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Enovate Medical, LLC v. InterMetro Industries Corporation

Docket IPR2015-00301, Patent Trial and Appeal Board (Nov. 25, 2014)
Jennifer Bisk, Michael Fitzpatrick, Michael Zecher, presiding
Case TypeInter Partes Review
Patent
6493220
Petitioner Enovate Medical, LLC
Patent Owner InterMetro Industries Corporation
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50 Final Decision: Final Written Decision

Document IPR2015-00301, No. 50 Final Decision - Final Written Decision (P.T.A.B. May. 11, 2016)
More specifically, and as discussed in the Institution Decision, Petitioner proposed a construction for claim 2’s “means for altering the length of the vertical beam and maintaining the tray at a plurality of selectable distances from the dolly assembly,” which is governed by 35 U.S.C. § 112 ¶ 6.
Additionally, secondary considerations such as “commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented.
Patent Owner argues that there was no reason in the art, other than impermissible hindsight, to locate a computer terminal in Dell’s compartment 100 instead of on the top surface 22 in order to free up work space.
Dell and Sweere, which are both directed to mobile workstations, fairly teach in combination “a bracket mounted to the bottom of the horizontal work surface to support a wireless computer terminal,” as recited in claim 1.
The most relevant aspect of the cited testimony—which is from Arthur G. Erdman, Ph.D.—is that modifying the Dell cart as Petitioner proposes would “reduc[e] its ability to effectively meet its objective as a general purpose workstation that can support various types of equipment.” Ex. 2001 ¶ 41 (emphasis added).
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48 Notice: ORDER Conduct of the Proceeding

Document IPR2015-00301, No. 48 Notice - ORDER Conduct of the Proceeding (P.T.A.B. Feb. 4, 2016)
The parties may not use this style heading in their filings absent leave of the Board.
At the end of the hearing, a discussion was held regarding certain exhibits filed by Patent Owner for which an issue (e.g., timeliness, confidentiality,2 or typographical error) remained outstanding.
We take no action with respect to those exhibits Exhibit 2023 in IPR2015-00300 and Exhibit 2021 in IPR2015-00301 is a license agreement between Patent Owner and Capsa Solutions, which Patent Owner admits was filed without authorization because it was filed with Patent Owner’s Opposition to Petitioner’s Motion to Exclude even though the license
The license agreement will remain in the record in each proceeding for the time being.
Accordingly, it is: ORDERED that “Sealed” Exhibit 2004 in IPR2015-00301 and its “publicly available placeholder” shall be expunged, and that Patent Owner may file substantively identical replacements within three days; and FURTHER ORDERED that “Sealed” Exhibit 2005 in IPR2015-00301 and its “publicly available placeholder” shall be expunged, and that Patent Owner may file substantively identical replacements within three days.
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49 Notice: DECISION Patents Owners Motion to Seal and Motion for Protective Order

Document IPR2015-00301, No. 49 Notice - DECISION Patents Owners Motion to Seal and Motion for Protective Order (P.T.A.B. Feb. 4, 2016)
The parties may not use this style heading in their filings absent leave of the Board.
Patent Owner filed a combined Motion to seal certain exhibits and for entry of a protective order in each of these proceedings.
We grant the Motion, and we seal additional papers and documents in the proceeding pursuant to the parties’ subsequent requests.
Patent Owner’s Motion included a proposed protective order (IPR2015-00300, Ex. 2012; IPR2015-00301, Ex. 2010) and a redlined version of it (IPR2015-00300, Ex. 2013; IPR2015-00301, Ex. 2011) indicating differences with the model protective order set forth in the Office Patent Trial Practice Guide.
During the January 22, 2016, hearing for these proceedings, the parties indicated no objection to keeping any of these additional documents sealed.
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47 Notice: Record of Oral Hearing

Document IPR2015-00301, No. 47 Notice - Record of Oral Hearing (P.T.A.B. Feb. 2, 2016)
And in terms of the projects that the General Motors Collaborative Research Lab works on are dependable embedded systems; design methodologies; and human-computer interaction.
And so this is the only thing that we could find about with General Motors Collaborative Research Lab on their Website, and it talks about the goal being to improve automatic safety and reliability by adapting the vehicle electronic configuration to functionality in a situation where the vehicle, the driver, or both are not operating at key effectiveness; design methodologies to enable vehicle design simulation and validation of the computer system with the automobile of the future; human interaction -- human-computer interaction to improve security and driver-vehicle interfaces by building products capable of analyzing the driver's intention and Case IPR2015-00300, Patent 6,721,178 Case IPR2015-00301, Patent 6,493,220 watching physical and mental status of the driver.
There's -- besides these three guys, there were -- there's three other people from Riverside Partners that were named by Nick Mendez that have regular interaction with the company on things like negotiating on Enovate Medical's behalf with their lender.
JUDGE BISK: On the other hand, though, where -- what is the policy incentive of shutting people out when they for, you know, innocent reasons forgot to put someone on and it doesn't come up until a time when it's too late to fix it, kind of relying on where they are in all of these cases?
And they -- all three of those, Stern, Calero and Brolund -- were unanimous in saying that Mr. Mendez was the one who made the decision as to filing IPR; that he just sort of presented it to them as something that I had recommended to him; and that Enovate Medical was going to pursue.
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34 Notice: Order Request for Oral Argument

Document IPR2015-00301, No. 34 Notice - Order Request for Oral Argument (P.T.A.B. Dec. 16, 2015)
Oral arguments in both cases will be consolidated into one hearing that will commence at 1:00 PM Eastern Standard Time on January 13, 2016, on the ninth floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
Petitioner bears the ultimate burden of proof that Patent Owner’s claims at issue in these reviews are unpatentable.
The Board will provide a court reporter, and the transcript shall constitute the official record of the hearing.
Pursuant to 37 C.F.R. § 42.70(b), demonstrative exhibits shall be served on opposing counsel at least five business days before the hearing.
The Board expects lead counsel for each party to be present in person at the oral hearing.
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26 Order: Order Granting Patent Owners Request for Rehearing

Document IPR2015-00301, No. 26 Order - Order Granting Patent Owners Request for Rehearing (P.T.A.B. Dec. 7, 2015)
We subsequently denied Patent Owner’s request agreeing with Petitioner that Patent Owner’s request was untimely, and stating that “Patent Owner does not dispute ... that it has been aware of most of the facts and evidence” on which it bases its request “since before the Petitions for these proceedings were filed on November 25, 2015.” Paper 28, 2–3.1 On December 5, 2015, Patent Owner filed a Request for Rehearing of this decision.
In its Request, Patent Owner represents that we misunderstood its representations of the facts on the phone conference.
According to Patent Owner, it did not become aware of the relevant facts until several days prior to bringing the issue to our attention.
1 Unless otherwise noted, all citations refer to the papers entered in Case
Case IPR2014-00300 (Patent 6,721,178 B1) Case IPR2015-00301 (Patent 6,493,220 B1) FURTHER ORDERED that Patent Owner is authorized to file a motion to terminate in each proceeding, limited to 15 pages, no later than December 14, 2015; FURTHER ORDERED that Petitioner is authorized to file a response to each motion, limited to 15 pages, no later than December 21, 2015; FURTHER ORDERED that no reply by Patent Owner is authorized at this time.
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23 Order: Order Request for Authorization to File Motion to Terminate 37 CFR 425

Document IPR2015-00301, No. 23 Order - Order Request for Authorization to File Motion to Terminate 37 CFR 425 (P.T.A.B. Nov. 25, 2015)
During the call, Patent Owner explained that the basis for its request is based on its theory that Petitioner did not properly name Riverside Partners as a real party in interest.
Petitioner objects to Patent Owner being accorded extra briefing at this late stage when the relevant facts have been known since long before the Petitions in these cases were filed.
Patent Owner contends that the reason for the timing of this request is based on the recent discovery, during deposition testimony in a parallel district court proceeding, that the former Chief Executive Officer of Petitioner brought the decision to file these proceedings to an Executive Committee of Petitioner’s Board.
We are not persuaded that the “new” evidence cited by Patent Owner is enough to warrant a motion to terminate at this late stage of the proceedings.
Therefore, based on the particular facts before us, we determine that Patent Owner’s challenge of whether Riverside Partners should have been listed as a real party in interest in the Petition is untimely at this stage of the proceedings.
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