IPR2015-00125, No. 36 Order - Order Real Party in Interest redacted (P.T.A.B. May. 20, 2015)

Trials@uspto.gov
`571-272-7822
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`IPR2015-00122 Paper 30; IPR2015-00123 Paper 30
`IPR2015-00124 Paper 29; IPR2015-00125 Paper 28;
`IPR2015-00133 Paper 26; IPR2015-00137 Paper 25
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`Entered: March 6, 2015
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`PUBLIC REDACTED VERSION
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`ASKELADDEN LLC,
`Petitioner,
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`v.
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`SEAN I. MCGHIE and BRIAN BUCHHEIT,
`Patent Owner.
`____________
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`Cases IPR2015-00122 (Patent 8,523,063)
`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`IPR2015-00137 (Patent 8,297,502)1
`____________
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`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`Chang, Administrative Patent Judge.
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`
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`ORDER
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`1 This Decision addresses issues that are the same in the identified cases.
`We exercise our discretion to issue one Decision to be filed in each case.
`The parties are not authorized to use this style heading.
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`

`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Real Party-in-Interest and Vacating Filing Date
`37 C.F.R. §§ 42.8(b)(1) and 42.106(b)
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`I.
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`INTRODUCTION
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`Petitioner Askeladden LLC (“Askeladden”) filed a Petition requesting
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`an inter partes review in each of the above-identified proceedings. Paper 2,2
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`“Pet.” The Petitions identify Askeladden as the sole real party-in-interest to
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`these proceedings. Pet. 1.
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`In response, Sean McGhie and Brian Buchheit (“Patent Owner”) filed
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`a Preliminary Response in each proceeding at issue. Paper 10, “Prelim.
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`Resp.” Patent Owner asserts that The Clearing House Payments Company
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`LLC (“PayCo”) also is a real party-in-interest. Id. at 54.
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`Subsequently, we authorized Askeladden to file a reply to Patent
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`Owner’s Preliminary Response for the sole purpose of addressing the real
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`party-in-interest issue. Paper 13. Pursuant to our authorization, Askeladden
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`filed a Reply3 (“RPI Reply”4) and supporting evidence, including a
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`2 Citations are to IPR2015-00133.
`3 The Reply was time-stamped February 24, 2015, 12:02 a.m. ET, and, thus,
`was filed untimely. Patent Owner does not object to the entry of the late
`filing. Upon consideration, we determined, in accordance with 37 C.F.R.
`§ 42.5(c)(3), to excuse the late filing.
`4 Askeladden filed two versions of its Reply—a confidential version
`(Paper 14) and a public redacted version (Paper 15).
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`2
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Declaration of Mr. Sean Reilly (Ex. 15315). In addition, in response to our
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`request for relevant portions of Askeladden’s Operating Guidelines, which
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`are referenced in Mr. Reilly’s Declaration (Ex. 1531 ¶ 11), Askeladden filed
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`a redacted confidential version of Askeladden’s Limited Liability Company
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`Agreement (Ex. 1533, “LLC Agreement”), which contains Askeladden’s
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`Operating Guidelines.
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`We have considered the parties’ contentions and evidence in the
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`present record. For the reasons set forth below, we determine that
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`Askeladden also should have identified PayCo as a real party-in-interest in
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`the Petitions, as required by 35 U.S.C. § 312(a)(2). Pursuant to 37 C.F.R.
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`§ 42.106(b), we, hereby, vacate the previously-accorded filing date of each
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`Petition, and provide Askeladden an opportunity to correct the Petitions in
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`accordance with this Order.
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`II. DISCUSSION
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`Factual Background
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`Askeladden is a wholly-owned subsidiary of PayCo. Ex. 1531 ¶ 6.
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` Ex. 1533, 1. In short, PayCo is the parent
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`company
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` of Askeladden.
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`5 Askeladden filed both the confidential version and public redacted versions
`of Mr. Reilly’s Declaration, as Exhibits 1531.
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`3
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Committee appear to be current executive officers of PayCo. Ex. 2029.
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` the members of Askeladden’s Executive
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`PayCo purportedly is a banking industry group representing more than
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`twenty financial institutions (“PayCo’s member banks”). Ex. 2027, 1.
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`PayCo formed Askeladden to implement the Patent Quality Initiative
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`(“PQI”), which is said to improve the quality of patents that affect the
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`financial services industry. Ex. 1531 ¶ 7; Ex. 1533, 8. PQI is the product of
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`thought leadership provided by PayCo. Ex. 2029, 1.
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`4
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`The Parties’ Contentions
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`Notwithstanding the identification of Askeladden as the sole real
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`party-in-interest in each Petition (Pet. 1), Patent Owner asserts that PayCo
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`also is a real party-in-interest. Prelim. Resp. 54. In its Preliminary
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`Response, Patent Owner argues that “the boundary between Askeladden and
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`the Clearing House has been a legal fiction based on the evidence available.”
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`Id. at 55. As support, Patent Owner submitted two press releases
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`(Exs. 2033, 2034), an article from iam-magazine (Ex. 2027), and several
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`webpages6 from the websites of Askeladden and PayCo (Exs. 2028–2032).
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`In its Reply, Askeladden counters that it is the sole real party-in-
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`interest because no other entity funds or controls the above-identified inter
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`partes reviews. RPI Reply 1. In particular, Askeladden alleges that PayCo
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`is not a real party-in-interest, as PayCo has not funded these proceedings.
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`Id. at 2 (citing Ex. 1531 ¶ 16). Askeladden also contends that it,
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`independently and, in its sole discretion, identifies and selects the involved
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`patents, and directs all aspects of these proceedings. Id. at 1–5 (citing
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`Ex. 1531 ¶¶ 11–12, 18). Askeladden further maintains that Patent Owner’s
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`evidence is insufficient to overcome the presumption that distinct legal
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`entities operate independently. Id. at 6–11. Askeladden argues that Patent
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`Owner improperly seeks an advisory opinion, as Patent Owner has not sued
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`
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`6 http://www.patentqualityinitiative.com and
`https://www.theclearinghouse.org.
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`5
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`PayCo, Askeladden, or any other entity for infringement of the involved
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`patents. Id. at 12–13.
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`Principles of Law
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`Section 312(a) of Title 35 of the United States Code provides that a
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`petition for inter partes review under 35 U.S.C. § 311 may be considered
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`only if, among other things, the petition identifies all real parties-in-interest.
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`35 U.S.C. § 312(a)(2). The identification of all real parties-in-interest assists
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`the Board in identifying potential conflicts of interest, and assures proper
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`application of the statutory estoppel provisions, protecting patent owners
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`from harassment via successive petitions by the same parties, and assuring
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`that all issues are raised and considered promptly. Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48,756, 48,759 (Aug. 14, 2012) (“Trial
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`Practice Guide”).
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`Whether a non-identified party is a real party-in-interest to a
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`proceeding is a highly fact-dependent question. Id. (citing Taylor v.
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`Sturgell, 553 U.S. 880 (2008)). “Courts invoke the terms ‘real party-in-
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`interest’ and ‘privy’ to describe relationships and considerations sufficient to
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`justify applying conventional principles of estoppel and preclusion.” Id.
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`Taylor lists six categories that create an exception to the common law rule
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`that normally forbids non-party preclusion in litigation. Taylor, 553 U.S. at
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`893–95. “A common consideration is whether the non-party exercised or
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`6
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`could have exercised control over a party’s participation in a proceeding.”7
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`Trial Practice Guide, 77 Fed. Reg. at 48,759 (citing Taylor, 553 U.S. at
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`895). The concept of control generally means that “it should be enough the
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`nonparty has the actual measure of control or opportunity to control that
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`might reasonably be expected between two formal coparties.” Id.
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`Factors for determining actual control or the opportunity to control
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`include existence of a financially controlling interest in the petitioner. Rules
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`of Practice for Trials Before the Patent Trial and Appeal Board and Judicial
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`Review of Patent Trial and Appeal Board Decisions; Final Rule, 77 Fed.
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`Reg. 48,612, 48,617 (Aug. 14, 2012). Additional relevant factors include:
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`the non-party’s relationship with the petitioner; the non-party’s relationship
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`to the petition itself, including the nature and/or degree of involvement in
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`the filing; and the nature of the entity filing the petition. Trial Practice
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`Guide, 77 Fed. Reg. at 48,760.
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`There is no bright-line test for determining the necessary quantity or
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`degree of participation in the proceeding to qualify as a real party-in-interest.
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`Id. at 48,759 (citing Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 759
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`(1st Cir. 1994)). A non-identified party’s participation may be overt or
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`covert, and the evidence may be circumstantial, but the evidence, as a whole,
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`must show that the non-identified party possessed effective control from a
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`7 Another category discussed in Taylor that might be relevant here is a
`special statutory scheme that forecloses successive attacks by third parties,
`and otherwise is consistent with due process. Taylor, 553 U.S. at 895.
`7
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`practical standpoint. Gonzalez, 27 F.3d at 759. This inquiry is not based on
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`isolated facts, but rather must consider the totality of the circumstances. Id.
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`Burden
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`In general, the identification of real parties-in-interest submitted in a
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`petition is presumed to be correct. Changes to Implement Inter partes
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`Review Proceedings, Post-Grant Review Proceedings, and Transitional
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`Program for Covered Business Method Patents; Final Rule, 77 Fed. Reg.
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`48,680, 48,695 (Aug. 14, 2012). This presumption is rebuttable by an
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`opposing party who provides sufficient evidence that reasonably brings into
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`question the accuracy of a petitioner’s identification of real parties-in-
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`interest.8 As noted in our previous Order, the petitioner is more likely to be
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`in possession of, or have access to, evidence that is relevant to the issue than
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`is a patent owner. Paper 13, 2. In short, the ultimate burden of proof on the
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`issue lies with the petitioner. See, e.g., Zerto, Inc. v. EMC Corp., Case
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`IPR2014-01254, slip op. at 6–7 (PTAB Feb. 12, 2015) (Paper 35).
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`8 With a few exceptions not pertinent in this proceeding, the Federal Rules
`of Evidence apply to an inter partes review. 37 C.F.R. § 42.62(a). “[T]he
`party against whom a presumption is directed has the burden of producing
`evidence to rebut the presumption. But this rule does not shift the burden of
`persuasion, which remains on the party who had it originally.” Fed. R.
`Evid. 301 (emphasis added).
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`8
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Analysis
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`Upon reviewing the evidence presented by Askeladden and Patent
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`Owner, we are not persuaded that Askeladden has met its burden of
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`identifying all real parties-in-interest, as required by 35 U.S.C. § 312(a)(2).
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`Askeladden was given an opportunity to resolve the uncertainty as to the
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`boundary lines between PayCo and Askeladden with respect to whether
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`PayCo exercised or could have exercised control over these proceedings.
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`Paper 13. Askeladden argued unpersuasively that PayCo is merely a parent
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`company
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` RPI Reply 3–11. Rather, upon
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`consideration of the totality of the circumstances, we find that the evidence
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`before us, as a whole, shows that the boundary lines are blurred sufficiently
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`between PayCo and Askeladden with respect to the above-identified inter
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`partes reviews, such that PayCo has the opportunity to control Askeladden’s
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`participation in these proceedings. See, e.g., Zerto, Case IPR2014-01254,
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`Paper 35 slip op. at 6–7; GEA Process Eng’g, Inc. v. Steuben Foods, Inc.,
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`Case IPR2014-00041, slip op. at 19–21 (PTAB Dec. 23, 2014) (Paper 140);
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`Zoll Lifecor Corp. v. Philips Elecs. N. Am. Corp., Case IPR2013-00606, slip
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`op. at 9–13 (PTAB Mar. 20, 2014) (Paper 13). We address below the
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`arguments presented by Askeladden in turn.
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`1. Arguments concerning funding and control
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`In its Reply, Askeladden argues that “PayCo and its member banks do
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`not control or directly fund” the specific proceedings before us. RPI Reply
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`9
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`3–5. Askeladden also alleges that “neither PayCo nor its member banks
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`directed or controlled the selection of the patents” at issue. Id. at 5.
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`As support, Askeladden directs our attention to the Declaration of
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`Mr. Reilly, who is Askeladden’s General Counsel and PayCo’s Senior Vice
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`President and Associate General Counsel. Ex. 1531.
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`Askeladden, however, has not provided sufficient explanation or
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`credible evidence to resolve the uncertainty with respect to whether PayCo
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`or Askeladden provided the funding for the filing fees and legal expenses
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`associated with the above-identified proceedings. Mr. Reilly testifies
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`generally that Askeladden maintains separate books and financial records
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`from PayCo. Ex. 1531 ¶ 10. Yet, no specific financial records have been
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`submitted to establish that Askeladden, alone, funded these proceedings
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`(e.g., the invoices for the expenses related to the inter partes reviews).
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`In fact, Mr. Reilly testifies that
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`. Id. ¶ 16. According to the LLC Agreement,
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`Ex. 1533, 10. Based on the evidence before us, we observe that Askeladden
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`obtains its funding completely from PayCo, including the expenses
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`associated with the proceedings before us. Askeladden has not proffered
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`specific and credible evidence to show otherwise.
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`10
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Askeladden’s participation in these proceedings, and, thus, PayCo is a real
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`party-in-interest to the proceedings before us.
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`2. Trade association argument
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`In its Reply, Askeladden also directs our attention to Unified Patents
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`Inc. v. Dragon Intellectual Property, LLC, Case IPR2014-01252 (PTAB
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`Feb. 12, 2015) (Paper 37), to support its argument that PayCo is not a real
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`party-in-interest to these proceedings. RPI Reply 3–5. Askeladden’s
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`argument, however, is predicated on the improper premise that the holding
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`of Unified Patents requires a showing that a non-party paid, directed, or
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`suggested to the petitioner to challenge the specific patent, before we can
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`treat the non-party as a real party-in-interest. Askeladden narrowly focuses
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`on the discussion in Unified Patents as to why the holding in RPX Corp. v.
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`VirnetX Inc., Case IPR2014-00171 (PTAB July 14, 2014) (Paper 49), does
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`not apply to the particular facts in Unified Patents.
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`Although a non-party, as in Unified Patents, does not become a real
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`party-in-interest based solely on its membership in the trade association,
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`“slight alterations in the facts, as well as consideration of other facts, might
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`result in a different conclusion.” Trial Practice Guide, 77 Fed. Reg.
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`at 48,760. Unlike the facts in Unified Patents, PayCo here is not merely a
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`member of a trade association. Rather, as discussed above, PayCo is an
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`involved and controlling parent company,
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`boundary between PayCo and Askeladden with respect to these proceedings,
`13
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`. Furthermore, there is no discernible
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`thus providing PayCo sufficient opportunity to control Askeladden’s
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`participation in these proceedings.
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`For the foregoing reasons, we are not persuaded by Askeladden’s
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`argument that the holding of Unified Patents applies here in these
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`proceedings.
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`3. Seeking advisory opinion argument
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`Askeladden argues that Patent Owner improperly seeks an advisory
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`opinion on the possible future application of the estoppel provision under
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`35 U.S.C. § 315(e). RPI Reply 12–13. To support its argument, Askeladden
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`asserts that the real party-in-interest issue “is not dispositive of any issue in
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`these proceedings,” as Patent Owner has not sued any entity for
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`infringement of the involved patents. Id. at 12–13.
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`Askeladden’s argument is of no moment here, as 35 U.S.C.
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`§ 312(a)(2) and 37 C.F.R. §§ 42.8(b)(1) and 42.104 require each Petition to
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`identify all real parties-in-interest. As discussed above, Patent Owner
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`properly presents arguments and sufficient evidence, in its Preliminary
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`Response, to bring reasonably into question the accuracy of Askeladden’s
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`identification of real party-in-interest, assuring that all issues are raised and
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`considered promptly.
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`Askeladden also implies that the failure to comply with the real
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`parties-in-interest requirement does not have meaningful consequences, as
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`an “addition of a real party-in-interest here would merely change the filing
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`date of the Petition” and delay the decision on institution. Id. at 13. Such a
`14
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`view contradicts the statute and rules, as well as undermines our ability “to
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`secure the just, speedy, and inexpensive resolution of every proceeding.”
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`37 C.F.R. § 42.1(b). Askeladden should correct its Petitions at this early
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`stage of the proceedings to minimize burden on the Board and prevent
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`unnecessary delay. Paper 13, 5.
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`4. Conclusion
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`For the foregoing reasons, we determine that Askeladden fails to meet
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`its burden that Askeladden is the sole real party-in-interest to the above-
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`identified inter partes reviews, and that Askeladden also should have
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`identified PayCo as a real party-in-interest.
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`III. FILING DATE VACATED
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`For the reasons discussed above, the Petitions do not identify all real
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`parties-in-interest, as required by 35 U.S.C. § 312(a)(2) and 37 C.F.R.
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`§§ 42.8(b)(1) and 42.104, and, as such, the Petitions are incomplete under
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`37 C.F.R. § 42.106(b). The previously-accorded filing date for each of the
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`Petitions is hereby vacated.
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`We observe, on this record, that Patent Owner has not served PayCo,
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`Askeladden, or any other entity with a complaint alleging infringement of
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`the involved patents. See generally, Prelim. Resp. 54–60; Pet. 1; RPI
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`Reply 13. Therefore, the one-year statutory bar under 35 U.S.C. § 315(b)
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`does not apply to these proceedings. At this juncture, we have yet to decide
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`whether or not to institute a review in these proceedings.
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`15
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`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
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`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
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`PUBLIC REDACTED VERSION
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`Under these circumstances, we hereby provide Askeladden an
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`opportunity to correct the identification of all real parties-in-interest under
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`37 C.F.R. § 42.8(b)(1), within 5 business days from the entry of the instant
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`Order, to avoid dismissal of the Petitions.
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`IV. ORDER
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`In consideration of the foregoing, it is:
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`ORDERED that, within 5 business days from the entry of this Order,
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`Askeladden should update its Mandatory Notice pursuant to 37 C.F.R.
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`§ 42.8(b)(1) to identify all real parties-in-interest, including The Clearing
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`House Payments Company LLC, in each of the above-identified
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`proceedings; the updated Mandatory Notices filed in accordance with this
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`Order to include the identification of all real parties-in-interest will be
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`considered corrections to the Petitions; Askeladden is not required to
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`resubmit the information contained in the original Petition filings; and
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`FURTHER ORDERED that the accorded filing date for each Petition
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`filed in these proceedings is vacated; a new filing date for the Petitions will
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`be accorded upon the filing of the updated Mandatory Notices that include
`
`the identification of all real parties-in-interest.
`
`
`
`
`
`
`
`
`16
`
`

`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`
`
`
`
`IPR2015-00123 (Patent 8,523,063)
`IPR2015-00125 (Patent 8,540,152)
`IPR2015-00137 (Patent 8,297,502)
`
`PUBLIC REDACTED VERSION
`
`For PETITIONER:
`
`Robert H. Fischer
`Frank A. DeLucia
`askeladdenIPR@fchs.com
`
`
`
`For PATENT OWNER:
`
`Brian Buchheit
`bbucheit@gmail.com
`
`
`
`
`
`
`17
`
`

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