CustomPlay, LLC

Patent Trials and Appeals BoardJun 26, 2020

IPR2018-01496 (P.T.A.B. Jun. 26, 2020)

Trials@uspto.gov Paper 39 571-272-7822 Entered: June 26, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ AMAZON.COM, INC., Petitioner, v. CUSTOMPLAY, LLC., Patent Owner. ____________ Case IPR2018-01496 Patent 8,494,346 B2 ____________ Before JESSICA C. KAISER, JOHN R. KENNY, and KRISTI L. R. SAWERT, Administrative Patent Judges. KENNY, Administrative Patent Judge. DECISION Denying Patent Owner’s Request for Rehearing 37 C.F.R. § 42.71 IPR2018-01496 Patent 8,494,346 B2 2 On March 4, 2020, we entered a Final Written Decision (Paper 34) in this proceeding. Patent Owner timely filed a Request for Rehearing (Paper 37) (“Rehearing Request”) which contends that we overlooked or misapprehended (i) that the makeup of the Board violates the Appointments Clause of the U.S. Constitution and (ii) that the Board’s Final Written Decision violates the Takings Clause and Due Process Clause of the U.S. Constitution by not according the judicial presumption of validity under 35 U.S.C. § 282(a). Reh’g Request 1. Patent Owner, however, does not identify where it raised either constitutional challenge in any prior submission. See id. A request for rehearing may identify matters that a party believes the Board misapprehended or overlooked. 37 C.F.R. § 42.71(d). The Board, however, could not have misapprehended or overlooked issues that were never raised. Huawei Device Co. Ltd. v. Optis Cellular Technology, LLC, IPR2018-00816, Paper 19, 9–10 (PTAB Jan. 8, 2019) (precedential). Thus, under 37 C.F.R. § 42.71(d), a request for rehearing “must identify specifically all matters [the party believes the Board] misapprehended or overlooked, and the place where each matter was addressd previously in a motion, an opposition, or a reply.” Id. at 2 (emphasis added). Although Patent Owner acknowledges the requirements of section 42.71(d) (Reh’g Request 3), Patent Owner does not identify any place where it raised these constitutional challenges in any motion, opposition, or reply. Reh’g Request 1–7. Further, Patent Owner does not justify raising those challenges for the first time on rehearing. Id. Thus, under 37 C.F.R. § 42.71(d), we deny the Rehearing Request. Patent Owner’s Rehearing Request is DENIED. IPR2018-01496 Patent 8,494,346 B2 3 FOR PETITIONER: Colin Heideman Joseph Re Christie Matthaei KNOBBE, MARTENS, OLSON & BEAR, LLP 2cbh@knobbe.com 2jrr@knobbe.com 2crw@knobbe.com FOR PATENT OWNER: Bryan Wilson Adam Underwood CARERY RODRIGUEZ MILIAN GONYA, LLP bwilson@careyrodriguez aunderwood@careyrodriguez.com