`Tel: 571-272-7822
`
`Paper 15
`Entered: June 9, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PLAID TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`YODLEE, INC. and YODLEE.COM, INC.,
`Patent Owner.
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`Before SALLY C. MEDLEY, MICHAEL R. ZECHER, and
`JOHN A. HUDALLA, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`HUDALLA, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`Denying Motion to Change Filing Date
`37 C.F.R. § 42.5 and 37 C.F.R. § 42.104(c)
`
`Petitioner, Plaid Technologies, Inc. (“Plaid”), filed a Petition
`(Paper 1, “Pet.”) requesting an inter partes review of claims 1–12 of U.S.
`Patent No. 6,199,077 B1 (“the ’077 patent,” Ex. 1001) pursuant to 35 U.S.C.
`§§ 311–19. Patent Owner, Yodlee, Inc. and Yodlee.com, Inc. (“Yodlee”),
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`filed a Preliminary Response. Paper 11 (“Prelim. Resp.”). We have
`jurisdiction under 35 U.S.C. § 314.
`Plaid’s Petition was accorded a filing data of December 3, 2015.
`Paper 3, 1. Subsequently, we authorized Plaid to file a motion to change the
`filing date accorded to the Petition from December 3, 2015, to December 2,
`2015. Paper 8. Plaid filed its motion to change the filing date of the
`Petition. Paper 9 (“Mot.”). Yodlee filed an opposition to the motion. Paper
`10 (“Opp.”). Plaid filed a reply in support of its motion. Paper 13
`(“Reply”).
`For the reasons set forth below, we determine that Plaid did not serve
`timely the Petition in accordance with 37 C.F.R. § 42.106(a)(2) within the
`one-year period set forth in 35 U.S.C. § 315(b). We also determine that
`Plaid does not show good cause for us to waive the service requirement as a
`prerequisite for according a filing date, or otherwise to excuse Plaid’s late
`action. We additionally determine Plaid failed to file a complete petition in
`accordance with 37 C.F.R. §§ 42.104(b)(1–5), 42.106(a)(1) within the
`statutory period of 35 U.S.C. § 315(b), and that this failure did not constitute
`a clerical mistake under 37 C.F.R. § 42.104(c). Accordingly, we deny
`Plaid’s motion to change the filing date accorded to the Petition, and we do
`not institute inter partes review of the ’077 patent.
`
`
`
`I. BACKGROUND
`
`Related Proceedings
`A.
`Both parties identify the following proceeding related to the ’077
`
`patent (Pet. 1–2; Paper 7, 2): Yodlee, Inc. v. Plaid Technologies, Inc., Case
`No. 1:14-cv-01445-LPS-CJB (D. Del.) (filed Dec. 1, 2014). Plaid was
`
`2
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`B.
`
`served with the complaint in this case on December 2, 2014. See Pet. 2
`(citing Ex. 1002).
`Plaid also has filed a petition requesting a review of claims 1–12 of
`the ’077 patent under the transitional program for covered business method
`patents in Case CBM2016-00037. In addition, Plaid filed another petition
`for inter partes review of U.S. Patent No. 6,317,783 B1, which also is
`owned by Yodlee, in co-pending Case IPR2016-00273. See Pet. 2.
`
`Factual Background Related to Filing
`Before it began filing two petitions for inter partes review on the
`evening of December 2, 2015, Plaid allegedly waited for supporting
`declarations from Todd C. Mowry, Ph.D., “in case he had any changes that
`would need to be reflected in the other petition papers.” Mot. 4 (citing
`Ex. 1021 ¶ 4; Ex. 1022 ¶ 4). At around 10:30 p.m., when Dr. Mowry’s
`signed declarations were received, Plaid’s counsel began filing sequentially
`the two petitions.1 Id. at 1–2, 4 (citing Ex. 1021 ¶¶ 2, 4; Ex. 1022 ¶¶ 2, 4).
`Plaid’s counsel finished filing the first Petition, which pertained to co-
`pending Case IPR2016-00273, by clicking “Submit” at around 11:40 p.m.
`Id. at 2 (citing Ex. 1021 ¶ 7; Ex. 1022 ¶ 5). Plaid’s counsel then attempted
`to start filing the Petition in the instant case, but counsel asserts that the
`Patent Review Processing System (“PRPS”) system “froze” before any
`papers could be uploaded. Id. at 2–3 (citing Ex. 1021 ¶¶ 9–10; Ex. 1022
`¶ 6). This attempt at filing was aborted. Id. at 3 (citing Ex. 1021 ¶ 10).
`
`
`1 Plaid believed it had to file sequentially the two petitions because they
`were signed by the same counsel. Mot. 4 (citing Ex. 1021 ¶ 6; Ex. 1022
`¶ 4). We are not aware of any such requirement.
`
`3
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`At around 11:45 p.m., Plaid’s counsel began a second attempt to file
`the Petition in the instant case on a different computer. Id. (citing Ex.
`1021 ¶ 12; Ex. 1022 ¶ 8). Before midnight, Plaid’s counsel “managed to
`enter the identifying information for the [Petition in the instant case], along
`with party information, upload the [P]etition, pay the fee and upload some of
`the exhibits.” Id. (citing Ex. 1021 ¶ 12; Ex. 1022 ¶ 8). Still, Plaid’s counsel
`did not complete uploading of the remaining exhibits and clicking “Submit”
`until the early morning of December 3, 2015. Id. at 3–4 (citing Ex.
`1021 ¶ 13; Ex. 1022 ¶ 8).
`After filing had been completed on December 3, 2015, the Petition
`and supporting evidence were deposited with FedEx for next-day delivery to
`Yodlee. Ex. 1022 ¶ 9. Tracking information provided by Plaid shows these
`papers were not picked up by FedEx until the evening of December 3, 2015,
`and not delivered to Yodlee until the morning of December 4, 2015. Ex.
`1024. Notwithstanding, the Certificate of Service for the Petition indicates
`service was effected on December 2, 2015. See Pet. 61.
`
`
`II. ANALYSIS
`Section 315(b) of Title 35 of the United States Code states that “[a]n
`inter partes review may not be instituted if the petition requesting the
`proceeding is filed more than 1 year after the date on which the petitioner
`. . . is served with a complaint alleging infringement of the patent.” Given
`that the complaint in the underlying district court case was served on
`December 2, 2014, see Pet. 2 (citing Ex. 1002), the one-year deadline in this
`case under § 315(b) was December 2, 2015.
`
`4
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`The requirements for a petition are set forth in 35 U.S.C. § 312(a).
`This section specifies that “[a] petition filed under section 311 may be
`considered only if” the enumerated requirements are met. 35 U.S.C.
`§ 312(a). Among the requirements germane to this case is “evidence that
`supports the grounds for the challenge to each claim, including . . . copies of
`patents and printed publications that the petitioner relies upon in support of
`the petition; and . . . affidavits or declarations of supporting evidence and
`opinions.” 35 U.S.C. § 312(a)(3)(B). These requirements are reflected in a
`corresponding regulation, 37 C.F.R. § 42.104, which specifies the required
`content of a petition. Notably, § 42.104 includes a provision that states “[a]
`motion may be filed that seeks to correct a clerical or typographical mistake
`in the petition. The grant of such a motion does not change the filing date of
`the petition.” 37 C.F.R. § 42.104(c).
`Section 312(a)(5) of Title 35 of the United States Code also states that
`the petitioner must “provide[] copies of any of the documents” required
`under the same section “to the patent owner” in order for a petition to be
`considered. Id. The corresponding regulation states that “[t]he petition and
`supporting evidence must be served on the patent owner at the
`correspondence address of record for the subject patent.” 37 C.F.R.
`§ 42.105(a).
`Furthermore, 37 C.F.R. § 42.106(a) enumerates the requirements for
`obtaining a filing date in an inter partes review. This section states that a
`“[c]omplete petition” that complies with 37 C.F.R. § 42.104 is required in
`order for a filing date to be accorded. 37 C.F.R. § 42.106(a)(1). In addition,
`a petitioner must “[e]ffect service of the petition” on a patent owner in
`
`5
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`accordance with 37 C.F.R. § 42.105(a) in order for a filing date to be
`accorded. 37 C.F.R. § 42.106(a)(2).
`Regarding Plaid’s motion to change the filing date accorded to the
`Petition, Plaid has the burden of proof to establish that it is entitled to the
`requested relief. 37 C.F.R. § 42.20(c).
`Considering this statutory and regulatory background, and based on
`the particular factual circumstances of this case, we determine that Plaid
`failed to complete the following two prerequisites for obtaining a filing date
`before the expiration of the one-year statutory period of 35 U.S.C. § 315(b):
`(1) Plaid did not attempt to serve Yodlee with a copy of the Petition before
`the deadline; and (2) Plaid did not file a complete petition before the
`deadline. Accordingly, and for the following reasons, we determine Plaid
`has not met its burden of establishing that it is entitled to change the filing
`date accorded to the Petition. As a result, we may not institute an inter
`partes review because the Petition is time-barred under 35 U.S.C. § 315(b).
`
`Plaid’s Late Service of the Petition
`Plaid argues “section 315(b), which imposes the one-year time
`limitation, only speaks in terms of when the Petition ‘is filed,’ without
`regard to when it is served.” Mot. 9. Accordingly, Plaid argues
`“section 312 does not require service by any specific date for purposes of
`section 315(b).” Id.; see also Reply 5 (“§ 312(a) has no date requirement for
`service and § 315(b) does not mention service at all.”).
`Yodlee highlights that Plaid “did not serve (or even attempt service)
`until December 3rd.” Opp. 2 (citing Ex. 1024). Yodlee argues “the plain
`
`A.
`
`6
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`language of the statute makes clear that service is a requirement for a
`petition[] to be ‘considered’ as ‘filed.’” Id. at 4 (citing 35 U.S.C. § 312(a)).
`Plaid’s Petition “will not be accorded a filing date” until it satisfies a
`number of requirements, one of which includes serving the Petition and
`supporting evidence on Yodlee. See 37 C.F.R. §§ 42.106(a)(2), 42.105(a).
`We agree with Yodlee that Plaid failed to provide evidence that service was
`attempted by midnight on the bar date, i.e., December 2, 2015. Plaid’s
`counsel attests that the Petition was deposited with FedEx “shortly after
`filing” was completed on December 3, 2016. Ex. 1022 ¶ 9. The evidence of
`record also reflects that the Petition was not picked up by FedEx until the
`evening of December 3, 2016, and it was not delivered until the morning of
`December 4, 2016. Ex. 1024. Therefore, based on Plaid’s evidence related
`to service, we determine that December 3, 2016, is the earliest date by which
`Plaid satisfied the service requirement for according the Petition a filing
`date. See 37 C.F.R. §§ 42.105(a), 42.106(a).
`
`Plaid Has Failed to Show Good Cause to Excuse Late Service
`Plaid contends we should excuse its late service of the Petition and
`supporting evidence under 37 C.F.R. § 42.5(c)(3). Mot. 10. Section
`42.5(c)(3) states “[a] late action will be excused on a showing of good cause
`or upon a Board decision that consideration on the merits would be in the
`interests of justice.” 37 C.F.R. § 42.5(c)(3). Plaid reasons “[t]here is no
`prejudice to Patent Owner and service was accomplished promptly,” and that
`“Patent Owner received the service copies on December 4, 2015, the same
`day had service been effected via Priority Mail Express after 5p.m. on
`December 2nd.” Mot. 10 (citing 37 C.F.R. § 42.6(e); Exs. 1024, 1026).
`
`B.
`
`7
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`Plaid also cites two previous Board decisions as supporting the application
`of § 42.5(c)(3) in this case. Id. (citing CoreLogic, Inc. v. Boundary Sols.,
`Inc., Case IPR2015-00226, slip op. at 3 (Oct. 27, 2015) (Paper 34)
`(“CoreLogic”); Ricoh Ams. Corp. v. MPHJ Tech. Invs., LLC, Case IPR2013-
`00302, slip op. at 3–4 (Mar. 11, 2014) (Paper 32) (“Ricoh”)). Plaid
`additionally contends that we may waive the requirements to obtain a filing
`date under our authority in 37 C.F.R. § 42.5(b). Mot. 6, 9–10; Reply 4–5.
`Yodlee argues Plaid has failed to satisfy the statutory criteria of
`35 U.S.C. §§ 312(a) and 315(b), so “37 C.F.R. § 42.5 does not grant the
`Board any authority to grant an earlier filing date.” Opp. 5–6. Yodlee also
`contends that, by waiting until the last minute for potential changes to Dr.
`Mowry’s declarations, Plaid “knowingly risked not meeting the one year bar
`by not leaving enough time to complete filing and service.” Id. at 9. Yodlee
`further contends granting Plaid’s motion “would be highly prejudicial to
`[Yodlee] by allowing [Plaid] to circumvent the statutorily-prescribed one-
`year deadline for filing petitions for inter partes review.” Id.
`We need not address whether, under appropriate circumstances, we
`have authority to grant an earlier filing date, because we determine based on
`the current record that Plaid has failed to show good cause to warrant
`exercising our authority under 37 C.F.R. § 42.5(b) or (c)(3) to waive the
`service requirement imposed by 37 C.F.R. §§ 42.105(a) and 42.106(a). We
`agree with Yodlee that Plaid’s “problems arose from its own intentional
`delay in completing the petition.” Opp. 1. We also agree with Yodlee that,
`by waiting for potential changes to Dr. Mowry’s declarations, Plaid
`“knowingly risked not meeting the one year bar by not leaving enough time
`to complete filing and service, much less enough time to do the multitude of
`
`8
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`tasks that would have been required in the case of any changes.” Id. at 9–10.
`In our view, Plaid’s belief that it had sufficient time, see Reply 5, should not
`insulate Plaid from the consequences of the risk it took. And, more
`importantly, Plaid puts forth no evidence of extenuating circumstances that
`forced Plaid or its declarant, Dr. Mowry, to wait until such a late hour to
`complete the supporting declarations prior to filing and serving the Petition
`and supporting evidence. Put simply, and based on the evidence presented,
`Plaid freely chose the time frame of its filing and service activities. Plaid
`left itself no margin for error despite having had one year to prepare the
`Petition.
`In addition, the cases cited by Plaid do not support a waiver of timely
`service of the Petition, because they both pertain to deadlines that occurred
`after the institution of inter partes review, rather than at the time of filing a
`petition. See CoreLogic, slip op. at 1–3 (relating to late filing and service of
`a Patent Owner Response to the Petition); Ricoh, slip op. at 1–3 (relating to
`late filing and service of Patent Owner’s Motion to Amend).
`Although Plaid argues its late service caused no prejudice to Yodlee,
`we are not persuaded by this argument. The obvious purpose of requiring
`service within the one-year statutory period set forth in 35 U.S.C. § 315(b) is
`either to provide a patent owner with timely notice that its patent is subject
`to an inter partes review proceeding, or else to give the patent owner repose
`at the end of the statutory period. As such, Yodlee is entitled to rely on the
`statutory and regulatory provisions governing service, a circumstance Plaid’s
`prejudice analysis does not acknowledge. Moreover, to the extent there is
`prejudice to Yodlee here, it was created by Plaid’s own delay. Plaid could
`have taken any number of steps to serve timely Yodlee, such as by emailing
`
`9
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`the papers to Yodlee’s counsel before the deadline, but the record is devoid
`of evidence showing such effort on Plaid’s behalf. And Plaid’s allusion to
`Priority Mail delivery time frames (see Mot. 10) rings hollow when service
`in this case ultimately was not even attempted until the one-year statutory
`period expired. See Ex. 1024.
`Finally, we consider whether it is in the interests of justice to excuse
`Plaid’s late service. On one hand, Plaid’s Petition will be time-barred if we
`do not excuse the late service. On the other hand, as recognized by Yodlee,
`see Opp. 9, Yodlee would be prejudiced if Plaid were allowed to circumvent
`the one-year deadline so as to allow Plaid’s Petition to go forward. These
`considerations mirror one another. On balance, however, we find that Plaid
`had control over the fate of the Petition, whereas Yodlee did not. In
`addition, we are troubled that Plaid’s proffered evidence regarding service
`contradicts Plaid’s Certificate of Service for the Petition. Compare Ex. 1022
`¶ 9 (counsel declaring that Plaid did not attempt service until after filing was
`completed on December 3, 2015) with Pet. 61 (indicating that the Petition
`was served on December 2, 2015). Plaid never attempted to amend its
`Certificate of Service to conform to the factual record. Accordingly, we do
`not find that excusing Plaid’s belated service of the Petition and supporting
`evidence would be in the interests of justice.
`For these reasons, we decline to excuse Plaid’s late service of the
`Petition under our authority in 37 C.F.R. § 42.5(b) and (c)(3).
`
`Plaid’s Failure to File Timely a Complete Petition Further Supports
`Denying Institution
`There is at least one additional consideration that weighs in favor of
`denying institution in this case—namely, Plaid’s failure to file a complete
`
`C.
`
`10
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`petition that complies with our regulations by the one-year statutory deadline
`under 35 U.S.C. § 315(b). See 37 C.F.R. § 42.106(a). We now consider
`Plaid’s arguments related to filing.
`Plaid argues that 35 U.S.C. § 312(a) “cannot specify what it takes for
`the petition to be ‘filed’ in the first place” because this section “presupposes
`that petition has been ‘filed.’” Reply 2. In this way, Plaid attempts to draw
`a distinction between filing under § 315(b) and when a filed petition may be
`considered under § 312(a). Id. Plaid additionally argues that “fil[ing]”
`under 35 U.S.C. § 315(b) only requires filing of the Petition paper itself, and
`not the filing of all supporting evidence. Mot. 6; Reply 1–2. Plaid asserts
`that it at least filed the Petition paper before the midnight deadline on
`December 2, 2015. Mot. 3 (citing Ex. 1021 ¶ 12; Ex. 1022 ¶ 8), 6, 9; Reply
`2. Yodlee contends that Plaid does not satisfy the requirements of § 315(b)
`by merely “uploading the [P]etition without exhibits (or with only some
`exhibits).” Opp. 3.
`We are not persuaded by Plaid’s argument that only a petition paper—
`and not the supporting evidence—need be filed by the end of the one-year
`statutory period set forth in 35 U.S.C. § 315(b). Plaid’s Petition was
`required to include evidence supporting the grounds for challenging each
`claim, including copies of the affidavits, declarations, patents, and printed
`publications on which Plaid relies. 35 U.S.C. § 312(a)(3). This requirement
`is reflected in our regulations governing filing dates, wherein the Board does
`not accord a filing date to a petition until it satisfies a number of
`requirements. See 37 C.F.R. §§ 42.104, 42.106(a). Considering our
`regulations governing when a petition may be accorded a filing date, Plaid’s
`filing of a fronting document, standing alone, is inadequate to garner a filing
`
`11
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`date for a complete petition. Moreover, the idea that filing only would
`require a fronting paper and not its exhibits is antithetical to the purpose of a
`petition, which is to give adequate notice to the Patent Owner of the basis for
`relief by laying out a petitioner’s grounds and supporting evidence. See
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,763 (Aug. 14,
`2012).
`Nor are we persuaded by Plaid’s contention that its failure to file a
`complete petition was a “clerical or typographical mistake” under 37 C.F.R.
`§ 42.104(c). See Mot. 6–7. Indeed, past “clerical mistakes” cited by Plaid
`for which the Board has allowed correction relate to entirely different
`situations. For example, in two Board cases cited by Plaid, see Mot. 6–7;
`Reply 1, correction of a mistake was allowed where the petitioners uploaded
`timely all of their papers, but merely forgot to click the “Submit” button.
`See 2Wire, Inc. v. TQ Delta LLC, Case IPR2015-00239, slip op. at 4, 8 (Jan.
`15, 2015) (Paper 10); ConMed Corp. v. Bonutti Skeletal Innov., LLC, Case
`IPR2013-00624, slip op. at 7 (Feb. 21, 2014) (Paper 18). Although Plaid
`attempts to characterize its late filing as merely being an inadvertent delay in
`clicking the “Submit” button, see Reply 4–5, this characterization belies
`Plaid’s failure to file a complete petition before the one-year statutory
`deadline. We additionally observe that, in contrast to the instant case,
`service in 2Wire and ConMed also was completed timely. See 2Wire, slip
`op. at 4; ConMed, slip. op. at 2.
`In two other Board cases cited by Plaid, see Mot. 9; Reply 3, the
`petitioners filed timely one wrong exhibit, and, despite this mistake, the
`petitioners had at least served the correct exhibit. See Nestle USA, Inc. v.
`Steuben Foods Inc., Case IPR2015-00195, slip op. at 4 (PTAB Jan. 21,
`
`12
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`2015) (Paper 9); Schott Gemtron Corp. v. SSW Holding Co., Case IPR2014-
`00367, slip op. at 3 (PTAB Sept. 22, 2014) (Paper 30). In another Board
`cased cited by Plaid, see Mot. 8–9, the petitioner filed and served timely the
`petition, but included a European patent as an exhibit rather than the related
`European patent application publication that was referenced in the petition.
`Syntroleum Corp. v. Neste Oil OYJ, Case IPR2013-00178, slip op. at 3
`(PTAB July 22, 2013) (Paper 21). These three Board cases are
`distinguishable from the instant case in that service was made timely in each
`case. In addition, the one exhibit filed incorrectly (but timely) in each case
`was either served correctly or available publicly; this differs from Plaid’s
`wholesale failure to file timely several exhibits before the one-year statutory
`deadline.
` Plaid’s reliance on the clerical mistake in ABB Inc. v. Roy-G-Biv
`Corp., Case IPR2013-00063 (PTAB Jan. 16, 2013) (Paper 21), also is
`unavailing. See Reply 3. In ABB, the petitioner filed timely papers related
`to two petitions, but mistakenly uploaded the wrong petition paper, exhibit
`list, and transmittal letter in one of the cases. See ABB, slip op. at 4. The
`petitioner nevertheless served timely the correct versions of both petitions on
`the patent owner. See id. at 5. Again, in contrast to this case, filing of all
`papers in ABB, including the mistaken ones, was completed timely, and
`service also was timely and correctly effected. Therefore, Plaid’s cited
`“clerical mistake” cases all involve petitioners that at least uploaded timely
`and served timely, albeit with inadvertent content errors or having failed to
`click “Submit.” In contrast, we do not view Plaid’s situation—where it
`intentionally waited to begin filing and it ultimately did not complete timely
`
`13
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`the filing and service of the Petition and supporting evidence, see Mot. 2–
`4—to be a “clerical error.”
`Finally, the evidence in this case undermines Plaid’s suggestion that
`PRPS errors constituted or caused a “clerical mistake.” See Mot. 5–6. This
`is borne out by the fact that Plaid continuously was able to upload
`documents both before and after the midnight deadline. See id. at 3–4
`(citing Ex. 1021 ¶¶ 12–13; Ex. 1022 ¶ 8). Plaid has not provided any
`objective evidence that technical issues occurred with the PRPS system at
`the relevant time, and we are not aware of any. We also are not persuaded
`that PRPS downtime two weeks after Plaid’s filing had any bearing on
`Plaid’s ability to file timely a complete petition in the instant case during the
`evening of December 2nd and into the early morning of December 3rd. See
`Mot. 2 n.1. Therefore, to the extent Plaid contends the relevant “clerical
`mistake” relates to degraded performance of PRPS, we are not persuaded by
`this line of argument.
`
`
`III. CONCLUSION
`For the foregoing reasons, Plaid failed to serve upon Yodlee the
`Petition and supporting evidence in accordance with 37 C.F.R. § 42.105(a)
`such that the Petition satisfies all the requirements for according it a filing
`date imposed by 37 C.F.R. § 42.106 within the one-year period set forth in
`35 U.S.C. § 315(b). We do not waive Plaid’s service requirement as a
`prerequisite for obtaining a filing date or excuse Plaid’s late service under 37
`C.F.R. § 42.5(b) and (c)(3), because Plaid does not show good cause to do
`so. Plaid also failed to file a complete petition in accordance with 37 C.F.R.
`§ 42.106(a) within the statutory period of 35 U.S.C. § 315(b), and we
`
`14
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`determine this failure did not constitute a clerical mistake under 37 C.F.R.
`§ 42.104(c). Accordingly, we deny Plaid’s motion to change the filing date
`accorded to its Petition, and we do not institute an inter partes review on any
`of the asserted grounds as to any of the challenged claims of the ’077 patent,
`because the Petition is time-barred under 35 U.S.C. § 315(b).
`
`
`IV. MOTION FOR PRO HAC VICE ADMISSION
`On April 7, 2016, Yodlee filed a motion for pro hac vice admission of
`David M. Barkan in this proceeding. Paper 14. In view of our decision
`denying institution of inter partes review herein, Yodlee’s motion for pro
`hac vice admission is dismissed as moot.
`
`
`V. ORDER
`
`Accordingly, it is:
`ORDERED that Petitioner’s motion to change the filing date accorded
`to the Petition is denied;
`FURTHER ORDERED that the Petition is denied as to all challenged
`claims and no trial is instituted; and
`FURTHER ORDERED that Patent Owner’s motion for pro hac vice
`admission of David M. Barkan is dismissed as moot.
`
`
`
`
`
`
`15
`
`
`
`Case IPR2016-00275
`Patent 6,199,077 B1
`
`PETITIONER:
`Brian Buroker
`Omar Amin
`bburoker@gibsondunn.com
`oamin@gibsondunn.com
`
`PATENT OWNER:
`David Hoffman
`IPR12233-0046IP1@fr.com
`hoffman@fr.com
`
`
`
`16