`571.272.7822
`
`Paper 10
`Entered: November 16, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`CISCO SYSTEMS, INC.
`Petitioner,
`
`v.
`
`FATPIPE NETWORKS PRIVATE LIMITED,
`Patent Owner.
`
`
`
`Case IPR2017-01845 Patent 6,775,235 B2
`Case IPR2017-01846 Patent 7,406,048 B21
`
`
`
`
`
`
`
`
`Before STACEY G. WHITE and MICHELLE N. WORMMEESTER,
`Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5(a) and 37 C.F.R. § 42.108(c)
`
`
`1 This Order employs a joint caption, as it is being entered in each of the
`identified proceedings. The parties may not use a joint caption unless
`authorized.
`
`
`
`
`
`IPR2017-01845 Patent 6,775,235 B2
`IPR2017-01846 Patent 7,406,048 B2
`
`
`On November 14, 2017, Petitioner sent an email to Trials@uspto.gov
`seeking a conference call to request authorization to file a Reply to Patent
`Owner’s Preliminary Response. According to Petitioner, its Reply would
`address Patent Owner’s arguments from the Preliminary Response regarding
`its alleged privity with another entity that may be time barred and issues
`surrounding whether the Petition should be denied under §§ 314, 325(d).
`On November 15, 2017, a conference call was held with Judges White
`and Wormmeester, and respective counsel for the parties. During the call,
`Petitioner noted that it had initially addressed the issue of multiple petitions
`and its relationship with Viptela, however, it asserts that recent
`developments since the filing of its Petitions have caused it to seek
`additional briefing on these issues. Petitioner indicated that it sought to
`provide additional argument and evidence in light of the post-Petition
`designation of Section II.B.4.i. of the Decision in General Plastic Industrial
`Co., Ltd. v. Canon Kabushiki Kaisha, Case IPR2016-01357 (Paper 19)
`(PTAB Sept. 6, 2017) as precedential. It also asserts that its acquisition of
`Viptela was completed post-Petitions. Patent Owner opposed on the
`grounds that the arguments were foreseeable and Petitioner has not
`demonstrated good cause of the additional briefing.
`The rules applicable to inter partes review typically do not provide an
`opportunity for a petitioner to file a reply to a patent owner’s preliminary
`response. Nevertheless, 37 C.F.R. § 42.108(c) states that a petitioner “may
`seek leave to file a reply to the preliminary response” and that “[a]ny such
`request must make a showing of good cause.” In view of § 42.108(c), we
`may authorize a reply under our authority to “enter non-final orders to
`administer the proceeding.” 37 C.F.R. § 42.5(a).
`
`
`
`
`
`IPR2017-01845 Patent 6,775,235 B2
`IPR2017-01846 Patent 7,406,048 B2
`
`
`Upon consideration of the positions of the parties, we find Petitioner
`has established good cause for further briefing. Therefore, we authorize
`Petitioner to file a Reply of no more than seven pages limited to addressing
`Patent Owner’s arguments under §§ 314 and 325(d) and issues surrounding
`its relationship with Viptela. We also authorize Patent Owner, if it chooses,
`to file a Sur-Reply of no more than seven pages addressing Petitioner’s
`Reply.
`
`Accordingly, it is:
`ORDERED that Petitioner’s request for authorization to file a Reply
`to Patent Owner’s Preliminary Response is granted;
`FURTHER ORDERED that Petitioner’s Reply is limited to
`responding to Patent Owner’s arguments regarding §§ 314, 325(d) and its
`relationship with Viptela;
`FURTHER ORDERED that Petitioner’s Reply is limited to a
`maximum of seven pages and may be filed no later than Wednesday,
`November 22, 2017;
`FURTHER ORDERED that Patent Owner, at its option, may file a
`Sur-Reply responding to Petitioner’s Reply;
`FURTHER ORDERED that any such Sur-Reply is limited to the
`specific issues presented in Petitioner’s Reply; and
`FURTHER ORDERED that any such Sur-Reply is limited to a
`maximum of seven pages and if Patent Owner chooses to file a Sur-Reply, it
`shall file its Sur-Reply no later than Friday, December 1, 2017.
`
`
`
`
`
`
`
`IPR2017-01845 Patent 6,775,235 B2
`IPR2017-01846 Patent 7,406,048 B2
`
`
`
`
`
`PETITIONER:
`David L. McCombs
`Theodore M. Foster
`David O’Brien
`Raghav Bajaj
`HAYNES AND BOONE, LLP
`david.mccombs.ipr@haynesboone.com
`ipr.theo.foster@haynesboone.com
`david.obrien.ipr@haynesboone.com
`raghav.bajaj.ipr@haynesboone.com
`
`PATENT OWNER:
`Robert C. Mattson
`Sameer Gokhale
`Aldo Martinez
`OBLON, MCCLELLAND, MAIER & NEUSTADT, LLP
`CPDocketMattson@oblon.com
`CPDocketGokhale@oblon.com
`CPDocketMartinez@oblon.com
`
`
`
`
`
`
`
`
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