`Tel: 571-272-7822
`
`Paper: 40
`Entered: January 31, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KAWASAKI RAIL CAR, INC.,
`Petitioner,
`
`v.
`
`SCOTT BLAIR,
`Patent Owner.
`____________
`
`Case IPR2017-00117
`Patent 6,700,602 B1
`____________
`
`
`Before JAMESON LEE, SCOTT A. DANIELS, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of Proceeding
`37 C.F.R. § 42.5(a)
`Through this order, we provide notice to Patent Owner’s backup
`counsel, Dariush Keyhani, who is admitted pro hac vice in this proceeding,
`of previous representations by Patent Owner’s Lead Counsel. We also make
`of record an email from Lead Counsel of Patent Owner, dated December 1,
`2017, in which Lead Counsel declined to utilize the process provided in our
`November 29, 2017 Order (Paper 19) to address Patent Owner’s concern
`
`
`
`IPR2017-00117
`Patent 6,700,602 B1
`
`that Petitioner’s Reply contained improper new arguments that were
`allegedly beyond the scope of a proper reply.
`In Paper 19, the Board authorized Patent Owner to identify,
`specifically, “the location of any portion of Petitioner’s Reply (Paper 17)
`and the Supplemental Declaration of Lowell Malo (Ex. 1025) that Patent
`Owner believes exceeds the scope of Patent Owner’s Response.” Paper 19,
`3. The Board also authorized Petitioner to file a response to Patent Owner’s
`submission, specifically pointing out, for each item identified by Patent
`Owner, what Petitioner regards as the material in the Patent Owner
`Response that caused Petitioner to submit the reply items identified by
`Patent Owner. Id. at 3–4.
`The December 1, 2017 email, noted above, from Lead Counsel of
`Patent Owner states: “In response to the Order entered November 29, 2017
`[Paper 19] counsel for Patent Owner would like to inform the Board they
`will not be filing a response.” Ex. 3002 (emphasis added). The email
`further states: “Accordingly, Patent Owner withdraws its request to
`challenge the scope of the Petitioner’s Reply and will not be making any
`submissions in connection with the issues raised at the conference and the
`Board’s subsequent November 29, 2017 Order.” Id. (emphasis added).
`During oral hearing held on January 26, 2017, backup counsel for
`Patent Owner, Dariush Keyhani, argued nonetheless that Patent Owner was
`deprived due process with respect to alleged new arguments of Petitioner in
`the Reply, to which, Mr. Keyhani argued, Patent Owner did not have an
`opportunity to respond. Given the resolution mechanism outlined by the
`Board in Paper 19, and the email from Lead Counsel of Patent Owner dated
`December 1, 2017, backup counsel’s argument is baseless.
`
`2
`
`
`
`IPR2017-00117
`Patent 6,700,602 B1
`
`
`We recognize that Mr. Keyhani was not admitted to this proceeding
`until December 20, 2017. Paper 21. Nonetheless, Mr. Keyhani still is
`expected to be familiar with the entire record of the proceeding, including
`prior representations made by Patent Owner’s Lead Counsel to the Board
`and what contentions Patent Owner’s Lead Counsel has withdrawn.
`
`ORDER
`
`Accordingly, it is
`ORDERED that the email from Patent Owner’s Lead Counsel, dated
`December 1, 2017, is entered into the record as Exhibit 3002.
`
`
`
`
`PETITIONER:
`
`Sheila Mortazavi
`Zaed M. Billah
`Armin Ghiam
`ANDREWS KURTH KENYON LLP
`SheilaMortazavi@andrewskurthkenyon.com
`ZaedBillah@andrewskurthkenyon.com
`arminghiam@andrewskurth.com
`
`
`PATENT OWNER:
`
`Jennifer Meredith
`MEREDITH & KEYHANI, PLLC
`jmeredith@meredithkeyhani.com
`
`
`3
`
`
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