Before KARL D. EASTHOM, STACEY G. WHITE, and BRIAN P. MURPHY, Administrative Patent Judges.

With the Board’s authorization, Petitioner and Patent Owner (collectively referred to as “the Parties”) filed a Joint Motion to Terminate due to settlement in each of the above-captioned proceedings.

However, a petitioner can avoid the § 315(b) bar by filing its petition(s) within one year after service of a complaint alleging infringement of the challenged patent.

Further, “[t]here are strong public policy reasons to favor settlement between the parties to a proceeding,” and, thus, “[t]he 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.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012).

Accordingly, for the reasons discussed above, it is ORDERED that each Joint Motion in each of the above-captioned proceedings is granted, and each of the above-captioned proceedings is terminated pursuant to 35 U.S.C. § 317(a) and 37 C.F.R. § 42.72; and FURTHER ORDERED that each Joint Request to treat the Settlement Agreement as business confidential information in each of the above-captioned proceedings is granted, and each Settlement Agreement shall be kept separate from the files of Patent 8,291,236, and made available only to Federal Government agencies on written request, or to any person on a showing of good cause, pursuant to 35 U.S.C. § 317(b) and 37 C.F.R. § 42.74(c).3

We find that, at this stage of the proceeding and based on the present record, Petitioner provides sufficient evidence and argument to establish a reasonable likelihood that Russ anticipates the challenged claims of the ’236 patent.

Petitioner asserts the extrinsic evidence demonstrates a person of ordinary skill in the art “would have recognized that DTCP protocols include authentication and key and certificate exchange procedures that ensure communications are protected.” Pet. 41 (citing Ex. 1010 ¶ 9; Ex. 1011 ¶¶ 53, 107, 139–143).

Dr. Wasilewski, moreover, cites corroborating documentary evidence to support his opinion that DTCP protocols “require” AKE key exchange and authentication of the client-receiver by the DSCT (via DTLA license certificate) and a POSA would have recognized that fact.

At this stage, Patent Owner disputes Petitioner’s evidence that a POSITA would have recognized Russ’s disclosure of DTCP encryption as requiring AKE key exchange via DTLA license certificate as a “second root of trust” for authenticating the client-receiver.

However, according to Petitioner, Russ “leaves to the POSA specific implementation details regarding entitlements or usage rights for the myriad of encryption schemes that may be selected for communications between DSCT 110 and client-receiver 122, like DTCP or CPRM DRM schemes.” Id. (citing Ex. 1005, 16:64–17:14).

For example, reasonable expenses and attorneys’ fees incurred by any party may be levied on a person who impedes, delays, or frustrates the fair examination of a witness.

To satisfy this requirement, Patent Owner should request a conference call with the Board no later than two weeks prior to DUE DATE 1.

The Board defines a LEAP practitioner as a patent agent or attorney having three (3) or fewer substantive oral arguments in any federal tribunal, including PTAB.

All practitioners are expected to have a command of the factual record, the applicable law, and Board procedures, as well as the authority to commit the party they represent.

In stipulating to move any due dates in the scheduling order, the parties must be cognizant that the Board requires four weeks after the filing of an opposition to the motion to amend (or the due date for the opposition, if none is filed) for the Board to issue its preliminary guidance, if requested by Patent Owner.