`Tel: 571-272-7822
` Entered: February 3, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`AEROHIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`CHRIMAR SYSTEMS, INC.,
`Patent Owner.
`
`
`
`
`Case IPR2016-01757
`Patent 8,942,107 B2
`
`
`
`Before KARL D. EASTHOM, GREGG I. ANDERSON, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
` ANDERSON, Administrative Patent Judge.
`
`
`DECISION
`Denying Inter Partes Review and
`Denial of Motion for Joinder
`37 C.F.R. § 42.108
`37 C.F.R. § 42.122(a) and (b)
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`IPR2016-01757
`Patent 8,942,107 B2
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`I. INTRODUCTION
`
`Petitioner, Aerohive Networks, Inc., filed a Petition requesting inter
`
`partes review of claims 1, 5, 31, 43, 53, 58, 70, 72, 75, 83, 84, 103, 104, 111, 123,
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`and 125 (“the challenged claims”) of U.S. Patent No. 8,942,107 (“the ’107 patent”)
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`under 35 U.S.C. §§ 311-319. Paper 1 (“Pet.). Petitioner filed a Motion for
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`Joinder with the ’569 IPR1 concurrently with the Petition. Paper 3 (“Motion,”
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`or “Mot.). Patent Owner, ChriMar Systems, Inc., submitted a Preliminary
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`Response under 35 U.S.C. § 314 and Response and Opposition to the Motion
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`under 37 C.F.R. § 42.107(b). Paper 9 (“Prelim. Resp.”).
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`Pursuant to 35 U.S.C. § 314(a), the Director may not authorize an inter
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`partes review unless the information in the petition and preliminary response
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`shows a reasonable likelihood that Petitioner would prevail with respect to at
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`least one challenged claim. For the reasons that follow, the Board determines that
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`the Petition was not filed timely within the statutory period of 35 U.S.C. § 315(b),
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`and, therefore, the Board declines to institute an inter partes review.
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`II. ANALYSIS
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`Section 315(b) of Title 35 of the United States Code states as follows:
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`(b) PATENT OWNER’S ACTION.—An inter partes review may not
`be instituted if the petition requesting the proceeding is filed more than
`1 year after the date on which the petitioner, real party in interest, or
`privy of the petitioner is served with a complaint alleging infringement
`of the patent. The time limitation set forth in the preceding sentence
`shall not apply to a request for joinder under subsection (c).
`
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`Patent Owner contends the Petition was filed more than one year after Petitioner
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`was served with a complaint alleging infringement of the ’107 patent and is
`
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`1 AMX, LLC and Dell, Inc. v. ChriMar Systems, Inc., IPR2016-00569.
`2
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`IPR2016-01757
`Patent 8,942,107 B2
`
`
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`
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`barred by section 315(b). Prelim. Resp. 2, 5–6.
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`The Petition relies on joinder with the ’569 IPR to avoid the bar of
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`section 315(b). Pet. 3 (“The time limit of 35 U.S.C. § 315(b) . . . does not apply
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`here because Aerohive has moved for joinder . . . within one month of the
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`’569 review’s institution on August 10, 2016.”) Petitioner’s position was
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`confirmed in a conference call on November 1, 2016, where Petitioner
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`acknowledged that, unless it was permitted to join the ’569 IPR, its Petition in
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`this proceeding would be barred under section 315(b). Paper 7, 2; see also Ex.
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`2089 (Partial Transcript of November 1, 2016, Conference Call).
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` The ’569 IPR, however, has been terminated. ’569 IPR, Paper 40. There
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`is no longer any pending proceeding in the ’569 IPR to join that would allow
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`Petitioner to avoid the time bar of section 315(b). As a result, the Petition is
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`barred under section 315(b).
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`III. CONCLUSION
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`Because the ’569 IPR is no longer pending, Petitioner’s motion for joinder
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`is dismissed as moot. As a result, the Board denies the Petition because it was
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`not filed within the time limit imposed by section 315(b).
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`IV. ORDER
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`For the reasons given, it is
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`ORDERED that Petitioner’s motion for joinder is dismissed as moot; and
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`FURTHER ORDERED that the Petition challenging the patentability of
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`claims 1, 5, 31, 43, 53, 58, 70, 72, 75, 83, 84, 103, 104, 111, 123, and 125 of U.S.
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`Patent No. 8,942,107 B2 is denied.
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`3
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`IPR2016-01757
`Patent 8,942,107 B2
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`For Petitioner Aerohive Networks, Inc.:
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`Matthew Argenti
`margenti@wsgr.com
`
`Michael Rosato
`mrosato@wsgr.com
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`
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`For Patent Owner Chrimar Systems, Inc.:
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`J ust i n C ohe n
`J ust i n. c ohe n@ t kl a w. c om
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`Ri c ha r d H off m a nn
`hof f m a nn@ r e i si ng. c om
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`4
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