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51 Order Conduct of Proceeding: ORDERConduct of the Proceeding37 CFR 425

Document IPR2017-00374, No. 51 Order Conduct of Proceeding - ORDERConduct of the Proceeding37 CFR 425 (P.T.A.B. May. 4, 2018)
EMC CORPORATION, LENOVO (UNITED STATES) INC., and
In the Decision on Institution, the Board determined Petitioner demonstrated a reasonable likelihood it would establish that at least one of the challenged claims of the ’827 patent is unpatentable.
The parties shall confer to discuss the impact, if any, of this Order on the proceeding.
If, after conferring, the parties wish to submit further briefing, the parties must, within one week of the date of this Order, request a conference call with the panel to seek authorization for such briefing.
In consideration of the foregoing, it is hereby: ORDERED that the institution decision is modified to include review of all challenged claims and all grounds presented in the Petition; and FURTHER ORDERED that Petitioner and Patent Owner shall confer to determine whether they desire any further briefing, and, if so, shall request a conference call with the panel to seek authorization for such briefing within one week of the date of this Order.
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51 Order Conduct of Proceeding: ORDERConduct of the Proceeding37 CFR § 425

Document IPR2017-00374, No. 51 Order Conduct of Proceeding - ORDERConduct of the Proceeding37 CFR § 425 (P.T.A.B. May. 4, 2018)
EMC CORPORATION, LENOVO (UNITED STATES) INC., and
In the Decision on Institution, the Board determined Petitioner demonstrated a reasonable likelihood it would establish that at least one of the challenged claims of the ’827 patent is unpatentable.
The parties shall confer to discuss the impact, if any, of this Order on the proceeding.
If, after conferring, the parties wish to submit further briefing, the parties must, within one week of the date of this Order, request a conference call with the panel to seek authorization for such briefing.
In consideration of the foregoing, it is hereby: ORDERED that the institution decision is modified to include review of all challenged claims and all grounds presented in the Petition; and FURTHER ORDERED that Petitioner and Patent Owner shall confer to determine whether they desire any further briefing, and, if so, shall request a conference call with the panel to seek authorization for such briefing within one week of the date of this Order.
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41 Order: Expunged

Document IPR2017-00439, No. 41 Order - Expunged (P.T.A.B. Mar. 2, 2018)
BLANK BLANK
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42 Order: Expunged

Document IPR2017-00439, No. 42 Order - Expunged (P.T.A.B. Mar. 2, 2018)
BLANK BLANK
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43 Order: Granting Petitioners Unopposed Motions for Pro Hac Vice Admission

Document IPR2017-00439, No. 43 Order - Granting Petitioners Unopposed Motions for Pro Hac Vice Admission (P.T.A.B. Mar. 2, 2018)
and NETAPP, INC., Petitioner,
Granting Petitioner’s Unopposed Motions for Pro Hac Vice Admission
Patent 8,275,827 B2 In each of IPR2017-00374 and IPR2017-00439, Petitioner filed a Motion for pro hac vice admission of Cynthia Vreeland1 as well as a declaration of Ms. Vreeland in support of the Motion.2 In each Motion, Petitioner states that “Patent Owner does not oppose this motion.”3 Petitioner’s Motions are granted.
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49 Order: Granting Patent Owners Unopposed Motions for Withdrawal and Substitution of Lead Counsel

Document IPR2017-00374, No. 49 Order - Granting Patent Owners Unopposed Motions for Withdrawal and Substitution of Lead Counsel (P.T.A.B. Apr. 9, 2018)
Granting Patent Owner’s Unopposed Motions for Withdrawal and Substitution of Lead Counsel
Patent 8,275,827 B2 In each of IPR2017-00374 and IPR2017-00439, Patent Owner moves to withdraw Lori A. Gordon as lead counsel because she “is no longer associated with the law firm STERNE, KESSLER, GOLDSTEIN & FOX, P.L.L.C.” and to designate Byron L. Pickard, who is currently back-up counsel, as lead counsel in these proceedings.
In each of these proceedings, Patent Owner has designated additional individuals as back-up counsel.
Therefore, Patent Owner will continue to have lead and back-up counsel following withdrawal of Mr. Gordon and designation of Mr. Pickard as lead counsel as required by our Rules.
It is ORDERED that Lori A. Gordon is no longer recognized as counsel in this proceeding and that Byron L. Pickard is recognized as lead counsel for Patent Owner; and FURTHER ORDERED that Patent Owner shall file updated mandatory notices removing Ms. Gordon as counsel and designating Mr. Pickard as lead counsel.
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35 Order: Order Trial Hearing

Document IPR2017-00439, No. 35 Order - Order Trial Hearing (P.T.A.B. Feb. 15, 2018)
Petitioner bears the ultimate burden of proof that the claims at issue in each review are unpatentable.
Thereafter, Patent Owner may respond to Petitioner’s case and argue its own Motions, if any, and then Petitioner may use any of its remaining time for rebuttal regarding the challenged claims.
If the parties have any concern about disclosing confidential information, they are to contact the Board at least 10 days in advance of the hearing to discuss the matter.
The parties are directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of Regents of the University of Michigan, Case IPR2013-00041 (PTAB Jan. 27, 2014) (Paper 65), regarding the appropriate content of demonstrative exhibits.
The parties are reminded that the presenter must identify clearly and specifically each demonstrative exhibit (e.g., by slide or screen number) referenced during the hearing to ensure the clarity and accuracy of the reporter’s transcript.
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34 Order: Decision 37 CFR 425

Document IPR2017-00439, No. 34 Order - Decision 37 CFR 425 (P.T.A.B. Feb. 14, 2018)
BLANK BLANK
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33 Order Conduct of Proceeding: Decision Conduct of the Proceeding

Document IPR2017-00439, No. 33 Order Conduct of Proceeding - Decision Conduct of the Proceeding (P.T.A.B. Feb. 14, 2018)
On February 12, 2018, Patent Owner contacted the Board by e-mail requesting authorization to file a motion to strike Petitioner’s Reply in each proceeding.
Indeed, “a reply that raises a new issue or belatedly presents evidence will not be considered and may be returned.” See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012).
For example, our Trial Practice Guide explains that “[e]xamples of indications that a new issue has been raised in a reply include new evidence necessary to make out a prima facie case for the patentability or unpatentability of an original or proposed substitute claim, and new evidence that could have been presented in a prior filing.” Id. We decline at this time to exclude the reply submissions.
1 For purposes of this Order, an improper argument is an argument made by Petitioner in its Reply where (1) it is beyond the scope of a reply under 37 C.F.R. § 42.23(b) or (2) if we were to rely on it in finding the challenged claims unpatentable, Patent Owner would not have had sufficient notice and opportunity to respond (see, e.g., Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)).
Patent 8,275,827 B2 page and line numbers, and may include a brief explanation (akin to that in a motion for observation, see IPR2017-00374, Paper 12, 5).
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26 Order: Order Granting Petitioners Unopposed Motion for Pro Hac Vice Admission

Document IPR2017-00439, No. 26 Order - Order Granting Petitioners Unopposed Motion for Pro Hac Vice Admission (P.T.A.B. Jan. 22, 2018)
and NETAPP, INC., Petitioner,
Granting Petitioner’s Unopposed Motions for Pro Hac Vice Admission
Patent 8,275,827 B2 In each of IPR2017-00374 and IPR2017-00439, Petitioner filed a Motion for pro hac vice admission of Dana O. Burwell1 as well as a declaration of Mr. Burwell in support of the Motion.2 In each Motion, Petitioner states that “Patent Owner does not oppose this motion.”3 Petitioner’s Motions are granted.
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45 Order: Expunged

Document IPR2017-00374, No. 45 Order - Expunged (P.T.A.B. Mar. 2, 2018)
and NETAPP, INC., Petitioner,
Granting Petitioner’s Unopposed Motions for Pro Hac Vice Admission
In each of IPR2017-00374 and IPR2017-00439, Petitioner filed a Motion for pro hac vice admission of Cynthia Vreeland1 as well as a declaration of Ms. Vreeland in support of the Motion.2 In each Motion, Petitioner states that “Patent Owner does not oppose this motion.”3 Petitioner’s Motions are granted.
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46 Order: Granting Petitioners Unopposed Motions for Pro Hac Vice Admission

Document IPR2017-00374, No. 46 Order - Granting Petitioners Unopposed Motions for Pro Hac Vice Admission (P.T.A.B. Mar. 2, 2018)
and NETAPP, INC., Petitioner,
Granting Petitioner’s Unopposed Motions for Pro Hac Vice Admission
Patent 8,275,827 B2 In each of IPR2017-00374 and IPR2017-00439, Petitioner filed a Motion for pro hac vice admission of Cynthia Vreeland1 as well as a declaration of Ms. Vreeland in support of the Motion.2 In each Motion, Petitioner states that “Patent Owner does not oppose this motion.”3 Petitioner’s Motions are granted.
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25 Order: Amended Scheduling Order 37 CFR 425

Document IPR2017-00439, No. 25 Order - Amended Scheduling Order 37 CFR 425 (P.T.A.B. Jan. 11, 2018)
and NETAPP, INC., Petitioner,
It is ORDERED that the Scheduling Order in each of these proceedings (Paper 12) is amended such that DUE DATE 7 is reset to March 5, 2018.
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39 Order: Order Trial Hearing

Document IPR2017-00374, No. 39 Order - Order Trial Hearing (P.T.A.B. Feb. 15, 2018)
Petitioner bears the ultimate burden of proof that the claims at issue in each review are unpatentable.
Thereafter, Patent Owner may respond to Petitioner’s case and argue its own Motions, if any, and then Petitioner may use any of its remaining time for rebuttal regarding the challenged claims.
If the parties have any concern about disclosing confidential information, they are to contact the Board at least 10 days in advance of the hearing to discuss the matter.
The parties are directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of Regents of the University of Michigan, Case IPR2013-00041 (PTAB Jan. 27, 2014) (Paper 65), regarding the appropriate content of demonstrative exhibits.
The parties are reminded that the presenter must identify clearly and specifically each demonstrative exhibit (e.g., by slide or screen number) referenced during the hearing to ensure the clarity and accuracy of the reporter’s transcript.
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38 Order: Decision 37 CFR 425

Document IPR2017-00374, No. 38 Order - Decision 37 CFR 425 (P.T.A.B. Feb. 14, 2018)
On February 12, 2018, Patent Owner contacted the Board by e-mail requesting authorization to file a motion to strike Petitioner’s Reply in each proceeding.
Indeed, “a reply that raises a new issue or belatedly presents evidence will not be considered and may be returned.” See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012).
For example, our Trial Practice Guide explains that “[e]xamples of indications that a new issue has been raised in a reply include new evidence necessary to make out a prima facie case for the patentability or unpatentability of an original or proposed substitute claim, and new evidence that could have been presented in a prior filing.” Id. We decline at this time to exclude the reply submissions.
1 For purposes of this Order, an improper argument is an argument made by Petitioner in its Reply where (1) it is beyond the scope of a reply under 37 C.F.R. § 42.23(b) or (2) if we were to rely on it in finding the challenged claims unpatentable, Patent Owner would not have had sufficient notice and opportunity to respond (see, e.g., Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)).
Patent 8,275,827 B2 page and line numbers, and may include a brief explanation (akin to that in a motion for observation, see IPR2017-00374 Paper 12, 5).
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