Huawei Technologies Co. Ltd.

Patent Trials and Appeals Board

Jan 26, 2021

IPR2020-01278 (P.T.A.B. Jan. 26, 2021)

Trials@uspto.gov Paper 12
Tel: 571-272-7822 Date: January 26, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

VERIZON BUSINESS NETWORK SERVICES LLC,
Petitioner,
v.
HUAWEI TECHNOLOGIES CO. LTD.,
Patent Owner.
____________

IPR2020-01278
Patent 9,312,982 B2
____________

Before TREVOR M. JEFFERSON, CHARLES J. BOUDREAU, and
MICHELLE N. WORMMEESTER, Administrative Patent Judges.

BOUDREAU, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314

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I. INTRODUCTION
Verizon Business Network Services LLC (“Petitioner”) filed a
Petition (Paper 1, “Pet.”) seeking inter partes review of claims 1–14 of
U.S. Patent No. 9,312,982 B2 (Ex. 1001, “the ’982 patent”). Huawei
Technologies Co. Ltd. (“Patent Owner”) filed a Preliminary Response
(Paper 6, “Prelim. Resp.”). With our authorization, Petitioner filed a Reply
to Patent Owner’s Preliminary Response (Paper 7, “Pet. Reply”), and Patent
Owner filed a Sur-reply (Paper 8, “PO Sur-reply”).1 We have jurisdiction
under 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a).
For the reasons that follow, we decline to institute an inter partes
review of the challenged claims.
II. BACKGROUND
A. Related Proceeding
The parties identify one related federal district court case, namely,
Huawei Technologies Co. v. Verizon Communications, Inc., 2:20-cv-00030-
JRG (E.D. Tex.), filed February 5, 2020. Pet. xii; Prelim. Resp. vi, 13;
Paper 4, 2 (Patent Owner’s Mandatory Notice).
B. The ’982 Patent
The ’982 patent relates to “methods and apparatuses for mapping
processing and de-mapping processing in an optical transport network.”
Ex. 1001, code (57).

1 We authorized the filing of Papers 7 and 8 in an e-mail sent on
December 1, 2020.
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C. Challenged Claims
Of the challenged claims, claims 1, 5, 9, and 12 are independent.
Claim 1 is illustrative of the challenged subject matter and is reproduced
below.
1. A method for processing data in an Optical Transport Network
(OTN), comprising:
mapping, by a processor of an apparatus for processing data, a
Lower Order Optical Channel Data Unit (LO ODU) signal into
a payload area of an Optical Channel Data Tributary Unit
(ODTU) signal in groups of M bytes, wherein M is equal to the
number of time slots of a Higher Order Optical Channel
Payload Unit (HO OPU) that are to be occupied by the ODTU
signal, and M is an integer larger than 1;
encapsulating overhead information to an overhead area of the
ODTU signal; and
multiplexing the ODTU signal into the HO OPU.
Ex. 1001, 9:44–56.
D. Asserted Grounds of Unpatentability
Petitioner challenges claims 1–14 of the ’982 patent on the following
grounds.
Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1, 2, 5, 6, 9, 10, 12, 13 103(a)2 Zou,3 Binetti4

2 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
Stat. 284, 285–88 (2011), revised 35 U.S.C. § 103 effective March 16, 2013.
Because the ’982 patent issued from a continuation of an application filed
before that date (see Ex. 1001, code 63) and does not include any claims
with a later effective filing date, we refer to the pre-AIA version of § 103.
3 EP 1826926 A1, published Aug. 29, 2007 (Ex. 1004).
4 US 2006/0228115 A1, published Oct. 12, 2006 (Ex. 1005).
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Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
3, 4, 7, 8, 11, 14 103(a) Zou, Binetti, Lahav5
Pet. 1. In support of its arguments, Petitioner relies on a Declaration of
Dr. Paul Min. (Ex. 1003). With its Preliminary Response, Patent Owner
submitted a Declaration of Dr. George Rouskas (Ex. 2001).
III. DISCRETIONARY DENIAL UNDER 35 U.S.C. § 314(A)
As mentioned above, the parties identify that the ’982 patent is the
subject of a pending district court proceeding. See supra § II.A; Pet. xii;
Paper 4, 2. Patent Owner argues that we should exercise discretion under
35 U.S.C. § 314(a) and deny institution based on the district court
proceeding because it involves the same parties, the same claims of the same
patent, as well as the same prior art, and the scheduled trial date in the
district court proceeding is June 7, 2021. Prelim. Resp. 3, 5–14;
Sur-reply 1–5. For its part, Petitioner argues that an evaluation of the Apple
v. Fintiv factors demonstrates that we should not exercise discretion to deny
institution of inter partes review. Pet. 1–4; Reply 2–5.
Institution of an inter partes review is discretionary. See 35 U.S.C.
§ 314(a) (2018) (stating “[t]he Director may not authorize an inter partes
review to be instituted unless the Director determines that the information
presented in the petition . . . shows that there is a reasonable likelihood that
the petitioner would prevail with respect to at least 1 of the claims
challenged in the petition”) (emphasis added); Harmonic Inc. v. Avid Tech.,
Inc., 815 F.3d 1356, 1367 (Fed. Cir. 2016) (“[T]he PTO is permitted, but

5 US 2003/0048813, published Mar. 13, 2003 (Ex. 1006).
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never compelled, to institute an IPR proceeding.”). In determining whether
to exercise that discretion on behalf of the Director, we are guided by the
Board’s precedential decision in NHK Spring Co. v. Intri-Plex Techs., Inc.,
IPR2018-00752, Paper 8 (PTAB Sept. 12, 2018).
In NHK, the Board found that the “advanced state of the district court
proceeding” was a “factor that weighs in favor of denying” the petition
under § 314(a). NHK, Paper 8 at 20. The Board determined that
“[i]nstitution of an inter partes review under these circumstances would not
be consistent with ‘an objective of the AIA . . . to provide an effective and
efficient alternative to district court litigation.’” Id. (citing Gen. Plastic
Indus. Co. v. Canon Kabushuki Kaisha, IPR2016-01357, Paper 19, 16–17
(PTAB Sept. 6, 2017) (precedential in relevant part)).
The Board’s precedential decision in Apple Inc. v. Fintiv, Inc.,
IPR2020-00019, Paper 11 (PTAB Mar. 20, 2020) (“Fintiv”) sets forth six
factors that we consider when determining whether to use our discretion to
deny institution due to the advanced state of parallel litigation:
1. whether the court granted a stay or evidence exists that
one may be granted if a proceeding is instituted;
2. proximity of the court’s trial date to the Board’s
projected statutory deadline for a final written decision;
3. investment in the parallel proceeding by the court and
the parties;
4. overlap between issues raised in the petition and in the
parallel proceeding;
5. whether the petitioner and the defendant in the parallel
proceeding are the same party; and
6. other circumstances that impact the Board’s exercise
of discretion, including the merits.
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Id. at 6. “These factors relate to whether efficiency, fairness, and the merits
support the exercise of authority to deny institution in view of an earlier trial
date in the parallel proceeding.” Id. In evaluating these factors, we take “a
holistic view of whether efficiency and integrity of the system are best
served by denying or instituting review.” Id. (citing Patent Trial and Appeal
Board Consolidated Trial Practice Guide 58 (Nov. 2019),
https://www.uspto.gov/TrialPracticeGuideConsolidated).
For the reasons explained below, we exercise our discretion to deny
institution based on § 314(a).
A. Analysis of Factors
We start with an analysis of the six Fintiv factors, addressing each
factor in turn.
1. Whether the Court Granted a Stay or Evidence Exists that
One May Be Granted if a Proceeding Is Instituted
A district court stay of a litigation pending resolution of a PTAB trial
allays concerns about inefficiency and duplication of efforts, a fact which
weighs strongly against exercising the authority to deny institution. Fintiv,
Paper 11 at 6. Here, Petitioner has requested a stay of the district court case
pending this proceeding. See Ex. 1012, 1–2. The district court characterized
Petitioner’s motion as “premature,” however, and denied the motion without
prejudice to refiling of the same. Id. at 3.
Petitioner argues that “a denial of stay but with a willingness to
reconsider if the PTAB institutes review[] weighs against discretionary
denial of institution.” Reply 2 (emphasis omitted) (quoting Shenzhen Carku
Tech. Co. v. Noco Co., IPR2020-00944, Paper 20 at 57 (PTAB Nov. 12,
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2020)). Patent Owner asserts that “the district court did not substantively
consider [Petitioner]’s motion,” and, therefore, “the present circumstance is
indistinguishable from one in which a motion to stay had never been filed.”
Sur-reply 1. Patent Owner further asserts that the presiding judge in the
district court case “routinely denies motions to stay when, as here, fewer
than all asserted patents are challenged in IPRs (here two asserted patents
are unchallenged in IPRs) or where the litigation is in an advanced stage (at
the time of institution, claim construction proceedings will have concluded,
fact discovery will have closed, and rebuttal expert witness reports will be
served within days).” Id. at 1–2. Patent Owner adds that Shenzhen “is
inapposite because two parallel cases had already been stayed pending
resolution of the IPR proceeding, and different district courts were at issue.”
Id. at 1 (citing Shenzhen, Paper 20 at 57).
As Patent Owner points out, the district court has not substantively
considered Petitioner’s motion to stay. A judge determines whether to
grant a stay based on the facts of each specific case as presented in the
briefs by the parties. We decline to infer, based on actions taken in
different cases with different facts, how the district court would rule
should a stay be requested again in the parallel case here. The district
court’s denial of Petitioner’s initial motion to stay without prejudice,
however, suggests that the district court may be willing to avoid
duplicative efforts and await the Board’s final resolution of the
patentability issues raised in the petition before proceeding with the
parallel litigation. See Fintiv, Paper 11 at 6–7. We determine that this
factor is neutral or weighs marginally against exercising discretion to
deny institution.
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2. Proximity of the Court’s Trial Date to the Board’s
Projected Statutory Deadline for a Final Written Decision
If a district court’s trial date is earlier than the Board’s projected
statutory deadline for a final written decision, the Board generally has
weighed this fact in favor of exercising discretion to deny institution. Fintiv,
Paper 11 at 9. Here, the district court has set its trial date for June 7, 2021,
approximately eight months before our deadline to reach a final decision.
Ex. 2002, 1 (district court’s scheduling order).
Petitioner expresses its concern about the uncertainty of this trial date
due to the COVID-19 pandemic, which Petitioner asserts will “make trial
postponement probable.” Pet. 2. Petitioner notes that “the Eastern District
of Texas (the litigation venue) issued an Order in March continuing all jury
trials for several months, given COVID-19 issues.” Id. Petitioner also notes
that the presiding judge in the parallel district court case “has already
commenced delaying jury trials (and related pretrial conferences) for nearly
4 months, noting that another EDTX trial had already resulted in a mistrial
due to COVID-19.” Reply 2 (citing Ex. 1013, 1, 2 n.3, 3). According to
Petitioner, “[t]his delay will likely have a cascading effect on later trials
including the trial in the parallel litigation.” Id.
In response, Patent Owner asserts that the March order continuing
jury trials in the Eastern District of Texas expired in May 2020, and that the
district has not extended its suspension of jury trials since the expiration.
Prelim. Resp. 7–8 (citing Ex. 2008; Ex. 2009). Patent Owner also asserts
that Petitioner’s “reference to a four-month delay[] in a different case before
[the presiding judge] is neither applicable to this case, nor sufficient to
overcome the eight-month gap between the scheduled trial date and the
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expected date of any final written decision.” Sur-reply 2. In addition, Patent
Owner asserts that Petitioner’s “suggestion of cascading effects on later
trials is speculative and incorrect,” as the presiding judge’s “continuation of
trials is expressly limited to cases that were set for in-person jury trials
between December 2020 and February 2021.” Id. (citing Ex. 1013, 1).
Patent Owner adds, “Critically, the 6/7/2021 trial date in the Co-pending
Litigation remains on the calendar.” Id. (citing Ex. 2002); see also Prelim.
Resp. 9 (“[N]either party has sought an extension of any deadline, much less
one that will affect the trial date, nor has the court sua sponte changed any
deadlines. . . . [T]he district court scheduling order does not include any
qualifying language, instead identifying a specific date and time for jury
selection.”).
We agree with Patent Owner. The trial date is set for June 7, 2021.
The circumstances here do not give rise to any uncertainty regarding the
district court’s schedule. Cf. Sand Revolution II, LLC v. Cont’l Intermodal
Grp. – Trucking LLC, IPR2019-01393, Paper 24 at 8–9 (PTAB June 16,
2020) (informative) (explaining that the district court’s extension of the trial
date three times as well as its inclusion of the qualifier “or as available” for
each calendared trial date made it “unclear that the court in the related
district court litigation will adhere to any currently scheduled jury trial date
or, if it is changed, when such a trial will be held”). We generally take
courts’ trial schedules at face value absent sufficient evidence to the
contrary. Here, apart from speculation, we have no reason to believe that the
scheduled trial date will be postponed. Because the district court trial is
currently scheduled to begin approximately eight months before our deadline
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to reach a final decision, this factor weighs in favor of exercising discretion
to deny institution.
3. Investment in the Parallel Proceeding by the Court and the Parties
We consider now the amount and type of work already completed in
the parallel litigation by the court and the parties at the time of the institution
decision. See Fintiv, Paper 11 at 9.
Patent Owner argues that this factor “strongly favors discretionary
denial in view of the significant investment in the parallel proceeding by the
parties and Court that has already occurred and will occur by the deadline
for institution.” Prelim. Resp. 10. Patent Owner asserts that “[a]s of the
expected date of the Board’s institution decision on January 27, 2021, the
parties will have fully briefed and argued claim construction at the Markman
hearing (December 18, 2020), completed fact discovery (January 19, 2021),
and exchanged expert reports (January 19, 2021).” Id. (citing Ex. 2002, 3);
accord Sur-reply 3. Patent Owner also asserts that “[e]xpert discovery will
close one month after the expected institution decision date (February 26,
2021).” Prelim. Resp. 10 (citing Ex. 2002, 3). Additionally, Patent Owner
notes that “[t]he present case will be even more advanced than in NHK,
where the Board exercised its § 314(a) discretion when expert discovery was
scheduled to close in less than two months and a jury trial was scheduled to
begin in six months.” Id. (citing NHK, Paper 8 at 20).
Petitioner replies that this factor weighs in favor of institution because
Petitioner filed this Petition two months after receiving Patent Owner’s
preliminary infringement contentions, within two weeks of the preliminary
invalidity contention deadline, and before any claim construction
proceedings. Pet. 3; see also Reply 3.
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Although we credit Petitioner’s diligence in filing its Petition in this
proceeding within a relatively short time (two months) after being served
infringement contentions in the parallel litigation, we also recognize that the
parties and the court have expended considerable resources to date on the
parallel case. This effort includes, for example, submitting fully briefed
arguments on claim construction and conducting a Markman hearing.
Prelim. Resp. 10; Ex. 2002, 3.6 Additionally, discovery is well underway,
with fact discovery already completed and expert discovery closing on
February 26, 2021. Prelim. Resp. 10; Ex. 2002, 3. The trial is scheduled
to begin in less than five months. See Ex. 2002, 3. Petitioner does not
dispute these facts. On balance, we determine that this factor weighs in
favor of exercising discretion to deny institution.
4. Overlap Between Issues Raised in the Petition and in the Parallel
Proceeding
This factor evaluates “concerns of inefficiency and the possibility of
conflicting decisions” when substantially identical prior art is submitted in
both the district court and the inter partes review proceeding. Fintiv,
Paper 11 at 12.
Patent Owner argues that “all of the same grounds and claims in this
Petition are also at issue in the co-pending litigation,” and that “addressing
these same issues here would duplicate efforts.” Prelim. Resp. 11 (citing
Ex. 2011, 56–73).

6 The district court issued a Markman order in the parallel litigation on
January 15, 2021. Ex. 2027.
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Petitioner responds by stipulating that it “will not pursue certain
invalidity arguments in the parallel litigation upon institution of
corresponding IPRs.” Reply 1; Ex. 1010 (Petitioner’s stipulation). This
stipulation is formalized in an e-mail among counsel for the parties. See
Ex. 1010. In light of its stipulation, Petitioner asserts that “any duplication
of efforts would be de minimis, given that efforts expended towards these
theories in the parallel litigation would be redirected to the instituted IPR.”
Reply 4.
Patent Owner counters that Petitioner’s stipulation “covers only prior
art references expressly raised in the petition,” and that Petitioner “has not
offered to withdraw all grounds that it reasonably could have raised.”
Sur-reply 4 (citing Ex. 1010). According to Patent Owner, “[t]he narrow
scope of [Petitioner’s] stipulation means that [Petitioner] would not be
precluded from asserting other printed publications, including highly similar
obviousness theories, in the Co-pending Litigation.” Id.
Although Petitioner’s stipulation mitigates to some degree the
concerns of duplicative efforts between the district court and the Board, as
well as concerns of potentially conflicting decisions, we agree with Patent
Owner that the stipulation is too narrow to sufficiently allay such concerns.
We note that Petitioner could have stipulated that it would not pursue any
ground raised or that could have been reasonably raised in an inter partes
review, that is, any ground that could have been raised under 35 U.S.C.
§§ 102 or 103 on the basis of prior art patents or printed publications. See
Sand Revolution, Paper 24 at 12 n.5; see also Sotera Wireless, Inc. v.
Masimo Corp., IPR2020-01019, Paper 12 at 19 (PTAB Dec. 1, 2020)
(precedential) (finding that the petitioner’s stipulation “mitigates any
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concerns of duplicative efforts between the district court and the Board, as
well as concerns of potentially conflicting decisions,” where the petitioner
“broadly stipulates to not pursue ‘any ground raised or that could have been
reasonably raised’”). A broader stipulation of that nature “might better
address concerns regarding duplicative efforts and potentially conflicting
decisions in a much more substantial way.” Sand Revolution, Paper 24 at 12
n.5. “Likewise, such a stipulation might help ensure that an IPR functions as
a true alternative to litigation in relation to grounds that could be at issue in
an IPR.” Id. “Further still, Petitioner could have expressly waived in the
district court any overlapping patentability [or] invalidity defenses.” Id.
Thus, Petitioner’s stipulation reduces concerns regarding overlapping issues,
but it does not eliminate them.
We note that subsequent to the briefing in this case the parties filed a
joint motion to narrow the patent claims and prior art at issue in the parallel
litigation (Ex. 1014) and that the district court has granted that motion
(Ex. 1016). We further note, however, that related correspondence between
the parties now entered into the record of this proceeding indicates that all
four of the challenged independent claims, as well as dependent claims 2, 3,
6, 7, and 8, continue to be asserted in the parallel litigation. See Ex. 1015.
Given the facts here, we determine that this factor weighs somewhat
against exercising discretion to deny institution.
5. Whether the Petitioner and the Defendant in
the Parallel Proceeding Are the Same Party
Both Petitioner and Patent Owner acknowledge that the parties in the
parallel district court proceeding and this proceeding are the same. Pet. 4;
Prelim. Resp. 12. Petitioner argues that “[t]his factor should not be a basis
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for denying institution.” Pet. 4. Petitioner has not provided sufficient
explanation as to why this factor should not weigh against it. On its face,
Fintiv indicates that this is a factor that should be considered as part of our
analysis. See Fintiv, Paper 11 at 6. Thus, we determine that this factor
weighs in favor of exercising discretion to deny institution.
6. Other Circumstances that Impact the Board’s
Exercise of Discretion, Including the Merits
For the final Fintiv factor, we take into account any other relevant
circumstances.
Petitioner argues that “policy considerations support institution.”
Pet. 4. According to Petitioner, “[d]enying institution in this situation––
where a petition is filed within five months of a Complaint––merely because
a trial has been scheduled prior to the [final decision] date, would deny
petitioners any right to pursue an IPR in speedy jurisdictions.” Id.
Petitioner asserts that “even had [it] filed its petition on the day it was sued
(February 5, 2020), it would still have been unable to complete an IPR prior
to the scheduled trial date (June 7, 2021).” Id. (emphasis omitted). Patent
Owner counters that Petitioner “waited more than 15 months from the time it
received notice of its infringement before filing this Petition,” and that such
“significant delay . . . undercuts Petitioner’s argument regarding policy
considerations.” Prelim. Resp. 13–14. On the record before us, we do not
consider Petitioner’s filing untimely, but that does not alter the fact that the
district court’s trial date is nearly eight months before our deadline to reach a
final decision.
As a separate consideration, each party argues that the merits tip the
balance in its favor. Pet. 4; Prelim. Resp. 13; Sur-reply 5. Although we may
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consider the merits for this factor, a full analysis of the merits is not
necessary; rather, the parties may point out particular strengths or
weaknesses to aid us in deciding whether the merits tip the balance one way
or another. Fintiv, Paper 11 at 14–16. Thus, a petitioner may draw attention
to certain grounds that it believes are particularly persuasive of
unpatentability. Id. at 14–15. Conversely, a patent owner may point to
arguments that, on balance, make the petitioner’s case a close call. Id. at 15.
Our initial inspection of the merits here suggests that Petitioner’s
challenges across both asserted grounds contain certain weaknesses. For
example, Patent Owner identifies a potential deficiency in Petitioner’s
evidence supporting its contention that the cited references teach or suggest
the “mapping” and “de-mapping” steps recited in independent claims 1 and
9, respectively, and the corresponding executable instructions recited in
independent claims 5 and 12, respectively. See Prelim. Resp. 33–43.
Thus, on balance, we find that this factor weighs in favor of exercising
discretion to deny institution. See Fintiv, Paper 11 at 15 (“[I]f the merits of
the grounds raised in the petition are a closer call, then that fact has favored
denying institution when other factors favoring denial are present.”).
B. Balancing of Factors
We have considered the circumstances and facts before us in view of
the Fintiv factors. Our analysis is fact-driven, and no single factor is
determinative of whether we exercise our discretion to deny institution under
§ 314(a). Here, Factors 2, 3, 5, and 6 weigh to varying degrees in favor of
discretionary denial, while Factors 1 and 4 weigh somewhat against
discretionary denial. In short, the merits of Petitioner’s arguments are a
close call. The district court will evaluate Petitioner’s assertions regarding
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the art cited in the Petition, and trial in the parallel litigation will conclude
well before this matter would reach a final decision if we were to institute an
inter partes review. The parties and the court have made significant
investment in the parallel litigation, with fact discovery and claim
construction already completed and expert discovery closing in
approximately one month. Factor 1 weighs at most marginally against
discretionary denial because the district court has not entirely ruled out the
possibility of a stay. The court’s trial date, however, is set to begin eight
months before our deadline to reach a final decision. See Fintiv, Paper 11
at 7 (explaining that a court’s willingness to reconsider a stay “has usually
weighed against exercising authority to deny institution,” but “proximity of
the court’s trial date and investment of time are relevant to how much weight
to give to the court’s willingness to reconsider a stay”). Moreover, as noted
above, discovery is well underway with the deadlines for completing
discovery fast-approaching. See id. Factor 4 also weighs somewhat
against discretionary denial because Patent Owner has elected to narrow
the asserted claims in the parallel litigation and Petitioner’s stipulation
reduces concerns regarding overlapping issues raised in the Petition and in
the parallel litigation. Petitioner’s stipulation, however, does not sufficiently
eliminate those concerns, and, as noted above, all four challenged
independent claims, among others, continue to be at issue in the parallel
litigation. Thus, evaluating the Fintiv factors with a holistic view of whether
the efficiency and integrity of the system are best served by denying or
instituting review, we determine that the specific facts of this case weigh in
favor of exercising discretion to deny institution.
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IV. CONCLUSION
For the foregoing reasons, we exercise our discretion under § 314(a)
to deny institution of inter partes review.
V. ORDER
For the reasons given, it is
ORDERED that the Petition is denied and no trial is instituted.

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PETITIONER:
Justin J. Oliver
Jonathan L. Falkler
VENABLE LLP
joliver@venable.com
jlfalkler@venable.com

PATENT OWNER:
Scott McKeown
James L. Davis, Jr.
Christopher M. Bonny
ROPES & GRAY LLP
scott.mckeown@ropesgray.com
james.l.davis@ropesgray.com
christopher.bonny@ropesgray.com