`
`Paper: 46
`Entered: December 21, 2018
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`T-MOBILE US, INC. and T-MOBILE USA, INC.,
`Petitioner,
`
`v.
`
`BARKAN WIRELESS ACCESS TECHNOLOGIES, L.P.,
`Patent Owner.
`____________
`
`Case IPR2017-01099
`Patent 9,042,306 B2
`____________
`
`
`
`Before MEREDITH C. PETRAVICK, JOHN A. HUDALLA, and
`SHARON FENICK, Administrative Patent Judges.
`
`FENICK, Administrative Patent Judge.
`
`
`
`DECISION
`Granting Motion to Excuse Late Filing
`37 C.F.R. § 42.5(c)(3)
`
`
`
`
`
`
`
`IPR2017-01099
`Patent 9,042,306 B2
`
`
`INTRODUCTION
`
`On November 27, 2018, Patent Owner filed a motion1 seeking to
`excuse the late filing of its rehearing request. Paper 45 (“Mot. to Excuse”).
`Patent Owner indicated that it had conferred with Petitioner to determine
`whether Petitioner opposes the motion, and further indicated that Petitioner
`does not oppose the motion. Id. at 1.
`On October 3, 2018, we entered a final written decision in this case.
`Paper 42. Patent Owner indicates that, on November 2, 2018, it uploaded a
`rehearing request to the PTAB End to End (E2E) system, believing that the
`rehearing request document was attached. Mot. to Excuse at 1. A docket
`entry was generated in E2E and a filing notification was received via email.
`Id. at 1–2. However, the document was not uploaded. Id. at 2. Patent
`Owner asserts that this occurred inadvertently and despite diligence on the
`part of the filer. Id. Patent Owner contemporaneously served Petitioner
`with the rehearing request. Id.
`Patent Owner argues that good cause exists for excusing delays when
`a filing party makes inadvertent errors in uploading documents to the
`Board’s electronic systems. Id. at 1–3. In addition, Patent Owner argues
`that excusing the delay would be in the interest of justice because Patent
`Owner would be unduly prejudiced if the rehearing request were not
`considered by the Board. Id. at 3.
`
`
`1 The Board authorized Patent Owner to file the motion in an Order issued
`on November 20, 2017. Paper 43. Petitioner was authorized to file an
`opposition, but did not do so.
`
`2
`
`
`
`IPR2017-01099
`Patent 9,042,306 B2
`
`
`DISCUSSION
`Under 37 C.F.R. § 42.5(c)(3), “[a] 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.”
`Given the circumstance, we determine good cause exists to excuse the
`late filing of Patent Owner’s rehearing request. The rehearing request was
`served timely on Petitioner, and an attempt, albeit unsuccessful, was made to
`file timely the rehearing request. Patent Owner’s error was inadvertent. In
`addition, it is in the interests of justice to excuse the late filing of Patent
`Owner’s rehearing request. Patent Owner would be unduly prejudiced if its
`rehearing request were not considered, and Petitioner does not oppose the
`motion to excuse the late filing.
`Patent Owner filed a rehearing request with its motion to excuse on
`November 27, 2018. The rehearing request appears as Paper 44 in the
`record.
`
`
`ORDER
`
`It is:
` ORDERED that Patent Owner’s motion to excuse (Paper 45) is
`granted.
`
`
`
`
`
`
`3
`
`
`
`IPR2017-01099
`Patent 9,042,306 B2
`
`PETITIONER:
`
`Chun M. Ng
`Miguel Bombach
`John Esterhay
`PERKINS COIE LLP
`cng@perkinscoie.com
`mbombach@perkinscoie.com
`jesterhay@perkinscoie.com
`
`PATENT OWNER:
`
`Robert D. Katz
`Spencer Patterson
`KATZ, PLLC
`rkatz@katzfirm.com
`spatterson@gchub.com
`
`4
`
`
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