`
`Entered: August 27, 2015
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPACE EXPLORATION TECHNOLOGIES CORP.,
`Petitioner,
`
`v.
`
`BLUE ORIGIN LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01376
`Patent 8,678,321 B2
`____________
`
`
`Before KEN B. BARRETT, HYUN J. JUNG, and CARL M. DEFRANCO,
`Administrative Patent Judges.
`
`
`
`DEFRANCO, Administrative Patent Judge.
`
`
`
`FINAL JUDGMENT AND DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73(b)
`
`Space Exploration Technologies Corp. (“SpaceX”) filed a petition
`seeking inter partes review of claims 1–13 of U.S. Patent No. 8,678,321 B2
`(“the ’321 patent”).1 Paper 2. On March 3, 2015, we granted the petition
`
`
`1 Additional claims 14 and 15 of the ’321 patent were the subject of a related
`proceeding in which trial was not instituted. See Space Exploration Tech.
`Corp. v. Blue Origin LLC, IPR2014-01378, Paper 6 (PTAB Mar. 3, 2015).
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`and instituted trial on all of the challenged claims. Paper 7. Blue Origin
`LLC, the owner of the ’321 patent, now requests that claims 1–13 be
`cancelled, and adverse judgment be entered, under 37 C.F.R. § 42.73(b)(2).
`Paper 11. Also, Blue Origin informs us that the ’321 patent is the subject of
`a co-pending reissue application, specifically, Reissue Patent Application
`No. 14/559,777, filed December 3, 2014. Paper 10.
`
`A patent owner may request judgment against itself “at any time
`during a proceeding” upon cancellation of the particular claims at issue such
`that there is “no remaining claim in the trial.”2 37 C.F.R. § 42.73(b)(2).
`Here, Blue Origin has requested cancellation of all the claims on which trial
`was instituted, hence, no claims will remain for trial. Paper 11. In view of
`the cancellation of claims 1–13 of the ’321 patent, the entry of final
`judgment adverse to Blue Origin is appropriate.
`ORDER
`
`Accordingly, it is hereby
`
`ORDERED that Patent Owner Blue Origin’s request for adverse
`judgment is granted;
`
`FURTHER ORDERED that claims 1–13 of U.S. Patent No. 8,678,321
`B2 are cancelled;
`
`FURTHER ORDERED that judgment against Patent Owner Blue
`Origin, pursuant to 37 C.F.R. § 42.73(b)(2), is entered;
`
`
`2 Because our rules permit a request for adverse judgment “at any time,” a
`party need not obtain prior authorization.
`2
`
`
`
`IPR2014-01376
`Patent 8,678,321 B2
`
`FURTHER ORDERD that this decision constitutes a final written
`
`decision under 35 U.S.C. § 318(a);
`
`FURTHER ORDERED that Patent Owner Blue Origin shall file a
`notice and copy of this final judgment and decision in the files of Reissue
`Patent Application No. 14/559,777, as well as any other proceeding or action
`involving the ’321 patent; and
`
`FURTHER ORDERED that, pursuant to 37 C.F.R. § 42.73(d)(3),
`Patent Owner Blue Origin shall not take any action inconsistent with this
`final judgment and decision, including obtaining in any patent a claim that is
`not patentably distinct from the cancelled claims in this proceeding.
`
`FOR PETITIONER:
`
`Heidi L. Keefe
`C. Scott Talbot
`COOLEY LLP
`hkeefe@cooley.com
`stalbot@cooley.com
`zpatdcdocketing@cooley.com
`
`
`
`FOR PATENT OWNER:
`
`John M. Wechkin
`Ryan J. McBrayer
`PERKINS COIE LLP
`JWechkin@perkinscoie.com
`RMcBrayer@perkinscoie.com
`
`
`3
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