`571-272-7822
`
` Paper No. 10
` Date: September 15, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SYNGENTA CROP PROTECTION AG,
`Petitioner,
`v.
`FMC Corporation,
`Patent Owner.
`
`PGR2020-00028
`Patent 10,294,202 B2
`
`
`
`
`
`
`
`
`
`Before SUSAN L. C. MITCHELL, ZHENYU YANG, and
`CYNTHIA M. HARDMAN, Administrative Patent Judges.
`HARDMAN, Administrative Patent Judge
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`PGR2020-00028
`Patent 10,294,202 B2
`
`
`The current record reflects a disputed issue of fact as to whether
`Petitioner has identified all real parties in interest in this proceeding.
`Specifically, in the Petition, Petitioner identifies itself as the real party in
`interest, and states “[w]hile not a real-party-in-interest, Syngenta AG owns
`100% of Syngenta Crop Protection AG.” Paper 1, 3. In its Preliminary
`Response, Patent Owner argues that the Petition “fails to name all real
`parties in interest” because Petitioner did not name parent companies
`Syngenta AG, ChemChina, and CNAC. Paper 7, 2, 61.
`Under 35 U.S.C. § 322(a)(2), a petition for post-grant review may be
`considered only if it identifies all real parties in interest. We generally
`accept a petitioner’s initial identification of real parties in interest, unless the
`patent owner presents some evidence to support its argument that an
`unnamed party should be included as a real party in interest. See Worlds
`Inc. v. Bungie, Inc., 903 F.3d 1237, 1242 (Fed. Cir. 2018) (explaining that
`“an IPR petitioner’s initial identification of the real parties in interest should
`be accepted unless and until disputed by a patent owner,” and that “a patent
`owner must produce some evidence to support its argument that a particular
`third party should be named a real party in interest”). Because Patent Owner
`here “produce[d] some evidence that tends to show that a particular third
`party should be named a real party in interest,” id. at 1244 (emphasis in
`original), and in the interest of addressing early in the proceeding whether
`Syngenta AG, ChemChina, and/or CNAC are real parties in interest, the
`Board authorizes the parties to submit additional information to address
`Patent Owner’s contention that Syngenta AG, ChemChina, and CNAC are
`real parties in interest here.
`
`
`
`2
`
`
`
`PGR2020-00028
`Patent 10,294,202 B2
`
`
`ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that on or before September 22, 2020, Petitioner may, if it
`chooses, update its Mandatory Notices to add one or more of Syngenta AG,
`ChemChina, and/or CNAC as a real party in interest;
`FURTHER ORDERED that, if after the above deadline Patent Owner
`continues to dispute whether Syngenta AG, ChemChina, and/or CNAC are
`real parties in interest in this proceeding, Patent Owner is authorized to file,
`on or before September 29, 2020, a brief, which shall not exceed 7 pages,
`limited to addressing whether Syngenta AG, ChemChina, and/or CNAC are
`real parties in interest in this proceeding;
`FURTHER ORDERED that Petitioner is authorized to file, on or
`before October 6, 2020, a response to any such brief, which response shall
`not exceed 7 pages, and shall be limited to addressing whether Syngenta
`AG, ChemChina, and/or CNAC are real parties in interest in this proceeding;
`FURTHER ORDERED that the parties may support their briefs with
`citations to relevant evidence; and
`FURTHER ORDERED that no additional briefing is authorized at this
`
`time.
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`PGR2020-00028
`Patent 10,294,202 B2
`
`FOR PETITIONER:
`
`Toni-Junell Herbert
`Michael E. Anderson
`Fabian Koenigbauer
`David Klecyngier
`BAKERHOSTETLER LLP
`therbert@bakerlaw.com
`meanderson@bakerlaw.com
`fkoenigbauer@bakerlaw.com
`dklecyngier@bakerlaw.com
`
`
`FOR PATENT OWNER:
`
`Dorothy P. Whelan
`Susan Morrison
`Kathryn Grey
`Edward L. Brant
`FISH & RICHARDSON P.C.
`whelan@fr.com
`morrison@fr.com
`grey@fr.com
`edward.brant@fmc.com
`
`Roberte M.D. Makowski
`FMC CORPORATION
`roberte.makowski@fmc.com:
`
`
`
`
`
`
`4
`
`
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