UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`THE BOEING COMPANY,
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`Petitioner
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`V.
`
`SEYMOUR LEVINE,
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`Patent Owner
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`Case No. IPR2016—00023
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`Patent No. RE39,618
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`PETITIONER’S MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c)
`AND 37 C.F.R. §§ 42.22 AND 42.122gb)
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`THE BOEING COMPANY,
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`Petitioner
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`V.
`
`SEYMOUR LEVINE,
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`Patent Owner
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`Case No. IPR2016—00023
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`Patent No. RE39,618
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`PETITIONER’S MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c)
`AND 37 C.F.R. §§ 42.22 AND 42.122gb)
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`STATEMENT OF THE PRECISE RELIEF REQUESTED .................. .. 1
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`STATEMENT OF MATERIAL FACTS ............................................... .. 2
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`III.
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`STATEMENT OF REASONS FOR RELIEF REQUESTED ............... .. 5
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`A.
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`Institution And Joinder Are Appropriate If Supplemental
`Infonnation Is Disallowed ............................................................ .. 7
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`1.
`2.
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`Boeing’s Request Is Timely ............................................... .. 9
`Joinder Would Be Efficient In This Case .......................... .. 9
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`No New Grounds of Unpatentability Are Asserted In the
`Petition ........................................................................................ .. 1 1
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`Joinder Will Have No Impact, Or Minimal Impact If Any,
`On the Trial Schedule and Costs for the Existing Review ........ .. 11
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`B;
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`C.
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`Procedures to Simplify Briefing and Discovery ......................... .. 12
`D.
`CONCLUSION ..................................................................................... .. 12
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`IV.
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`92045482.l
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`-i..
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Dell Inc. v. Network-I Security Solutions, Inc.,
`IPR2013—00385 (PTAB July 29, 2013) ......................................................... .. 6
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`Kyocera Corp. v. Softview LLC,
`IPR2013-0004 (PTAB April 24, 2013) ......................................................... .. 7
`
`Zl/zongshan Broad Ocean Motor Co., Ltd., Broad Ocean Motor
`LLC, and Broad Ocean Technologies, LLC v. Nidec Motor
`Corporation, IPR2015-00762 (PTAB October 5, 2015) .............................. .. 5
`
`STATUTES
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`35 U.S.C. § 103 .............................................................................................. ..2, 3
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`35 U.S.C. § 315(c) ...................................................................................... .. 1, 5, 7
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`REGULATIONS
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`37 C.F.R. § 42.1(b) ......................................................................................... .. 8, 9
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`37 C.F.R. § 42.122(b) ................................................................................. .. 1, 6, 9
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`37 C.F.R. § 42.123(a) ......................................................................................... .. 7
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`92045482.]
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`—i—
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`Case IPR2016-00023
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`Attorney Docket No. 03 007.00 1 4
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`I.
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`STATEMENT OF THE PRECISE RELIEF REQUESTED
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`The Boeing Company (“Petitioner” or “Boeing”) respectfully requests
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`joinder pursuant to 35 U.S.C. § 315(c) and 37 C.F.R. § 42.122(b) of the Petition
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`for Inter Partes Review of U.S. Patent No. RE39,6l8 filed in the above-
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`captioned proceeding, IPR2016-00023 (“second petition”), with pending inter
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`partes review Case No. IPR20l5-01341 (“first petition”), which was instituted
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`on December 21, 2015. See The Boeing Company v. Seymour Levine, Case No.
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`IPR2015-01341, Paper 10.
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`The second petition is substantively identical to the first petition with the
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`exception of five additional paragraphs in the expert declaration and exhibits
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`referenced therein (as well as further evidence that a certain reference is a
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`printed publication). Boeing filed the second petition before any decision by
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`the Board on the first petition, out of an abundance of caution to provide a more
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`robust record regarding the “portable/positionable” limitation. In instituting the
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`first petition, the Board found that Boeing’s evidence for that limitation was
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`sufficient. But the more robust record is available and appropriate, and the
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`Patent Owner has indicated that he will continue to press during these
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`proceedings that the record be limited to less than the full record Boeing has
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`created in a timely way for this patent and the claims and grounds at issue.
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`Boeing thus asks the Board to resolve the dispute over the record in one of two
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`alternative ways:
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`the Board should grant the second petition and join it to the
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`first petition only as alternative relief to a motion to add the above-referenced
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`expert declaration and exhibits as supplemental information. The Board has
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`authorized Boeing to make the latter motion, which will be filed within six
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`days.
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`If Boeing’s motion to file the additional material as supplemental
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`information is granted, Boeing will withdraw this motion for joinder, and will
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`withdraw the second petition as well.
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`If Boeing is not permitted to file the additional material as supplemental
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`information in the first petition, Boeing submits that institution of the second
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`petition and joinder will promote the just, speedy, and inexpensive resolution of
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`the validity of the ’618 Patent. The second petition was timely filed within the
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`one-year statutory period from the service of Levine’s lawsuit, involves the
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`same patent as the first, challenges the same claims, and involves the same prior
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`art grounds on which review was instituted in the first petition Furthermore,
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`review was only recently instituted in the first petition and no post—institution
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`discovery has taken place, and as such there will be little or no impact on the
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`trial schedule for the existing review.
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`II.
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`STATEMENT OF MATERIAL FACTS
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`A.
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`Patent Owner Seymour Levine served Boeing with a complaint
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`asserting infringement of the ’6l8 Patent on September 3, 2014. Levine
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`voluntarily dismissed the action without prejudice. See Levine v. The Boeing
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`Company, No. 14-cv-6859 (C.D. Cal.).
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`B.
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`Levine sued Boeing in October 2014 in the Northern District of
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`Illinois. The complaint, which asserted infringement of the ’61 8 Patent, was
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`served on Boeing on October 8, 2014. That case was transferred to the Western
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`District of Washington, where it is currently stayed. See Levine v. The Boeing
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`Company, No. 14-cv-1991 (W.D. Wash.).
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`C.
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`Boeing filed a Petition for Inter Partes Review of U.S. Patent No.
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`RE39,6l8 on June 4, 2015. That proceeding was assigned Case No. IPR2015-
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`01341. Boeing’s petition requested inter partes review and cancellation of
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`claims 4, 5, 8, 9, 10, 14, and 16 (“the challenged claims”) of the ’618 Patent.
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`Boeing presented the following grounds and prior art in the Petition:
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`1.
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`Ground 1: Claims 4, 5, 8, 9, 10, 14, and 16 as obvious over
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`Ward, ARINC 624-1, and Monroe. (35 U.S.C. § 103)
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`2.
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`Ground 2: Claims 4, 5, 8, 9, 10, 14, and 16 as obvious over
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`Chetail, Dyson, and Monroe. (35 U.S.C. § 103)
`
`3.
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`Ground 3: Claims 4, 5, 8, 9, 10, 14, and 16 as obvious over
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`Dowling, ARINC 624-1, and Monroe. (35 U.S.C. § 103)
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`4.
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`Ground 4: Claims 4, 5, 8, 9, 10, 14, and 16 as obvious over
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`Ward, ARINC 624-1, FAA Increased FDR Parameters, and
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`ARINC 702-6. (35 U.S.C. § 103)
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`5.
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`Ground 5: Claims 4, 5, 8, 9, 10, 14, and 16 as obvious over
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`Ward, ARINC 624-1, FAA Increased FDR Parameters, and
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`Farmakis. (35 U.S.C. § 103).
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`See IPR2015—01341, Paper 2 at 25.
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`D.
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`In support of its petition in IPR2015-01341, Boeing provided the
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`declaration of Dr. Albert Helfrick (“Helfrick Decl.”). See id., Ex. 1002.
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`E.
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`The Patent Owner, Seymour Levine, submitted a Preliminary
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`Response on September 24, 2015. See id., Paper 7.
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`F.
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`Boeing filed a second Petition for Inter Partes Review of U.S.
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`Patent No. RE39,6l 8 on October 7, 2015, within one year of being served with
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`a complaint for patent infringement in the concurrent district court litigation.
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`See IPR2016-00023, Paper 1. Boeing’s second petition seeks cancellation of
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`the same claims of the ’61 8 Patent on the same grounds. As Boeing explained
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`therein, the second petition is substantively identical to Boeing’s petition in
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`IPR2015-01341, except for the addition of (a) paragraphs 107-111 of Exhibit
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`1002 (Helfrick Decl.), the exhibits referenced therein, and the citations thereto,
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`and (b) further evidence that Exhibit 1013 is a printed publication. See id. at 1.
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`G.
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`In a decision dated December 21, 2015, the Board instituted inter
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`partes review of all challenged claims in the first petition on all requested
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`grounds, 1'. e., Claims 4, 5, 14, and 16 as obvious in view of Ward and ARINC
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`624-1; Claims 8, 9, and 10 as obvious in View of Ward, ARINC 624-1, and
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`Monroe; Claims 4, 5, 14, and 16 as obvious in View of Dyson and Chetail;
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`Claims 8, 9, and 10 as obvious in view of Dyson, Chetail, and Monroe; Claims
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`4, 5, 14, and 16 as obvious in view of Dowling and ARINC 624-1; Claims 8, 9,
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`and 10 as obvious in View of Dowling, ARINC 624-1, and Monroe; Claims 8,
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`9, and 10 in view of Ward, ARINC 624-1, ARINC 702-6, and FAA, Increased
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`FDR Parameters; and Claims 8, 9, and 10 as obvious in view of Ward, ARINC
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`624-1, FAA, Increased FDR Parameters, and Farrnakis. See id., Paper 7.
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`H.
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`On January 15, 2016, at Boeing’s request, the Board held an Initial
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`Conference Call with the parties in IPR2015-01341. Boeing requested
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`authorization on that call to file a motion for supplemental information in order
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`to have the additional portions of Dr. Helfrick’s declaration that were submitted
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`in the second IPR petition admitted as supplemental information in IPR2015-
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`01341. Patent Owner opposed Boeing’s request. On January 20, 2016, the
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`Board authorized Boeing to file a motion to submit supplemental information.
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`See id., Paper 20. As Boeing explained on that call, the primary relief sought
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`by Boeing is to allow the filing of Dr. Helfrick’s additional testimony as
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`supplemental information, but failing that, Boeing seeks the alternative relief
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`that the Board join Boeing’s petition in IPR2016-00023 to the instituted
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`IPR2015-01341. Boeing accordingly files this motion for joinder.
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`I.
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`On January 19, 2016, Levine submitted a Preliminary Response in
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`IPR 2016-00023. Levine admitted that his arguments on the merits “have
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`already been considered by the Board in the ‘ 1341 case.” IPR2016-00023,
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`Paper 6, at 1. Levine’s Preliminary Response focused instead on Boeing’s
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`proposed motion to submit supplemental information in the first petition, or in
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`the alternative, to join the second petition to the first.
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`III.
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`STATEMENT OF REASONS FOR RELIEF REQUESTED
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`Boeing recognizes that the Board has discretion with regard to both the
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`institution of the second petition and with regard to joinder.
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`Boeing
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`respectfully submits that, if the Board does not grant its motion to submit
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`supplemental information, the result that will most advance a just resolution of
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`this proceeding will be to institute IPR2016-00023 and join it to IPR2015-
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`01341.
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`The statutory provision governing joinder of inter partes review
`
`proceedings is 35 U.S.C. § 3l5(c), which reads as follows:
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`If the Director institutes an inter partes review, the Director, in his
`or her discretion, may join as a party to that inter partes review any
`person who properly files a petition under section 311 that the
`Director, after receiving a preliminary response under section 313
`or the expiration of the time for filing such a response, determines
`warrants the institution of an inter partes review under section 314.
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`35 U.S.C. § 3l5(c). This statute “permits the joinder of any person who
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`properly files a petition under § 311, including a petitioner who is already a
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`party to the earlier instituted inter partes review.” See Zhongshan Broad Ocean
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`Motor Co., Ltd., Broad Ocean Motor LLC, and Broad Ocean Technologies,
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`LLC v. Nidec Motor Corporation, IPR2015—00762, Paper 16 (PTAB October 5,
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`2015). Under 37 C.F.R. § 42.122(b), a petitioner may request joinder “no later
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`than one month after the institution date of any inter partes review for which
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`joinder is requested.” 37 C.F.R. § 42.122(b).
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`In light of this authority, the Board “will determine whether to grant
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`joinder on a case-by-case basis, taking into account the particular facts of each
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`case, substantive and procedural issues, and other considerations.” Dell Inc. v.
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`Network-I Security Solutions, Inc., IPR2013-00385, Paper 17 at 3 (PTAB July
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`29, 2013) (citations omitted).
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`“When exercising its discretion, the Board is
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`mindful that patent trial regulations, including the rules for joinder, must be
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`construed to secure the just, speedy, and inexpensive resolution of every
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`proceeding.” Id. (citing 35 U.S.C. § 316(b); 37 C.F.R. § 42.1(b)). The Board
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`should also “take into account the policy preference for joining a party that does
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`not present new issues that might complicate or delay an existing proceeding.”
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`See id. at 10 (citations omitted).
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`As explained in a Representative Order regarding motions for joinder, the
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`Board requires that a movant:
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`(1) “explain the reasons why joinder is
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`appropriate,” (2) “identify any new ground of unpatentability being raised in
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`[the] concurrently-filed corresponding petition for inter partes review,” (3)
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`“explain how the impact on the schedule and costs of the current proceedings
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`will be minimized,” and (4) “specifically address how briefing and/or discovery
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`may be simplified to minimize schedule impact.” Kyocera Corp. v. Softview
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`LLC, IPR20l3-0004, Paper 15 at 4 (PTAB April 24, 2013). These factors are
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`addressed below and all point to granting the instant motion for joinder.
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`A.
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`INSTITUTION AND JOINDER ARE APPROPRIATE IF
`SUPPLEMENTAL INFORMATION IS DISALLOWED
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`As explained above, Boeing is separately seeking leave to add limited
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`additional
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`testimony and related exhibits from its expert, Dr. Helfrick, as
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`supplemental information in the first petition pursuant to 37 C.F.R. § 42.123(a).
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`In the alternative, with this motion, Boeing seeks institution of the second
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`petition and joinder to the instituted IPR201 5-01 341.
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`If the Board denies Boeing’s motion to file supplemental information,
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`Boeing respectfully submits that institution of the second petition and joinder
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`would be the appropriate result. The Board has authority to join a properly-
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`filed IPR petition to an instituted IPR proceeding. See 35 U.S.C. § 315(c).
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`Here, Boeing’s second petition and the instant motion for joinder are timely,
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`and would not disrupt the progress of the first petition.
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`Joining the two
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`proceedings will allow the parties and the Board to address all of the issues
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`raised in the Petitions in a streamlined and consolidated manner.
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`Importantly,
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`the current motion does not present the type of circumstances where the Board
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`has denied institution and joinder, such as where a party attempts to institute a
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`second IPR proceeding on the eve of an already-scheduled trial, or uses a
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`second petition as a vehicle to seek reconsideration of a prior adverse Board
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`determination.
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`Levine, in his Preliminary Response to the second petition, argues that
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`the second petition is “completely redundant” and should not be instituted.
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`IPR20l6-00023, Paper 6, at 1. Levine then argues that the additional material
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`in the second petition should not be allowed as supplemental
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`information
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`because it “changes the evidence originally relied on” by Boeing and unfairly
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`“bolsters” Boeing’s case.
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`Id. at 7.
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`In other words, Levine argues that the
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`additional Helfrick testimony is too similar to be added through the procedure
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`of institution and joinder of a second petition, but too different to be added
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`through the procedure of supplementation. In so doing, Levine is simply trying
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`to thread a procedural needle to avoid the just resolution of the issues based on
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`the full record that was timely submitted by Boeing with no detriment to the
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`speedy and efficient resolution of this case. Boeing respectfully submits that
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`Levine’s interpretation of the rules is not consistent with 37 C.F.R. § 42.1(b) in
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`these circumstances.
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`1.
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`Boeing’s Request Is Timely
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`Boeing’s second petition in IPR20l6—00023 and the instant motion for
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`joinder are timely, and Patent Owner’s Preliminary Response to the second
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`petition does not argue otherwise. Boeing’s second petition was filed before the
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`one-year bar date of October 8, 2015.
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`Furthermore, Boeing’s motion for
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`joinder is timely under 37 C.F.R. § 42.122(b), which provides that a motion for
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`joinder may be filed “no later than one month after the institution date of any
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`inter partes review for which joinder is requested.” Here, Boeing is filing the
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`instant motion for joinder on January 21, 2016, no later than one month after
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`the Board’s December 21, 2015 decision to institute the first petition. Notably,
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`Boeing is not relying on the rule that allows additional petitions to be filed more
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`than one year after the statutory deadline if accompanied by a request for
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`joinder. See 37 C.F.R. § 42.122(b). All of the material upon which Boeing
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`seeks to rely, in both the first and second petitions, was timely submitted prior
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`to the regular one-year deadline. The present situation thus is unlike those in
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`which a Petitioner might be deemed to have sought to expand the time for filing
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`a petition through joinder to a prior petition.
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`2.
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`Joinder Would Be Efficient In This Case
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`As Boeing noted in its second petition and in the recent conference call
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`with the Board, the second petition provides a limited amount of additional
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`testimony from Dr. Albert Helfrick, whose expert testimony Boeing provided in
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`support of its first petition. Dr. Helfrick’s declaration in support of Boeing’s
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`second petition included paragraphs 107-1 11 of Exhibit 1002 (Helfrick Decl.),
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`exhibits referenced therein, and citations thereto, which were not previously
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`provided. This information was provided to further support Boeing’s showing,
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`which the Board accepted in the first petition, with regard to a single limitation
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`found in the challenged claims, namely, that a transmitter be “portable” or
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`“positionable.”
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`The expert
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`testimony simply highlights that
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`the Board’s
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`preliminary determination that a discrete transmitter is positionable is fully
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`consistent with published descriptions of transmitters. The Board construes the
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`rules that govern these proceedings so as “to secure the just, speedy, and
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`inexpensive resolution of every proceeding.” 37 C.F.R. § 42.1(b).
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`Allowing this evidence into the record, either through supplementation of
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`the first petition, or failing that, institution of the second petition, will serve to
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`ensure a just resolution of the issues.
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`Moreover, allowing this evidence will not jeopardize the speed or cost of
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`the proceeding. Because the only difference between the two petitions involves
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`a limited amount of additional expert testimony and supporting evidence, and
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`the instituted proceeding is still in its early stages, joinder will not present new
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`issues that will complicate or delay the proceeding.
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`In his Preliminary
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`Response to the second petition, Levine pointed to cases where the Board has
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`denied institution of a second petition that was expressly made in response to
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`deficiencies identified by the Board in a first petition (Unilever), or both
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`constituted an improper and untimely attempt to seek reconsideration of denial
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`of an earlier petition, and was presented to the Board shortly before trial on the
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`first petition (Butamax).
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`IPR20l6-00023, Paper 6, at 4-5. The present motion,
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`however, is made in a completely different context. Boeing filed the second
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`petition before any decision by the Board on the first petition, and moreover,
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`when the institution decision did issue, the Board did not find a deficiency in
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`Boeing’s evidence with respect to the “portable/positionable” limitation. Thus,
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`granting joinder in this case does not open the door to inefficient or burdensome
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`seriatim petitions intended to “fix” prior deficiencies identified by the Board.
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`Instead, Boeing simply seeks to proceed to trial on the full evidence of
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`unpatentability that it timely submitted prior to the one-year deadline, to ensure
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`a just resolution of the proceeding.
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`B.
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`NO NEW GROUNDS OF UNPATENTABILITY ARE
`ASSERTED IN THE PETITION
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`Boeing’s
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`second petition does not assert
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`any new grounds of
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`unpatentability. As explained above, the second petition involves the same
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`’618 Patent,
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`the same challenged claims, the same prior art, and the same
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`grounds of unpatentability as IPR20l 5-01341.
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`C.
`
`JOINDER WILL HAVE NO IMPACT, OR MINIMAL
`IMPACT IF ANY, ON THE TRIAL SCHEDULE AND
`COSTS FOR THE EXISTING REVIEW.
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`Joinder will have minimal or no impact on the trial schedule and costs for
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`the existing review. Here, because no new grounds of unpatentability or new
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`prior art have been presented, and the first petition was only recently granted,
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`little or no modification to the Board’s scheduling order will be necessary. Dr.
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`Helfrick may be cross—examined about the five additional paragraphs in his
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`second declaration in accordance with the Board’s existing schedule in the first
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`petition. No additional experts would have to be deposed. Patent Owner would
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`not be forced to address new grounds of unpatentability or new prior art. This
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`factor accordingly favors a grant ofjoinder.
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`D.
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`PROCEDURES TO SIMPLIF Y BRIEFING AND
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`DISCOVERY.
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`Given the limited nature of the additional
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`testimony and evidence
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`presented in IPR2016—O0023, and the fact that the parties to both proceedings
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`are the same, no modifications are needed to simplify briefing and discovery in
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`a joined proceeding. To eliminate any possibility of prejudice to Levine,
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`Boeing will agree to provide a short extension of time for Levine to file his
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`Response, which Boeing will agree to deduct from its own time for filing its
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`Reply, if any. The remainder of the existing schedule can be preserved, and
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`there will be no need to extend the overall trial schedule.
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`IV. CONCLUSION
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`For the foregoing reasons, should the Board deny Petitioner’s motion to
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`file
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`supplemental
`
`information in Case No.
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`IPR20l5-01341, Petitioner
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`respectfully requests that its Petition for Inter Partes Review of U.S. Patent No.
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`RE39,618, Case No. IPR2016—O0023, be granted and that the Board grant this
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`Motion
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`for
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`Joinder
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`to
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`join
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`this
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`proceeding with
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`IPR20l5-01341.
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`294323735
`92045482.1
`
`-12-
`
`
`
`DATED: January 21, 2016
`
`Case IPR2016-00023
`Attorney Docket No. 03 007.00 1 4
`
`/Ryan J. McBrayer/
`Ryan J. McBrayer (Reg. No. 54,299)
`Perkins Coie LLP
`
`1201 Third Avenue, Suite 4900 ‘
`
`Seattle, WA 98101
`
`Attorneys for Petitioner
`The Boeing Company
`
`29432378.5
`92045482. 1
`
`-13-
`
`
`
`Case IPR2016-00023
`
`Attorney Docket No. 03007.0014
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the above-captioned
`
`P_ET.ITIONER’S MOTION FOR J OINDER UNDER 35 U.S.C. § 315(c) AND
`
`37 C.F.R. §§ 42.22 AND 42.122(b), was served in its entirety on January 21,
`
`2016, upon the following parties via email, pursuant to the parties’ agreement
`
`concerning service:
`
`Bruce R. Zisser
`
`Amar L. Thakur
`
`Quinn Emanuel Urquhart & Sullivan, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`brucezisser@quinnemanuel.com
`amarthakur@quinnemanue1.com
`Attorneys for Patent Owner Seymour Levine
`
`Dated: January 21, 2016
`
`/Ryan J. McBrayer/
`Ryan J. McBrayer (Reg. No. 54,299)
`Perkins Coie LLP
`
`1201 Third Avenue, Suite 4900
`
`Seattle, WA 98101
`
`294323785
`92045482.l
`
`-14-
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