`571-272-7822
`
`Date Entered: July 13, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LG DISPLAY CO., LTD.,
`Petitioner,
`
`v.
`
`SURPASS TECH INNOVATION LLC,
`Patent Owner.
`____________
`
`Case IPR2015-00885
`Patent 7,202,843 B2
`____________
`
`
`Before SALLY C. MEDLEY, BRYAN F. MOORE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`
`MEDLEY, Administrative Patent Judge.
`
`JUDGMENT
`Request for Adverse Judgment
`37 C.F.R. § 42.73(b)
`
`
`
`
`
`Claims 4, 8, and 9 of U.S. Patent No. 7,202,843 B2 are the sole claims
`
`involved in this proceeding. Paper 9; Institution Decision. On February 26,
`
`2016, claims 4, 8, and 9 were determined unpatentable in a related
`
`proceeding. See, Sharp Corp. v. Surpass Tech Innovation LLC, IPR2015-
`
`00021 (PTAB February 26, 2016), Paper 44 (“Final Written Decision”).
`
`
`
`
`
`IPR2015-00885
`Patent 7,202,843 B2
`
`
`Just prior to the scheduled hearing date for this proceeding, and on May 3,
`
`
`
`2016, Patent Owner filed an updated mandatory notice indicating that the
`
`deadline to file a notice of appeal of the Final Written Decision in IPR2015-
`
`00021 had expired and that Patent Owner had not filed a notice of appeal.
`
`Paper 24.
`
`During the May 12, 2016 hearing for the instant proceeding, counsel
`
`for Patent Owner represented that Patent Owner would take no action to
`
`appeal the Final Written Decision in IPR2015-00021, that time to do so had
`
`expired, and that claims 4, 8, and 9 are unpatentable. Paper 28, 5–6. Based
`
`on such representations, and on May 13, 2016, Patent Owner was ordered to
`
`show cause why judgment should not be entered against it as to claims 4, 8,
`
`and 9 of U.S. Patent No. 7,202,843 B2 (“the ’843 patent”). See 37 C.F.R. §
`
`42.73(b)(3). Paper 26 (“Order”). On May 23, 2016, Patent Owner
`
`responded to the Order. Paper 27 (“Response”).
`
`In the Response, Patent Owner argues there is no Article III standing
`
`to adjudicate the patentability of claims 4, 8, and 9. Response 1–2. In
`
`particular, Patent Owner argues that because claims 4, 8, and 9 are
`
`unpatentable, the Patent Owner would have no Article III standing to appeal
`
`any judgment entered here. Response 2. Patent Owner argues that we
`
`should not enter adverse judgment against it in this case, but instead
`
`terminate the proceeding as moot. Id. at 3.
`
`Patent Owner’s arguments are not persuasive. Patent Owner has not
`
`shown how its alleged lack of standing post judgment bears on whether we
`
`should enter judgment in the first instance in this proceeding. Patent Owner
`
`does not assert, or provide supporting legal authority to show that we lack
`
`authority in the first instance to enter adverse judgment against Patent
`
`2
`
`
`
`
`IPR2015-00885
`Patent 7,202,843 B2
`
`
`Owner based on the circumstances before us. Importantly, Patent Owner’s
`
`
`
`arguments that it would not have Article III standing post judgment or that
`
`we should terminate the proceeding as moot,1 do not address why the Board
`
`should not construe Patent Owner’s actions, including its concession of
`
`unpatentability, as a request for adverse judgment.
`
`Patent Owner failed to timely appeal the Final Written Decision in
`
`IPR2015-00021 and acknowledges that its claims are unpatentable.
`
`Response 1–2. Based on the particular facts of this proceeding, we construe
`
`Patent Owner’s actions as a concession of unpatentability of claims 4, 8, and
`
`9 under 37 C.F.R. § 42.73(b)(3).
`
`Accordingly, it is
`
`ORDERED that adverse judgment is entered against Patent Owner as
`
`to claims 4, 8, and 9 of U.S. Patent No. 7,202,843 B2, pursuant to 37 C.F.R.
`
`§ 42.73(b)(3).
`
`
`
`
`1 Patent Owner does not explain sufficiently why terminating the proceeding
`as moot would be appropriate. Terminating a proceeding as moot, as
`opposed to entering adverse judgment would result in different outcomes,
`insofar as estoppel is concerned. See, e.g., 37 C.F.R. § 42.73(d). In the
`Response, Patent Owner does not address estoppel as a result of terminating
`the proceeding as moot as opposed to entering adverse judgment. Estoppel
`appears to us to be an important consideration, yet Patent Owner does not
`address estoppel in its Response, despite requesting us to terminate the case
`as moot.
`
`3
`
`
`
`
`
`
`
`
`IPR2015-00885
`Patent 7,202,843 B2
`
`For Petitioner:
`
`William Barrow
`wbarrow@mayerbrown.com
`
`Robert Pluta
`rpluta@mayerbrown.com
`
`Amanda Streff
`astreff@mayerbrown.com
`
`
`
`For Patent Owner:
`
`Michael Casey
`mcasey@dbjg.com
`
`Wayne Helge
`whelge@dbjg.com
`
`
`
`4
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