`571-272-7822
`
`Paper 16
`Date: March 25, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`RFCYBER CORP.,
`Patent Owner.
`
`PGR2021-00028
`Patent 10,600,046 B2
`
`
`
`
`
`
`
`
`
`
`
`
`Before PATRICK R. SCANLON, KEVIN W. CHERRY, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`SCANLON, Administrative Patent Judge.
`
`
`
`
`TERMINATION
`Due to Settlement After Institution of Trial
`35 U.S.C. § 327; 37 C.F.R. § 42.74
`
`
`
`
`
`
`
`
`PGR2021-00028
`Patent 10,600,046 B2
`
`
`On October 19, 2021, Google LLC (“Petitioner”) and RFCyber Corp.
`
`(“Patent Owner”) filed a joint motion to terminate this proceeding pursuant
`
`to 35 U.S.C. § 327 and 37 C.F.R. § 42.74. Paper 14. The motion was
`
`accompanied by a true, unredacted copy of a settlement and license
`
`agreement (Ex. 1051; “the Settlement Agreement”), and a joint request to
`
`treat the Settlement Agreement as business confidential information, to be
`
`kept separate from the patent file, pursuant to 35 U.S.C. § 327(b) and 37
`
`C.F.R. § 42.74(c) (Paper 15).
`
`Under 35 U.S.C. § 327(a), “[a] post grant review instituted under this
`
`chapter shall be terminated with respect to any petitioner upon the joint
`
`request of the petitioner and the patent owner, unless the Office has decided
`
`the merits of the proceeding before the request for termination is filed.” The
`
`statute also provides that if no petitioner remains in the post grant review,
`
`the Office may terminate the review. 35 U.S.C. § 327(a).
`
`Petitioner filed its petition in this proceeding in December 2020, and
`
`we issued a decision granting institution on July 23, 2021. We have not
`
`conducted a hearing in this proceeding, and we have not decided the merits.
`
`Under these circumstances, we determine that termination of the proceeding
`
`is appropriate. See Consolidated Trial Practice Guide, at 86 (Nov. 2019)
`
`(“The Board expects that a proceeding will terminate after the filing of a
`
`settlement agreement, unless the Board has already decided the merits of the
`
`proceeding).
`
`We also determine that the parties have shown that the Settlement
`
`Agreement contains business confidential information, and that good cause
`
`exists to treat the Settlement Agreement as business confidential information
`
`under 37 C.F.R. § 42.74(c).
`
`2
`
`
`
`PGR2021-00028
`Patent 10,600,046 B2
`
`
`This Order does not constitute a final written decision pursuant to
`
`35 U.S.C. § 328(a).
`
`Accordingly, it is
`
`ORDERED that the joint motion to terminate is granted;
`
`FURTHER ORDERED that the petition for post grant review in
`
`PGR2021-00028 is dismissed, and these proceedings are terminated;
`
`FURTHER ORDERED that the joint request to treat the Settlement
`
`Agreement as business confidential information is granted, and the
`
`Settlement Agreement shall be kept separate from the file of U.S. Patent No.
`
`10,600,046, and be made available only to Federal Government agencies on
`
`written request, or to any person on a showing of good cause, pursuant to
`
`37 C.F.R. § 42.74(c).
`
`
`
`3
`
`
`
`PGR2021-00028
`Patent 10,600,046 B2
`
`FOR PETITIONER:
`
`Andrew S. Ehmke
`Scott T. Jarratt
`Jonathan R. Bowser
`Angela M. Oliver
`HAYNES AND BOONE, LLP
`andy.ehmke.ipr@haynesboone.com
`scott.jarratt.ipr@haynesboone.com
`jon.bowser.ipr@haynesboone.com
`angela.oliver.ipr@haynesboone.com
`
`
`FOR PATENT OWNER:
`
`Vincent Rubino
`Peter Lambrianakos
`Enrique Iturralde
`FABRICANT LLP
`vrubino@fabricantllp.com
`plambrianakos@fabricantllp.com
`eiturralde@fabricantllp.com
`
`
`
`
`4
`
`
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