`
`
` Entered: September 10, 2015
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AVOCENT HUNTSVILLE CORPORATION, and
`LIEBERT CORPORATION,
`Petitioner,
`
`v.
`
`CYBER SWITCHING PATENTS LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00690
`Case IPR2015-007251
`
`Patent 7,550,870 B2
`____________
`
`Before MICHAEL R. ZECHER, GLENN J. PERRY, and
`NEIL T. POWELL, Administrative Patent Judges.
`
`PERRY, Administrative Patent Judge.
`
`ORDER
`Conduct of Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`1 This Order addresses issues that are identical in these two cases. We,
`therefore, exercise our discretion to issue one Order to be filed in each case.
`The parties are not authorized to use a multiple case caption. They must
`file individual papers in each case to which they pertain.
`
`
`
`
`Case IPR2015-00690 and IPR2015-00725
`Patent 7,550,870 B2
`
`
`I. DISCUSSION
`
`We held an initial conference call in the captioned cases on September
`9, 2015. A court reporter was present and we request that the parties file a
`transcript of the conference as an exhibit.
`Patent Owner, Cyber Switching Patents LLC (“Cyber”), was
`represented by Jing Hong Cherng and William H. Stewart. Petitioner,
`Avocent Huntsville Corporation and Liebert Corporation, (“Avocent”), was
`represented by Donald L. Jackson and Wayne Helge. Both Cyber and
`Avocent seek authorization to file Motions.
`Cyber seeks authorization to move for additional discovery from
`Avocent regarding evidence of objective indicia of non-obviousness
`pursuant to 37 C.F.R. § 42.51 (b)(2). This request is premature in that Cyber
`is not currently in possession of evidence that supports a targeted request for
`specific documents. We will entertain a renewed request in the event that
`Cyber can provide support for a specific and targeted discovery request.
`Cyber should be able to articulate how a nexus would be established
`between the claims at issue and the specific evidence sought. Cyber referred
`us to Case IPR2015-00149 to support its position. Case IPR2015-00149 is
`distinguishable from the present circumstances because it contains a more
`focused and targeted request for discovery—something that has not been
`articulated thus far in our record. No allegation was made regarding
`copying.
`Cyber seeks authorization to move for discovery from a third party,
`namely – a company that was a party to a “servicing agreement” related to
`the development of a product for Cyber—pursuant to 37 C.F.R. § 42.51
`
`
`
`
`Case IPR2015-00690 and IPR2015-00725
`Patent 7,550,870 B2
`
`(b)(2). This request specifically relates to the Ewing ’543 reference in Case
`IPR2015-00725. This request also appears to be premature. Cyber is
`encouraged to exhaust other avenues for obtaining the desired
`documentation. Should the circumstances change, Cyber is welcome to
`renew its request.
`Avocent seeks authorization to move for additional discovery from a
`third party, namely – to take the deposition of an employee of Server
`Technology, Inc. (“Server”) in order to authenticate and establish a
`publication date of the “Sentry” reference—pursuant to 37 C.F.R. § 42.51
`(b)(2). Avocent indicated that it was aware of Server’s refusal to comply
`with a request that occurred prior to filing the Petitions. Upon further
`inquiry from the panel, Avocent indicated that it had not yet exhausted all
`remedies in seeking the deposition of an employee at Server. The record,
`therefore, does not yet reflect an adequate basis for such authorization.
`Avocent seeks authorization to move for the submission of
`supplemental information regarding the authentication and other information
`related to the Sentry reference pursuant to 37 C.F.R. § 42.123(a). In
`particular, Avocent makes reference to a “wayback” archive that is now
`being sought. The request appears to be responsive to Cyber’s objection to
`evidence (IPR2015-00690, Paper 19). Avocent is authorized to submit a
`motion in this regard and in accordance with our rules. Cyber is authorized
`to file an opposition, also in accordance with our rules.
`
`
`
`
`Case IPR2015-00690 and IPR2015-00725
`Patent 7,550,870 B2
`
`
`II. ORDER
`
`It is, therefore,
`ORDERED that Avocent is authorized to move for the submission of
`supplemental information regarding authentication and other information
`related to the Sentry reference. Avocent’s motion is due by September 17,
`2015;
`FURTHER ORDERED that Cyber is authorized to file an opposition
`to Avocent’s motion for submission of supplemental information. Cyber’s
`Oppositon is due by September 24, 2015; and
`FURTHER ORDERED that no other authorizations are granted at this
`
`
`
`time.
`
`PATENT OWNER:
`
`Donald L. Jackson
`Wayne Helge
`Davidson Berquist Jackson & Gowdey, LLP
`djackson@dbjg.com
`whelge@dbjg.com
`
`
`
`PETITIONER:
`
`Jing Cherng
`Mount, Spelman & Fingerman, P.C.
`gcherng@mount.com
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