`571-272-7822
`
`Paper No. 46
`Date: November 2, 2022
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`EVERSTAR MERCHANDISE CO., LTD.,
`Petitioner,
`v.
`WILLIS ELECTRIC CO., LTD.,
`Patent Owner.
`
`
`PGR2019-00056
`Patent 10,222,037 B2
`
`
`
`
`
`
`
`
`
`
`Before DEBRA K. STEPHENS, STACEY G. WHITE, and
`JEFFREY W. ABRAHAM, Administrative Patent Judges.
`ABRAHAM, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5
`
`
`
`
`
`PGR2019-00056
`Patent 10,222,037 B2
`
`
`On October 11, 2022, we issued a Final Written Decision on Remand.
`
`Paper 45. On Thursday, October 20, 2022, counsel for Petitioner contacted
`the Board via e-mail informing us that neither party received service of the
`Decision. Ex. 3001. Counsel for Petitioner indicated that it discovered the
`existence of the Decision by chance on October 19, 2022. Ex. 3001. In
`view of the delay in learning about the Decision, Petitioner requests that
`“any deadlines for appeal (whether internally at the PTAB or to the Federal
`Circuit) run from” October 20, 2022, rather than October 11, 2022. Ex.
`3001. Petitioner indicates that Patent Owner does not oppose the request.
`
`Pursuant to 37 C.F.R. § 42.71(d)(2), a party dissatisfied with a
`decision may file a request for rehearing within 30 days of the entry of a
`final decision. A party must also comply with this timing requirement when
`requesting Director review or Precedential Opinion Panel review. See
`Interim Process for Director review § 41; Standard Operating Procedure 2,2
`5.
`
`We have investigated this issue and determined that our notification
`system did not send electronic notices of the issuance of the Final Written
`Decision on Remand to the parties. In view of the specific circumstances in
`this case, we grant Petitioner’s request to extend the deadline for filing a
`request for rehearing under 37 C.F.R. § 42.71(d)(2). Accordingly, the
`deadline to file a request for rehearing of the Final Written Decision on
`Remand in this proceeding is November 21, 2022. This extension also
`
`
`1 Available at https://www.uspto.gov/patents/patent-trial-and-appeal-
`board/interim-process-director-review
`2 Available at available at https://www.uspto.gov/sites/default/files/
`documents/SOP2%20R10%20FINAL.pdf P2 R10 FINAL.pdf.
`
`2
`
`
`
`PGR2019-00056
`Patent 10,222,037 B2
`
`
`applies to a request for Director review or Precedential Opinion panel
`review.
`With regard to Petitioner’s request for an extension of the deadline for
`filing an appeal to the Federal Circuit, we note that 37 C.F.R. § 90.3(a)
`requires a notice of appeal pursuant to 35 U.S.C. § 142 must be filed no later
`than 63 days after the date of the final Board decision, which remains as
`October 11, 2022. Pursuant to Rule 90.3(b), “[a] timely request for
`rehearing will reset the time for appeal or civil action to no later than sixty-
`three (63) days after action on the request.” Therefore, if either party files a
`request for rehearing before the November 21, 2022 deadline, such a request
`will reset the time for appeal to the Federal Circuit. If neither party files a
`timely request for rehearing, however, the parties must file a written request
`for an extension of time for filing an appeal to the Federal Circuit, pursuant
`to Rule 90.3(c) and Rule 104.2.
`
`In consideration of the foregoing, it is hereby:
`
`ORDERED that the deadline for filing a request for rehearing of the
`Final Written Decision on Remand in this proceeding is November 21, 2022.
`This extension also applies to a request for Director review or Precedential
`Opinion panel review.
`
`
`
`
`
`
`
`3
`
`
`
`PGR2019-00056
`Patent 10,222,037 B2
`
`
`For PETITIONER:
`Barry J. Herman
`Brenton Babcock
`Preston Heard
`WOMBLE BOND DICKINSON(US) LLP
`barry.herman@wbd-us.com
`bbabcock@loeb.com
`preston.heard@wbd-us.com
`
`For PATENT OWNER:
`John Fonder
`Doug Christensen
`CHRISTENSEN, FONDER, DARDI & HERBERT, PLLC
`fonder@cfd-ip.com
`christensen@cfd-ip.com
`
`Timothy Bianchi
`SCHWEGMAN LUNDBERG & WOESSNER, P.A.
`tbianchi@slwip.com
`
`
`
`
`
`
`
`4
`
`
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