Trials@uspto.gov
`571-272-7822
`
`Paper 11
`Entered: August 14, 2017
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01082
`Patent 7,682,243 B2
`____________
`
`
`
`Before BARBARA A. BENOIT, STACEY G. WHITE, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Petitioner’s Request to File a Reply to
`Patent Owner’s Preliminary Response
`37 C.F.R. § 42.108(c)
`
`
`
`
`
`571-272-7822
`
`Paper 11
`Entered: August 14, 2017
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`____________
`
`Case IPR2017-01082
`Patent 7,682,243 B2
`____________
`
`
`
`Before BARBARA A. BENOIT, STACEY G. WHITE, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Petitioner’s Request to File a Reply to
`Patent Owner’s Preliminary Response
`37 C.F.R. § 42.108(c)
`
`
`
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
`
`
`I.
`DISCUSSION
`On August 9, 2017, Wargaming Group Limited (“Petitioner”)
`requested, via email, a conference call with the Board to make a showing of
`good cause pursuant to 37 C.F.R. § 42.108 to file a reply limited to
`addressing Patent Owner’s assertion that a real party-in-interest to Petitioner,
`Wargaming.net LLP, was served with a complaint for infringement of U.S.
`Patent 7,682,243 B2 (“the ’243 patent”) more than one year before the filing
`of the Petition in this proceeding. In particular, Patent Owner argues that the
`Petition is time barred under 35 U.S.C. § 315(b) because Wargaming.net
`LLP “was served with a complaint alleging infringement of the ‘243 patent
`on December 14, 2015, in accordance with the laws of England and Wales”
`pursuant to the Hague Convention. Prelim. Resp. 4 (citing Exs. 2001 and
`2002).
`On August 11, 2017, a conference call was held with the Board and
`counsel for the parties. Harper Batts, lead counsel for Petitioner, William
`Mandir, lead counsel for Patent Owner, and backup counsel for the parties
`attended. Our Rules provide: “A petitioner may seek leave to file a reply to
`the preliminary response in accordance with §§ 42.23 and 42.24(c). Any
`such request must make a showing of good cause.” 37 C.F.R. § 42.108(c).
`As an initial matter, counsel for Petitioner, Mr. Batts, stated that
`Petitioner does not dispute that, if service of the complaint occurred pursuant
`to the Hague Convention more than one year before the filing of the Petition,
`as asserted by Patent Owner, the Petition would be time barred under 35
`U.S.C. § 315(b). Mr. Batts, however, stated that Petitioner disputes that
`such service took place. In arguing good cause exists for the filing of a
`
`2
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
`
`reply, Mr. Batts represented that Petitioner was not aware of the alleged
`service identified by Patent Owner and that Patent Owner did not file the
`service documents in the related civil case. Mr. Batts further stated that
`Petitioner investigated the issue after it was raised in the Patent Owner
`Preliminary Response and, if authorized to file a reply, will file as evidence
`a declaration from Mr. Costas A. Joannou, the individual upon whom Patent
`Owner alleges service was made. Mr. Batts also stated that a reply of two
`pages would be sufficient.
`Counsel for Patent Owner, Mr. Mandir, argued that Petitioner has not
`shown good cause for filing a reply. In particular, Mr. Mandir argued that a
`reply should not be authorized because Petitioner bears the burden of
`proving compliance with 35 U.S.C. § 315(b) and should have produced
`evidence in support of its assertion of standing with the Petition.
`We agree with Patent Owner that Petitioner bears the burden of
`proving that it has standing to file a petition for inter partes review,
`including that it is not barred under 35 U.S.C. § 315(b). See 37 C.F.R.
`§ 42.104(a) (“The petitioner must certify that the patent for which review is
`sought is available for inter partes review and that the petitioner is not
`barred or estopped from requesting an inter partes review challenging the
`patent claims on the grounds identified in the petition.”). In its Petition,
`however, Petitioner did produce evidence in support of its assertion of
`standing, specifically a declaration of its general counsel, Roman Zanin. See
`Ex. 1011. Roman Zanin provides testimony regarding attempted service on
`Wargaming entities abroad (Ex. 1011 ¶ 3) and further testifies that
`“Wargaming.net LLP and Wargaming Group Limited . . . were never
`
`3
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
`
`served” (Ex. 1011 ¶ 6). Therefore, there is evidence in the record supporting
`Petitioner’s assertion of standing. Petitioner requests a reply to address
`evidence of which it states it was previously unaware, namely the service
`documents filed with the Preliminary Response.
`Having considered the arguments of both Petitioner and Patent
`Owner, we determine good cause exists for Petitioner to file a reply limited
`to two pages, not including supporting evidence filed therewith.1 The reply
`and accompanying evidence are limited to addressing Patent Owner’s
`assertion and evidence that service occurred on Wargaming.net LLP more
`than one year before the Petition was filed. See Prelim. Resp. 3–5. The
`reply shall be filed no later than August 18, 2017.
`
`
`II. ORDER
`
`Accordingly, it is:
`ORDERED that Petitioner is authorized to file a reply to the
`Preliminary Response limited to addressing Patent Owner’s assertion and
`evidence that service occurred on Wargaming.net LLP more than one year
`before the Petition was filed; and
`FURTHER ORDERED that the reply shall be limited to two (2) pages
`and shall be filed no later than August 18, 2017.
`
`
`
`
`1 During the call, we advised the parties that any declarant upon whose
`testimony a party relies is subject to deposition, including those individuals
`upon whose testimony Petitioner relies to assert that it has standing to file
`the Petition.
`
`4
`
`
`
`IPR2017-01082
`Patent 7,682,243 B2
`
`For PETITIONER:
`
`Harper Batts
`Jeffrey Liang
`BAKER BOTTS L.L.P.
`harper.batts@bakerbotts.com
`jeffrey.liang@bakerbotts.com
`
`For PATENT OWNER:
`William Mandir
`Peter Park
`John Bird
`Christopher Bezak
`Fadi Kiblawi
`SUGHRUE MION PLLC
`wmandir@sughrue.com
`pspark@sughrue.com
`jbird@sughrue.com
`cbezak@sughrue.com
`fkiblawi@sughrue.com
`
`
`5
`
`
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