• Ericsson Inc. / Telefonaktiebolaget LM Ericsson v. Intellectual Ventures II LLCRehearing denied
  PTAB · Apr 19, 2016 · IPR2015-01872 · APJ David C Mckone · IPR · Rehearing

  The Board denied Ericsson’s rehearing request, leaving claims 5, 10, and 15 uninstituted because it found no abuse of discretion in the merits determination.

  RulingsRehearing decision

  • RehearingRehearing, deniedDenied

    “II. ANALYSIS When rehearing a decision on institution, the Board reviews the decision for an abuse of discretion. See 37 C.F.R. § 42.71(c). The burden of showing that the Decision should be modified is on Petitioner, the party challenging the Decision. See 37 C.F.R. § 42.71(d). In addition, “[t]he request must specifically identify all matters the party believes the Board misapprehended or overlooked, and the place where each matter was previously addressed in a motion, an opposition, or a reply.” Id.” slip op. at 2

  • BurdenDecided for patent owner

    “different groups of users could be served before others. Req. 5. According to Petitioner, a skilled artisan would have incorporated these values into the “class” fields of Lu’s data packets such that Lu’s system could make distinctions based on subscribers’ subscription requirements and identify the priorities of certain users. Id. at 5–6. This argument was not presented in the Petition. A request for rehearing, is not an opportunity for a party to introduce new argument, bolster insufficient argument, or mend gaps in the evidence relied on in the Petition. See 37 C.F.R. § 42.71(d). Because Petitioner did not make this argument in the Petition, we could not have misapprehended or overlooked it. In any case, as Patent Owner explained in the Preliminary Response (at 42–43), Lu already provides a mechanism (the class field) for making distinctions based on subscribers’ subscription requirements. Ex. 1002, 5:21–32, 5:57–67; Dec. 27. Petitioner does not explain why a skilled artisan would have had reason to incorporate what appears to be a redundant feature. Thus, Petitioner’s argument is unpersuasive.” slip op. at 4

  • Strike new argumentNew argument disregardedDecided for patent owner

    “In the Request, Petitioner identifies the fairness metric values described in paragraph 76 of Pankaj (not cited in the Petition) and explains that these fairness metric values could be used in Lu’s packets so that different groups of users could be served before others. Req. 5. According to Petitioner, a skilled artisan would have incorporated these values into the “class” fields of Lu’s data packets such that Lu’s system could make distinctions based on subscribers’ subscription requirements and identify the priorities of certain users. Id. at 5–6. This argument was not presented in the Petition. A request for rehearing, is not an opportunity for a party to introduce new argument, bolster insufficient argument, or mend gaps in the evidence relied on in the Petition. See 37 C.F.R. § 42.71(d). Because Petitioner did not make this argument in the Petition, we could not have misapprehended or overlooked it.” slip op. at 3

  None
  Patents in suitUS 7,385,994

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