`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`
`BOREALIS AG
`Petitioner
`
`v.
`
`BERRY PLASTICS CORPORATION,
`Patent Owner
`___________________
`
`Case IPR2016-00235
`Patent 8,883,280
`Filed: November 30, 2015
`___________________
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
`
`
`
`
`
`
`153238559v.1
`
`1
`
`
`
`Case IPR2016-0235
`Patent No. 8,883,280
`Docket No.: 2212049.00121
`
`Introduction
`Petitioners filed the above-captioned inter partes review petition to challenge
`
`
`
`I.
`
`the validity of claims 1-14, 36-42, 44-48, 51-54, 61, 62, 65, and 66 of U.S. Patent No.
`
`8,883,280 (“the ‘280 Patent”). Berry Plastics Corporation (“the Patent Owner”)
`
`respectfully submits this preliminary response to the petition.
`
`II.
`
`Statutory Disclaimer Under 37 C.F.R. § 1.321(a)
`
`The Patent Owner has disclaimed claims 1-14, 36-42, 44-48, 51-54, 61, 62, 65,
`
`and 66 of the ‘280 Patent under 35 U.S.C. § 253(a) in compliance with 37 C.F.R. §
`
`1.321(a). A copy of the submission of a Form PTO/SB/43 effecting this disclaimer is
`
`attached as Exhibit 2002. The filing of this statutory disclaimer is not an admission
`
`or acquiescence by Patent Owner regarding the merits of Petitioner’s challenge to the
`
`disclaimed claims. Patent Owner disagrees with Petitioner’s arguments in the petition
`
`and reserves the right to rebut such arguments with respect to any other patents and/or
`
`patent applications.
`
`III. Counsel
`Because all of the claims challenged in the above-captioned petition are no
`
`longer at issue, an inter parties review should not be instituted. See 37 C.F.R.
`
`
`153238559v.1
`
`2
`
`
`
`
`§ 42.107(e) (“No inter partes review will be instituted based on disclaimed claims.”)
`
`Case IPR2016-0235
`Patent No. 8,883,280
`Docket No.: 2212049.00121
`
`The Patent Owner respectfully requests that the petition be dismissed.
`
`The Patent Trial and Appeal Board is hereby authorized to charge any fees
`
`associated with IPR 2016-00235 to its Deposit Account 080219.
`
`
`
`Respectfully Submitted,
`
` /John V. Hobgood/
`
`
`
`John V. Hobgood
`Registration No. 61,540
`WILMER CUTLER PICKERING
`HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`
`
`153238559v.1
`
`3
`
`
`
`
`
`Certificate of Service
`
`Case IPR2016-0235
`Patent No. 8,883,280
`Docket No.: 2212049.00121
`
`I hereby certify that on March 10, 2016, I caused a true and correct copy of the
`
`foregoing materials:
`
`Patent Owner’s preliminary response under 37 C.F.R. § 42.107
`
`Exhibit 2002
`
`•
`
`•
`
`
`
`to be served via email on the following attorneys for Petitioner:
`
`Mark J. Feldstein
`mark.feldstein@finnegan.com
`
`Joshua L. Goldberg
`joshua.goldberg@finnegan.com
`
`Hojung Cho
`hojung.cho@finnegan.com
`
`
`
`
` /John V. Hobgood/
`
`
`
`John V. Hobgood
`Registration No. 61,540
`
`
`153238559v.1
`
`4
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