`571-272-7822
`
`Paper 9
`Entered: September 18, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LEVITATION ARTS, INC.,
`Petitioner,
`
`v.
`
`FLYTE LLC,
`Patent Owner.
`____________
`
`Case PGR2018-00073
`Patent D799,100 S
`____________
`
`Before JOHN C. KERINS, GRACE KARAFFA OBERMANN, and
`BART A. GERSTENBLITH, Administrative Patent Judges.
`
`OBERMANN, Administrative Patent Judge.
`
`
`ORDER
`Granting Petitioner’s Motion for Admission
`Pro Hac Vice of Matthew G. McAndrews
`37 C.F.R. § 42.10
`
`
`
`
`
`PGR2018-00073
`Patent D799,100 S
`
`
`On September 6, 2018, Petitioner filed a Motion for admission pro hac vice
`of Matthew G. McAndrews. Paper 7 (“Motion”). Petitioner also filed a
`Declaration of Mr. McAndrews in support of the Motion. Ex. 1024
`(“Declaration”). Patent Owner has not filed an opposition to the Motion. For the
`reasons provided below, Petitioner’s Motion is granted.
`Pursuant to 37 C.F.R. § 42.10(c), the Board may recognize counsel pro hac
`vice during a proceeding upon a showing of good cause, subject to the condition
`that lead counsel be a registered practitioner. In its notice authorizing motions for
`pro hac vice admission, the Board requires a statement of facts showing there is
`good cause for the Board to recognize counsel pro hac vice and an affidavit or
`declaration of the individual seeking to appear in this proceeding. See Paper 5, 2
`(citing Unified Patents, Inc. v. Parallel Iron, LLC, Case IPR2013-00639 (PTAB
`Oct. 15, 2013) (Paper 7) (representative “Order – Authorizing Motion for Pro Hac
`Vice Admission”)).
`Based on the facts set forth in the Motion and the accompanying
`Declaration, we conclude that Mr. McAndrews has sufficient legal and technical
`qualifications to represent Petitioner in this proceeding, that Mr. McAndrews has
`demonstrated sufficient familiarity with the subject matter of this proceeding, and
`that Petitioner’s intent to be represented by counsel with litigation experience is
`warranted. Accordingly, Petitioner has established good cause for pro hac vice
`admission of Mr. McAndrews. Mr. McAndrews will be permitted to serve as
`back-up counsel only. See 37 C.F.R. § 42.10(c).
`Petitioner provides Power of Attorney for all Practitioners associated with
`Customer Number 64194. Paper 2. Mr. McAndrews, however, is not associated
`with Customer Number 64194. Accordingly, Petitioner must submit a Power of
`Attorney for Mr. McAndrews in accordance with 37 C.F.R. § 42.10(b).
`
`
`
`2
`
`
`
`PGR2018-00073
`Patent D799,100 S
`
`
`Accordingly, it is:
`ORDERED that Petitioner’s Motion for pro hac vice admission of
`Mr. Matthew G. McAndrews is granted;
`FURTHER ORDERED that Petitioner is to continue to have a registered
`practitioner represent it as lead counsel for this proceeding;
`FURTHER ORDERED that Mr. McAndrews is authorized to represent
`Petitioner only as back-up counsel in this proceeding;
`FURTHER ORDERED that Mr. McAndrews is to comply with the Office
`Patent Trial Practice Guide and the Board’s Rules of Practice for Trials, as set forth
`in Part 42 of Title 37, Code of Federal Regulations, as updated by the Office Patent
`Trial Practice Guide, August 2018 Update, 83 Federal Register 39,989 (Aug. 13,
`2018);1
`FURTHER ORDERED that Mr. McAndrews shall be subject to the Office’s
`disciplinary jurisdiction under 37 C.F.R. § 11.19(a), and the USPTO Rules of
`Professional Conduct set forth in 37 C.F.R. §§ 11.101 et. seq.;2
`FURTHER ORDERED that, within seven (7) business days of the date of
`this Order, Petitioner must submit a Power of Attorney for Mr. McAndrews in this
`proceeding in accordance with 37 C.F.R. § 42.10(b); and
`FURTHER ORDERED that Petitioner shall file an updated Mandatory
`Notice in this proceeding in accordance with 37 C.F.R. § 42.8(b)(3), identifying
`Mr. McAndrews as back-up counsel.
`
`
`
`1 In the Declaration, Mr. McAndrews indicates he will be subject to the Office of
`Patent Trial Practice Guide, as opposed to the Office Patent Trial Practice Guide.
`Ex. 1024 ¶ 5. We deem this harmless error.
`2 In the Declaration, Mr. McAndrews indicates he will be subject to the USPTO
`Code of Professional Responsibility, as opposed to the USPTO Rules of
`Professional Conduct. Ex. 1024 ¶ 6. We deem this harmless error.
`3
`
`
`
`
`
`PGR2018-00073
`Patent D799,100 S
`
`For PETITIONER:
`
`Brian P. Lynch
`Matthew G. McAndrews
`NIRO MCANDREWS, LLC
`blynch@niro-mcandrews.com
`mmcandrews@niro-mcandrews.com
`
`
`For PATENT OWNER:
`
`Nigamnarayan Acharya
`nigam.acharya@lewisbrisbois.com
`
`
`
`4
`
`
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