Takeaway: A request for rehearing is not an opportunity to express disagreement with a decision.

In its Decision, the Board denied Petitioner’s Request for Rehearing of the Board’s Decision to institute trial only with respect to claim 14 of the ’883 patent. In addition to claim 14, Petitioner had also requested inter partes review of claims 1, 3, and 4 of the ’883 patent.

The Board focused on the McNamara reference, and on an accompanying Declaration by expert Mr. Lipoff that Petitioner had submitted. Petitioner’s Request for Rehearing had argued that while McNamara criticized centralization of service provider equipment, the Board had rendered its Decision on Institution as if McNamara has instead criticized network control equipment.  The Board disagreed, however.

In the Board’s opinion, it had not misapprehended or overlooked the teachings of McNamara, or Petitioner’s arguments, or any supporting evidence. Among other things, it was the Board’s position that the Request for Rehearing had not identified where certain specific arguments were previously addressed in the Petition.  This led the Board to conclude that Petitioner had not met its burden of showing that the Board had misapprehended or overlooked the arguments relating to McNamara.

Moreover, the Board went on to note that, regardless, it was “not persuaded by Petitioner’s new arguments that McNamara’s criticisms are limited to centralization of service provider equipment, and do not include network control equipment.” As stated by the Board, “[a] person with ordinary skill in the art at the time of the invention of the claimed subject matter of the ’883 Patent, upon reading McNamara, would have understood that McNamara’s criticisms of centralized ‘network intelligence,’ ‘network architecture,’ and ‘system intelligence’ at the headed are directed to centralized network monitoring and control equipment (e.g., Network Traffic Monitor (NTM), Network Access Controller (NAC), and Network Resource Manager (NRM)).”

Arris Group, Inc. v. C-Cation Technologies, LLC, IPR2014-00746 
Paper 26: Decision on Request for Rehearing 
Dated: December 18, 2014 
Patent: 5,563,883 
Before: Kristen L. Droesch, Kalyan K. Deshpande, and Miriam L. Quinn
Written by: Droesch