`Trials@uspto.gov
`571-272-7822 Entered: July 10, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KINGSTON TECHNOLOGY COMPANY, INC.,
`Petitioner,
`
`v.
`
`POLARIS INNOVATIONS LTD.,
`Patent Owner.
`____________
`
`Case IPR2016-01622
`Patent 6,850,414 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, JEAN R. HOMERE,
`and KEN B. BARRETT, Administrative Patent Judges.
`
`BARRETT, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`IPR2016-01622
`Patent 6,850,414 B2
`
`Patent Owner, on July 9, 2018, sent an email to the Board requesting
`
`an “order of the Board” interpreting 37 C.F.R. § 90.3(b)(1), the rule
`pertaining to the time for filing an appeal. Specifically, Patent Owner seeks
`clarification as to how a prospective request for rehearing will impact the
`time for filing an appeal in this case.
`
`On May 29, 2018, Petitioner requested rehearing of the Final Written
`Decision (Paper 35) to address the effects of the Supreme Court’s decision
`on SAS Inst., Inc. v. Iancu, 584 U.S. ___ (U.S. Apr. 24, 2018). On June 11,
`2018, we entered an order granting the request for rehearing and modifying
`the Final Written Decision. Paper 42. Patent Owner previously filed a
`request for rehearing (Paper 36) of the original Final Written Decision, and
`that request was denied on April 12, 2018 (Paper 37). Patent Owner
`indicated in its email that it plans to file a request for rehearing of the June
`11, 2018, order.
`
`Rule 90.3—titled “Time for appeal or civil action”—provides, in
`pertinent part:
`(a) Filing deadline. (1) For an appeal under 35 U.S.C. 141. The
`notice of appeal filed pursuant to 35 U.S.C. 142 must be filed
`with the Director of the United States Patent and Trademark
`Office no later than sixty-three (63) days after the date of the
`final Board decision. Any notice of cross-appeal is controlled
`by Rule 4(a)(3) of the Federal Rules of Appellate Procedure,
`and any other requirement imposed by the Rules of the United
`States Court of Appeals for the Federal Circuit.
`. . .
` (b) Time computation. (1) Rehearing. A timely request for
`rehearing will reset the time for appeal or civil action to no later
`than sixty-three (63) days after action on the request. Any
`subsequent request for rehearing from the same party in the
`same proceeding will not reset the time for seeking judicial
`
`2
`
`
`
`IPR2016-01622
`Patent 6,850,414 B2
`
`
`review, unless the additional request is permitted by order of
`the Board. . . .
`37 C.F.R. §90.3. The “timely request for rehearing” and “[a]ny subsequent
`request for rehearing” of Rule 90.3(b)(1) refers to a request for rehearing of
`“the final Board decision” of Rule 90.3(a)(1). The Order of June 11, 2018,
`modified the Final Written Decision and, therefore, that June 11 Order
`became the final Board decision within the meaning of Rule 90.3. See 37
`C.F.R. §42.2 (“Final means final for the purpose of judicial review to the
`extent available. A decision is final only if it disposes of all necessary issues
`with regard to the party seeking judicial review, and does not indicate that
`further action is required.”). Rule 90.3 should be applied in that light. As
`Patent Owner noted in its email, Rule 42.71(d) governs any request for
`rehearing of that Order.
`
`The parties also are encouraged to review Section 1216 of the Manual
`of Patent Examining Procedure (MPEP), which sets forth procedures
`pertaining to and the Office’s position regarding Rule 90.3 and judicial
`review.
`
`ORDER
`For the foregoing reasons, it is
`
`ORDERED that the parties shall comply with 37 C.F.R. § 42.71(d)
`
`regarding any requests for rehearing of the Order of June 11, 2018;
`
`FURTHER ORDERED that the parties are not authorized to file a
`request for rehearing of any other decision or order; and
`
`FURTHER ORDERED that the parties shall comply with 37 C.F.R.
`§ 90.2 and § 90.3 regarding any appeal in this inter partes review.
`
`
`
`
`
`3
`
`
`
`IPR2016-01622
`Patent 6,850,414 B2
`
`For PETITIONER:
`David Hoffman
`FISH & RICHARDSON P.C.
`hoffman@fr.com
`
`Martha Hopkins
`LAW OFFICES OF S. J. CHRISTINE YANG
`mhopkins@sjclawpc.com
`
`
`
`For PATENT OWNER:
`Kenneth Weatherwax
`LOWENSTEIN & WEATHERWAX LLP
`weatherwax@lowensteinweatherwax.com
`
`
`
`4
`
`
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