`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`JIAWEI TECHNOLOGY (HK) LTD., JIAWEI TECHNOLOGY (USA)
`LTD., SHENZHEN JIAWEI PHOTOVOLTAIC LIGHTING CO., LTD.,
`ATICO INTERNATIONAL (ASIA) LTD., ATICO INTERNATIONAL
`USA, INC., CHIEN LUEN INDUSTRIES CO., LTD., INC.
`(CHIEN LUEN FLORIDA), CHIEN LUEN INDUSTRIES CO., LTD., INC.
`(CHIEN LUEN CHINA), COLEMAN CABLE, LLC, NATURE’S MARK,
`RITE AID CORP., SMART SOLAR, INC., AND
`TEST RITE PRODUCTS CORP.,
`Petitioners
`
`v.
`
`SIMON NICHOLAS RICHMOND
`Patent Owner
`____________
`
`Case IPR2015-00580
`
`Patent 7,429,827
`____________
`
`PATENT OWNER’S OPPOSITION TO MOTION FOR
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`JOINDER TO RELATED INTER PARTES REVIEW OF U.S.
`
`PATENT NO. 7,429,827 (IPR2014-00938)
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 223 13-1450
`
`
`
`
`
`I.
`
`Introduction
`Petitioner’s Motion for Joinder (IPR2015-00580, the “580 IPR,” Paper 11),
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`which seeks to join its current Petition (“Second Petition”) challenging Claims 31 -
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`34 of U.S. Patent No. 7,429,827 (the “827 Patent”) with its prior proceeding
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`(IPR2014-00938, the “938 IPR”), is without merit. The Second Petition relies
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`upon the same prior art and the same or substantially the same arguments it
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`presented in its prior “First Petition,” filed June 6, 2014, 938 IPR (Paper 13),
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`which the Board held failed to show a likelihood of unpatentability of Claims 31-
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`34.1 938 IPR (Paper 20). This prior art and these same or substantially the same
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`arguments were presented again in Petitioner’s request for rehearing, 938 IPR
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`(Paper 22)(“Req. Reh’g”), and rejected again by the Board in its January 15, 2015
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`Decision denying rehearing. 938 IPR (Paper 27). 35 U.S.C § 325(d) expressly
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`authorizes the Board to exercise its discretion to reject institution of a petition
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`under such circumstances.
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`Since Petitioner transparently seeks joinder to attempt to avoid the one year
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`bar of § 315(b) to obtain yet another bite at the same apple, this Board should
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`
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`1 Trial was instituted only as to Claims 24-30 and 35, over various combinations of
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`prior art, namely, Chliwnyj, Lau, Dowling, Wu and/or Pu. 938 IPR (Paper 20) at
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`19, encompassing all prior art now raised in the Second Petition.
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`
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`1
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`
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`exercise its discretion to deny joinder and institution of the improper Second
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`Petition.
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`II. Response to Petitioner’s STATEMENT OF FACTS Presented in the
`Motion for Joinder
`In response to Petitioner’s Alleged Fact No. 1, Patent Owner agrees that
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`each real party-in-interest has the following service date in the District of New
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`Jersey (the “New Jersey Lawsuit”): “June 11, 2013 (Menards, Lowe’s, and
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`Walgreens); June 12, 2013 (Smart Solar); June 13, 2013 (Ace, CVS, Jiawei
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`Technology (USA) Ltd., Orgill, True Value, Chien Luen, and Rite Aid); July 3,
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`2013 (Coleman); and no service date (Nature’s Mark and Test Rite).” 938 IPR
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`(Paper 13) at 3. Regarding Alleged Fact No. 6, Patent Owner denies that “the
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`Board found that claim 30 was obvious over Chliwnyj in view of Wu, and Lau.”
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`Petitioner mischaracterizes the Board’s decision. Patent Owner admits the
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`remainder of the alleged fact. Patent Owner admits the Alleged Facts Nos. 2 – 5
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`and 7 - 9.
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`III. Relevant Law
`In IPR proceedings, “[a] petitioner is not entitled to multiple challenges
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`against a patent.” Samsung Electronics Co. v. Rembrandt Wireless Technologies,
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`LP, IPR2015-00118 (Paper 14) at 6 – 7 (denying joinder and stating “we are not
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`apprised of a reason that merits a second chance”).
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`35 U.S.C. § 325(d) provides, in pertinent part, as follows:
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`
`
`2
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`
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`(d) MULTIPLE PROCEEDINGS. —In determining whether to
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`institute or order a proceeding under this chapter, chapter 30, or
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`chapter 31, the Director may take into account whether, and reject the
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`petition or request because, the same or substantially the same prior
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`art or arguments previously were presented to the Office. (Emphasis
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`added.)
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`The Board designated seven decisions as “informative”
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`regarding
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`subsequent proceedings. In each, the Board exercised its discretion under 35
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`U.S.C. § 325(d) to reject a subsequent petition where “the same or substantially the
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`same prior art or arguments were presented to the office.” For example, in ZTE v.
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`ContentGuard Holdings, IPR2013-00454 (Paper 12) at 6, the Board stated the
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`following:
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`A decision to institute review on some claims should not act as an
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`entry ticket, and a how-to guide, for the same Petitioner who filed an
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`unsuccessful joinder motion, and is outside of the one-year statutory
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`period, for filing a second petition to challenge those claims which it
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`unsuccessfully challenged in the first petition.
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`See also Intelligent Bio-systems, Inc. v. Illumina Cambridge Limited, IPR2013-
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`00324 (Paper 19) at 6 – 7 (same); Prism Pharma v. Choongwae Pharma.,
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`IPR2014-00315 (Paper 14) at 13 (same); Medtronic, Inc. v. Robert Bosch
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`Healthcare Systems, Inc., IPR2014-00436 (Paper 17) at 12 (same); Medtronic, Inc.
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`v. Nuvasive, Inc., IPR2014-00487 (Paper 8) at 6 – 7 (same); Unilever, Inc. v. The
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`Procter & Gamble Co., IPR2014-00506 (Paper 17) at 6 (same). United Patents,
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`
`
`3
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`
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`Inc. v. Personalweb Technologies, LLC, IPR2014-00702 (Paper 12) at 4 (“Joinder
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`[under Section 315(c)] is not automatic, particularly given the need to complete
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`proceedings in a just, speedy, and inexpensive manner.”) (citing 37 C.F.R. §
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`42.1(b)).
`
`35 U.S.C. § 315(b) provides:
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`An inter partes review may not be instituted if the petition requesting
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`the proceeding is filed more than 1 year after the date on which the
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`petitioner, real party in interest, or privy of the petitioner is served
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`with a complaint alleging infringement of the patent. The time
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`limitation set forth in the preceding sentence shall not apply to a
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`request for joinder under subsection (c).
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`
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`Multiple bites at the apple are “especially” unjustified when a subsequent
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`petition would otherwise be time-barred by § 315(b). Rembrandt Wireless,
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`IPR2015-00118 (Paper 14) at 7; see also Medtronic, Inc. v. Endotach LLC,
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`IPR2014-00695 (Paper 18) at 4 (“when a § 315(b) bar would apply absent joinder,
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`we hesitate to allow a petitioner a second bite one month after institution of a first
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`case”).
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`Petitioner here, as a single party with several members served with
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`complaints more than one year ago, is time-barred under § 315(b), absent joinder.
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`Fandango, LLC v. Ameranth, Inc., CBM2014-00013 (Paper 22) at 4 (denying
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`
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`4
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`
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`Apple, Inc. a leave to file a separate IPR petition, where it had already joined other
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`parties as a single petitioner). Joinder should be denied.
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`IV. Patent Owner Opposes the Motion for Joinder
`The Second Petition seeks an inappropriate second (or third) bite at the
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`apple. Petitioner’s Second Petition relies upon the same prior art (Chliwnyj, Wu
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`and Lau) presented in its First Petition (938 IPR, Paper 13), using the same or
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`substantially
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`the same arguments, and also recycles arguments from
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`its
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`unsuccessful request for rehearing. 938 IPR (Paper 22). This justifies rejection of
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`the Second Petition pursuant to § 325(d).
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`Though Petitioner asserts that only one “new” issue, “continuous color
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`changing cycle,” is presented (580 IPR (Paper 13) at 7), the “continuous color
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`changing cycle” issue was already argued by Petitioner and fully considered by the
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`Board’s Decision in the 938 IPR that found no likelihood of unpatentability of
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`Claims 31-34. The Board stated that “even if Chliwnyj produces a plurality of
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`colors and we were to consider that to be ‘changing colors,’ that does not mean
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`that Chliwnyj produces a color changing cycle,” explaining that “[t]he scheme that
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`Chliwnyj uses, cited by Petitioner, is with respect to individual LEDs, such that the
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`intensity of the individual LEDs varies according to their own schemes…[t]hese
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`passages do not speak to their combined effect with respect to their resulting
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`color.” 938 IPR Decision (Paper 20) at 16 (emphasis is the Board’s). The Board
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`also stated that “Chliwnyj admonishes prior art lights that have a perceptible
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`
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`5
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`
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`pattern in overall flame effect, instead seeking to simulate a ‘natural random
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`process.’” Id. (emphasis added).
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`In its request for rehearing, Petitioner made the same or substantially the
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`same arguments regarding the alleged obviousness of Claims 31-34 over Chliwnyj
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`in combination with the prior art as it now makes in the Second Petition. Compare
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`938 IPR (Paper 22) at 12 (“despite its alleged admonishment that repetition was
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`inferior, Chliwnyj still reiterated the well-known ability to repeat a ‘color changing
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`cycle’”) with 580 IPR (Paper 10) at 46 (“Petitioner believes that Chliwnyj teaches
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`repeating cycles, but relies on Lau to demonstrate that it would have been obvious,
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`and Chliwnyj does not teach away from a combination with Lau.”). In rejecting
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`Petitioner’s arguments in its decision denying rehearing, the Board made it clear
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`that, though Chliwnyj admonished prior art teaching perceptible patterns was not
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`characterized as teaching away from a color changing cycle, “we remain convinced
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`that Petitioner’s failures in its Petition under 37 C.F.R. 42.104(b)(3)-(5) regarding
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`the ‘color changing cycle’ limitation justify our decision to deny review of claims
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`31 – 34.” 938 IPR, Rehearing Decision (Paper 27) at 4 – 5.
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`Petitioner is misleading and incorrect in its assertion that the Second Petition
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`“relies on the same ground as applied to claim 30 [Ground 3], but raising
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`substantially different arguments.” Mot. Joinder at 5. The Board has disagreed
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`with Petitioner’s characterization stating “[t]he issue in IPR2015-00580 is largely
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`6
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`
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`the same as the issue in” the 938 IPR and “the new ground…is substantially
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`similar to the old ground,” referring to Ground 2 challenging Claims 27–29 and
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`31– 35, not Ground 3. 580 IPR (Paper 16) at 2 (emphasis added). The Second
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`Petition effectively seeks another rehearing on this issue already decided against it
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`by the Board – yet another bite at the apple – which should not be allowed.
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`In the Second Petition, as it did in its unsuccessful request for rehearing, see
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`938 Req. Reh’g. (Paper 22) at 6–9, Petitioner attempts to blame Patent Owner,
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`contending that Petitioner’s failure to show a likelihood of unpatentability of
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`Claims 31-34 was caused by the Patent Owner presenting an “unforeseeable
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`construction of ‘continuous color changing cycle.” 580 IPR (Paper 10) at 1, 19,
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`51.2 This argument is a red herring: In refusing rehearing, the Board confirmed
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`that it did not rely on any construction of “cycle” presented by Patent owner. 938
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`IPR (Paper 27) at 3. In any event, the supposedly “new” evidence and argument
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`regarding how ‘cycle’ may be construed or read on the prior art was available to
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`
`
`2
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` Petitioner states that Patent Owner admitted that varying color and color
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`changing cycle meant substantially the same thing in the New Jersey Lawsuit. 580
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`IPR (Paper 10) at 17. Patent Owner disagrees. Patent Owner was merely
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`communicating to the court that he chose not to respond to IDC’s apparent
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`admission.
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`
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`7
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`
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`Petitioner and, if regarded as important, could have been raised in the original
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`Petition. Id. at 4.
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`Petitioner blames the Board for not agreeing with it and for “requiring
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`construction of a term that was never in dispute between the parties” and not
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`applying the term’s “plain and customary meaning.” Second Pet. at 1 - 2. But
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`substantially the same arguments were presented by Petitioner in its request for
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`rehearing, 938 IPR (Paper 22) at 6, 8, and rejected by the Board. 938 IPR (Paper
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`27).
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`Petitioner’s proffered excuse for now citing Lau for the same asserted
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`“cycle” teaching as Chliwnyj is that it became aware of the alleged relevance of
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`Lau to Claims 31 – 34 only after reading Patent Owner’s Preliminary Response.
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`Mot. Joinder at 6. This excuse does not ring true and is irrelevant. See Endotach
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`(Paper 18) at 9 (“as part of the “reasonable likelihood” standard under § 314(a),
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`Petitioner has a burden to make its case, taking into consideration possible
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`contentions that Patent Owner may assert at a later time, whether it be in relation to
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`claim construction or otherwise”); see also Intelligent Bio-Systems (Paper 19) at 6
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`(noting that petitioner had “not provided any justification for filing the instant
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`petition, other than its representation that it became aware of the relevance of [new
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`art] after the filing of the [prior] Petition”). The Board also confirmed that it did
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`not rely on any construction of “cycle” presented by Patent owner (938 IPR (Paper
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`
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`8
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`
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`27) at 3), and that “the form of repetition, if any, implied by the term ‘cycle’ was
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`not germane in our reason to deny institution of claims 31 – 34.” 938 IPR (Paper
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`27) at 3 – 4.
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`Lau does not remedy the deficiencies of Chliwnyj. Petitioner’s argument
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`that Lau “demonstrate[s] that it would have been obvious” to implement “a
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`repeating color changing cycle with no changes” (Second Pet. at 29-30) in
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`Chliwnyj does not add anything to its prior argument regarding Chliwnyj, which it
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`contended already taught a “color changing cycle” using the same technology as
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`Lau. See Second Pet. at 46 (“Similar to Chliwnyj, Lau uses a Microcontroller and
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`LED drivers to produce a continuous color changing cycle;” and both would
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`achieve “very pleasing soothing, and almost mesmerizing visual effects.”) Second
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`Pet., 49 (quoting Chliwnyj, Ex. 1105, 2:51-52). Mere citation of another reference
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`for the same alleged teaching of the prior cited art is insufficient to support
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`institution of a subsequent petition. See Bio-delivery v. Illumina, IPR2013-00324
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`(Paper 19) at 6 (denying institution because petitioner did not distinguish any
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`teaching in the newly cited art from references cited in the prior petition); Enfish
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`(Paper 13) at 6 (same).3
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`
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`3 Lau also adds nothing to the Dowling reference, which was cited by the
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`Examiner during the original prosecution, used by Petitioner in Ground 1 of the
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`9
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`
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`In any event, Petitioner has no justification for failing to present this version
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`of its argument in the First Petition that relied upon the same prior art. See
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`Unilever v. Procter & Gamble, IPR2014-00506 (Paper 17) at 6 (rejecting petition
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`where petitioner did not explain that newly cited references were not known or
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`available to petitioner when earlier filed petition filed); Rembrandt (Paper 14) at 7
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`(denying joinder, “Petitioner simply presents an argument now that it could have
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`made in the [prior proceeding], had it merely chosen to do so”).
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`V. The Board Decisions Cited by Petitioner Do Not Support Joinder of
`the 580 IPR with the 938 IPR
`Petitioner cites a string of five cases to assert that § 315(c) allows for
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`“joinder of issues.” Mot. Joinder at 11. However, joinder is discretionary, and
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`most of the cases cited by Petitioner found joinder was not warranted.
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`
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`First Petition regarding claims 24-26, (938 IPR, Paper 13) and fully analyzed by
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`the Board. In Patent Owner’s Preliminary Response to the First Petition, Patent
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`Owner pointed out that Dowling taught “a color wash, in which the LEDs cycle
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`continuously through the full color spectrum,” but only in the context of a non-
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`solar-powered light that (like Lau) was provided essentially unlimited AC power.
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`827 IPR (Paper 19) at 44 (citing Exh. 1010, Dowling, 6:32-33). Compare Lau, Ex.
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`1011, Col. 1:33–40.
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`
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`10
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`
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`In Standard Inovation Corp. v. Lelo, Inc., IPR2014-00907, the Board,
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`referring to the petition as a “second bite at the apple” denied joinder citing failure
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`to “present[] cogent argument or evidence to explain why the grounds of
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`unpatentability asserted in the Petition.” (Paper 10) at 4. Similarly, in this
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`proceeding, the Board has already rejected Petitioner’s “surprise” excuse. 938 IPR
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`(Paper 27) at 3 – 4.
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`In Medtronic, Inc. v. Norred, IPR2014-00823 (Paper 12) at 5-7, the Board
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`declined joinder and institution of subsequent petition “to add additional
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`challenges based on prior art references we have already considered” where only
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`the proposed combination of those references was different. Similarly, here, the
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`Second Petition relies on, at best, “additional challenges based on prior art
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`references . . . already considered” which should, likewise, not be allowed.
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`In Medtronic, Inc. v. Endotach LLC, IPR2014-00695 the Board denied
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`joinder stating, “Petitioner effectively asks us to re-address the issue of redundancy
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`in a Second Petition subject to a bar under § 315(b) absent joinder with [the prior
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`proceeding], which is much further along in its own schedule and in which Patent
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`Owner has already filed a Patent Owner Response.” Endotach (Paper 18) at 9.
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`Similarly, this proceeding, which is subject to a bar under § 315(b) absent joinder
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`with the prior proceeding, is almost nine months further along than the Second
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`
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`11
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`
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`Petition, in which Petitioner asks this Board to re-address its analysis of Chliwnyj,
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`again.
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`In only two of these cases cited by Petitioner was joinder approved, despite
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`the existence of a Section 315(b) time bar, and those cases bear no resemblance to
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`the present case. In Samsung Electronics Co. v. Virginia Innovation Sciences, Inc.,
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`IPR2014-00557 (Paper 10) at 17, joinder was granted to allow institution of a
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`ground merely adding a limitation (communication “via an HDMI connection”)
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`that the patent owner had not contested existed in the cited prior art. See also
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`Samsung, IPR2014-00557, Patent Owner’s Opposition to Joinder (Paper 8) at 7.
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`Here, however, the Board has already ruled, twice before in the context of the 827
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`Patent and twice before in the context of U.S. Patent No. 8,362,700 (see IPR2014-
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`00937, Papers 22, 24), that Chliwnyj does not teach the cited color changing cycle
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`and that it, in fact, admonishes prior art lights that have a perceptible pattern. In
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`Ariosa Diagnostics v. Isis Innovation Ltd., IPR2012-00022 (Paper 166), the Board
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`granted joinder of proceeding IPR2013-00250 when a new product had been
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`launched. See IPR2013-00250 (Paper 4) at 3. This also bears no resemblance to
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`the present case.
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`12
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`
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`VI. The Target II Decision Makes it More Important for the Board to
`Deny a Subsequent Petition that Relies Upon the Same Prior Art and
`Arguments Previously Presented, Especially Where, As Here, Absent
`Joinder, The Petition Would be Time Barred.
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`Recently, in Target Corp. v. Destination Maternity Corp., IPR 2014-00508
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`(Paper 28, referred to as “Target II”) at 6, in a four to three decision, expanded
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`Board reversed its prior decision denying joinder, (Paper 18) (“Target I”), and held
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`that joinder under § 315 (c) of a petition otherwise time-barred by § 315(b) could
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`be allowed in some circumstances, subject to the Board’s discretion to reject
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`joinder in “situations that may have resulted otherwise [in] untenable results,” Id.
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`(Paper 28) at 15-6 (citing Reloaded Games, Inc. v. Parallel Networks LLC,
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`IPR2014-00950, (Paper 12) at 4- 5 which denied a joinder request by the same
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`petitioner where petitioner was seeking ‘a second bite of the apple’ on grounds that
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`could have been raised in the earlier petition and other decisions denying joinder).
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`The three dissenting members took a different view, concluding after
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`thorough analysis that the § 315(b) time-bar was absolute and not subject to waiver
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`by the Board by virtue of a motion for joinder under § 315(c):
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`Under our interpretation, once a petitioner is time-barred under § 315(b)
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`with respect to a particular patent, it is always time-barred. A time-barred
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`petitioner cannot petition successfully for an inter partes review of the
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`patent, regardless of whether it requests joinder under subsection (c). If an
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`inter partes review of the patent is underway at the Board, a time-barred
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`
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`13
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`
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`petitioner (as well as a non-time-barred petitioner) may request to join it as a
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`party. 35 U.S.C. § 315(c). The Board, in its discretion, may grant or deny the
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`request, but it may not deny the request as statutorily time-barred under §
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`315(b). Target II (Paper 28)(Dissenting Opinion at 19).
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`With all due respect to the four-member majority in Target II, Patent Owner
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`agrees with dissenting opinion in Target II and urges its adoption to refuse
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`institution of the Second Petition as time-barred under § 315(b), which would moot
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`the motion for joinder under § 315(c). Petitioner certified in the Second Petition
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`that its “real parties in interest” include Menards, Lowe’s, Walgreens, Smart Solar,
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`Ace, CVS, Jiawei Technology (USA) Ltd., Orgill, True Value, Chien Luen, and
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`Rite Aid and Coleman. In 938 IPR (Paper 13) at 3, Petitioner admits that these of
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`its “real part[ies] in interest or privies” were served with complaints for
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`infringement on dates ranging from June 11, 2013 to July 3, 2013, all more than
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`one year prior to the January 16, 2015 filing date of the Second Petition. As such,
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`§ 315(b) mandates that “[a]n inter partes review may not be instituted [on] the
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`petition requesting the proceeding,” i.e., the Second Petition. (Emphasis added).
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`The time-bar of § 315(b) prohibiting institution of inter partes review on the
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`Second Petition is not avoided because two of Petitioner’s real parties in interest,
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`Test-Rite and Nature’s Mark, have not yet been served with a complaint for
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`infringement, because § 315(b) provides that its time-bar against institution of a
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`
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`14
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`
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`petition is triggered by service of a complaint on any of the “petitioner, real party
`
`in interest, or privy of the petitioner.” § 315(b). See also Fandango, LLC v.
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`Ameranth, Inc., CBM2014-00013, Paper No. 22, at 9.
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`If the dissent’s interpretation of § 315(b) and (c) is applied here, although
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`Petitioner is prohibited from having an inter partes review instituted on its Second
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`Petition, Petitioner would necessarily not be prohibited by § 315(b) from
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`requesting joinder of itself as a party to 938 IPR pursuant to § 315(c). However,
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`since Petitioner is already a party to 938 IPR, the joinder issue is moot. The Board
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`should deny joinder on this basis.
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`If this Board does not, however, adopt the view of the dissent in Target II,
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`the Board’s vigilant exercise of its discretion to deny institution under 35 U.S.C.
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`§§ 315(c) and 325(d) is even more vital as a “safety valve [that] will allow the
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`Office to avoid being overwhelmed if there happens to be a deluge of joinder
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`petitions in a particular case.” See Target II (Paper 28) at 11 (quoting 154 Cong.
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`S1376 (daily ed. Mar. 8, 2011) (statement of Sen. Kyl). The Board should
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`vigilantly exercise its discretion under § 325(d) in the present case to deny joinder
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`and to reject the Second Petition as an unjustified second (or third) bite at the
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`apple.
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`VII. CONCLUSION
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`
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`Petitioner’s motion for joinder and institution should be denied.
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`15
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`Dated: Feb. 17, 2015
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`
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`Respectfully submitted,
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`
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`SHIELLS LAW FIRM P.C.
`
`______/Theodore F. Shiells/______________
`Theodore F. Shiells
`Reg. No. 31,569
`
`
`SHIELLS LAW FIRM P.C.
`Pacific Place Building
`1910 Pacific Ave.
`Suite 14000
`Dallas TX 75201
`Telephone: (214) 979-7312
`Fax: (214) 872-8860
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`16
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`CERTIFICATE OF SERVICE
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`
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`Pursuant to 37 C.F.R. §§ 42.6(e)(4)(i) et seq. and 42.105(b), the undersigned
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`certifies that on this date a copy of the PATENT OWNER’S OPPOSITION TO
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`MOTION FOR JOINDER TO RELATED INTER PARTES REVIEW OF U.S.
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`PATEN NO. 7,429,827 (IPR2014-00938) was served on Lead and Backup
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`Attorneys for Petitioner, via the consented to method of email to the following
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`email addresses:
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`mark.nelson@dentons.com, lissi.mojica@dentons.com,
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`kevin.greenleaf@dentons.com, daniel.valenzuela@dentons.com, and
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`iptdocketchi@dentons.com.
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`Respectfully submitted,
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`Dated: February 17, 2015
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`______/Theodore F. Shiells/______________
`Theodore F. Shiells
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`17
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