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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________________________________
`CLOVER NETWORK, LLC
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`Petitioner
`v.
`CLOUDOFCHANGE, LLC
`
`Patent Owner
`____________________________________________
`IPR2023-00287
`U.S. Patent No. 11,226,793
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`PETITIONER’S MOTION FOR JOINDER OF IPR2022-01143
`UNDER 35 U.S.C. § 315(c) AND 37 C.F.R. §§ 42.22 AND 42.122(b)
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`I.
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`INTRODUCTION
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`Petitioner Clover Network, LLC (“Clover”) filed a petition for inter partes
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`review IPR2023-00287 (the “Clover IPR”) and respectfully moves for joinder of
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`IPR2022-01143, filed by Lightspeed Commerce Inc. (the “Lightspeed IPR”). The
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`Clover IPR is identical to the Lightspeed IPR in all substantive respects and presents
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`the same invalidity grounds challenging the same claims. Petitioner will not seek to
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`alter any grounds upon which the Board institutes the Lightspeed IPR and will seek
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`no change in the existing schedule for that IPR proceeding. Upon institution of the
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`Clover IPR, Petitioner respectfully requests an opportunity to join with the
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`Lightspeed IPR solely as an “understudy,” where Petitioner would only assume an
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`active role in the event Lightspeed were to withdraw from the proceeding.
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`II. BACKGROUND AND RELATED PROCEEDINGS
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`CloudofChange, LLC (“Patent Owner” or “PO” or “CloudofChange”) is the
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`owner of U.S. Patent No. 11,226,793 (“the ’793 Patent”) and has sued Petitioner for
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`patent infringement of the ’793 Patent. CloudofChange, LLC v. Clover Network,
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`Inc., 6:22-cv-00634 (W.D. Tex. June 17, 2022). CloudofChange previously sued
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`Lightspeed Commerce Inc. (“Lightspeed”) for patent infringement of the ’793
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`Patent. CloudofChange, LLC v. Lightspeed POS Inc., 6:21-cv-01102 (W.D. Tex.
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`Oct. 22, 2021) (“the Lightspeed Litigation”). The Lightspeed Litigation is pending.
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`Lightspeed filed a petition for inter partes review of the ’793 Patent on June
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`13, 2022. Lightspeed Commerce Inc. v. CloudofChange, LLC, IPR2022-01143,
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`Paper No. 1 (P.T.A.B. June 13, 2022). The PTAB instituted inter partes review on
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`November 10, 2022. Id., Paper No. 8 (P.T.A.B. Nov. 10, 2022).
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`III. DISCUSSION
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`Petitioner respectfully requests that the Board exercise its discretion to grant
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`joinder of the Clover IPR and the Lightspeed IPR proceedings pursuant to 35 U.S.C.
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`§ 315(c), 37 C.F.R. § 42.22, and 37 C.F.R. § 42.122(b). In support of this motion,
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`Petitioner proposes consolidated filings and other procedural accommodations
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`designed to streamline the proceedings.
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`A.
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`JOINDER IS APPROPRIATE
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`Joinder is appropriate in this case because it is the most expedient way to
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`secure the just, speedy, and inexpensive resolution of the two related proceedings.
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`See 35 U.S.C. § 316(b); 37 C.F.R. § 42.1(b). Intentionally, the Clover IPR is
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`substantively identical to the corresponding Lightspeed IPR in an effort to avoid
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`multiplication of issues before the Board.1 Given the duplicative nature of these
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`1 In addition, the expert retained by Clover for the Clover IPR has also adopted the
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`opinions of Lightspeed for the Lightspeed IPR. Compare IPR2022-01143, Exhibit
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`1002 (Gray Declaration), with IPR2023-00287, Exhibit 1002 (Mowry Declaration).
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`petitions, joinder of the related proceedings is appropriate. Further, Petitioner will
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`agree to consolidated filings and discovery, and procedural concessions where and
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`as appropriate.
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`1.
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`SUBSTANTIVELY IDENTICAL PETITIONS
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`Petitioner represents that the Clover IPR is identical to the Lightspeed IPR in
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`all substantive respects. It includes identical grounds, prior art, and analysis.
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`Accordingly, if instituted, maintaining the Clover IPR proceeding separate from that
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`of the Lightspeed IPR would entail needless duplication of effort.
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`2.
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`CONSOLIDATED FILINGS
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`Because the grounds of unpatentability in the Clover IPR and the Lightspeed
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`IPR are the same, the case is amenable to consolidated filings. Petitioner will agree
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`to consolidated filings for all substantive papers in the proceeding (e.g., Reply to the
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`Patent Owner’s Response, Opposition to Motion to Amend, Motion to Exclude
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`Evidence, Opposition to Motion to Exclude Evidence and Reply). Specifically,
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`Petitioner will agree to incorporate its filings with those of Lightspeed in a
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`consolidated filing, subject to the ordinary rules for one party on page limits.
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`Lightspeed and Petitioner will be jointly responsible for the consolidated filings.
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`Petitioner agrees not to be permitted any arguments separate from those
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`advanced by Petitioner and Lightspeed in the consolidated filings. These limitations
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`avoid lengthy and duplicative briefing.
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`B. NO NEW GROUNDS OF PATENTABILITY
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`The Clover IPR raises no new grounds of unpatentability from those of the
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`Lightspeed IPR because the petitions are identical in substance.
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`C. NO IMPACT ON IPR TRIAL SCHEDULE
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`The trial schedule for the Lightspeed IPR would not need to be delayed for
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`joinder, and the joint proceeding would allow the Board and parties to focus on the
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`merits in one consolidated proceeding, without unnecessary duplication of effort,
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`and in a timely manner.
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`D. BRIEFING AND DISCOVERY WILL BE SIMPLIFIED
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`Joinder will simplify briefing and discovery because Petitioner seeks an order
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`similar to that issued in Motorola Mobility LLC v. Softview LLC, IPR2013-00256,
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`Paper 10 (P.T.A.B. June 20, 2013). As discussed above, Petitioner and Lightspeed
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`will engage in consolidated filings and discovery, which will simplify the briefing
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`and discovery process.
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`E. NO PREJUDICE TO CLOUDOFCHANGE IF PROCEEDINGS
`ARE JOINED
`Petitioner proposes joinder to streamline the proceedings and reduce the costs
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`and burdens on the parties. Petitioner believes joinder will achieve these goals for
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`several reasons. First, joinder will most certainly decrease the number of papers the
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`parties must file, by eliminating a duplicative proceeding. Second, joinder will also
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`reduce by half the time and expense for discovery required in separate proceedings.
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`Third, joinder creates case management efficiencies for the Board and parties
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`without any prejudice to CloudofChange. Further, Lightspeed has indicated that it
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`will not file an opposition to Petitioner’s Motion for Joinder.
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`IV. PROPOSED ORDER
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`Petitioner proposes a joinder order for consideration by the Board as follows:
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`• The Clover IPR be instituted and joined with the Lightspeed IPR on the
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`same grounds instituted in the Lightspeed IPR.
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`• The scheduling order for the Lightspeed IPR will apply for the joined
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`proceedings.
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`• Throughout the proceedings, Lightspeed and Petitioner will file papers
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`as consolidated filings, except for motions that do not involve the other
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`party, in accordance with the Board’s established rules regarding page
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`limits. So long as they both continue to participate in the joined
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`proceedings, Lightspeed and Petitioner will identify each such filing as
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`Consolidated Filing and will be responsible for completing all
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`consolidated filings.
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`• Lightspeed and Petitioner will allowed to conduct the cross-
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`examination of any given witness produced by CloudofChange and the
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`redirect of any given witness produced by Lightspeed or Petitioner
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`within the timeframe normally allotted by the rules for one party.
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`Petitioner will not receive any separate cross-examination or redirect
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`time.
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`• CloudofChange will conduct any cross-examination of any given
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`witness jointly produced by Lightspeed or Petitioner and the redirect of
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`any given witness produced by CloudofChange within the timeframe
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`normally allotted by the rules for one cross-examination or redirect
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`examination.
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`V. CONCLUSION
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` Motion for Joinder of IPR2023-00287
` Patent No. 11,226,793
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`For the foregoing reasons, if the Director institutes inter partes review,
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`Petitioner respectfully requests that the Board grant joinder of the Clover IPR and
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`the Lightspeed IPR proceedings.
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`Dated: December 1, 2022
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`Respectfully submitted,
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`By:
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`/Jason Kipnis/
`
`Jason D. Kipnis
`Reg. No. 40,680
`WILMER CUTLER PICKERING HALE AND DORR,
`LLP
`2600 El Camino Real
`Suite 400
`Palo Alto, CA 94306
`(650) 600-5036
`jason.kipnis@wilmerhale.com
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`Motion for Joinder of IPR2023-00287
`Patent No. 11,226,793
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`CERTIFICATE OF SERVICE
`I certify that on December 1, 2022, I caused a copy of the following:
`Petition for Inter Partes Review of U.S. Patent No. 11,226,793
`Petitioner’s List of Exhibits
`Petitioner’s Motion For Joinder of IPR2022-01143
`Clover Network, LLC Power of Attorney
`Fee Authorization
`Exhibits [1001-1015, 1017-1022, 1024-1029]
`Word Count Certificate of Compliance
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`to be served by Express Mail upon Agent of Record for the ’793 patent at the
`following address:
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`KNOBBE MARTENS OLSON & BEAR LLP
`2040 Main Street
`Fourteenth Floor
`Irvine, CA 92614
`and via electronic mail to Patent Owner’s counsel at the following addresses:
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`tpatterson@pattersonsheridan.com
`jyates@pattersonsheridan.com
`kcameron@pattersonsheridan.com
`egonzalez@pattersonsheridan.com
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`By:
`/Amy L. Mahan/
`Amy L. Mahan
`Reg. No. 75,997
`WILMER CUTLER PICKERING HALE AND
`DORR, LLP
`60 State Street
`Boston, MA 02109
`(617) 526-6182
`amy.mahan@wilmerhale.com
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