`571-272-7822 Entered: November 26, 2021
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`CAMPBELL SOUP COMPANY, CAMPBELL SALES COMPANY, and
`TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`____________
`
`IPR2017-00091 (Patent D621,645 S)
` IPR2017-00094 (Patent D612,646 S)1
`____________
`
`
`
`Before GRACE KARAFFA OBERMANN, BART A. GERSTENBLITH,
`and ROBERT L. KINDER, Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`ORDER
`Conduct of Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`1 We exercise our discretion to issue one Order in each of these proceedings.
`The parties may not use this caption style.
`
`
`
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`
`On August 19, 2021, the United States Court of Appeals for the
`Federal Circuit issued a precedential opinion in Campbell Soup Company v.
`Gamon Plus, Inc., 10 F.4th 1268 (Fed. Cir. 2021). The appeals stemmed
`from our Final Decisions in IPR2017-00091 and IPR2017-00094. The
`Federal Circuit determined that for both patents in contention,2 “the claimed
`designs would have been obvious,” and the Federal Circuit reversed our
`Final Decisions accordingly. See id. at 1279. On October 29, 2021, the
`mandate of the Federal Circuit issued pursuant to Rule 41 of the Federal
`Rules of Appellate Procedure. Accordingly, these proceedings have
`concluded and the decisions by the Federal Circuit are final. Pursuant to
`35 U.S.C. § 318(b), the remaining function of the USPTO is: “the Director
`shall issue and publish a certificate canceling any claim of the patent finally
`determined to be unpatentable.” See also 37 C.F.R. § 42.80.
`Without our authorization, Patent Owner recently filed a Motion for
`Reconsideration in each of the proceedings listed above (Paper 115 in
`IPR2017-00091, and Papers 115 and 1163 in IPR2017-00094). In light of
`the Federal Circuit’s reversal of our Final Decisions and determination that
`the claimed designs would have been obvious (see Campbell Soup, 10 F.4th
`at 1279), the scope of the Federal Circuit’s mandate does not include
`consideration by the Board of Patent Owner’s Motions. Therefore, we
`dismiss the Motions.
`
`
`
`
`2 United States Design Patent Nos. D612,646 and D621,645.
`3 Patent Owner filed the same paper twice in IPR2017-00094.
`
`
`
`2
`
`
`
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`
`ORDER
`In consideration of the foregoing, it is hereby:
`
`ORDERED that Patent Owner’s Motions for Reconsideration are
`dismissed; and
`
`FURTHER ORDERED that Patent Owner shall not file any additional
`papers, exhibits, or email briefing in these proceedings without prior
`authorization from the Board.
`
`
`
`
`
`3
`
`
`
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`For PETITIONER Campbell Soup Company and Campbell Sales Company:
`
`Steven E. Jedlinski
`Tracy Zurzolo Quinn
`Holland & Knight LLP
`steven.jedlinski@hklaw.com
`tracy.quinn@hklaw.com
`
`For PETITIONER Trinity Manufacturing, LLC:
`
`Martin B. Pavane
`Cozen O’Connor
`mpavane@cozen.com
`
`Ira Jay Levy
`Goodwin Procter LLP
`ILevy@goodwinlaw.com
`
`
`For PATENT OWNER:
`
`
`Andrew L. Tiajoloff
`Edward P. Kelly
`TIAJOLOFF & KELLY LLP
`atiajoloff@tkiplaw.com
`ekelly@tkiplaw.com
`
`
`
`
`
`
`4
`
`
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