`571-272-7822
`
`
`
`
`
`Paper 24
`Entered: May 24, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`SHOPIFY, INC.,
`Petitioner,
`
`v.
`
`DDR HOLDINGS, LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01011 (Patent 9,639,876 B1)
`Case IPR2018-01012 (Patent 9,043,228 B1)
` Case IPR2018-01014 (Patent 8,515,825 B1)1
`____________
`
`
`
`Before PATRICK M. BOUCHER and ALYSSA A. FINAMORE,
`Administrative Patent Judges.
`
`BOUCHER, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5(a)
`
`
`On May 23, 2019, a conference call was held with counsel for the
`parties regarding a request by Patent Owner for authorization to file a
`
`
`1 The parties are not authorized to use this style of caption.
`
`
`
`IPR2018-01011 (Patent 9,639,876 B1)
`IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01014 (Patent 8,515,825 B1)
`
`motion to strike portions of Petitioner’s Reply in each of these proceedings.
`By email correspondence to the Board on May 15, 2019, Patent Owner
`contends that Petitioner’s Replies improperly include the following new
`arguments:
`1. Arguments relying on the reference Moore’s teaching that the Price
`URL can be attached to any “style component” and related implications.
`2. Arguments relying on Moore’s teachings use of “Java servlets” in
`designing Web pages and servlets in interpreting the Price URL, comparison
`between those, and related implications.
`3. Arguments that Moore’s servlet interpreting the Price URL must or
`does contain merchant-specific “look and feel” data and that such data must
`be or is stored on the store builder/transaction server.
`4. Arguments relying on Moore’s teaching of adjusting “Java classes”
`to change look and feel and related implications.
`
`Patent Owner indicates that its proposed motion to strike would “seek
`the alternative relief of being permitted to present targeted testimony with its
`sur-replies.” Although the 2018 Revised Trial Practice Guide (“Guide”),
`available at https://www.uspto.gov/sites/default/files/documents/
`2018_Revised_Trial_Practice_Guide.pdf permits a party to request
`authorization to file a motion to strike, the Guide also explains that “striking
`the entirety or a portion of a party’s brief is an exceptional remedy that the
`Board expects will be granted rarely.” Guide 17–18. In this instance, Patent
`Owner concedes that Petitioner has offered no new testimonial evidence to
`support the Reply arguments it identifies, which Petitioner contends are
`responsive to the arguments presented in Patent Owner’s Responses. The
`character of the arguments identified by Patent Owner is also plainly
`directed to factual issues regarding what is disclosed by Moore. We are
`
`2
`
`
`
`IPR2018-01011 (Patent 9,639,876 B1)
`IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01014 (Patent 8,515,825 B1)
`
`mindful that Petitioner retains the burden in these proceedings. To the
`extent that Petitioner’s Reply arguments are not properly responsive to
`Patent Owner’s arguments and/or insufficiently supported by evidence, they
`will either not be considered or will be accorded reduced weight as
`appropriate.
`Accordingly, we deny Patent Owner’s request. Because of the time
`taken to arrange a conference call with the parties in response to Patent
`Owner’s request, we extend the time for filing Sur-Replies in each of these
`proceedings. We also extend the time for filing Sur-Replies in related
`proceedings IPR2018-01008, IPR2018-01009, and IPR2018-01010, which
`was set as part of a consolidated Scheduling Order in all six proceedings.
`Patent Owner may explain as part of its Sur-Replies why it believes
`Petitioner’s arguments are new and therefore improper, but we do not
`enlarge the word-count limit for those Sur-Replies.
`
`It is
`ORDERED that Patent Owner’s request for authorization to file a
`motion to strike portions of Petitioner’s Replies in these proceedings is
`denied;
`FURTHER ORDERED that DUE DATE 3 for each of these
`proceedings, as well as for IPR2018-01008, IPR2018-01009, and IPR2018-
`01010, is extended to June 3, 2019; and
`FURTHER ORDERED that a copy of this order be entered into the
`record for each of IPR2018-01008, IPR2018-01009, and IPR2018-01010.
`
`
`
`3
`
`
`
`IPR2018-01011 (Patent 9,639,876 B1)
`IPR2018-01012 (Patent 9,043,228 B1)
`IPR2018-01014 (Patent 8,515,825 B1)
`
`PETITIONER:
`
`Michael McNamara
`William Meunier
`MINTZ LEVIN COHN FERRIS GLOVSKY
`AND POPEO P.C.
`mmcnamara@mintz.com
`wameunier@mintz.com
`
`
`
`PATENT OWNER:
`
`Louis Hoffman
`Justin Lesko
`LOUIS J. HOFFMAN, P.C.
`donald@valuablepatents.com
`justinlesko@patentit.com
`
`
`
`
`4
`
`
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