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Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 25
`Date: March 19, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MAN WAH HOLDINGS LIMITED,
`Petitioner,
`
`
`
`
`
`v.
`
`RAFFEL SYSTEMS, LLC,
`Patent Owner.
`
`PGR2019-00029
`Patent D821,986 S
`
`
`
`
`
`
`
`
`
`
`
`Before GRACE KARAFFA OBERMANN, CHRISTOPHER G. PAULRAJ,
`and RYAN H. FLAX, Administrative Patent Judges.
`
`FLAX, Administrative Patent Judge.
`
`ORDER
`Denying Without Prejudice Patent Owner’s Motion for
`Pro Hac Vice Admission of John C. Scheller
`37 C.F.R § 42.10
`
`Patent Owner filed a motion requesting pro hac vice admission of
`
`John C. Scheller in the above-identified proceeding. Paper 18 (“Motion”).
`
`The Motion is supported by an “Affidavit of Mr. John C. Scheller in Support
`
`of Motion for Pro Hac Vice Admission” (“Affidavit”). Petitioner did not
`
`file an opposition to the Motion. See 37 C.F.R. § 42.25(a)(1). We have
`
`

`

`PGR2019-00029
`Patent D821,986 S
`
`
`
`reviewed the submissions and determined that the requirements of 37 C.F.R.
`
`§ 42.10(c) have not been met and, for the reasons provided below, deny the
`
`Motion without prejudice.
`
`The Affidavit includes the language “I, John C. Scheller, being duly
`
`sworn and upon oath, hereby attest to the following:” and concludes with a
`
`date and signature of the attorney. Affidavit 2–3. The Affidavit, however, is
`
`not properly executed.
`
`“Affidavit means affidavit or declaration under § 1.68 of this chapter.
`
`A . . . declaration under 28 U.S.C. 1746 may be used as an affidavit.”
`
`37 C.F.R. § 42.2. The reference to “affidavit” invokes the requirements of
`
`37 C.F.R. § 1.66, and the remainder of the definition of “affidavit” invokes
`
`the requirements of 37 C.F.R. § 1.68 or 28 U.S.C. § 1746.
`
`Under 37 C.F.R. § 1.66, “[a]n oath or affirmation may be made before
`
`any person within the United States authorized by law to administer oaths”
`
`and the “oath shall be attested in all cases in this and other countries, by the
`
`proper official seal of the officer before whom the oath or affirmation is
`
`made.” The Affidavit does not include the seal of an officer before whom
`
`Mr. Scheller’s oath or affirmation was made, and, thus, the Affidavit does
`
`not comply with § 1.66.
`
`Under 37 C.F.R. § 1.68 a party relying upon testimony in the form of
`
`a declaration must include a statement in the declaration that “willful false
`
`statements and the like are punishable by fine or imprisonment, or both (18
`
`U.S.C. 1001) and may jeopardize the validity of the application or any patent
`
`issuing thereon.” 37 C.F.R. § 1.68. A similar statement exists in 28 U.S.C.
`
`§ 1746 that permits a witness to “declare (or certify, verify, or state) under
`
`2
`
`

`

`PGR2019-00029
`Patent D821,986 S
`
`
`
`penalty of perjury under the laws of the United States of America that the
`
`foregoing is true and correct.” 28 U.S.C. § 1746. The Affidavit includes
`
`neither of these statements. For all these reasons, we cannot consider the
`
`Affidavit as testimonial evidence supporting the Motion. Without such
`
`evidence, we deny the Motion without prejudice.
`
`Patent Owner is authorized to file a revised motion for admission pro
`
`hac vice of John C. Scheller with supporting evidence in the form of an
`
`exhibit containing testimony meeting any of the standards discussed above.1
`
`Patent Owner shall file the revised motion with appropriate supporting
`
`evidence within ten (10) business days of the date of this order.2, 3
`
`
`
`
`1 The Affidavit was included with the Motion instead of being filed
`separately as an exhibit. The parties are reminded that affidavits and
`declarations must be filed as exhibits so they may be referenced individually
`by exhibit number. See 37 C.F.R. § 42.63.
`
`2 The Affidavit states that Mr. Scheller has read and will comply “with the
`Office Patent Trial Practice Guide and the Board’s Rules of Practice for
`Trials set forth in part 42 of the C.F.R.” Affidavit ¶ 5. We note, however,
`that the Office Patent Trial Practice Guide and the Board’s Rules of Practice
`for Trials are set forth in Part 42 of 37 C.F.R., and it is those rules to which
`Mr. Scheller would be subject.
`
`3 If Patent Owner decides to file a revised motion for pro hac vice admission
`of Mr. Scheller, Patent Owner is reminded to file a Power of Attorney for
`Mr. Scheller in accordance with 37 C.F.R. § 42.10(b) and to file an updated
`mandatory notice in accordance with 37 C.F.R. § 42.8(b)(3) that identifies
`Mr. Scheller as back-up counsel.
`
`3
`
`

`

`PGR2019-00029
`Patent D821,986 S
`
`
`
`Accordingly, for the reasons discussed above, it is:
`
`ORDERED that Patent Owner’s Motion for pro hac vice admission
`
`Under 37 C.F.R. § 42.10 in the above-identified proceeding is denied
`
`without prejudice; and
`
`FURTHER ORDERED that Patent Owner is authorized in the above-
`
`captioned proceeding to file a revised motion for pro hac vice admission of
`
`John C. Scheller along with a supporting exhibit containing testimonial
`
`evidence within ten (10) business days of the date of this order.
`
`
`
`
`
`4
`
`

`

`PGR2019-00029
`Patent D821,986 S
`
`
`
`For PETITIONER:
`
`Shen Wang
`Hao Tan
`Arch & Lake LLP
`shenwang@archlakelaw.com
`haotan@archlakelaw.com
`
`
`For PATENT OWNER:
`
`David A. Casimir, Ph.D.
`Tyler J. Sisk, Ph.D.
`Casimir Jones S.C.
`docketing@casimirjones.com
`dacasimir@casimirjones.com
`tjsisk@casimirjones.com
`
`5
`
`

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