`
`IN THE 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 IPR 2017-01082
`Patent 7,682,243
`
`––––––––––
`
`PETITIONER’S REPLY BRIEF ON THE ISSUE OF WHETHER
`THE PETITION IS BARRED UNDER 35 U.S.C. § 315(b)
`
`
`
`
`
`
`Patent Owner originally claimed that the petition was barred because
`
`Wargaming.net LLP was served in London. Admitting that Mr. Talbot did not
`
`serve a signed and sealed summons due to a “printing error” (Paper 25 at 7), Patent
`
`Owner pivots to a new and equally flawed theory that it served different
`
`Wargaming entities in Cyprus by mail. Petitioner requests that the Board find that
`
`there was no proper service as required by §315(b), and that the order dismissing
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`Wargaming.net LLP without prejudice nullified any attempted service.
`
`I.
`
`Patent Owner failed to properly serve Wargaming.net LLP in the UK.
`
`Patent Owner’s failure to serve a signed and sealed summons should not be
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`excused because it is not a mere technical defect, it would cause unfair prejudice,
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`and it is inconsistent with the purpose of §315(b). Failing to serve a court-issued
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`summons is not a mere technical error that courts ordinarily excuse. Patent Owner
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`quotes liberally from Wright & Miller yet omits the critical preceding sentence: “if
`
`the content and issuance requirements of Rule 4(a) and Rule 4(b) are completely
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`ignored, the district court should not exercise its discretion to allow amendment but
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`should direct [] re-issuance and re-service . . . .” 4B Wright & Miller, Fed. Practice
`
`and Proc. §1131 (4th ed.). Patent Owner also fails to address prejudice, because it
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`clearly weighs against excusing the defect. Patent Owner has known since
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`February 2016 that Wargaming was not aware of any proper service. Ex. 1027.
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`Yet, Patent Owner did not disclose the purported date of service or file proof of
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`1
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`
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`service before the petition was filed. Had it taken either step, Wargaming would
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`have filed its petition earlier to avoid §315(b), and would have avoided the waste
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`of London depositions. Finally, it is unfair to excuse a patent owner’s failure to
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`follow the procedural requirements for service and thereby negate the protection
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`that Congress bestowed on petitioners by requiring full and proper service to
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`trigger §315(b).
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`II. No entity or real-party-in-interest was properly served by mail.
`Patent Owner should not be allowed to allege service by mail because it did
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`not make that argument in its preliminary response, and did not disclose Mr. Zito’s
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`declaration before the November 2 deposition deadline. In addition, the Board
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`should find that there was no proper service on any entity in Cyprus because (1) no
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`documents were mailed by the court’s clerk, and (2) there is no evidence that a
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`form of mail was used that requires a signed receipt. While Patent Owner recites
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`the Supreme Court’s two-part test for service by mail under the Hague Convention,
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`it failed to make a showing for the second prong: whether “service by mail is
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`authorized under otherwise-applicable law.” Paper 25 at 8. Federal Rule of Civil
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`Procedure 4(f)(2)(C)(ii) authorizes service by mail in a foreign country when
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`“using any form of mail that the clerk addresses and sends to the individual and
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`that requires a signed receipt.” Mr. Zito claims he mailed the documents–not the
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`court’s clerk. Ex. 2027 at 1. Further, Patent Owner did not offer proof that a form
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`2
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`
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`of mail that requires a signed receipt was used. These reasons alone are sufficient
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`to find that there was no proper service by mail, and the Board does not need to
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`reach Patent Owner’s fanciful alter ego argument.
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`III. The order dismissing Wargaming.net LLP nullified any service.
`Patent Owner is wrong that “[t]he threshold issue as to the nullifying effect
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`is whether the dismissal leaves ‘the parties as though the action had never been
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`brought.’” Paper 25 at 9. The quote came from the Board’s summary of a patent
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`owner’s argument that it rejected: “Several aspects of Patent Owner’s argument
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`turn the Federal Circuit’s statement about the effect of a dismissal without
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`prejudice on its head by attempting to elevate it to a threshold requirement . . . .”
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`See. IPR2015-826, Paper 12 at 14. Atlanta Gas actually supports Petitioner
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`because it confirms that the nullification effect is analyzed on a party-by-party
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`basis. Id. at 12. Patent Owner is also wrong that the court’s order did not have the
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`same effect as a dismissal without prejudice “[b]ecause of the substitution of
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`Wargaming Group Limited . . . .” Opp. at 10. The district court’s order only
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`substituted Wargaming Group Limited for Wargaming Public Company Limited,
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`and not Wargaming.net LLP. Ex. 1026. Nothing in the court’s order otherwise
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`changed the legal relationship between Wargaming.net LLP and the plaintiffs.
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`December 8, 2017
`
`
`Respectfully submitted,
`
`/Harper Batts/
`
`Harper Batts, Reg. No. 56,160
`BAKER BOTTS L.L.P.
`
`
`
`3
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
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`Petitioner’s Reply Brief on the Issue of Whether the Petition is Barred Under 35
`
`U.S.C. § 315(b) contains no more than 3 pages and therefore complies with the
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`page limitation specified in the Board’s Order on Conduct and Schedule of the
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`Proceeding. See Paper 16 at 4.
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`December 8, 2017
`
`/Harper Batts/
`Harper Batts
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on December 8, 2017, a complete copy of the
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`foregoing paper was served via electronic mail to counsel for the Patent Owner at
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`the email address designated in the Patent Owner’s Mandatory Disclosures:
`
`SUGHRUE MION PLLC
`c/o John M. Bird
`2100 Pennsylvania Ave NW
`Suite 800
`Washington, DC 20037
`gat@sughrue.com
`jbird@sughrue.com
`
`December 8, 2017
`
`
`
`/Harper Batts/
`Harper Batts
`
`4
`
`
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