`571.272.7822
`
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`
`
`
` Paper No. 9
` Date: May 20, 2020
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SHIELDMARK, INC.
`Petitioner,
`v.
`CLIFFORD A. LOWE
`Patent Owner.
`____________
`
`PGR2019-00058
`Patent 10,214,664 B2
`____________
`
`
`Before CHRISTOPHER L. CRUMBLEY, JO-ANNE M. KOKOSKI, and
`SHELDON M. MCGEE, Administrative Patent Judges.
`
`MCGEE, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`
`PGR2019-00058
`Patent 10,214,664 B2
`
`On April 8, 2020, the Board’s electronic filing system, PTABE2E,
`
`sent an email to the parties stating that a Request for Rehearing had been
`filed in this proceeding. The email also indicated, in all capital letters,
`“THERE WERE NO DOCUMENTS SUBMITTED WITH THIS
`REQUEST.” Ex. 3001.
`
`On May 13, 2020, the Board contacted the parties as follows:
`
`On April 8, 2020, it appears that Petitioner initiated the process
`of filing a request for rehearing in PTABE2E. However, no
`actual document was filed. Petitioner is requested to indicate
`whether it intended to file a request for rehearing, and if so,
`explain why no document was filed and whether it now seeks to
`submit a request for rehearing late. To the extent that Petitioner
`wishes the Board to accept the late filing of a request for
`rehearing, the parties shall meet and confer on that issue and
`propose mutually available times for a conference call on May
`18–21, 2020.
`
`
`
`The parties requested a call with the Board and on May 19, 2020,
`Judges Crumbley, Kokoski, and McGee held a call with counsel to address
`whether the Board should accept the late filing of Petitioner’s Request for
`Rehearing. Petitioner’s counsel represented Petitioner had intended to file a
`Request for Rehearing, believed it had timely done so, and that a copy was
`timely served on Patent Owner’s counsel on April 8, 2020. During the
`conference call, Patent Owner’s counsel confirmed that Patent Owner was
`timely served with Petitioner’s Request for Rehearing on April 8, 2020, and
`that it opposes Petitioner’s request that the Board accept the late filing of
`Petitioner’s Request for Rehearing. Both parties indicated that they believed
`Petitioner’s Request was properly filed with the Board until receiving the
`Board’s May 13, 2020 email.
`
`2
`
`
`
`PGR2019-00058
`Patent 10,214,664 B2
`
`During the conference call, the Board authorized Petitioner to file a
`
`motion to accept the late filing of the Request for Rehearing that was served
`on Patent Owner April 8, 2020, along with a copy of the Request for
`Rehearing. The motion should explain the circumstances that led to the
`filing error, and set forth why good cause exists for the Board to accept the
`late filing. See 37 C.F.R. § 42.5(c)(3) (“A late action will be excused on a
`showing of good cause or upon a Board decision that consideration of the
`merits would be in the interests of justice.”). The motion may not exceed
`three pages in length and is due within five business days of the conference
`call, i.e., no later than May 27, 2020. We also authorized Patent Owner to
`file an opposition to Petitioner’s motion, also limited to three pages and due
`within five business days after Petitioner’s motion is filed with the Board.
`Patent Owner’s opposition, if filed, shall explain what prejudice Patent
`Owner has suffered or will suffer if Petitioner’s motion is granted.
`
`
`
`Accordingly, it is
`ORDERED that Petitioner is authorized to file a motion to accept the
`late filing of its Request for Rehearing, not exceeding three pages in length,
`along with a copy of the Request for Rehearing as served upon Patent
`Owner’s counsel, no later than May 27, 2020;
`FURTHER ORDERED that Patent Owner is authorized to file an
`opposition to Petitioner’s motion, not exceeding three pages in length,
`within five business days after Petitioner’s motion is filed.
`
`
`
`
`
`
`3
`
`
`
`PGR2019-00058
`Patent 10,214,664 B2
`
`PETITIONER:
`
`Howard Wernow
`Rich Megley
`Joseph Sebolt
`howard.wernow@sswip.com
`rmegley@leesheikh.com
`joe.sebolt@sswip.com
`
`
`PATENT OWNER:
`
`Ray L. Weber
`Laura J Gentilcore
`rlweber@rennerkenner.com
`ljgentilcore@rennerkenner.com
`
`
`
`
`
`4
`
`
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