`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`FITBIT, INC. and WAHOO FITNESS LLC,
`Petitioner
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`v.
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`BLACKBIRD TECH LLC d/b/a BLACKBIRD TECHNOLOGIES,
`Patent Owner
`
`_______________
`
`Case IPR2017-020121
`Patent 6,434,212 B2
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`_______________
`
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`PATENT OWNER BLACKBIRD TECH LLC’S
`NOTICE OF APPEAL
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`1 IPR2018-00275 has been joined to this proceeding.
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`
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`Case IPR2017-02012
`Patent 6,434,212 B2
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`
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`Pursuant to 35 U.S.C. §§ 141, 142, and 319, and in accordance with 37
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`C.F.R. §§ 90.2-90.3, Patent Owner Blackbird Tech LLC d/b/a Blackbird
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`Technologies (“Blackbird” or “Patent Owner”) appeals to the United States Court
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`of Appeals for the Federal Circuit from the Final Written Decision of the Patent
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`Trial and Appeal Board entered on March 11, 2019 in IPR2017-02012 (Paper 28),
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`and from all underlying findings, determinations, orders, decisions, rulings and
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`opinions regarding the inter partes review of U.S. Patent No. 6,434,212 (“the ’212
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`patent”).
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`For the limited purpose of providing the Director with the information
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`requested in 37 C.F.R. § 90.2(a)(3)(ii), Patent Owner anticipates that the issues on
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`appeal may include, but are not limited to, the following, as well as any underlying
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`findings, determinations, orders, decisions, rulings, opinions, or other related
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`issues:
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`• Whether the Patent Trial and Appeal Board’s decision finding that claim 6
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`of the ’212 patent is unpatentable was “arbitrary, capricious, an abuse of
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`discretion, or otherwise not in accordance with law; … in excess of statutory
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`jurisdiction, authority or limitations, or … without observance of procedure
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`required by law; [or] unsupported by substantial evidence … .” 5 U.S.C. §
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`706(2)(A)-(E);
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`1
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`Case IPR2017-02012
`Patent 6,434,212 B2
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`• Whether the Order to correct an improper institution by the Patent Trial and
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`Appeal Board was untimely under 35 U.S.C. § 314(b)(1) and in violation of
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`the Patent and Trademark Office (PTO) Director’s obligation to engage in
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`formal rulemaking under 35 U.S.C. § 316; and
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`• Whether inter partes review by the PTO to analyze the validity of a pre-
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`America Invents Act (AIA) patent violates the Constitution by retroactively
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`subjecting Patent Owner’s vested patent rights to new qualifications.
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`Simultaneous with the electronic submission of this Notice of Appeal to the
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`Patent Trial and Appeal Board, a copy of this Notice of Appeal is being filed with
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`the United States Patent and Trademark Office by way of hand delivery to the
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`Office of General Counsel to:
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`
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`Office of the General Counsel
`United States Patent and Trademark Office
`Madison East, Room 10B20
`600 Dulany Street, Alexandria, Virginia 22314
`
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`In addition, consistent with Federal Circuit Rules 15(a)(1) and 25(b)(1), this
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`Notice of Appeal, along with the required docketing fees and copies of the
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`decisions of the agency for which review is sought, are being filed electronically
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`2
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`Case IPR2017-02012
`Patent 6,434,212 B2
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`with the United States Court of Appeals for the Federal Circuit, and one paper
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`copy of the Notice of Appeal is being provided to the Clerk’s Office:
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`
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`Clerk of Court
`United States Court of Appeals for the Federal Circuit
`717 Madison Place, NW, Room 401
`Washington, DC 20439
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`Any required fees to the United States Patent and Trademark Office may be
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`charged to Deposit Account No. 50-1860.
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`
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`Dated: May 13, 2019
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`Respectfully submitted,
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`
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` By: /s/ Walter D. Davis, Jr.
`
`Walter D. Davis, Jr. (Reg. No. 45,137)
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Telephone: 571-765-7700
`Fax: 571-765-7200
`Email: wdavis@dbjg.com
`Lead Counsel for Patent Owner
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`3
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`Case IPR2017-02012
`Patent 6,434,212 B2
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 13, 2019, a true and correct copy of the
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`
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`foregoing Patent Owner’s Notice of Appeal was served via email, by consent, to
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`Petitioner by serving the correspondence email addresses of record as follows:
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`Harper Batts (Reg. No. 56,160)
`Chris Ponder (Reg. No. 77,167)
`Sheppard, Mullin, Richter & Hampton LLP
`379 Lytton Avenue
`Palo Alto, CA 94301
`HBatts@sheppardmullin.com
`CPonder@sheppardmullin.com
`LegalTM-Fitbit-BB-IPRs@sheppardmullin.com
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`By: /s/ Walter D. Davis, Jr.
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`Registration No. 45,137
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`Counsel for Patent Owner
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`4
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