`571-272-7822
`
`
`
`Paper 42
`Entered: June 26, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AMAZON.COM, INC.,
`Petitioner,
`
`v.
`
`CUSTOMPLAY, LLC.,
`Patent Owner.
`____________
`
`Case IPR2018-01498
`Patent 9,380,282 B2
`____________
`
`
`Before JESSICA C. KAISER, JOHN R. KENNY, and
`KRISTI L. R. SAWERT, Administrative Patent Judges.
`
`KENNY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`IPR2018-01498
`Patent 9,380,282 B2
`
`On March 11, 2020, we entered a Final Written Decision (Paper 37)
`in this proceeding. Patent Owner timely filed a Request for Rehearing
`(Paper 40) (“Rehearing Request”) which contends that we overlooked or
`misapprehended (i) that the makeup of the Board violates the Appointments
`Clause of the U.S. Constitution and (ii) that the Board’s Final Written
`Decision violates the Takings Clause and Due Process Clause of the U.S.
`Constitution by not according the judicial presumption of validity under 35
`U.S.C. § 282(a). Reh’g Request 1. Patent Owner, however, does not
`identify where it raised either constitutional challenge in any prior
`submission. See id.
`A request for rehearing may identify matters that a party believes the
`Board misapprehended or overlooked. 37 C.F.R. § 42.71(d). The Board,
`however, could not have misapprehended or overlooked issues that were
`never raised. Huawei Device Co. Ltd. v. Optis Cellular Technology, LLC,
`IPR2018-00816, Paper 19, 9–10 (PTAB Jan. 8, 2019) (precedential). Thus,
`under 37 C.F.R. § 42.71(d), a request for rehearing “must identify
`specifically all matters [the party believes the Board] misapprehended or
`overlooked, and the place where each matter was addressed previously in a
`motion, an opposition, or a reply.” Id. (emphasis added). Although Patent
`Owner acknowledges the requirements of section 42.71(d) (Reh’g Request
`3), Patent Owner does not identify any place where it raised these
`constitutional challenges in any motion, opposition, or reply. Reh’g
`Request 1–7. Further, Patent Owner does not justify raising those
`challenges for the first time on rehearing. Id. Thus, under 37 C.F.R.
`§ 42.71(d), we deny the Rehearing Request.
`Patent Owner’s Rehearing Request is DENIED.
`
`2
`
`
`
`IPR2018-01498
`Patent 9,380,282 B2
`
`FOR PETITIONER:
`Colin Heideman
`Joseph Re
`Christie Matthaei
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2cbh@knobbe.com
`2jrr@knobbe.com
`2crw@knobbe.com
`
`FOR PATENT OWNER:
`Bryan Wilson
`Adam Underwood
`CARERY RODRIGUEZ MILIAN GONYA, LLP
`bwilson@careyrodriguez
`aunderwood@careyrodriguez.com
`
`
`
`3
`
`
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