`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`DISH NETWORK CORPORATION and DISH NETWORK L.L.C.,
`Petitioner
`
`v.
`
`CUSTOMEDIA TECHNOLOGIES, L.L.C.,
`Patent Owner.
`
`_________________
`
`Case No. IPR2017-00717
`Patent 9,053,494 B2
`
`_________________
`
`
`
`PATENT OWNER CUSTOMEDIA TECHNOLOGIES L.L.C.’S
`NOTICE OF INTENT TO REQUEST REHEARING BY THE DIRECTOR
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`
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`
`
`
`
`Case No. IPR2017-00717
`Patent No.: 9,053,494 B2
`
`
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`
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`On December 31, 2020, Patent Owner Customedia Technologies
`
`L.L.C. (“Customedia”) provided notice to the Board of the Supreme Court
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`granting certiorari in United States v. Arthrex, Inc, Case No. 19-1434.
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`Paper 50 at 2. Customedia brought to the Board’s attention that the
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`Supreme Court would decide whether the statutory provisions for
`
`appointment of Administrative Patent Judges are constitutional. Id.
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`
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`On June 21, 2021, the Supreme Court issued its decision in United
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`States v. Arthrex, Inc., 584 U.S. ____ (2021). The Court concluded that
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`the unreviewable authority wielded by Administrative Patent Judges is
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`incompatible with their appointment by the Secretary of Commerce to an
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`inferior office. 584 U.S. at ___–___ (slip op. at 6–19). Thus, the Court held
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`35 U.S.C. § 6(c) unconstitutional “insofar as it prevents the Director from
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`reviewing the decisions of the PTAB on his own.” Id. at ___-___ (Op. of
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`Roberts, C. J. at 21). Accordingly, the Court determined that the Board
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`lacks the power to resolve matters such as inter partes reviews within the
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`Executive Branch without an opportunity for review of Board decisions
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`by the Director. Id. at ___-___ (Op. of Roberts, C. J. at 22).
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`
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`As explained by the Supreme Court in Arthrex, the Board
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`ultimately lacked the power resolve this IPR because the Director had no
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`- 2 -
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`Case No. IPR2017-00717
`Patent No.: 9,053,494 B2
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`
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`
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`opportunity to review the decisions of the Board. Thus, the Written
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`Decision of the Board finding the claims-at-issue to be unpatentable was
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`not a final, appealable decision of the USPTO. Further, no cancellation
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`certificate has issued regarding the claims-at-issue. Therefore, in
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`accordance with the Supreme Court’s decision in Arthrex and the
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`guidance of the USPTO, Customedia provides notice that it intends to
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`request rehearing by the Director of the decisions of the Board in this
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`CBM. Customedia will comply with the interim guidance of the USPTO
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`in submitting a Request for Rehearing by the Director.
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`
`
`Dated: July 1, 2021
`
`Respectfully Submitted
`
`/s/ Raymond W. Mort, III
`Raymond W. Mort, III
`Reg. No. 47,807
`raymort@austinlaw.com
`
`THE MORT LAW FIRM, PLLC
`100 Congress Ave, Suite 2000
`Austin, Texas 78701
`Tel/Fax: (512) 865-7950
`
`COUNSEL FOR PATENT OWNER
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`- 3 -
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`
`
`Case No. IPR2017-00717
`Patent No.: 9,053,494 B2
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`
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing document was
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`served electronically via email on July 1, 2021, in its entirety on the
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`following:
`
`Eliot D. Williams
`eliot.williams@bakerbotts.com
`G. Hopkins Guy III
`hop.guy@bakerbotts.com
`
`BAKER BOTTS L.L.P.
`1001 Page Mill Road,
`Bld. 1,Suite 2000
`Palo Alto, CA 94304-1007
`
`
`
`
`Ali Dhanani
`ali.dhanani@bakerbotts.com
`
`BAKER BOTTS L.L.P.
`910 Louisiana St.
`Houston, TX 77002
`
`Dated: July 1, 2021
`
`Respectfully Submitted
`
`/s/ Raymond W. Mort, III
`Raymond W. Mort, III
`Reg. No. 47,807
`raymort@austinlaw.com
`
`THE MORT LAW FIRM, PLLC
`100 Congress Ave, Suite 2000
`Austin, Texas 78701
`Tel/Fax: (512) 865-7950
`
`
`COUNSEL FOR PATENT OWNER
`
`
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`- 4 -
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