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DEVELOPMENTAL TECHNOLOGIES, LLC v. EMP Enterprises, Inc.

Docket IPR2021-01534, Patent Trial and Appeal Board (Sept. 24, 2021)
James Tartal, Matthew Meyers, Richard Marschall, presiding
Case TypeInter Partes Review
Patent
10091956
Patent Owner EMP Enterprises, Inc.
Petitioner DEVELOPMENTAL TECHNOLOGIES, LLC
Patent Owner Adelheid Putze
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22 Adverse judgment post institution: Adverse judgment post institution

Document IPR2021-01534, No. 22 Adverse judgment post institution - Adverse judgment post institution (P.T.A.B. Sep. 6, 2022)
Before JAMES A. TARTAL, RICHARD H. MARSCHALL, and MATTHEW S. MEYERS, Administrative Patent Judges.
Granting Request for Adverse Judgement After Institution of Trial 37 C.F.R. § 42.73(b)
On June 1, 2021, we instituted an inter partes review of claims 1–18 in the ’956 patent based on all grounds presented in the Petition.
On August 22, 2022, E. M. P. Enterprises, Inc. (“Patent Owner”) filed a Patent Owner Response and Request for Adverse Judgment.
ORDERED that adverse judgment is entered against Patent Owner under 37 C.F.R. § 42.73(b) and this proceeding is terminated.
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22 Adverse judgement post institution: Adverse judgement post institution

Document IPR2021-01534, No. 22 Adverse judgement post institution - Adverse judgement post institution (P.T.A.B. Sep. 6, 2022)
Before JAMES A. TARTAL, RICHARD H. MARSCHALL, and MATTHEW S. MEYERS, Administrative Patent Judges.
Granting Request for Adverse Judgement After Institution of Trial 37 C.F.R. § 42.73(b)
On June 1, 2021, we instituted an inter partes review of claims 1–18 in the ’956 patent based on all grounds presented in the Petition.
On August 22, 2022, E. M. P. Enterprises, Inc. (“Patent Owner”) filed a Patent Owner Response and Request for Adverse Judgment.
ORDERED that adverse judgment is entered against Patent Owner under 37 C.F.R. § 42.73(b) and this proceeding is terminated.
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17 Institution Decision Grant: Institution Decision Granting Institution of Inter Partes Review

Document IPR2021-01534, No. 17 Institution Decision Grant - Institution Decision Granting Institution of Inter Partes Review (P.T.A.B. Jun. 1, 2022)
Inter partes review may not be instituted “unless ... the information presented in the petition ... shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
Petitioner also asserts that a person having ordinary skill in the art “would have had at least general knowledge about plant stress physiology, soil science, subsurface irrigation tubing materials, emitter technologies, geotextile mats, irrigation mats, hydrophilic material properties, wicking Case IPR2021-01534 Patent 10,091,956 B2 material properties, plant root systems, root zone factors that impact plant health, and irrigation installation and management.” Id. Patent Owner does not dispute Petitioner’s proposed definition of the level of ordinary skill in the art, which appears consistent with the record at this stage of the proceeding, including the prior art.
For the reasons provided below, at this stage of the proceeding and based on the current record, we do not discern a need to construe explicitly any claim terms because doing so would not change the outcome of the analysis below.
First, Patent Owner argues that Lichfield fails to disclose a plurality of sleeves, and we find that argument unpersuasive based on the current record for the reasons provided above.
We have not made a final determination on any of these issues, and we will do so only after review of a complete record, including any competing testimony from one of ordinary skill in the art that may be introduced by Patent Owner.
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18 Order Other: Order SCHEDULING ORDER

Document IPR2021-01534, No. 18 Order Other - Order SCHEDULING ORDER (P.T.A.B. Jun. 1, 2022)
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.
Patent 10,091,956 B2 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.
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12 Order Other: Order Granting Motion to Withdraw

Document IPR2021-01534, No. 12 Order Other - Order Granting Motion to Withdraw (P.T.A.B. Mar. 4, 2022)
On November 9, 2021, Mr. Gibbs emailed the Board seeking authorization to file motions to withdraw the Weide & Miller firm as counsel to Patent Owner in this matter and as counsel to another patent owner in a related matter, Developmental Technologies, LLC, v. EMP Enterprises, Inc. (“EMP”), IPR2021-01560 (“the -01560 proceeding”).
Further emails followed, and a conference call was held on December 14, 2021, to discuss the requests to withdraw and related matters.
In an Order entered December 16, 2021, we summarized the telephone conference and authorized counsel to file motions to withdraw in each proceeding.
We indicated that given the appearance in the proceeding of new counsel for Patent Owner, we were now in a position to grant the pending Motion to Withdraw.
In consideration of the above, it is ORDERED that the Motion to Withdraw the law firm Weide & Miller and its counsel from this proceeding is granted.
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5 Order Other: Order Authorizing Motion to Withdraw

Document IPR2021-01534, No. 5 Order Other - Order Authorizing Motion to Withdraw (P.T.A.B. Dec. 16, 2021)
On November 9, 2021, Mr. Gibbs emailed the Board, prior to assignment of a panel to this case, seeking authorization to file a Motion to Withdraw as counsel to Patent Owner in this matter as well as to counsel to the patent owner in a related matter, Developmental Technologies, LLC, v. EMP Enterprises, Inc. (“EMP”), IPR2021-01560 (“the -01560 proceeding”).
Ms. Putze further indicated that she is the CEO of EMP and participated on the call as a representative for the patent owner in the -01560 matter.
The Panel also indicated that the Board generally discourages parties from appearing pro se due to the complexity of these matters.
Accordingly, we view the prior request to proceed pro se in this matter, expressed in the email correspondence, as withdrawn.
New counsel for Patent Owner should make an appearance in this matter, via a Power of Attorney and updated mandatory notices, prior to the filing of the motion to withdraw.
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3 Notice Notice filing date accorded: Notice Notice filing date accorded

Document IPR2021-01534, No. 3 Notice Notice filing date accorded - Notice Notice filing date accorded (P.T.A.B. Oct. 7, 2021)
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Many non-profit organizations, both inside and outside the intellectual property field, offer alternative dispute resolution services.
If the parties actually engage in alternative dispute resolution, the PTAB would be interested to learn what mechanism (e.g., arbitration, Case IPR2021-01534 Patent 10,091,956 mediation, etc.) was used and the general result.
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