`571-272-7822
`
` Paper 25
`Entered: April 26, 2019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTIMIDATOR, INC. and RF PRODUCTS, INC.,
`Petitioner,
`
`v.
`
`BAD BOY, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-01632
`Patent 9,730,386 B1
`____________
`
`
`Before FRANCES L. IPPOLITO, KEVIN W. CHERRY, and
`PAUL J. KORNICZKY, Administrative Patent Judges.
`
`KORNICZKY, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2018-01632
`Patent 9,730,386 B1
`
`On April 23, 2019, a conference call was held between Intimidator, Inc. and
`RF Products, Inc. (collectively, “Petitioner”), Bad Boy, Inc. (“Patent Owner”), and
`Judges Ippolito, Cherry, and Korniczky. During the call, we discussed Petitioner’s
`request to file a Motion to Submit Supplemental Information under 37 CFR
`§ 42.123(a). 1 A transcript of the call is available at Paper 24. Petitioner’s request
`is granted.
`Under 37 CFR § 42.123(a), a party may file a motion to submit
`supplemental information in accordance with the following requirements:
`(1) A request for the authorization to file a motion to submit supplemental
`information is made within one month of the date the trial is instituted.
`(2) The supplemental information must be relevant to a claim for which the
`trial has been instituted.
`As to the requirement of § 42.123(a)(1), Petitioner requested authorization to
`file the motion in an email dated April 11, 2019, within one month of the date the
`trial was instituted (i.e., March 13, 2019). See Paper 21. Patent Owner does not
`dispute that Petitioner’s request is timely.
`As to the requirement of § 42.123(a)(2), Petitioner asserts that its
`supplemental information will include Patent Owner’s manuals from 2007 through
`2012 and a supplemental declaration of Rolf deVries regarding the manuals.
`Petitioner asserts that this information is relevant to the issue of motivation to
`combine and will show inconsistencies with a position advanced by Patent Owner.
`Opposing Petitioner’s request, Patent Owner asserts that Petitioner is attempting to
`
`
`1 On the call, Patent Owner also indicated that it has not decided yet whether it will
`file a Patent Owner Response. We reminded Patent Owner that any arguments for
`patentability not raised in the response may be deemed waived. See Paper 22, 5.
`2
`
`
`
`
`
`IPR2018-01632
`Patent 9,730,386 B1
`
`use the supplemental information to correct and fill in gaps in its evidence
`presented in the Petition.
`After considering the parties’ arguments and the present record, we
`determine that Petitioner has met the requirements of 37 CFR § 42.123(a) to file a
`Motion to Submit Supplemental Information. Petitioner is authorized to file its
`motion. This is not a determination on the final merits of Petitioner’s motion.
`Petitioner must file its Motion to Submit Supplemental Information on or
`before May 7, 2019. Patent Owner must file its Opposition, if any, within seven
`calendar days of the filing date of Petitioner’s Motion. Petitioner must file its
`Reply, if any, within seven calendar days of the filing date of Patent Owner’s
`Opposition. The parties’ briefs are limited to five (5) pages each.
`In view of the foregoing, it is
`ORDERED that Petitioner must file its Motion to Submit Supplemental
`Information, limited to five (5) pages, on or before May 7, 2019;
`FURTHER ORDERED that Patent Owner must file its Opposition to
`Petitioner’s Motion, if any, limited to five (5) pages, within seven calendar days of
`the filing date of Petitioner’s Motion; and
`FURTHER ORDERED that Petitioner must file its Reply to Patent Owner’s
`Opposition, if any, limited to five (5) pages, within seven calendar days of the
`filing date of Patent Owner’s Opposition.
`
`
`
`
`
`3
`
`
`
`IPR2018-01632
`Patent 9,730,386 B1
`
`PETITIONER:
`
`Warner J. Delaune
`Lea H. Speed
`Bradley Trammell
`Adam Baldridge
`BAKER, DONELSON, BEARMAN,
`CALDWELL & BERKOWITZ, P.C.
`wdelaune@bakerdonelson.com
`lspeed@bakerdonelson.com
`btrammell@bakerdonelson.com
`abaldridge@bakerdonelson.com
`
`
`PATENT OWNER:
`
`Christopher L. Drymalla
`Chad Ennis
`Patrick Connolly
`BRACEWELL LLP
`chris.drymalla@bracewell.com
`chad.ennis@bracewell.com
`patrick.connolly@bracewell.com
`
`
`
`
`
`4
`
`
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