
`
`Paper 93 (“Req. Reh’g”), 1. According to Petitioner, the issue is that the
`
`parties agree in principle to the deposition of a foreign, third-party declarant,
`
`Dr. Diot (see Ex. 1052)––whose declaration was submitted by Petitioner as
`
`supplemental evidence—but cannot agree as to whether he may appear by
`
`video or should be required to appear in person in the United States. Req.
`
`Reh’g 4–5. Petitioner therefore requests a conference call regarding this
`
`issue or an order authorizing Petitioner to make Dr. Diot available for
`
`
`
`3 We hereinafter refer to the papers and exhibits in IPR2015-01951.
`
`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)
`
`deposition by video. Id. at 7–8. Except as noted in our guidance below,
`
`Petitioner’s request is denied.
`
`As we noted in our previous order, uncompelled testimony outside the
`
`United States may only be taken by agreement of the parties or as the Board
`
`specifically directs. Paper 82 (citing 37 C.F.R. § 42.53(b)(3)). Given the
`
`late stage of the proceedings, we decline to parse the facts and circumstances
`
`of the present dispute and/or specifically direct the taking of the deposition
`
`at issue. However, to the extent the circumstances here are similar to those
`
`discussed in our previous Order directing the taking of Australian
`
`declarants’ depositions by videoconference, we instruct the parties to
`
`consider our previous Order in these proceedings as to what is a “reasonable,
`
`inexpensive solution” (Paper 17). See 37 C.F.R. §§ 42.1(b), 42.5(a).
`
`
`
`It is:
`
`ORDER
`
`ORDERED that Petitioner’s request for rehearing is denied; and
`
`FURTHER ORDERED the parties are instructed to consider Paper 17
`
`as guidance.
`
`
`
`
`
`
`
`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)
`
`FOR PETITIONER:
`
`J. Steven Baughman
`Andrew Thomases
`James L. Davis, Jr.
`Daniel W. Richards
`Matthew R. Shapiro
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`andrew.thomases@ropesgray.com
`james.l.davis@ropesgray.com
`daniel.richards@ropesgray.com
`matthew.shapiro@ropesgray.com
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`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
`
`4
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