Patent No. 8,754,780
`IPR2016-00984
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`EMERSON ELECTRIC CO.
`
`Petitioner
`
`v.
`
`SIPCO, LLC
`Patent Owner
`
`U.S. Patent No. 8,754,780
`
`_____________________
`
`Inter Partes Review Case No. 2016-00984
`_____________________
`
`PATENT OWNER’S REQUEST FOR REHEARING UNDER 37
`C.F.R. § 42.71(d)
`
`Petitioner Emerson's Exhibit 1019
`Page 1 of 18
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`IPR2016-00984
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`EMERSON ELECTRIC CO.
`
`Petitioner
`
`v.
`
`SIPCO, LLC
`Patent Owner
`
`U.S. Patent No. 8,754,780
`
`_____________________
`
`Inter Partes Review Case No. 2016-00984
`_____________________
`
`PATENT OWNER’S REQUEST FOR REHEARING UNDER 37
`C.F.R. § 42.71(d)
`
`Petitioner Emerson's Exhibit 1019
`Page 1 of 18
`
`
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`Patent No. 8,754,780
`IPR2016-00984
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`Pursuant to 37 C.F.R. § 42.71(d), Patent Owner (“PO”) hereby submits this
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`Request for Rehearing on the Order – Conduct of the Proceeding by the Board
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`dated April 21, 2017 (Paper 27), which denied PO’s request to file a request for a
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`certificate of correction and petition to accept an unintentionally delayed priority
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`claim and for expedited consideration. PO submits that rehearing is appropriate
`
`because the Board overlooked arguments made by PO in response to the Order to
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`Show Cause and because the Board misapprehended reasons why the Office
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`denied a previous petition by PO.
`
`I.
`
`LEGAL STANDARDS
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`A request for rehearing is appropriate when the requesting party believes
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`“the Board misapprehended or overlooked” a matter that was previously addressed
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`in the record. See 37 C.F.R. § 42.71(d). The request “must identify all matters the
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`party believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” Id.
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`II.
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`BACKGROUND
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`A.
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`Procedural History
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`USPN 8,754,780 (“the ‘780 patent”) was filed on April 2, 2013 and
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`purported to be a continuation application of App. No. 13/173,499 (“the ‘499
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`application”)—and also claimed priority to a number of other patent applications.
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`1
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`In its Petition, Petitioner pointed out that the priority claim was invalid because the
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`‘499 application issued prior to the filing of the ‘780 Patent.
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`After reviewing the Petition, PO determined that the ‘780 patent mistakenly
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`claimed priority to the ‘499 application rather than App. No. 13/222,216 (“the ‘216
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`application”), which was pending at
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`the time the ‘780 patent was filed.
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`Accordingly, PO requested permission to file a Request for Certificate of
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`Correction and a Petition for an Unintentionally Delayed Priority Claim and for
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`Expedited Consideration (“First Request”), which the Board authorized.
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`The Office of Petitions denied the First Request, however, because PO failed
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`to include a corrected application data sheet (“ADS”). Ex. 3001, 2. PO’s Counsel
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`did not believe an ADS was required because the ‘780 patent had issued and thus
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`was no longer a pending application. Ex. 2029, ¶7. After this decision on the First
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`Request, PO’s Counsel contacted SPE Wood in the Petitions Office, who denied
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`the First Request. Mr. Wood confirmed PO need only file a renewed petition with
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`a corrected ADS to correct the deficiency of the First Request. Ex. 2029, ¶8.
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`PO then requested and was given permission by the Board to file a renewed
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`petition with the corrected ADS (“Second Request”). The Office, however, denied
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`the Second Request after discovering a different error in the ‘780 Patent’s priority
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`claim. In particular, the Office determined that while the ‘780 patent properly
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`2
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`claimed priority to App. No. 12/477,329 (“the ‘329 application”), which issued as
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`USPN 8,013,732 (“the ‘732 patent”), the ‘329 application had an error in its
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`priority claim to App. No. 09/439,059 (“the ‘059 application”), which issued as
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`USPN 6,437,692 (“the ‘692 patent”). Specifically, the ‘329 application:
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`does not recite the benefit claim that [the ‘059 application] is a
`continuation-in-part
`(CIP)
`of Application Nos.
`09/271,517,
`09/102,178, 09/172,554, [and] 09/412,895. Rather, the first line of the
`specification filed in [the ‘329 application] states, in pertinent part,
`that [the ‘059 application] is a CIP of 09/217,517 [sic], which is a CIP
`of 09/102,178, which is a CIP of 09/412,895, which is a CIP of
`09/172,554.
`
`Ex. 3002, 2 (emphases in original). In other words, although the ‘059 application is
`
`actually a CIP of four different applications, the ‘329 application mistakenly refers
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`to those four applications as CIPs of each other.1 Accordingly, the Office stated
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`that “[t]he benefit claims must be corrected in [the ‘329 application/‘732 patent]
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`before the petition under 1.78 can be granted in the [‘780 patent]” and provided
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`instruction on how to make these corrections, i.e., by filing a petition under Rule
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`1 As explained below, the evidence shows that the Office mistakenly inserted the
`
`word “which” into the priority claim for the ‘059 application when it issued that
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`application as the ‘692 patent and that this error was then replicated in later-filed
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`related applications and first discovered by the Office, despite the fact that patents
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`in this family have been previously litigated and challenged in other IPRs.
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`3
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`1.78(e) and a request for certificate of correction. Ex. 3002, 2. The Office also
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`indicated that “[PO] should review each and every claim for benefit,” i.e., each
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`prior application in the ‘780 patent’s priority claim, “to ensure that a reference is
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`made to the first application and to every intermediate application.” Ex. 3002, 2.
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`PO then requested authorization from the Board to file a renewed petition
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`for an unintentionally delayed priority claim and certificate of correction to correct
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`this newly discovered error. The Board issued an order instructing PO “to show
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`good cause why its request should be granted, including why it would be in the
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`interest of justice to grant its request.” Paper 24. PO filed a response to the order in
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`which it explained that
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`the Office denied the Second Request only after
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`discovering a new error in the priority claim of the ‘780 patent (i.e., improper
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`description of the relationship between the ‘692 patent and its parent applications
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`due to the inadvertent inclusion of the word “which”) and that this error originated
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`due to an error by the Office in publishing the ‘692 patent. See generally Paper 26.
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`In denying PO’s request, the Board stated that “[PO] does not explain any
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`particular circumstances that would justify its mistakes” and that “[PO]’s repeated
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`mistakes indicate deliberate indifference toward avoiding errors.” Paper 27, 3. As
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`explained below, PO submits that
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`the Board reached this decision by (1)
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`overlooking the “particular circumstances that would justify [PO’s] mistakes,” i.e.,
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`a publication error made by the Office, and (2) misapprehending the reasons why
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`the Office denied the Second Request, i.e., a newly discovered error in the priority
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`claim stemming from the Office error—not a “repeated” mistake by PO.
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`B.
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`Priority Claim of the ‘780 Patent2
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`2 The demonstrative chart provided by PO summarizes the priority information
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`provided in Paper Nos. 1, 13, 15, and 26, and Exs. 1001, 1034, 2011, 2029, 3001,
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`and 3002.
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`5
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`The priority claim of
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`the ‘780 patent can be better understood with the
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`demonstrative flow chart provided above, which illustrates the two issues relating
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`to the priority claim of the ‘780 patent. The first issue relates to the identification
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`of the correct parent application. As shown by the dotted red line, the ‘780 patent
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`(orange box) mistakenly claims priority to the ‘499 application/’667 patent (bottom
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`left white box), which was not a pending application when the ‘780 patent was
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`filed. As shown by the solid red line entering the ‘780 patent, the ‘780 patent was
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`intended to claim priority to the ‘216 application/’931 patent (bottom blue box),
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`which was pending when the ‘780 patent was filed. This error was first identified
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`in the Petition, and PO sought to correct it in the First and Second Requests.
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`The second issue stems from an error first made by the Patent Office when it
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`published the ‘692 Patent. As shown by the green dotted lines in the chart, the
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`priority claim of the ‘780 patent (orange box) incorrectly states that the ‘059
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`application/‘692 patent (top, center yellow box) is a CIP of the ‘517 application
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`(left gray box), which is a CIP of the ‘178 application (left-center gray box),
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`which is a CIP of the ‘554 application (right-center gray box), which is a CIP of
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`the ‘895 application (right gray box). The “which is a CIP” language is reflected on
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`the face of ‘692 Patent. As shown by the solid green lines, however, and as
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`reflected in the claim of priority in the specification of the ‘692 Patent, the ‘059
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`6
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`Petitioner Emerson's Exhibit 1019
`Page 7 of 18
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`Application/’692 patent (top yellow box) is actually a CIP of each of these four
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`applications (the four gray boxes)—but those applications are not CIPs of each
`
`other. In fact, it is temporally impossible for the ‘178 application (left-center gray
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`box) to be a CIP of the ‘554 application (right-center gray box) because the ‘554
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`application was filed after the ‘178 application. Similarly, the ‘554 application
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`(right-center gray box) cannot be a CIP of the ‘895 application (right gray box)
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`because the ‘895 application was filed after the ‘554 application. This error was
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`first discovered by the Office, which also identified that the same error exists in the
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`‘329 application/’732 patent (top blue box), in denying the Second Request. PO
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`sought to correct all of these related errors in the Third Request.
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`In response to the Office’s statement that the PO “should review each and
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`every claim for benefit to ensure [that it is correct]” and that the newly identified
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`second error “must be corrected in prior filed [‘329 application] before the petition
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`under 1.78 can be granted in the [‘780 patent],” (Ex. 3002, 2), PO reviewed the
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`priority claim of each patent/application to which the ‘780 patent claims priority to
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`ensure that those priority claims were correct. In doing so, PO identified that the
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`second error also exists in the ‘216 application/’931 patent (bottom blue box) and
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`in the ‘329 application/‘732 patent (top blue box), which was identified by the
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`Office (Ex. 3002, 2). PO also discovered that while the priority claim is correct in
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`7
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`the specification of the ‘059 application/’692 patent, the ‘685 application/’661
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`patent, and the ‘739 application/’059 patent (the three yellow boxes), the priority
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`claim on that was printed by the Office on the cover of these patents upon issuance
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`contains the second error, i.e., the mistaken inclusion of the word “which” in the
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`priority claim. Ex. 2029, ¶11-12.
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`The second issue originated with a publication error by the Office when it
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`issued the ‘059 application as the ‘692 patent (top yellow box). Ex. 2029, ¶11. This
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`Office publication error was copied into the specification of
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`the ‘329
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`application/’732 patent (top blue box) upon filing, and subsequently repeated in the
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`‘216 application/’931 patent (bottom, right blue box) and ‘452 application/’780
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`patent (orange box) when those applications were filed. Ex. 2029, ¶11-12.
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`Accordingly, to correct these errors, PO desires to file requests for certificate of
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`correction to correct a mistake of the Office in the ‘692, ‘661, and ‘059 patents
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`(three yellow boxes), and PO desires to file petitions for unintentional delayed
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`priority claims and requests for certificate of correction in the ‘732, ‘931, and ‘780
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`patents (two blue boxes and orange box).
`
`III. THE BOARD OVERLOOKED PO’S EXPLANATION OF THE
`“PARTICULAR CIRCUMSTANCES THAT WOULD JUSTIFY ITS
`MISTAKES”
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`8
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`Petitioner Emerson's Exhibit 1019
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`In denying PO’s Third Request, the Board stated, “[PO]’s response to our
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`Order to Show Cause alleges that the mistakes in the Second Request are due to an
`
`inadvertent omission, but [PO] does not explain any particular circumstances that
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`would justify its mistakes.” Paper 27, 3 (citing Paper 26, 4). As discussed above,
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`the Office denied the Second Request because it identified a different error in the
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`priority claim than the error that they cited originally, an inadvertent inclusion (not
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`“omission” as indicated by the Board) of the word “which” in the priority claims of
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`the ‘780 patent (and also the ‘732 patent). Ex. 3002, 2; Paper 26, 2-3. In its
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`Response to the Order to Show Cause, however, PO provided several reasons
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`justifying why this error (i.e., inclusion of the word “which”) was not previously
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`corrected in the Second Request.
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`First, PO pointed out that this error was first discovered by the Office in
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`deciding the Second Request. Paper 26, 3 (“These errors were not previously
`
`identified by any party or the Office.”). For example, even though the ‘780 patent
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`is involved in litigation and Petitioner initially reviewed the priority claim of the
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`‘780 patent in its Petition for IPR, Petitioner had not previously discovered this
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`issue. Further, even though the PO had previously sought to correct the priority
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`claim in the ‘780 patent in its First Request, in denying the First Request, the
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`Office did not discover this new error. Indeed, Mr. Weeks was told by the Office
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`that the only reason that the First Request was denied was because it failed to
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`include an ADS. (Ex. 2029, ¶ 8) (cited in Paper 26, 2, 4). Thus, PO submits that its
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`failure to correct this error was justified because neither PO nor anyone else
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`challenging these related patents was aware that this error in the priority claim
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`existed. Paper 26, 4-5 (“PO did not learn of the inadvertent inclusion of the word
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`‘which’ in the priority description of the ‘329 application, and in the ‘216
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`application, until they were identified by the Office of Petitions.”).
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`Second, PO pointed out that this newly discovered error likely originated
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`due to a publication error made by the Office when it issued the ‘692 patent. Paper
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`26, 4 (“[T]hese errors likely originated from a publication error that appeared on
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`the face of [the ‘692 patent], related by priority to the ‘780 Patent that propagated
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`into the priority claims of subsequent continuations of the ‘692 Patent.”) (citing
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`Ex. 2029, ¶11). As explained above, and set forth in the Declaration of Dustin
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`Weeks (Ex. 2029), the PO included the correct priority claim in the specification of
`
`the ‘692 patent (i.e., the priority claim did not include “which”), but when the
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`Office issued the ‘692 patent, the Office improperly included the problematic word
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`“which” in the priority claim on the cover of the ‘692 patent—an error which
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`propagated to later continuation applications, including the ‘780, ‘931, and ‘732
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`patents. Thus, PO pointed out that the fact that this error originated due to an error
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`10
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`by the Office provides an additional reason why it should be allowed to correct the
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`error.
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`The Board’s Order (Paper 27) did not address either of these reasons.
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`Accordingly, PO submits that the Board overlooked the reasons provided by PO,
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`which justify the deficiencies of the Second Request. When these justifications are
`
`taken into consideration, in addition to the gross injustice that the inventor would
`
`suffer were this patent invalidated—not because of any substantive lack of novelty
`
`or nonobvious—but merely because PO is not permitted to correct these clerical
`
`errors through use of the agency rules and the United States Code designed to
`
`allow just that.
`
`IV. THE BOARD MISAPPREHENDED THE OFFICE’S REASONS FOR
`DENYING THE SECOND REQUEST
`In denying PO’s Third Request, the Board stated that “[PO]’s repeated
`
`mistakes indicate deliberate indifference toward avoiding errors.” Paper 27, 3
`
`(emphasis added). The Board’s statement implies that it believes that the Second
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`Request was denied because PO failed to cure a mistake identified when the Office
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`denied the First Request, i.e., that the PO “repeated” a mistake. This is incorrect.
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`The Second Request was denied for reasons wholly unrelated to the
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`deficiencies identified in the Office’s denial of the First Request. As discussed in
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`detail above, the First Request sought to correct the error identified in the Petition,
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`i.e., that the ‘780 patent claimed priority to the ‘499 application/’667 patent but
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`should have claimed priority to the ‘216 application/’931 patent. The First Request
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`was denied for failure to include an ADS, which PO did not submit because it did
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`not believe correction of an issued patent—as opposed to a pending application—
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`required an ADS. The Second Request corrected all errors identified in the Petition
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`and in the denial of the First Request; the Second Request did not “repeat” any
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`mistake in the First Request. Rather, the Second Request was denied based on a
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`newly discovered error—the inclusion of the word “which” in the priority claim.
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`Further, contrary to the Board’s statement, SIPCO has not been deliberately
`
`indifferent to avoiding errors. It is first noted that neither the United States Code,
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`the Code of Federal Regulations, nor the MPEP provide a “deliberate indifference
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`to avoiding errors” standard applicable to administrative proceedings within the
`
`USPTO during an Inter Partes Review. The most current patent case law found
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`with regard to deliberate indifference is a 2010 Federal Circuit case that discusses a
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`“deliberate indifference” standard as it applies to patent law, although the standard
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`has since been rejected by the Supreme Court in Global-Tech Applicances, Inc. v.
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`SEB S.A., 563 U.S. 754 (2011), for determining liability under § 271(b).
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`In the 2010 case, the Federal Circuit described the deliberate indifference
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`standard as follows:
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`The Supreme Court has indicated, in a different civil context, that
`‘deliberate indifference’ is not necessarily a ‘should have known’
`standard. Farmer v. Brennan, 511 U.S. 825, 840 (1994). The latter
`implies a solely objective test, whereas the former may require a
`subjective determination that the defendant knew of and disregarded
`the overt risk that an element of the offense existed. See id.
`(“‘[D]eliberate’ is better read as implying knowledge of a risk, [but]
`the concept of constructive knowledge is familiar enough that the term
`‘deliberate indifference’ would not, of its own force, preclude a
`scheme that conclusively presumed awareness
`from a risk’s
`obviousness.”).
`
`SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360, 1376 (Fed. Cir. 2010).
`
`[T]he standard of deliberate indifference of a known risk is not
`different from actual knowledge, but is a form of actual knowledge.
`See, e.g., United States v. Carani, 492 F.3d 867, 873 (7th Cir. 2007)
`(“Deliberate avoidance is not a standard less than knowledge; it is
`simply another way that knowledge may be proved.”); Woodman v.
`WWOR-TV, Inc., 411 F.3d 69, 84 n.14 (2d Cir. 2005) (“We note that a
`party’s knowledge of a disputed fact may also be proved through
`evidence that he consciously avoided knowledge of what would
`otherwise have been obvious [to] him.”).
`
`Id. at 1377. The Federal Circuit provided evidence of an example that could satisfy
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`the “deliberate indifference” standard within the confines of patent law: “[a]
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`failure to inform one’s counsel of copying would be highly suggestive of deliberate
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`indifference in most circumstances.” Id. at 1377.
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`Here, there is no evidence PO or its attorneys had actual knowledge of these
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`errors. Nor
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`is there evidence that PO or
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`its attorneys consciously avoided
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`knowledge of what would otherwise have been obvious to them. After addressing
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`the errors within the four corners of the ‘780 patent, PO did not consciously avoid
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`knowledge of errors—it contacted the Office of Petitions to determine if the Office
`
`noted additional errors. Actively seeking out the input from the USPTO regarding
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`possible
`
`errors
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`cannot possibly be
`
`construed as
`
`“consciously avoiding
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`knowledge.” These errors were not known to one party and not disclosed to the
`
`patent attorneys. They were unknown errors that were not yet discovered. Once it
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`was discovered that the error appeared in more than one patent, PO’s attorneys
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`fully reviewed the entire patent family and identified all of the related priority
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`claim errors that needed correction prior
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`to the third request
`
`to correct
`
`priority. Thus, all of the evidence presented indicates that SIPCO was not
`
`deliberately indifferent to avoiding errors, and in fact took appropriate steps to
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`ensure the patents were error-free.
`
`Because PO has acted diligently in attempting to remedy any mistakes as
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`soon as it has been made aware, acted diligently to ensure similar mistakes will
`
`also be corrected (e.g., PO discovered the inclusion of “which” propagated to other
`
`applications not identified by the Office and seeks to remedy those errors as well),
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`and has not repeated any mistakes, PO submits that allowing PO to exercise the
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`rights afforded to it by the agency rules and United States Code to correct these
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`clerical errors is in the interest of justice. 3 This is especially true given that
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`correction of these errors will burden neither the Board nor the Petitioner, other
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`than to the extent Petitioner will be forced to seek cancellation of claims in the
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`‘780 patent through substantive arguments under §§ 102 and 103 rather than by
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`discovery of clerical errors made by the Office and PO’s patent attorneys.
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`V.
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`CONCLUSION
`
`PO respectfully requests the Board to reconsider its decision on the Order to
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`Show Cause and permit PO to submit a Petition for Unintentionally Delayed
`
`Priority Claim and for Expedited Consideration and Certificate of Correction in the
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`‘780 Patent and its parent patents.
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`3 PO further points out that agency rules would permit PO to file the Third Request
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`upon termination of the proceeding, i.e., after issuance of a Final Written Decision,
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`when the Board no longer has jurisdiction pursuant to 37 C.F.R. § 42.3. If the
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`petition is granted soon thereafter, and during the pendency of any appeal, it is
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`possible that the Federal Circuit might simply remand the case to the Board with
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`instructions to reconsider the case in view of the change in circumstances, i.e., the
`
`corrected priority claim. Accordingly, PO submits that it is in the interests of
`
`judicial economy that the Board allows PO to proceed with filing the Third
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`Requests now, rather than later.
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`Date: May 4, 2017
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`Respectfully submitted,
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`Patent No. 8,754,780
`IPR2016-00984
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`/Gregory Gonsalves/
`Gregory Gonsalves
`Reg. No. 43,639
`2216 Beacon Lane
`Falls Church, Virginia 22043
`(571) 419-7252
`gonsalves@gonsalveslawfirm
`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Request for Rehearing, was served via email on May 4, 2017, on the
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`attorneys for the Petitioner:
`
`Lead Counsel
`Donald L. Jackson (Reg. No. 41,090)
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Dr., Suite 500
`McLean, Virginia 22102
`Telephone: 571-765-7700
`Fax: 571-765-7200
`
`Back-up counsel
`Walter D. Davis, Jr. (Reg. No. 45,137)
`James D. Berquist (Reg. No. 34,776)
`Davidson Berquist Jackson & Gowdey, LLP,
`8300 Greensboro Dr., Suite 500,
`McLean, Virginia 22102
`Telephone: 571-765-7700
`Fax: 571-765-7200
`
`SIPCO-IPCO-IPR@davidsonberquist.com
`
`By: /Gregory Gonsalves/
`Gregory Gonsalves
`Reg. No. 43,639
`2216 Beacon Lane
`Falls Church, Virginia 22043
`(571) 419-7252
`gonsalves@gonsalveslawfirm.
`
`17
`
`Petitioner Emerson's Exhibit 1019
`Page 18 of 18
`
`
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