`571-272-7822
`
`
`
`
`Paper 11
`Entered: February 3, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`AEROHIVE NETWORKS, INC.,
`Petitioner,
`
`v.
`
`CHRIMAR SYSTEMS, INC.,
`Patent Owner.
`_______________
`
`Case IPR2016-01758
`Patent 9,019,838 B2
`_______________
`
`
`
`Before KARL D. EASTHOM, GREGG I. ANDERSON, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`WEINSCHENK, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`IPR2016-01758
`Patent 9,019,838 B2
`
`
`INTRODUCTION
`I.
`Aerohive Networks, Inc. (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) requesting an inter partes review of claims 1, 2, 7, 26, 29, 38, 40, 47,
`55, and 69 of U.S. Patent No. 9,019,838 B2 (Ex. 1005, “the ’838 patent”).
`Petitioner also filed a Motion for Joinder (Paper 3, “Motion” or “Mot.”)
`requesting that Petitioner be joined to the inter partes review in IPR2016-
`00573 (“the ’573 IPR”). Chrimar Systems, Inc. (“Patent Owner”) filed a
`Preliminary Response to the Petition and a Response and Opposition to the
`Motion for Joinder (Paper 9, “Prelim. Resp.”). For the reasons set forth
`below, the Petition is not timely under 35 U.S.C. § 315(b). Accordingly, the
`Petition is denied.
`
`II. ANALYSIS
`Under Section 315(b), an inter partes review “may not be instituted if
`the petition requesting the proceeding is filed more than 1 year after the date
`on which the petitioner, real party in interest, or privy of the petitioner is
`served with a complaint alleging infringement of the patent.” Petitioner
`does not dispute that the Petition was filed more than one year after
`Petitioner was served with a complaint alleging infringement of the ’838
`patent. Pet. 3; Prelim. Resp. 4–5; Ex. 2090; Ex. 2091. Petitioner instead
`relies on its request to join the ’573 IPR to avoid the time limit in
`Section 315(b). Pet. 3 (“The time limit of 35 U.S.C. § 315(b) . . . does not
`apply here because Aerohive has moved for joinder . . . to the ’573 review
`within one month of the ’573 review’s institution on August 10, 2016.”).
`Petitioner confirmed during a conference call with the Board that the
`Petition is barred under Section 315(b), unless Petitioner is joined to the
`’573 IPR. Paper 7, 2. The ’573 IPR, however, has been terminated. AMX,
`
`2
`
`
`
`IPR2016-01758
`Patent 9,019,838 B2
`
`LLC v. Chrimar Sys., Inc., Case IPR2016-00573, slip op. at 3 (PTAB Nov.
`9, 2016) (Paper 25). Thus, there no longer is a pending proceeding in the
`’573 IPR for Petitioner to join. As a result, Petitioner’s request to join the
`’573 IPR is moot, and the Petition is not timely under Section 315(b).
`III. CONCLUSION
`The Motion for Joinder is dismissed as moot because the ’573 IPR
`already has been terminated, and the Petition is denied because it was not
`filed within the time period set forth in Section 315(b).
`IV. ORDER
`In consideration of the foregoing, it is hereby
`ORDERED that the Motion for Joinder is dismissed as moot; and
`FURTHER ORDERED that the Petition is denied, and no trial is
`instituted.
`
`
`3
`
`
`
`IPR2016-01758
`Patent 9,019,838 B2
`
`PETITIONER:
`Matthew A. Argenti
`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`margenti@wsgr.com
`mrosato@wsgr.com
`
`PATENT OWNER:
`Justin S. Cohen
`THOMPSON & KNIGHT LLP
`justin.cohen@tklaw.com
`
`Richard W. Hoffman
`REISING ETHINGTON PC
`hoffmann@reising.com
`
`4
`
`
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