Trials@uspto.gov
`571-272-7822
`
`Paper 10
`Date: October 1, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FEDEX CORPORATION,
`Petitioner,
`
`v.
`
`FLECTERE LLC,
`Patent Owner.
`____________
`
`IPR2020-00403
`Patent 6,415,284 B1
`____________
`
`
`
`Before DAVID C. McKONE and STEPHEN E. BELISLE,
`Administrative Patent Judges.
`
`BELISLE, Administrative Patent Judge.
`
`
`
`REVISED SCHEDULING ORDER
`and
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`571-272-7822
`
`Paper 10
`Date: October 1, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FEDEX CORPORATION,
`Petitioner,
`
`v.
`
`FLECTERE LLC,
`Patent Owner.
`____________
`
`IPR2020-00403
`Patent 6,415,284 B1
`____________
`
`
`
`Before DAVID C. McKONE and STEPHEN E. BELISLE,
`Administrative Patent Judges.
`
`BELISLE, Administrative Patent Judge.
`
`
`
`REVISED SCHEDULING ORDER
`and
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`IPR2020-00403
`Patent 6,415,284
`
`
`On January 13, 2020, FedEx Corporation (“Petitioner”) filed a
`Petition (Paper 1) to institute an inter partes review of claims 1–21 of U.S.
`Patent No. 6,415,284 B1 (Ex. 1001, “the ’284 patent”). On April 14, 2020,
`Flectere LLC (“Patent Owner”) waived filing of a preliminary response to
`the Petition. Paper 7. On June 26, 2020, the Board instituted an inter partes
`review as to all challenged claims of the ’284 patent on all grounds raised in
`the Petition (see Paper 8), and issued a Scheduling Order (Paper 9), which
`set the due date for Patent Owner’s response to the Petition for
`September 18, 2020 (Paper 9, “DUE DATE 1”). On September 16, 2020,
`via an email from Patent Owner’s counsel, Jonathan Szarzynski, to the
`Board, Patent Owner informed the Board that it “has elected to not file a
`response” to the Petition.
`On September 24, 2020, pursuant to Section II.F of the Board’s
`Consolidated Trial Practice Guide1 and the Scheduling Order in this case
`(Paper 9, 10), the Board held a teleconference with the parties to discuss the
`posture of this case and revision of due dates originally set in the Scheduling
`Order. During the call, Patent Owner stated that it does not intend to request
`adverse judgment (see Rule 42.73(b)), to cancel any challenged claims, or to
`otherwise abandon the contest to the claims. Patent Owner has not objected
`to any of Petitioner’s evidence and the time has passed to do so. Thus,
`Patent Owner does not have a basis to file a Motion to Exclude. In view of
`the foregoing, several filings authorized in the Scheduling Order have been
`rendered moot. In particular, as agreed by the parties, there is no present
`basis for additional briefing relating to the Petition, for briefing relating to
`
`
`1 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2020-00403
`Patent 6,415,284
`
`amendment of the ’284 patent, or for briefing relating to motions to exclude
`evidence. Accordingly, the filings authorized by and associated with DUE
`DATES 2, 3, and 5–7 in our original June 26, 2020, Scheduling Order are no
`longer authorized, and these due dates are stricken as reflected in this
`Revised Scheduling Order (see Revised Due Date Appendix).
`However, during the call, Patent Owner also stated that it may request
`oral argument in this case. We advised Patent Owner to consider Rule 42.70
`concerning oral argument, which states: “A party may request oral argument
`on an issue raised in a paper at a time set by the Board. The request must
`be filed as a separate paper and must specify the issues to be argued.”
`37 C.F.R. § 42.70 (emphases added); see also Paper 9, 10 (“Patent Owner is
`cautioned that any arguments not raised in the response may be deemed
`waived.”). Because Patent Owner elected not to file a response to the
`Petition, and has not otherwise raised any issue in any paper filed in this
`case, we questioned Patent Owner as to what basis on which it may request
`oral argument. At the time of the call, Patent Owner was not prepared to
`respond. Petitioner requested that we reset DUE DATE 4 (deadline for
`requesting oral argument) to be two weeks from the date of the
`teleconference. Patent Owner requested that, if we reset DUE DATE 4, it
`should be reset for four weeks from the date of the teleconference.
`In view of the foregoing, we revise our original Scheduling Order to
`change DUE DATE 4 (deadline for requesting oral argument) from
`February 12, 2021, to October 22, 2020. To the extent that either party files
`a request (or contingent request) for oral argument, the party’s request shall
`respond with particularity to the requirements of Rule 42.70, and identify
`with particularity the basis and supporting legal authority entitling the party
`
`3
`
`
`
`IPR2020-00403
`Patent 6,415,284
`
`to oral argument on each proposed issue to be argued. In the meantime, this
`Revised Scheduling Order maintains DUE DATE 8 (oral argument) as set
`for March 30, 2021.
`To the extent that our original Scheduling Order provides instructions
`that are not addressed in this Revised Scheduling Order, the original
`instructions remain in effect.
`In consideration of the foregoing, it is hereby:
`ORDERED that the filings authorized by and associated with DUE
`DATES 2, 3, and 5–7 in our original June 26, 2020, Scheduling Order are no
`longer authorized, and that these due dates are stricken as reflected in this
`Revised Scheduling Order;
`FURTHER ORDERED that DUE DATE 4 (deadline for requesting
`oral argument) is modified to be October 22, 2020;
`FURTHER ORDERED that, to the extent that either party files a
`request (or contingent request) for oral argument, the party’s request shall
`respond with particularity to the requirements of 37 C.F.R. § 42.70, and
`identify with particularity the basis and supporting legal authority entitling
`the party to oral argument on each proposed issue to be argued; and
`FURTHER ORDERED that DUE DATE 8 (oral argument) shall
`remain set for March 30, 2021.
`
`4
`
`
`
`IPR2020-00403
`Patent 6,415,284
`
`
`REVISED DUE DATE APPENDIX
`
`DUE DATE 4 ...................................................................... October 22, 2020
`Request for oral argument (may not be extended by stipulation)
`DUE DATE 8 ......................................................................... March 30, 2021
`Oral argument (if requested)
`
`
`5
`
`
`
`IPR2020-00403
`Patent 6,415,284
`
`PETITIONER:
`Jeffrey Berkowitz
`Daniel Tucker
`Alexander Boyer
`Bradley Edgington
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`jeffrey.berkowitz@finnegan.com
`daniel.tucker@finnegan.com
`alexander.boyer@finnegan.com
`bradley.edgington@finnegan.com
`
`PATENT OWNER:
`Jonathan Szarzynski
`SZARZYNSKI PLLC
`jon@szarzynski.com
`
`
`6
`
`
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