`571-272-7822
`
`Date: April 20, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LIVEPERSON, INC.,
`Petitioner,
`
`v.
`
`24/7 CUSTOMER, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00610
`Patent 9,077,804 B2
`____________
`
`Before CHRISTOPHER L. CRUMBLEY, ROBERT J. WEINSCHENK,
`and JASON W. MELVIN, Administrative Patent Judges.
`
`CRUMBLEY, Administrative Patent Judge.
`
`
`DECISION
`Granting Motion to Excuse Late Action
`37 C.F.R. § 42.5(c)(3)
`
`
`
`As authorized during the April 10, 2018 oral hearing in this matter,
`
`Patent Owner 24/7 Customer, Inc. filed an Unopposed Motion for Leave to
`File its Motion to Exclude Evidence. Paper 38. The Motion included, as
`Attachment A, a Motion to Exclude that 24/7 Customer attempted to file
`with the Board on March 6, 2018. Id. According to 24/7 Customer, its
`
`
`
`
`
`IPR2017-00610
`Patent 9,077,804 B2
`
`
`counsel believed the Motion to Exclude had been filed successfully with the
`Board, because counsel subsequently received an email from the Board’s
`electronic filing system. Id. at 1. Counsel failed to notice the content of the
`email from the Board, which explained that “there were no documents
`submitted with this request.” Id.
`
`In its Motion, 24/7 Customer asks that we excuse its late action and
`permit it to file the Motion to Exclude out of time. Id. Under our Rules
`governing this proceeding, “late action will be excused on a showing of
`good cause or upon a Board decision that consideration on the merits would
`be in the interests of justice.” 37 C.F.R. § 42.5(c)(3).
`
`24/7 Customer asserts that it has good cause to file its Motion to
`Exclude out of time, and that consideration of the Motion on the merits
`would be in the interests of justice. Paper 38, 1. It alleges three facts in
`support: first, that the failure to file the Motion to Exclude was inadvertent
`(id. at 1); second, that Petitioner LivePerson was not prejudiced by the
`failure to file, because 24/7 Customer timely served the Motion to Exclude
`and was able to file an opposition (id. at 1–2); and third, that LivePerson
`does not oppose the Motion for Leave (id. at 2).
`
`We disagree with 24/7 Customer that good cause exists for it to file its
`Motion to Exclude late. While we have no reason to doubt its explanation
`that the failure to file was inadvertent, counsel should have reviewed the
`correspondence received from the Board and realized that the submission to
`our e-filing system did not contain any documents. We conclude, however,
`that the interests of justice support considering the Motion to Exclude on the
`merits. In particular, we note that LivePerson does not oppose accepting the
`late filing, and was properly served with the Motion to Exclude and took the
`
`2
`
`
`
`
`
`
`IPR2017-00610
`Patent 9,077,804 B2
`
`
`opportunity to respond. For these reasons, we grant the Motion for Leave,
`and authorize 24/7 Customer to file the Motion to Exclude contained in
`Attachment A as its own paper in the record of this proceeding.
`
`In light of the foregoing, it is
`
`ORDERED that Patent Owner’s late action is excused, and the filing
`of the Motion to Exclude out of time is authorized.
`
`For PETITIONER:
`
`Robert Kang
`Robert.kang@kirkland.com
`
`Kristen Reichenbach
`Kristen.reichenbach@kirkland.com
`
`Eugene Goryunov
`egoryunov@kirkland.com
`
`For PATENT OWNER:
`
`Mark Miller
`markmiller@omm.com
`
`Brian Cook
`bcook@omm.com
`
`Jay Choi
`jchoi@omm.com
`
`
`
`
`
`3
`
`
`
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