`571-272-7822
`
`Paper 48
`Date: September 17, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`WALMART INC.; Z-SHADE CO., LTD.;
`COSTCO WHOLESALE CORPORATION;
`LOWE’S HOME CENTERS, LLC; and
`SHELTERLOGIC CORP.,
`Petitioner,
`
`v.
`
`CARAVAN CANOPY INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`IPR2020-010261
`Patent 5,944,040
`_______________
`
`Before BART A. GERSTENBLITH, JAMES J. MAYBERRY, and
`ERIC C. JESCHKE, Administrative Patent Judges.
`
`JESCHKE, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R § 42.5(a)
`
`
`
`
`1 Z-Shade Co., Ltd.; Costco Wholesale Corporation; Lowe’s Home
`Centers, LLC; and ShelterLogic Corp., which filed a petition in IPR2021-
`00449, have been joined as petitioner in this proceeding.
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`
`On September 8, 2021, Petitioner requested authorization to file a
`
`corrected version of Exhibit 1032, the original version of which was filed in
`
`support of Petitioner’s Reply in this proceeding. See Ex. 3002 at 3–4.
`
`Petitioner argued that “the original exhibit, for unknown technical reasons,
`
`did not capture the complete text of the website as it appears at the URL”
`
`and that “corrected Exhibit 1032 accurately reflects the content of the URL
`
`linked in Petitioner’s Reply.” Id. at 3. Petitioner noted that Patent Owner
`
`opposed the request. Id. In clarifying the basis of its opposition, Patent
`
`Owner argued that Petitioner’s request was “untimely” and “represents a
`
`selective supplement to the record of this proceeding.” Id. at 1–2. For the
`
`reasons below, we grant Petitioner’s request.
`
`Under our rules, “[e]ach exhibit must be filed with the first document
`
`in which it is cited except as the Board may otherwise order.” 37 C.F.R.
`
`§ 42.6(c) (2019). A late action, such as a filing of an exhibit, however, “will
`
`be excused on a showing of good cause or upon a Board decision that
`
`consideration on the merits would be in the interests of justice.” 37 C.F.R.
`
`§ 42.5(c)(3). We determine that Petitioner has shown that consideration on
`
`the merits would be in the interests of justice.
`
`As to Patent Owner’s first argument, we agree Petitioner’s request to
`
`correct Exhibit 1032 does appear to have been made several weeks later than
`
`it could have been made. See Ex. 3002, 1 (asserting that “Petitioner should
`
`have discovered any discrepancy in Exhibit 1032 by at least July 22, 2021,
`
`when it served Exhibits 1047 and 1048”). Regardless, we find this
`
`consideration outweighed by the benefit of having a clearer record on which
`
`to consider the merits of the issues. Further, we agree with Petitioner’s
`
`assertion from the oral hearing that Patent Owner is not prejudiced by the
`
`2
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`late filing of corrected Exhibit 1032. Indeed, in the only argument in the
`
`Sur-reply addressing the substance of Exhibit 1032, Patent Owner simply
`
`states it is “irrelevant as [it is] directed to rigid roofs on permanent
`
`structures.” See Paper 37, 17 n.13.
`
`As to Patent Owner’s second argument, we are not persuaded that
`
`Exhibit 1032 should not be corrected merely because Petitioner has not also
`
`requested correction of Exhibit 1027.
`
`
`
`It is hereby:
`
`ORDERED that Petitioner’s request for authorization to file a
`
`corrected version of Exhibit 1032 in this proceeding is granted; and
`
`FURTHER ORDERED that the corrected version of Exhibit 1032
`
`shall be filed within 5 business days of issuance of this Order.
`
`
`
`
`
`3
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`FOR PETITIONER:
`
`David A. Reed
`Tyler McAllister
`Kathleen R. Geyer (pro hac vice)
`KILPATRICK TOWNSEND & STOCKTON LLP
`dreed@kilpatricktownsend.com
`tmcallister@kilpatricktownsend.com
`kgeyer@kilpatricktownsend.com
`Attorneys for Walmart Inc.
`
`Kerry Taylor
`Andrew M. Douglas
`Lauren K. Katzenellenbogen
`KNOBBE MARTENS OLSON & BEAR, LLP
`2KST@knobbe.com
`2AMD@knobbe.com
`2LXK@knobbe.com
`Attorneys for Z-Shade Co., Ltd. and Costco Wholesale Corporation
`
`Richard A. Neifeld
`NEIFELD IP LAW, PC
`rneifeld@neifeld.com
`Attorney for Lowe’s Home Centers, LLC
`
`William J. Brown, Jr.
`BROWN WEGNER LLP
`bill@brownwegner.com
`Attorney for Lowe’s Home Centers, LLC
`
`Damian K. Gunningsmith
`CARMODY TORRANCE SANDAK AND HENNESSEY LLP
`dgunningsmith@carmodylaw.com
`Attorney for ShelterLogic Corp.
`
`
`
`
`
`
`4
`
`
`
`IPR2020-01026
`Patent 5,944,040
`
`FOR PATENT OWNER:
`
`Kyle W. Kellar
`Jason C. Martone
`Sami I. Schilly
`Steven French
`LEWIS ROCA ROTHGERBER CHRISTIE LLP
`kkellar@lewisroca.com
`jmartone@lewisroca.com
`sschilly@lewisroca.com
`sfrench@lewisroca.com
`
`
`5
`
`
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