`571-272-7822
`
`
`
`
`Paper 15
`
`
` Entered: August 16, 2019
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`AVI NETWORKS, INC.,
`Petitioner,
`
`v.
`
`CITRIX SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2019-00844 (Patent 8,631,120 B2)
`Case IPR2019-00845 (Patent 9,148,493 B2)1
`____________
`
`
`
`Before JUSTIN T. ARBES, PATRICK M. BOUCHER, and
`FREDERICK C. LANEY, Administrative Patent Judges.
`
`LANEY, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5
`
`
`
`
`1 We exercise our discretion to issue one Order to be filed in each
`proceeding. The Parties, however, are not authorized to use this style
`heading in any subsequent papers.
`
`
`
`IPR2019-00844 (Patent 8,631,120 B2)
`IPR2019-00845 (Patent 9,148,493 B2)
`
`
`A conference call in the above proceedings was held on August 9,
`2019, among respective counsel for Petitioner and Patent Owner, and
`Judges Arbes and Laney.2 The call was requested by Petitioner to seek leave
`to file an eight-page reply to Patent Owner’s Preliminary Response in each
`proceeding. Petitioner argued that it should be allowed to reply to two
`arguments made in Patent Owner’s Preliminary Response––namely, (1) the
`Board should exercise its discretion under Section 314(a) to deny institution,
`and (2) the petition is deficient because it relies on four source code files
`from the entire Squid source code base. Petitioner asserts a reply is
`necessary because it could not have reasonably anticipated that Patent
`Owner would have raised the above two issues while preparing its Petitions.
`Patent Owner opposes Petitioner’s request because Petitioner has not shown
`an affirmative reason why a reply is warranted and because Petitioner should
`not be given a second chance to improve its Petition. Patent Owner
`contends that the Section 314(a) issue addresses the timing of the Petition as
`it relates to the parallel litigation, which Petitioner was well aware of prior to
`the filing of the Petition. Regarding the source code issue, Patent Owner
`contends that it pertains to what the underlying supporting documents
`themselves teach or do not teach, which the Board is able to decide on its
`own. We took the matter under advisement.
`Upon further consideration and review of the materials cited by the
`parties, we determine that Petitioner has not demonstrated good cause for
`a reply. See 37 C.F.R. § 42.108(c). In particular, the instant facts appear to
`be no different than a typical proceeding in which a patent owner in its
`preliminary response asserts that arguments made in a petition are incorrect
`
`2 A court reporter was not present for this call.
`2
`
`
`
`
`
`IPR2019-00844 (Patent 8,631,120 B2)
`IPR2019-00845 (Patent 9,148,493 B2)
`
`or deficient, and the petitioner disagrees. A reply is not warranted in every
`case—only when a petitioner can make a showing of good cause. See id.
`Here, we are able to determine the substance of what Petitioner argues in the
`Petitions and evaluate the teachings of the references cited by Petitioner,
`without additional briefing from the parties. Furthermore, Petitioner does
`not suggest that any intervening events that would affect the Section 314(a)
`issue have occurred between the time it filed the Petitions and the date of our
`call.
`
`In consideration of the foregoing, it is hereby:
`ORDERED that Petitioner’s request to file a reply to Patent Owner’s
`Preliminary Response in each of the instant proceedings is denied.
`
`
`
`
`
`3
`
`
`
`IPR2019-00844 (Patent 8,631,120 B2)
`IPR2019-00845 (Patent 9,148,493 B2)
`
`PETITIONER:
`
`Y. Ernest Hsin
`Ryan Iwahashi
`GIBSON, DUNN & CRUTCHER LLP
`ehsin@gibsondunn.com
`riwahashi@gibsondunn.com
`
`
`PATENT OWNER:
`
`Stephen J. Tyran
`Lesley A. Hamlin
`CITRIX SYSTEMS, INC.
`Stephen.tytran@citrix.com
`Lesley.hamlin@citrix.com
`
`W. Karl Renner
`David L. Holt
`Craig E. Carlson
`FISH & RICHARDSON P.C.
`axf-ptab@fr.com
`holt2@fr.com
`ccarlson@fr.com
`
`
`
`4
`
`
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