throbber
Case: 17-14849 Doc: 21 Filed: 02/02/18 Page: 1 of 16
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`IN THE UNITED STATES BANKRUPTCY COURT
`FOR THE WESTERN DISTRICT OF OKLAHOMA
`
`In re
`
`Youtoo Technologies, LLC
`
`Debtor.
`
`Case No. 17-14849-JDL
`Chapter 7
`
`TWITTER, INC.’S MOTION FOR ORDER (I) HOLDING THAT THE
`AUTOMATIC STAY DOES NOT APPLY PURSUANT TO 11 U.S.C. § 362(b)(4),
`OR ALTERNATIVELY, (II) LIFTING THE AUTOMATIC STAY FOR CAUSE
`UNDER § 362(d)(1) AND WAIVING THE 14-DAY STAY UNDER BANKRUPTCY
`RULE 4001(a)(3), BRIEF IN SUPPORT THEREOF,
`AND NOTICE OF OPPORTUNITY FOR HEARING
`
`NOTICE OF OPPORTUNITY FOR HEARING
`
`YOUR RIGHTS MAY BE AFFECTED. YOU SHOULD READ THIS
`DOCUMENT CAREFULLY AND CONSULT YOUR ATTORNEY
`ABOUT YOUR RIGHTS AND THE EFFECT OF THIS
`DOCUMENT. If you do not want the Court to grant the requested relief, or
`you wish to have your views considered, you must file a written response or
`objection to the requested relief with the Clerk of the United States
`Bankruptcy Court for the Western District of Oklahoma, 215 Dean A.
`McGee Avenue, Oklahoma City, OK 73102 no later than 14 days from the
`date of filing of this request for relief. You should also serve a file stamped
`copy of the response or objection to the undersigned movant’s attorney and
`others who are required to be served and file a certificate of service with the
`court.
`If no response or objection is timely filed, the court may grant the
`requested relief without a hearing or further notice.
`
`The 14 day period includes the three (3) days allowed for mailing
`provided for in Bankruptcy Rule 9006(f).
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`Twitter, Inc. (“Twitter”), a party-in-interest in the above referenced bankruptcy
`
`case, by and through its undersigned counsel, hereby request that the Court enter an order
`
`(i) holding that pursuant to Bankruptcy Code § 362(b)(4), the automatic stay under
`
`§ 362(a) does not apply to inter partes review proceedings by the Patent and Trial Appeal
`
`Board (the “PTAB” or the “Board”) “of the United States Patent and Trademark Office”
`
`(the “USPTO”), or alternatively, (ii) lifting the stay for cause under § 362(d)(1).
`
`In
`
`support of its request, Twitter represents as follows:
`
`INTRODUCTION
`
`1.
`
`Three patents held by Youtoo Technologies, LLC. (“Youtoo”), the chapter
`
`7 debtor in the above-referenced proceeding, are currently the subject of inter partes
`
`review proceedings (“IPR Proceedings”) in front of the PTAB of the USPTO. The PTAB
`
`has instituted the IPR Proceedings based on its determination that Twitter is likely to
`
`prevail on the challenges that it has raised to the validity of the challenged patents. The
`
`PTAB has been granted the statutory power to determine whether to institute IPR
`
`Proceedings, and once instituted, the power to determine the validity of issued patents.
`
`The PTAB has been granted this power to protect the public interest in preventing
`
`improper patent monopolies, not to vindicate the private rights of the party raising a
`
`patent challenge. Because IPR Proceedings are proceedings instituted by the PTAB and
`
`intended to protect the public interest, they are exempted from the automatic stay under
`
`Bankruptcy Code § 362(b)(4).
`
`2.
`
`Further, the PTAB is a specialized tribunal with the power to re-examine its
`
`own actions in issuing a patent. Accordingly, given its specialized knowledge and
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`purpose, it is the best venue for the determination of whether Youtoo’s patents were
`
`validly issued. Additionally, a determination of the validity of those patents will be
`
`necessary before the Trustee will be able to monetize the value of the patents for the
`
`bankruptcy estate. The PTAB has already preliminarily determined that there is a
`
`reasonable likelihood that Twitter would prevail on its challenges to three of Youtoo’s
`
`patents. Given their uncertain validity, absent resolution from the PTAB, it will be very
`
`difficult to monetize what value, if any, the patents have for creditors of the bankruptcy
`
`estate. Therefore, cause exists under § 362(d)(1) to lift the stay, if applicable, to allow
`
`proceedings regarding Youtoo’s patents to move forward in front of the PTAB.
`
`JURISDICTION AND VENUE
`
`3.
`
`This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157
`
`and 1334. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(G).
`
`FACTUAL BACKGROUND
`
`1.
`
`The above-referenced bankruptcy proceeding was filed on November 30,
`
`2017 (the “Petition Date”), and Douglas N. Gould was appointed as the chapter 7 trustee
`
`for the Youtoo bankruptcy estate (the “Trustee”).
`
`2.
`
`On January 31, 2017, Twitter filed two petitions requesting inter partes
`
`review of U.S. Patent No. 9,083,997 (“’997 Patent”), which were assigned proceeding
`
`numbers IPR2017-00829 and IPR2017-00830. The PTAB instituted inter partes review
`
`proceedings for Twitter’s challenges of the ‘997 Patent on August 11, 2017, based upon
`
`the PTAB’s finding that there is a reasonable likelihood that Twitter would prevail on its
`
`challenges. See 35 USC § 314(a).
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`3.
`
`The statute governing inter partes review requires that the PTAB issue its
`
`final written determination in these proceedings no later than August 11, 2018 (one year
`
`from the institution of the proceeding). 35 USC § 316(a)(11). That deadline may be
`
`extended no more than six months upon a showing of good cause. Id.
`
`4.
`
`On March 24, 2017, Twitter filed a petition for inter partes review
`
`challenging claims of U.S. Patent No. 8,601,506 (“’506 Patent”), and a petition for inter
`
`partes review challenging claims of U.S. Patent No. 8,464,3041 (“’304 Patent”), and
`
`together with the ’997 Patent, and the ’506 Patent, the “Challenged Patents”), which were
`
`assigned proceeding numbers
`
`IPR2017-01133 and IPR2017-01131,
`
`respectively
`
`(collectively with IPR2017-00829 and IPR2017-00830, the “Pending IPR Proceedings”).
`
`The PTAB instituted inter partes review proceedings for Twitter’s challenges of both the
`
`’506 Patent and the ’304 Patent on October 2, 2017, based upon the PTAB’s finding that
`
`there is a reasonable likelihood that Twitter would prevail on its challenges. See 35 USC
`
`314(a).
`
`5.
`
`As with the IPR Proceeding for the ’997 Patent, the statute governing inter
`
`partes review requires that the PTAB issue its final written determination in the ’506
`
`Patent and the ’304 Patent proceedings no later than October 2, 2018, and that deadline
`
`1 Twitter notes that, on November 10, 2016, in the district court action brought by Youtoo
`against Twitter alleging infringement of the ’997 Patent, ’304 Patent, and ’506 Patent (Case No.
`3:16-cv-00764 (N.D.Tex.)), Judge Godbey issued an Order granting Twitter’s Partial Motion to
`Dismiss Youtoo’s infringement claims for the ’304 Patent and ’506 Patent, finding that the ’304
`Patent and ’506 Patent were invalid under 35 U.S.C. § 101 for claiming patent-ineligible subject
`matter.
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`may be extended no more than six months upon a showing of good cause. 35 USC
`
`316(a)(11).
`
`6.
`
`On December 7, 2017, the PTAB entered an order in the Pending IPR
`
`Proceedings, attached hereto as Exhibit 1, authorizing Youtoo to file a motion to stay the
`
`Pending IPR Proceedings as a result of its bankruptcy filing, and authorizing Twitter to
`
`respond. The Trustee filed a motion to stay on December 13, 2017, and Twitter
`
`responded on December 20, 2017.
`
`7.
`
`On December 28, 2017, the PTAB entered an order, attached hereto as
`
`Exhibit 2, providing Twitter an opportunity to seek a determination that the automatic
`
`stay does not apply or an order granting relief from the automatic stay, and extending
`
`Youtoo’s deadline to respond to the inter partes review petitions to February 5, 2018.
`
`8.
`
`On January 19 and February 1, 2018,
`
`the PTAB entered two orders,
`
`attached hereto as Exhibit 3 and Exhibit 4, requiring, among other things, Youtoo to file a
`
`reply in support of its motion for stay no later than February 5, 2018, and extending
`
`Youtoo’s deadline to respond to the inter parties review petitions to February 26, 2018.
`
`9.
`
`Youtoo also owns U.S. Patent No. 8,311,382 (“’382 Patent”), U.S. Patent
`
`No. 8,413,206 (“’206 Patent”), and U.S. Patent No. 9,319,161 (“’161 Patent,” and
`
`together with the ’382 Patent and the ’206 Patent,” the “Additional Patents”). The ’382
`
`Patent is in the same patent family as the ’997 Patent and is directed to similar subject
`
`matter as the ’997 Patent, specifically, recording and publishing content on social
`
`networking websites. The ’206 Patent and ’161 Patent are directed to methods of
`
`enabling viewers to participate in a television program over a communication network.
`
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`Twitter believes that each of the Additional Patents may also be subject to validity
`
`challenges in IPR Proceedings.
`
`BRIEF IN SUPPORT OF RELIEF
`
`A.
`
`IPR Proceedings are Excluded from the Automatic Stay Under 11 U.S.C.
`§ 362(b)(4).
`
`10.
`
`Bankruptcy Code § 362(b)(4) provides in pertinent part that the filing of a
`
`petition under the Bankruptcy Code does not operate as a stay of:
`
`[T]he commencement or continuation of an action or proceeding by a
`governmental unit . . . to enforce such governmental unit’s . . . regulatory
`power,
`including the enforcement of a judgment other than a money
`judgment obtained in an action or proceeding by the governmental unit to
`enforce such governmental unit’s . . . regulatory power.”
`
`11 U.S.C. § 362(b)(4).
`
`11.
`
`This exception to the bankruptcy automatic stay applies where a proceeding
`
`(i) is brought or continued by a governmental unit and (ii) seeks to vindicate the public
`
`interest, as opposed to the private rights of a third-party. See, e.g., I.T.C. v. Jaffe, 433
`
`B.R. 538, 543 (E.D. Va. 2010). IPR Proceedings satisfy both of the requirements of 11
`
`U.S.C. § 362(b)(4) and are therefore exempt from the automatic stay.
`
`1. IPR Proceedings are proceedings by a governmental unit.
`
`12.
`
`First, an instituted IPR Proceeding is a “continuation of an action…by a
`
`governmental unit.”
`
`11 U.S.C. § 362(b)(4).
`
`The USPTO and the PTAB are
`
`unquestionably governmental units created by Congress. See 35 U.S.C. §§ 1, 6.2 An
`
`2 The Bankruptcy Code defines a “governmental unit” as:
`
`United States; State; Commonwealth; District; Territory; municipality; foreign
`state; department, agency, or instrumentality of the United States (but not a
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`IPR Proceeding involves two distinct phases: (i) “the institution phase,” beginning with
`
`the filing of an inter partes review petition and concluding in the PTAB’s decision on
`
`whether to “institute” an IPR Proceeding, and, if instituted, (2) “the merits phase,”
`
`beginning after the PTAB’s decision to institute the IPR Proceeding and concluding in
`
`the PTAB’s determination of patentability in light of the instituted grounds.
`
`See
`
`Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1364-65 (Fed. Cir. 2016); 35 U.S.C.
`
`§ 314(a). During the institution phase, the PTAB establishes the parameters that will
`
`confine the proceeding during the merits phase. Harmonic Inc., 815 F.3d at 1367. The
`
`PTAB has the discretion to institute an IPR Proceeding, but is never compelled to do so.
`
`Id. While private parties can submit an inter partes review petition to the PTAB, those
`
`private parties do not require constitutional standing and may not even remain in the IPR
`
`Proceeding. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016); 11
`
`U.S.C. § 317(a). Rather, the PTAB may continue to conduct an IPR Proceeding even
`
`after the petitioning parties have decided to cease participation.
`
`Id. (citing 35 U.S.C.
`
`§ 317(a)).
`
`13.
`
`The United States District Court for the Eastern District of Virginia
`
`considered substantially similar proceedings in front of
`
`the International Trade
`
`Commission (the “ITC”) in United States International Trade Commission v. Jaffe, and
`
`held that those proceedings are not subject to the bankruptcy automatic stay pursuant to
`
`United States trustee while serving as a trustee in a case under this title), a State, a
`Commonwealth, a District, a Territory, a municipality, or a foreign state; or other
`foreign or domestic government.
`
`11 U.S.C. § 101(27) (emphasis added).
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`11 U.S.C. § 362(b)(4). 433 B.R. at 543.
`
`In Jaffe, a private party filed a complaint
`
`initiating a proceeding before the ITC. Id. at 541. However, the filing of the complaint
`
`with the ITC resulted only in a “pre-institution proceeding,” where the ITC examined the
`
`complaint for sufficiency and performed a preliminary investigation. Id. After the ITC’s
`
`preliminary investigation, the ITC decided to “institute” the proceeding based on the
`
`merits of the complaint.
`
`Id. The court explained that although the proceeding would
`
`continue through an adversarial process after it was instituted, the ITC was the party with
`
`the power to continue the proceeding, not the private parties.
`
`Id. Accordingly, the
`
`proceeding was a proceeding “by the ITC” that met the requirements of 11 U.S.C.
`
`§ 364(b)(4). Id. at 543.
`
`14.
`
`Here, the PTAB, like the ITC, has the power to institute IPR Proceedings,
`
`and the PTAB is the party with the power to continue IPR Proceedings. The PTAB itself
`
`has held that inter partes review “is an adjudicatory proceeding of a federal agency…”
`
`Ericsson Inc. v. Regents of the Univ. of Minn., Case No. IPR2017-01186, slip op. at 4
`
`(Paper No. 14) (PTAB Dec. 19, 2017) (emphasis added), a copy of which is attached
`
`hereto as Exhibit 5. The adversarial nature of IPR Proceedings is intended to assist the
`
`PTAB’s exercise of its regulatory responsibilities, but does not change the fact that IPR
`
`Proceedings are proceedings by the PTAB as a governmental unit.
`
`2. The primary purpose of an IPR Proceeding is to protect the public
`welfare, not adjudicate private rights.
`
`15.
`
`IPR Proceedings also meet the second requirement of 11 U.S.C. § 362(b)(4)
`
`– they seek to protect the public interest, not adjudicate private disputes. To determine
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`whether proceedings satisfy this requirement for exclusion from the automatic stay under
`
`§ 362(b)(4), courts have applied two overlapping and related tests: the pecuniary purpose
`
`test and the public policy test. See, e.g., Halo Wireless, Inc. v. Alenco Commc’ns, Inc. (In
`
`re Halo Wireless, Inc.), 684 F.3d 581, 588 (5th Cir. 2012); N.L.R.B. v. Edward Cooper
`
`Painting, Inc., 804 F.2d 934, 942 (6th Cir. 1986).
`
`16.
`
`The pecuniary purpose test asks whether the government primarily seeks to
`
`protect a pecuniary governmental
`
`interest
`
`in the debtor’s property, as opposed to
`
`protecting the public welfare. In re Halo Wireless, Inc., 684 F.3d at 588; Edward Cooper
`
`Painting, 804 F.2d at 942. The primary question in the public policy test is whether the
`
`government is effectuating public policy rather than adjudicating private rights.
`
`In re
`
`Halo Wireless, Inc., 684 F.3d at 588; Edward Cooper Painting, 804 F.2d at 942. If the
`
`purpose of the law is to effectuate public policy, then the exception to the automatic stay
`
`applies. In re Halo Wireless, Inc., 684 F.3d at 588. Alternatively, if the purpose of the
`
`law is to protect a pecuniary interest in the debtor’s property or primarily to adjudicate
`
`private rights, then the exception is inapplicable. Id.
`
`17.
`
`The application of these tests does not depend upon whether a private party
`
`is involved in the prosecution of the action or proceeding. See In re Halo Wireless, 684
`
`F.3d at 589; see also McMullen v. Sevigny (In re McMullen), 386 F.3d 320, 328 (1st Cir.
`
`2004) (“[T]he same sound public policy reasons which undergird the [§] 362(b)(4)
`
`exception counsel against any rule which might dissuade private parties from providing
`
`governmental regulators with information which might require enforcement measures to
`
`protect the public from imminent harm.”); Jaffe, 433 B.R. at 541-43. While regulatory
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`proceedings commenced by private parties may have similarities to private litigation,
`
`they also promote the public interest by enforcing laws and regulations. See, e.g., In re
`
`Halo Wireless, 684 F.3d at 589-90. See also D.M. Barber, Inc. v. Valverde (In re D.M.
`
`Barber, Inc.), 13 B.R. 962, 963 (Bankr. N.D. Tex. 1981) (“Proceedings before the
`
`National Labor Relations Board are commenced by the initiative of aggrieved individual
`
`persons and thus have some characteristics of private litigation. However the case law
`
`reflects that the proceedings by the PTAB are not to adjudicate private rights but to
`
`effectuate public policy.”); Edward Cooper Painting, 804 F.2d at 941 (“[T]he NLRB
`
`determines which complaints it will act upon in its own name in furthering the policies of
`
`the federal labor laws.”).
`
`18. When tested against these criteria, IPR Proceedings are clearly excluded
`
`from the reach of the automatic stay under 11 U.S.C. § 362(b)(4). The Supreme Court
`
`explained that IPR Proceedings are “less like judicial proceedings and more like a
`
`specialized agency proceeding.” Cuozzo Speed Techs., 136 S. Ct. at 2144. The Supreme
`
`Court explained that the features of an IPR Proceeding “indicate that the purpose of the
`
`proceeding is not quite the same as the purpose of district court litigation.” Id. An IPR
`
`Proceeding is not a proceeding to judicially determine private rights to monetary or
`
`equitable relief. Rather, the primary purpose of an IPR Proceeding is to allow the PTAB
`
`to re-examine the agency’s own actions in issuing a patent. Id. IPR Proceedings protect
`
`the public’s “paramount interest in seeing that patent monopolies are kept within their
`
`legitimate scope.” Id. (internal citations omitted). The purpose of permitting the Patent
`
`Office to correct its errors is to “remedy defective governmental (not private) action, and
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`if need be to remove patents that should never have been granted.” Patlex Corp. v.
`
`Mossinghoff, 758 F.2d 594, 604 (Fed. Cir. 1985); cf. Ericsson, Case No. IPR2017-01186,
`
`slip op. at 3-4 (Bisk, J., concurring) (“inter partes review represents no more than the
`
`Patent Office’s reconsideration of its initial decision…in the form of a patent grant…
`
`inter partes review is a circumscribed in rem proceeding, in which the Patent Office
`
`exercises jurisdiction over the patent challenged, rather than the parties named.”). “A
`
`defectively examined and therefore erroneously granted patent must yield to the
`
`reasonable Congressional purpose of
`
`facilitating the correction of governmental
`
`mistakes.” Patlex, 758 F.2d at 604. Accordingly, IPR Proceedings meet the second
`
`requirement of 11 U.S.C. § 362(b)(4) and are not subject to the bankruptcy automatic
`
`stay.
`
`19.
`
`This conclusion is supported by other court decisions in connection with
`
`similar regulatory proceedings. For example, in In re Halo Wireless, various telephone
`
`companies filed suits against Halo Wireless, Inc. (“Halo”) with ten state public utility
`
`commissions (the “PUCs”). Id. at 583. As a result, Halo filed a bankruptcy proceeding.
`
`Id. The telephone companies sought and received an order from the bankruptcy court
`
`that the PUC proceedings were excluded from the bankruptcy automatic stay under 11
`
`U.S.C § 362(b)(4). Id. The Fifth Circuit affirmed the bankruptcy court, rejecting Halo’s
`
`argument that the actions in the PUCs were private party actions. Id. The Fifth Circuit
`
`determined that although proceedings in front of the PUCs are commenced by private
`
`parties, the continuation of those proceedings by the PUCs is in furtherance of the public
`
`policy to make adequate and efficient telecommunications services available to all at just,
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`fair and reasonable rates.
`
`Id. at 592-94. Accordingly, the Fifth Circuit concluded that
`
`both the pecuniary purpose and public policy tests supported the application of
`
`§ 362(b)(4). Id. at 593-94.
`
`20.
`
`Also, in In re McMullen, the First Circuit held that a party did not violate
`
`the bankruptcy automatic stay by submitting a complaint against the debtor to the
`
`Massachusetts Division of Registration for Real Estate Agents based on the debtor’s
`
`alleged fraudulent retention of a real estate deposit. In re McMullen, 386 F.3d at 322-23.
`
`The First Circuit found that applicable law empowered the real estate board to suspend,
`
`revoke, or refuse to renew a real estate broker license where the broker had improperly
`
`refused to account for or remit money in the broker’s possession. Id. at 325. This power
`
`was intended to safeguard the public from the wrongful future conduct of corrupt or
`
`incompetent professionals, which fell squarely within the public policy exception of 11
`
`U.S.C. § 362(b)(4).
`
`Id. The First Circuit recognized that while the creditor filing the
`
`complaint with the real estate board might have a pecuniary interest in the recovery of the
`
`creditor’s claim against
`
`the debtor,
`
`the real estate board’s power was limited to
`
`revocation of the debtor’s real estate license, and did not adjudicate that private claim.
`
`Id. at 326-27.
`
`21. Much like the proceedings in both Halo Wireless and McMullen, IPR
`
`Proceedings serve an important public policy function to ensure the proper regulation of
`
`patent monopolies. The PTAB should not be, and is not, prevented from performing this
`
`important function simply because the Patent Owner has filed bankruptcy.
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`22.
`
`Accordingly, the Court should enter an order confirming that 11 U.S.C. §
`
`362(b)(4) exempts IPR Proceedings from being subject to the stay provisions of § 362(a)
`
`B.
`
`Alternatively, the Court Should Lift the Automatic Stay to Allow the IPR
`Proceedings to Continue for the Challenged Patents and to Allow Twitter to
`Request Inter Partes Review of the Additional Patents.
`
`23.
`
`As this court has recognized, courts have developed various factor tests to
`
`determine whether cause exists to lift the automatic stay. See Jim’s Maint. & Sons, Inc.
`
`v. Target Corp. (In re Jim’s Maint. & Sons, Inc.), Nos. 08-11823-NLJ, Civ-09-438-M,
`
`2010 WL 432251, at *2 (W.D. Okla. Jan. 28, 2010); see also Dampier v. Credit Invs.,
`
`Inc. (In re Dampier), BAP No. CO-15-006, 2015 WL 6756446, at *4 (B.A.P. 10th Nov.
`
`5, 2015); In re Curtis, 40 B.R. 795, 799-800 (Bankr. D. Utah 1984); In re Pro Football
`
`Weekly, Inc., 60 B.R. 824, 826 (N.D. Ill. 1986). In this case, the factors identified applied
`
`in this district support relief from the automatic stay.
`
`24.
`
`First, PTAB is a specialized tribunal established specifically to regulate
`
`patent monopolies. See In re Curtis, 40 B.R. at 800 (identifying the existence of a
`
`specialized tribunal to hear the dispute as a factor favoring relief from the automatic
`
`stay).
`
`25.
`
`Second, the estate will not benefit from delaying proceedings in front of the
`
`PTAB. The PTAB ultimately will have to address the challenges raised in the Pending
`
`IPR Proceedings and any challenges to the Additional Patents. Even a determination by
`
`another tribunal will not prevent the PTAB from considering patent challenges. Novartis
`
`AG, LTS v. Noven Pharmaceuticals Inc., 853 F.3d 1289, 1295 (Fed. Cir. 2017) (noting
`
`that, with respect to district court litigation, the “PTAB properly may reach a different
`
`1636112.1:812982:00351
`
`13
`
` Page 13 of 50
`
`

`

`Case: 17-14849 Doc: 21 Filed: 02/02/18 Page: 14 of 16
`
`conclusion [on unpatentability] based on the same evidence.”). Twitter does not believe
`
`the Trustee can demonstrate any benefit
`
`to the bankruptcy estate by delaying the
`
`inevitable.
`
`26.
`
`Third, the PTAB has already determined that Twitter is reasonably likely to
`
`prevail on the merits as the Challenged Patents. Given that there is a reasonable
`
`likelihood that the Challenged Patents are invalid, resolution of that issue will be key to
`
`determining the value of any assets in the Youtoo estate for its creditors. See In re Pro
`
`Football Weekly, Inc., 60 B.R. at 826 (identifying whether the creditor has a probability
`
`of prevailing on the merits as a factor supporting relief from the automatic stay).
`
`27.
`
`Further, delaying a process that could free other parties from the restrictions
`
`of a potentially invalid patent monopoly is significantly more prejudicial than allowing
`
`the IPR Proceedings to continue, especially in light of the PTAB’s determination that
`
`Twitter is likely to prevail on the merits of its challenges to the Challenged Patents. Id.
`
`(identifying the balance of hardship caused by maintenance of the stay against hardship
`
`caused by the debtor as a factor to consider in determining whether to lift the automatic
`
`stay); In re Curtis, 40 B.R. at 800 (same as to the “balance of hurt”).
`
`28.
`
`Finally,
`
`the IPR Proceedings will not result
`
`in the allowance of any
`
`monetary claim in favor of Twitter or any other party. Instead, lifting the automatic stay
`
`will allow the expeditious resolution of patent challenges that ultimately will need to be
`
`addressed by the PTAB. See In re Curtis, 40 B.R. at 800 (identifying the lack of
`
`potential prejudice to other creditors and interest parties as a factor to consider in
`
`determining whether to lift the automatic stay).
`
`1636112.1:812982:00351
`
`14
`
` Page 14 of 50
`
`

`

`Case: 17-14849 Doc: 21 Filed: 02/02/18 Page: 15 of 16
`
`29.
`
`Accordingly, in the event that the Court determines that the automatic stay
`
`applies to IPR Proceedings, the Court should lift the automatic stay for cause under
`
`Bankruptcy Code § 362(d)(1) to allow the IPR Proceedings to continue as to the
`
`Challenged Patents and to allow Twitter, if appropriate, to request inter partes review as
`
`to the Additional Patents.
`
`C.
`
`The Court Should Waive the Stay Under Federal Rule of Bankruptcy
`Procedure 4001(a)(3) of Any Order Lifting the Automatic Stay Allowing the
`IPR Proceedings to Continue.
`
`30. Waiver of the fourteen day stay set forth in Federal Bankruptcy Rule
`
`4001(a)(3) is justified as to the continuation of the Pending IPR Proceedings. Additional
`
`delay of the Pending IPR Proceedings will make it more difficult for the PTAB to fulfill
`
`its statutory requirement to issue its final written determination in the Pending IPR
`
`Proceedings within one year from the institution of the proceedings. As mentioned
`
`above, the continuation of the Pending IPR Proceedings will not prejudice the estate or its
`
`creditors.
`
`FOR ALL THE ABOVE STATED REASONS, Twitter requests that the Court
`
`enter an order (a)(i) holding that pursuant to Bankruptcy Code § 362(b)(4), the automatic
`
`stay under § 362(a) does not apply to IPR Proceedings by the PTAB, or alternatively, (ii)
`
`lifting the stay for cause under § 362(d)(1) and waiving the stay under Bankruptcy Rule
`
`4001(a)(3), and (b) granting such other and further relief to which Twitter may be
`
`entitled.
`
`1636112.1:812982:00351
`
`15
`
` Page 15 of 50
`
`

`

`Case: 17-14849 Doc: 21 Filed: 02/02/18 Page: 16 of 16
`
`DATED: February 2, 2018
`
`Respectfully submitted,
`
`By: /s/ Tami J. Hines
`Tami J. Hines, OBA #32014
`HALL, ESTILL, HARDWICK, GABLE,
`GOLDEN & NELSON, P.C.
`100 North Broadway, Suite 2900
`Oklahoma City, OK 73102-8865
`Telephone: (405) 533-2828
`Facsimile: (405) 533-2855
`Email thines@hallestill.com
`
`Steven W. Soule, OBA #13781
`William W. O’Conner, OBA #13200
`HALL, ESTILL, HARDWICK, GABLE,
`GOLDEN & NELSON, P.C.
`320 South Boston Avenue, Suite 200
`Tulsa, OK 74103-3706
`Telephone: (918) 594-0400
`Facsimile: (918) 594-0505
`Email ssoule@hallestill.com
`Email boconnor@hallestill.com
`
`and
`
`Stephen M. Pezanosky (admitted pro hac vice)
`Autumn D. Highsmith (admitted pro hac vice)
`HAYNES AND BOONE, LLP
`2323 Victory Avenue, Suite 700
`Dallas, TX 75219
`Telephone: (214) 651-5000
`Facsimile: (214) 651-5904
`Email stephen.pezanosky@haynesboone.com
`Email autumn.highsmith@haynesboone.com
`
`COUNSEL FOR TWITTER, INC.
`
`1636112.1:812982:00351
`
`16
`
` Page 16 of 50
`
`

`

`Case: 17-14849 Doc: 21-1 Filed: 02/02/18 Page: 1 of 4
`Case: 17-14849
`Doc: 21-1
`Filed: 02/02/18
`Page: 1 of 4
`
`Trials@uspto. gov
`571—272-7822
`
`Paper No. 20
`Entered: December 7, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TWITTER, INC.,
`Petitioner,
`
`V.
`
`YOUTOO TECHNOLOGIES, LLC,
`Patent Owner.
`
`IPR2017-00829 (Patent 9,083,997 132)
`IPR2017—0083O (Patent 9,083,997 132)
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)1
`
`Before SALLY C. MEDLEY, CHARLES J. BOUDREAU, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`ORDER
`
`Conduct of Proceeding
`37 C.F.R. § 42.5
`
`1 This Order will be entered in each case. The parties are not authorized to
`use this caption style.
`
`EXHIBIT
`
`17 of50
`
`1
`
` Page 17 of 50
`
`

`

`Case: 17-14849 Doc: 21-1 Filed: 02/02/18 Page: 2 of 4
`Case: 17-14849
`Doc: 21-1
`Filed: 02/02/18
`Page: 2 of 4
`
`IPR2017—00829 (Patent 9,083,997 B2)
`lPR2017—00830 (Patent 9,083,997 B2)
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017~01133 (Patent 8,601,506 B2)
`
`A conference call in these cases took place on December 6, 2017.
`
`The parties were represented by their respective counsel. In addition,
`
`bankruptcy counsel for Patent Owner as well as a bankruptcy trustee were
`
`present on the call. The purpose of the call was to discuss Patent Owner’s
`
`request for leave to file a motion to stay based on Patent Owner’s recent
`
`filing for bankruptcy.
`
`During the call, Patent Owner’s counsel informed the Board that
`
`Patent Owner filed for bankruptcy on November 30, 2017, and that a
`
`bankruptcy trustee has been appointed. Patent Owner’s counsel contended
`
`that the automatic stay under 11 U.S.C. § 362 applies to the above-
`
`referenced proceedings. Petitioner’s counsel opposed any stay of these
`
`proceedings.
`
`Upon consideration of the parties’ arguments, Patent Owner is
`
`authorized to file a motion to stay no later than December 13, 2017, and
`
`Petitioner is authorized to file a response to that motion no later than
`
`December 20, 2017. No reply is authorized at this time. In addition, DUE
`
`DATE 1 and DUE DATE 2 in the Scheduling Order for each of the above—
`
`referenced cases are hereby revised to January 3, 2018, and April 4, 2018,
`
`respectively.
`
`Page 18 of 50
`
`
`
`z»,wWMmmwamwwwwmwWmwmmmmmWWWmwmmwm.‘«m;,wVif.»,0a.u“wwwwnwwwcmWWWMWWWWNW.(w,
`
`E
`
`E
`
`
`
` Page 18 of 50
`
`

`

`Case: 17-14849 Doc: 21-1 Filed: 02/02/18 Page: 3 of 4
`Case: 17-14849
`Doc: 21-1
`Filed: 02/02/18
`Page: 3 of 4
`
`IPR2017~00829 (Patent 9,083,997 B2)
`IPR2017—00830 (Patent 9,083,997 B2)
`IPR2017-01 l3l (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`For the foregoing reasons, it is
`
`ORDERED that Patent Owner is authorized to file a motion to stay no
`
`later than December 13, 2017, and Petitioner is authorized to file a response
`
`to that motion no later than December 20, 2017;
`
`FURTHER ORDERED that DUE DATE 1 in the Scheduling Order
`
`for each of the above—referenced cases is hereby revised to January 3, 2018,
`
`and DUE DATE 2 in the Scheduling Order for each of the above—referenced
`
`cases is hereby revised to April 4, 2018;
`
`FURTHER ORDERED that Patent Owner shall provide the Board
`
`with a status report on the bankruptcy proceedings by email on or before
`
`December 20, 2017; and
`
`FURTHER ORDERED that no motions are authorized to be filed at
`
`this time.
`
`
`
`
`
`
`
`
`
`
`
`Page 19 of 50
`
` Page 19 of 50
`
`

`

`Case: 17-14849 Doc: 21-1 Filed: 02/02/18 Page: 4 of 4
`Case: 17-14849
`Doc: 21-1
`Filed: 02/02/18
`Page: 4 of 4
`
`1PR2017—00829 (Patent 9,083,997 B2)
`1PR2017—00830 (Patent 9,083,997 B2)
`1PR2017—01 131 (Patent 8,464,304 B2)
`IPR2017—01133 (Patent 8,601,506 B2)
`
`PETITIONER:
`
`David McCombs
`
`Gregory Huh
`Theodore Foster
`
`RaghaV Baj aj
`HAYNES AND BOONE, LLP
`
`David.rnccombs.iprthaynesboone.com
`Gregoryhuh.iprthaynesboonecorn
`Ipr.theo.foster@haynesboone.com
`Raghavbaj aj .ipr@haynesboone.com
`
`PATENT OWNER:
`
`Scott McKeown
`
`OBLON, MCCLELLAN

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