Terremark North America LLCv.Joao Control & Monitoring Systems, LLC

Patent Trial and Appeal Board

Dec 28, 2015

10244334 (P.T.A.B. Dec. 28, 2015)

Trials@uspto.gov Paper 10
571-272-7822 Entered: December 28, 2015
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

TERREMARK NORTH AMERICA LLC, VERIZON BUSINESS
NETWORK SERVICES INC., VERIZON SERVICES CORP., TIME
WARNER CABLE INC., ICONTROL NETWORKS, INC., and
COXCOM, LLC
Petitioner,

v.

JOAO CONTROL & MONITORING SYSTEMS, LLC,
Patent Owner.
____________

Case IPR2015-01482
Patent 7,397,363 B2
____________

Before HOWARD B. BLANKENSHIP, STACEY G. WHITE, and
JASON J. CHUNG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108

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I. INTRODUCTION
Petitioner, Terremark North America LLC, Verizon Business
Network Services Inc., Verizon Services Corp., Time Warner Cable Inc.,
Icontrol Networks, Inc., and Coxcom, LLC, filed a Petition requesting an
inter partes review of claims 42–46, 48, 53, 54, and 84–86 of U.S. Patent
No. 7,397,363 B2 (Ex. 1001, “the ’363 patent”). Paper 1 (“Pet.”). In
addition, on August 5, 2015, Petitioner filed a Motion to Recognize June 23,
2015, as the filing date. Paper 6 (“Motion”). On August 19, 2015, in
response to Petitioner’s Motion, Patent Owner, Joao Control & Monitoring
Systems, LLC, filed Patent Owner’s Opposition to Motion to Recognize
June 23 as the filing date. Paper 7. Patent Owner filed a Preliminary
Response. Paper 9 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C.
§ 314, which provides that an inter partes review may not be instituted
“unless . . . 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.”
For the reasons set forth below, we determine that the Petition was not
filed timely within the statutory period of 35 U.S.C. § 315(b). We, thus,
deny inter partes review of the ’363 patent.
A. Identifying the Petitioner
Petitioner presents various lists of petitioning parties throughout the
Petition. The Petition lists Terremark North America LLC, Verizon
Communications Inc., Verizon Services Corp., Time Warner Cable Inc.,
iControl Networks, Inc., and Coxcom, LLC in the caption of the Petition.
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Only three of the listed petitioners, Terremark North America LLC, Verizon
Business Network Services Inc., and Verizon Services Corp., however, are
identified in the Petition as Petitioners in the “[r]eal party-in-interest”
section. Pet. 1. Five entities, CoxCom, LLC, Terremark North America
LLC, Verizon Communications Inc., Time Warner Cable, Inc., and iControl
Networks, Inc. are identified in the Petition as Petitioners in the “[l]ead and
back-up counsel” section. Pet. 4–5.
Verizon Communications Inc., Verizon Corporate Resources Group
LLC, and Verizon Data Services LLC are identified in the Petition as real
parties-in-interest. Pet. 2. Petitioner notes that Verizon Communications
Inc. has more than 500 affiliated entities and states that “each of these
entities agrees to be estopped under the provisions of 35 U.S.C. §§ 315
and/or 325 as a result of any final written decision in the requested IPR to
the same extent that the Petitioners are estopped.” On this record, we
construe any mismatch between the named Verizon entities to be a
typographical error.
Because Petitioner identifies five entities, CoxCom, LLC, Terremark
North America LLC, Verizon Communications Inc., Time Warner Cable,
Inc., and iControl Networks, Inc. as Petitioners in the “[l]ead and back-up
counsel” section (id.), and, as stated supra, any mismatch between the
named Verizon entities (e.g., Verizon Communications Inc., Verizon
Business Network Services, and Verizon Services Corp.) is a typographical
error, we construe any mismatch between the caption of the Petition, the
“[r]eal party-in-interest” section, and the “[l]ead and back-up counsel”
section to be a typographical error.
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We, thus, identify Petitioner as Terremark North America LLC,
Verizon Communications Inc., Verizon Services Corp., Verizon Business
Network Services, Time Warner Cable Inc., iControl Networks, Inc., and
Coxcom, LLC.
B. Related Matters
Petitioner indicates that the ’363 patent has been asserted in the
following proceedings: (1) Joao v. LifeShield, Inc., No. 2-15-cv-02772
(E.D. Pa.); (2) Joao v. Telular Corp., No. 1-14-cv-09852 (N.D. Ill.);
(3) Joao v. Mobile Integrated Solutions, LLC, No. 2-14-cv-02643 (D. Ariz.);
(4) Joao v. Comverge, Inc., No. 1-14-cv-03862 (N.D. Ga.); (5) Joao v.
Slomin’s Inc., No. 2-14-cv-02598 (E.D.N.Y.); (6) Joao v. Cox
Communications, Inc., No. 1-14-cv-00520 (D. Del.); (7) Joao v. Nissan
North America, Inc., No. 1-14-cv-00523 (D. Del.); (8) Joao v. Verizon
Communications, Inc., No. 1-14-cv-00525 (D. Del.); (9) Joao v. Time
Warner Cable, Inc., No. 1-14-cv-00524 (D. Del.); (10) Joao v. Consolidated
Edison, Inc., No. 1-14-cv-00519 (D. Del.); (11) Joao v. Volkswagen Group
of America, Inc., No. 1-14-cv-00517 (D. Del.); (12) Alarm.com Inc. v. Joao,
No. 1-14-cv-00284 (D. Del.); (13) Joao v. Protect America, Inc., No. 1-14-
cv-00134 (D. Del.); (14) Joao v. FrontPoint Security Solutions LLC, No. 1-
13-cv-01760 (D. Del.); (15) Joao v. Chrysler Corp., No. 4-13-cv-13957
(E.D. Mich.); (16) Joao v. Ford Motor Co., No. 4-13-cv-13615 (E.D.
Mich.); (17) Joao v. Lowe’s Cos., Inc., No. 5-13-cv-00056 (W.D.N.C.);
(18) Joao v. Vivint Inc., No. 1-13-cv-00508 (D. Del.); (19) Joao v. Chrysler
Corp., No. 1-13-cv-00053 (S.D.N.Y.); (20) Joao v. Ford Motor Co., No. 1-
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12-cv-01479 (D. Del.); (21) Joao v. City of Yonkers, No. 1-12-cv-07734
(S.D.N.Y.); (22) Joao v. Ford Motor Co., No. 4-12-cv-14004 (E.D. Mich.);
(23) Joao v. Xanboo, Inc., et al., No. 2-12-cv-03698 (C.D. Cal.); (24) Joao
of California, LLC v. Sling Media, Inc., et al., No. 3-11-cv-06277 (C.D.
Cal.); and (25) Joao of California, LLC v. ACTI Corp. Inc., No. 8-10-cv-
01909 (C.D. Cal.). Pet. 2–4; Paper 5.
According to Patent Owner, the ’363 patent also is currently the
subject of four ex parte reexaminations, Reexamination Control Nos.:
(1) 90/013,303; (2) 90/013,301; (3) 90/013,302; and (4) 90/013,300. Paper
5, 5. Petitioner concurrently filed petitions requesting an inter partes review
of the following U.S. Patent Nos.: (1) 7,397,363 (Case IPR2015-01485);
(2) 6,549,130 (Case IPR2015-01509); (3) 6,542,077 (Case IPR2015-01466);
(4) 6,587,046 (Case IPR2015-01477); (5) 7,277,010 (Case IPR2015-01484);
(6) 6,542,076 (Case IPR2015-01478); and (7) 6,542,076 (Case IPR2015-
01508). Id. at 4–5.
II. ANALYSIS
Because at least one of the petitioning parties was served with a
complaint on June 23, 2014 (Exs. 2002–2005), the statutory bar date for
IPR2015-01485 is June 23, 2015. 35 U.S.C. § 315(b); 37 C.F.R.
§ 42.101(b). Petitioner, however, was accorded a filing date of June 24,
2015. Paper 3. Petitioner filed, served, and paid the fee for IPR2015-01482
on June 24, 2015, which is one day after the statutory bar date. Motion 2–5
(citing Ex. 1 ¶¶ 1–12).1

1 Exhibits 1–4, filed by Petitioner with the Motion, do not comply with
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Petitioner contends that it is not barred or estopped from requesting an
inter partes review of the ’363 patent, thus, satisfying the requirements of
§ 315(b) because the Patent Review Processing System (“PRPS”) “was
apparently malfunctioning” when Petitioner repeatedly attempted to upload
documents the night of June 23, 2015. Motion 2–5. Petitioner also alleges
the three petitions (i.e., IPR2015-01482, IPR2015-01485, and IPR2015-
01486) were filed serially to avoid having to reload any previously
submitted exhibits, which caused Petitioner to complete the filing of all three
cases after June 23, 2015. Id. at 4. In addition, Petitioner alleges the expert
Declaration filed incorrectly is “simply clerical and an oversight” because it
uploaded mistakenly the expert Declaration for IPR2015-01485 in IPR2015-
01482. Id. at 5–6. Petitioner additionally argues the Board has the
authority, as demonstrated in past decisions, to recognize the filing date for
this inter partes review as June 23, 2015. Id. at 6–9. Moreover, Petitioner
alleges that there is no prejudice to Patent Owner because immediate
remedial measures were taken right away by Petitioner. Id. at 9–10. In
addition, Petitioner contends that one of the petitioning parties, CoxCom,

37 C.F.R. § 42.63(c), requiring all exhibits to be separately and uniquely
numbered within the range of 1001–1999, or 37 C.F.R. § 42.63(d)(1)(ii),
requiring exhibits not filed with the petition to include “the party’s name,
followed by a unique exhibit number, the names of the parties, and the trial
number.” Motion. Petitioner, instead, filed their motion, declarations, and
all supporting exhibits together as the Motion. To avoid potential for further
confusion, we treat the citations to Exhibits 1–4 as though Petitioner had
identified and filed correct exhibits. We note that Petitioner’s non-
compliance with these rules is moot in light of our denial of the Motion and
the Petition.
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LLC, was not served with a complaint until August 18, 2014 and is, thus, not
time barred from filing a petition. Id. at 10. We disagree that Petitioner is
not barred or estopped from requesting an inter partes review. We address
Petitioner’s arguments in turn.
A. Petitioner has not Shown that PRPS was “Apparently
Malfunctioning”
Petitions for inter partes review must be filed within one year after
Petitioner was served with a complaint alleging infringement. 35 U.S.C.
§ 315(b); 37 C.F.R. § 42.101(b). Moreover, a petition is only accorded a
filing date once (1) a petition has been filed; (2) payment has been made;
and (3) the complete petition is served on the patent owner. 35 U.S.C.
§ 312(a); 37 C.F.R. § 42.106(a). The Board has discretion to waive non-
statutory requirements per 37 C.F.R. § 42.5(b). In addition, our rules permit
a party to file a motion to correct a “clerical or typographical mistake.”
37 C.F.R. § 42.104(c). The burden of proof rests with the moving party,
which is, in this case, Petitioner. 37 C.F.R. § 42.20(c); Motion 2.
It is undisputed that at least two of the petitioning parties were served
with a complaint alleging infringement of the ’363 patent on June 23, 2014.
Ex. 2001 ¶¶ 1–4; Exs. 2002–2005. On June 23, 2015, Petitioner failed to
comply with the statutory requirements of 35 U.S.C. § 312(a) by not paying
the required fee and failing to meet the requirements of 37 C.F.R.
§ 42.106(a) by not filing and serving the Petition and its supporting
evidence. Motion 2–5 (citing Ex. 1 ¶¶ 1–12). On June 24, 2015, one day
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after the one year statutory deadline, Petitioner completed filing of the
Petitions at issue. Id. at 3–5 (citing Ex. 1 ¶¶ 1–12).
Petitioner alleges that the filings were one day late because of PRPS
“apparently malfunctioning.” Motion 2–5. The burden of proof, as stated
supra, rests with Petitioner. Petitioner has not shown persuasively how a
series of screenshots illustrating a “pending” status (id. at 3–4 (citing Ex. 1
¶¶ 1–12)) demonstrates that PRPS was “apparently malfunctioning.” Put
another way, “pending” is a normal status message that shows the document
is being uploaded. In addition, there are other possible reasons, besides
PRPS allegedly malfunctioning, why Petitioner was unable to upload their
documents at the required time such as Petitioner’s network malfunctioning,
Petitioner’s computer malfunctioning, etc. Moreover, our internal
investigation confirms that PRPS access on June 23, 2015 was functioning
properly.
Even if Petitioner was able to show that PRPS was malfunctioning
with respect to uploading documents, which it did not, Petitioner has not
shown persuasively why it was unable to serve to Patent Owner and why it
did not pay the filing fee on time.
Petitioner, thus, has not shown persuasively how a series of screen
shots and a statement that PRPS was “apparently malfunctioning” justifies
the relief requested.
B. Petitioner’s Declaration Filed Incorrectly is not a Clerical Error
Petitioner filed the Declaration for IPR2015-01485 in IPR2015-
01482. Motion 5–6. Petitioner submitted the Declaration for IPR2015-
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01482 on July 29, 2015, which is approximately five weeks after the Petition
was filed. Ex. 4 ¶¶ 2–5.
Petitioner alleges the filing of the Declaration incorrectly is “simply
clerical and an oversight” because it uploaded mistakenly the Declaration for
IPR2015-01485 in IPR2015-01482. Motion 5–6. The burden of proof, as
stated supra, rests with Petitioner. Petitioner has not shown persuasively,
however, how its alleged clerical error explains the untimeliness of the
Declaration. Even if we accept that filing a declaration from a different case
was a clerical mistake, Petitioner fails to justify waiting five weeks to correct
that mistake.
We, thus, decline to correct Petitioner’s late filing.
C. Petitioner’s Serial Filings did not Prevent Timely Filing
Although Petitioner alleges the three petitions (i.e., IPR2015-01482,
IPR2015-01485, and IPR2015-01486) were filed in series “to avoid having
to reload any previously submitted exhibits” (Motion 4 (citing Ex. 1 ¶ 7)),
this argument is not persuasive because PRPS requires separate uploading
and filing of documents for each petition. Petitioner’s filings additionally
undermine its position because Petitioner did not cross-reference earlier-
filed documents in later-filed petitions, but instead, re-filed numerous
duplicative exhibits in each of the three petitions at issue. See, e.g., Ex.
1003 in IPR2015-01482, -01485, and -01486; Ex. 1004 in IPR2015-01482, -
01485, and 01486. Thus, Petitioner’s argument that “the second . . . and
third petition . . . could not be filed until the first filing was completed”
(Motion 4) is not persuasive.
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Petitioner also alleges but for PRPS malfunctioning, their counsel
would have “serve[d] the three petitions and accompanying documents.”
Ex. 1 ¶ 4. Service and filing, however, are independent events, as
demonstrated by the fact that Petitioner printed the documents for service
before completing the electronic filing. Id. ¶ 3. Petitioner acknowledges
that there was more than one employee in the office at the time of filing. Id.
¶ 4.
Petitioner, thus, has not shown persuasively how the combination of
serial filings, a series of screen shots, and a statement that PRPS was
apparently malfunctioning justifies the relief requested.
D. The Board’s Prior Decisions are Distinguishable
Petitioner cites a number of non-precedential Board decisions to
support its arguments. These cases, however, are distinguishable because
none of them addressed the combination of a failure to file, serve, and pay
the required fee as set out in our Rules and governing statute.
In E*Trade Financial Corp. v. Droplets, Inc., Case IPR2015-00470
(PTAB Apr. 20, 2015) (Paper 17), the Board addressed a Motion to Change
the Filing Date. In E*Trade, the petitioner received a notice from PRPS that
the system was “currently down” when the petitioner attempted to file the
petition. Moreover, in E*Trade, a Board employee, acting with the authority
of the Board, instructed the petitioner to email its petition and supporting
documents as an attachment. The petitioner in E*Trade paid timely the
filing fee, and served timely the petition on the patent owner. The petitioner
in E*Trade refiled the petition and supporting documents when PRPS
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functioned properly. The Board granted the motion because all three filing
requirements were met; in particular, the documents were emailed timely,
fees were paid timely, and the documents were served timely. E*Trade, slip
op. at 3–4.
Regarding ConMed Corp. v. Bonutti Skeletel Innovations LLC, Case
IPR2013-00624 (PTAB Mar. 14, 2014) (Paper 22), the Board addressed a
Motion to Correct Filing Date. The petitioner in ConMed paid timely the
filing fee, and served timely the petition on the patent owner. The petitioner
in ConMed filed the petition and supporting documents, but because the
petitioner failed to click “Submit” when filing those documents, the
proceeding was accorded a filing date after the statutory bar. The petitioner
in ConMed did not hit the submit button until several days after the statutory
bar date when it refiled exhibits with the corrected labels. The Board,
however, granted the motion primarily because all three filing requirements
were met; in particular, the documents were uploaded and filed timely but
for an omission to click a “Submit” button, fees were paid timely, and the
documents were served timely. ConMed, slip op. at 2–6.
As for Oracle Corp. v. Maz Encryption Techs. LLC, Case IPR2014-
00472 (PTAB May 1, 2014) (Paper 9), the Board addressed a Motion to
Recognize March 1, 2014 as Filing Date. The petitioner in Oracle paid
timely the filing fee, and served timely the petition on the patent owner. The
petitioner in Oracle was unable to timely file the petition because PRPS was
malfunctioning. The Board, however, granted the motion because its
“internal investigation confirm[ed] that PRPS access . . . was indeed
compromised.” Oracle, slip op. at 2.
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In 2Wire, Inc. v. TQ Delta, LLC, Case IPR2015-00239 (PTAB Jan.
15, 2015) (Paper 10), the Board addressed a Motion to Correct Filing Date.
In 2Wire, counsel pressed the “submit” button after midnight. The Board,
however, granted the motion because all three filing requirements were met;
in particular, the documents were uploaded timely, fees were paid timely,
and the documents were served timely. 2Wire, slip op. at 4–8.
Regarding Micron Tech., Inc. v. e.Digital Corp., Case IPR2015-00519
(PTAB Mar. 24, 2015) (Paper 14), the Board addressed a Motion to Deny a
Petition a Filing Date based on Improper Service. The petitioner in Micron
filed timely the petition, and paid timely the filing fee. In addition, in
Micron, the petitioner served a copy of the petition and supporting
documents on the patent owner’s litigation counsel via email more than two
weeks prior to expiration of the statutory bar date, and email correspondence
between the parties indicated that the patent owner’s litigation counsel was
in receipt of the documents prior to the statutory bar date. The petitioner in
Micron failed to timely serve the patent owner at the correspondence address
of record. The Board, however, denied the patent owner’s motion because
the patent owner, through its litigation counsel, actually received the petition
prior to the one year statutory bar date. Micron, slip op. at 4–6.
As for ABB Inc. v. Roy-G-Biv Corp., Case IPR2013-00063 (PTAB
Jan. 16, 2013) (Paper 21), the Board addressed a Motion to Correct Petition.
The petitioner in ABB served timely the petition, and paid timely the filing
fee. The petitioner in ABB failed to timely file the correct exhibits. The
Board, however, granted the motion based on a finding that although the
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petitioner filed the wrong exhibits, the petitioner served timely the correct
exhibits on the patent owner. ABB, slip op. at 2, 5–11.
In Schott Gemtron Corp. v. SSW Holding Co. Inc., Case IPR2014-
00367 (PTAB Sept. 22, 2014) (Paper 30), the Board addressed a Motion to
Correct Filing Date. The petitioner in Schott served timely the petition, and
paid timely the filing fee. In Schott, the petitioner filed timely an incorrect
exhibit. The Board, however, granted the motion because the petitioner
served timely the petition and supporting documents, which the patent owner
acknowledged during a conference call. Schott, slip op. at 2–4.
Regarding Syntroleum Corp. v. Neste Oil OYJ, Case IPR2013-00178
(PTAB July 22, 2013) (Paper 21), the Board addressed a Motion to Correct
Petition. The petitioner in Syntroleum paid timely the filing fee. In
Syntroleum, the petitioner filed timely and served timely the petition, but
filed an incorrect reference and served the same incorrect reference. The
petitioner in Syntroleum intended to file a published European application,
but instead, the petitioner filed inadvertently and served inadvertently a
patent that issued from the publication. The Board, however, granted the
motion because both the petitioner’s original petition and declaration cited
the published European application. Syntroleum, slip op. at 2–6.
Thus, as described above, all of these cases are distinguishable from
the facts currently before us. Petitioner has not directed us to any case
where the petitioning party failed to file, serve, and pay the required fee by
the statutory bar date.
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E. Petitioner’s Arguments Pertaining to a Prejudice to Patent Owner is
Misplaced
Petitioner contends there is no prejudice to Patent Owner because
immediate remedial measures were taken right away by Petitioner. Motion
9. As stated supra in Part II.B., Patent Owner, however, was prejudiced by
not having the Declaration until five weeks after filing. Further, Petitioner’s
argument is misplaced because the standard for permitting a late filing is not
dependent solely on whether there was prejudice to Patent Owner.
We, therefore, decline to grant the relief requested.
F. The Presence of CoxCom, LLC does not Remove the Statutory Bar
Petitioner contends that one of the petitioning parties, CoxCom, LLC,
was not served with a complaint until August 18, 2014, and is, thus, not time
barred from filing the Petition. Motion 9. We disagree that Petitioner is not
time barred.
“An inter partes review may not be instituted if the petition requesting
the proceeding is filed more than 1 year after the date on which the
petitioner, real party in interest, or privy of the petitioner is served with a
complaint alleging infringement of the patent” (emphasis added). 35 U.S.C.
§ 315(b).
Petitioner acknowledges that Terremark North America LLC, Verizon
Communications Inc., Verizon Services Corp., Verizon Communications
Inc., Verizon Corporate Resources Group, LLC, and Verizon Data Services
LLC are real-parties-in-interest. Pet. 1–2. Petitioner also acknowledges that
Terremark North America LLC and Verizon Communications Inc. were
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served with a complaint on June 23, 2014. Ex. 2003. Inter partes review is
precluded for at least the reasons that Terremark North America LLC and
Verizon Communications Inc. are real parties-in-interest and were served
with a complaint on June 23, 2014. 35 U.S.C. § 315(b).
CoxCom, LLC, is precluded additionally from filing the Petition for
other reasons. In PNC Bank, N.A. et al. v. Maxim Integrated Prods., Inc.,
Case CBM2014-00041 (PTAB June 3, 2014) (Paper No. 19), the Board
addressed a Motion of Adverse Judgement against PNC. In PNC Bank,
PNC, one of three petitioners, violated 35 U.S.C. § 325(a)(1) by filing the
petition for covered business method review (“CBM”) after it had filed a
district court suit challenging the validity of the patent challenged in the
CBM. In an attempt to eliminate the statutory bar against PNC, PNC moved
for entry of adverse judgment against it in the CBM proceeding and
contended that other petitioners could proceed with the petition without
further involvement by PNC. The Board denied institution on the CBM
petition and dismissed the motion because PNC already had exerted
substantial control over the case, and granting PNC’s request for adverse
judgment would not obviate the control that PNC already had exerted. Id.,
slip op. at 4.
Similarly, Terremark North America LLC and the named Verizon
entities in this case already have exerted substantial control over the case by
participating in filing the Petition, appointing counsel, etc. The presence of
CoxCom, LLC, therefore, does not remove the statutory bar.
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III. CONCLUSION
For the foregoing reasons, the Petition falls outside the one-year time
bar set forth in 35 U.S.C. § 315(b). We, thus, deny inter partes review of
the ’363 patent.
IV. ORDER
For the foregoing reasons, it is
ORDERED that the Petition is denied as to all challenged claims and
no trial is instituted.

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PETITIONER:
Vaibhav P. Kadaba
D. Clay Holloway
Kilpatrick Townsend & Stockton LLP
wkadaba@kilpatricktownsend.com
cholloway@kilpatricktownsend.com

Frank C. Cimino, Jr.
Megan S. Woodworth
Venable LLP
FCCimino@venable.com
MSWoodworth@venable.com

Jackson Ho
K&L Gates LLP
jackson.ho@klgates.com

PATENT OWNER:
Raymond Joao
rayjoao@optonline.net

René A. Vazquez
HENINGER GARRISON DAVIS, LLC
rvazquez@hgdlawfirm.com