`571.272.7822
`
`
`
`
`
`Paper 20
`Entered: August 3, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FASTENERS FOR RETAIL, INC.,
`Petitioner,
`
`v.
`
`RTC INDUSTRIES, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00741 (Patent 9,173,505)
`Case IPR2018-00742 (Patent 9,149,132)
`Case IPR2018-00743 (Patent 9,504,321)
` Case IPR2018-00744 (Patent 9,635,957)1
`
`____________
`
`
`
`Before PATRICK R. SCANLON and MICHAEL L. WOODS,
`Administrative Patent Judges.
`
`WOODS, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`1 We issue one Order and enter it in each proceeding.
`
`
`
`IPR2018-00741 (Patent 9,173,505)
`IPR2018-00742 (Patent 9,149,132)
`IPR2018-00743 (Patent 9,504,321)
`IPR2018-00744 (Patent 9,635,957)
`
`
`
`
`In its preliminary responses, RTC Industries, Inc. (“Patent Owner”)
`
`argued that Fasteners for Retail, Inc. (“Petitioner”) failed to name all real
`
`parties-in-interest (“RPI”), namely, Olympus Partners LP (“Olympus”).
`
`Paper 11, 28 (IPR2018-00741); Paper 11, 8 (IPR2018-00742); Paper 9, 32
`
`(IPR2018-00743); Paper 11, 7 (IPR2018-00744). With our permission,
`
`Petitioner filed a reply (Papers 15, 16 (collectively “Reply”)) and declaration
`
`(Ex. 1039) to address the RPI issue.2 In an e-mail to the Board dated July
`
`31, Patent Owner requested permission to file a sur-reply (“Sur-Reply”) in
`
`response to Petitioner’s Reply, including leave to cross examine Petitioner’s
`
`declarant in support of its Sur-Reply and before our decision on whether to
`
`institute trial.
`
`A conference call was held between counsel for the parties and the
`
`Board on August 2, 2018, to discuss Patent Owner’s request.
`
`The Board’s statutory deadlines for instituting trial in these
`
`proceedings are fast approaching. For this reason, we deny Patent Owner’s
`
`request for expedited cross examination of Petitioner’s declarant.
`
`We grant, however, Patent Owner’s request to file a Sur-Reply in
`
`response to Petitioner’s Reply and to address the Federal Circuit’s recent
`
`decision in Applications in Internet Time, LLC, v. RPX Corp., (Nos. 2017-
`
`1698, 2017-1699, 2017-1701), 2018 WL 3625165 (Fed. Cir. July 9, 2018)
`
`(“RPX”). In the interests of fairness, we also grant Petitioner permission to
`
`file a sur-sur-reply in response to Patent Owner’s Sur-Reply to respond to
`
`Patent Owner’s RPX arguments, only.
`
`
`2 Our citations will be to IPR2018-00741, unless indicated otherwise.
`
`2
`
`
`
`IPR2018-00741 (Patent 9,173,505)
`IPR2018-00742 (Patent 9,149,132)
`IPR2018-00743 (Patent 9,504,321)
`IPR2018-00744 (Patent 9,635,957)
`
`
`
`
`For the reasons given, it is hereby:
`
`ORDERED that Patent Owner is authorized to file a 5-page sur-reply
`
`to address RPX and respond to Petitioner’s RPI arguments in each of
`
`IPR2018-00741, IPR2018-00742, IPR2018-00743, and IPR2018-00744, if
`
`such sur-replies are filed on or before August 8, 2018;
`
`FURTHER ORDERED that Petitioner is authorized to file a 5-page
`
`sur-sur-reply in each of IPR2018-00741, IPR2018-00742, IPR2018-00743,
`
`and IPR2018-00744 in response to Patent Owner’s sur-replies to address
`
`Patent Owner’s RPX arguments if such sur-sur-replies are filed on or before
`
`August 13, 2018; and
`
`FURTHER ORDERED that Patent Owner’s request for expedited
`
`cross examination of Petitioner’s declarant is denied.
`
`
`
`
`
`3
`
`
`
`
`
`IPR2018-00741 (Patent 9,173,505)
`IPR2018-00742 (Patent 9,149,132)
`IPR2018-00743 (Patent 9,504,321)
`IPR2018-00744 (Patent 9,635,957)
`
`PETITIONER:
`
`Douglas H. Siegel
`William B. Berndt
`Ron N. Sklar
`Honigman Miller Schwartz & Cohn LLP
`dsiegel@honigman.com
`wberndt@honigman.com
`rsklar@honigman.com
`
`
`PATENT OWNER:
`
`Joseph J. Berghammer
`Scott A. Burow
`Bradley J. Van Pelt
`Kevin C. Keenan
`Eric A. Zelepugas
`Banner & Witcoff, Ltd.
`RTC-IPR@bannerwitcoff.com
`jberghammer@bannerwitcoff.com
`sburow@bannerwitcoff.com
`bvanpelt@bannerwitcoff.com
`kkeenan@bannerwitcoff.com
`ezelepugas@bannerwitcoff.com
`
`
`4
`
`
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