`571-272-7822
`
`
`
`
`
`
`Paper 36
`Entered: July 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`C&D ZODIAC, INC.,
`Petitioner,
`
`v.
`
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Cases1
`IPR2017-01275 (9,073,641 B2)
`IPR2017-01276 (9,440,742 B2)
`
`Before JENNIFER S. BISK, SCOTT A. DANIELS, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`JUDGMENT
`Inter Partes Review
`37 C.F.R. § 42.73(b)
`
`
`
`
`1 This Order addresses issues that are the same in both cases. Therefore, we
`exercise our discretion to issue one Decision to be filed in each case. The
`parties are not authorized to use this style heading for any subsequent
`papers.
`
`
`
`IPR2017-01275 (9,073,641 B2)
`IPR2017-01276 (9,440,742 B2)
`
`On June 28, 2018, in response to the Board’s Orders instituting on
`Ground 2 in the above captioned proceedings based on the Supreme Court’s
`decision in SAS Inst., Inc. v. Iancu, 138 S.Ct. 1348 (2018), Petitioner filed in
`each case, a Request for Partial Adverse Judgment against itself with respect
`to the newly instituted Ground 2, pursuant to 37 C.F.R. § 42.73(b). Paper
`33.2 In both proceedings, Ground 2 asserts the combination of applicant
`admitted prior art from the ’641 patent itself, (Exhibit 1001), and the KLM
`Crew Rest documents (Exhibit 1009), in view of the knowledge of a person
`of ordinary skill in the art. See Pet. 10–11.
`A party may request entry of adverse judgment against itself at any
`time during a proceeding. 37 C.F.R. § 42.73(b). Actions construed to be a
`request for adverse judgment include, among other things, abandonment of
`the contest. 37 C.F.R. § 42.73(b)(4). Petitioner has conceded its challenge
`based on the KLM Crew Rest documents, because, for one thing, “the Board
`has already found that the KLM Crew Rest Document is not a printed
`publication available for use in this proceeding as is required by 35 U.S.C.
`§ 311(b).” Paper 33, 2. Petitioner, therefore, requests partial adverse
`judgment against itself as to the newly instituted Ground 2. Id., (citing EMC
`Corp. v. Intellectual Ventures I, LLC, IPR2017-00429, Paper 43, (PTAB
`May 21, 2018) (noting petitioner could “request a partial adverse judgment
`pursuant to 37 C.F.R. § 42.73(b), on the newly instituted grounds as a way
`to proceed only on the originally instituted ground and claims”)).
`
`
`2 For consistency, we refer to the specific paper numbers, patent number,
`and documents in IPR2017-01275.
`
`2
`
`
`
`IPR2017-01275 (9,073,641 B2)
`IPR2017-01276 (9,440,742 B2)
`
`Noting that Petitioner’s Request does not extend to Ground 1, we
`enter judgment against Petitioner in this proceeding as to Ground 2. Only
`Petitioner’s challenge under Ground 1 remains in this proceeding.
`
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s Request for Partial Adverse Judgment as
`to Ground 2 is GRANTED; and
`FURTHER ORDERED that, judgment is entered against Petitioner as
`to Ground 2 based on applicant admitted prior art from the ’641 patent,
`(Exhibit 1001), the KLM Crew Rest documents (Exhibit 1009), and in view
`of the knowledge of a person of ordinary skill in the art.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`IPR2017-01275
`Patent 9,073,641 B2
`
`For PETITIONER:
`John C. Alemanni
`Dean W. Russell
`David A. Reed
`Michael T. Morlock
`Andrew Rinehart
`KILPATRICK TOWNSEND & STOCKTON LLP
`jalemanni@kilpatricktownsend.com
`drussell@kilpatricktownsend.com
`dreed@kilpatricktownsend.com
`mmorlock@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
`
`For PATENT OWNER:
`
`Michael R. Fleming
`Talin Gordnia
`IRELL & MANELLA LLP
`mfleming@irell.com
`tgordnia@irell.com
`
`4
`
`
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