Takeaway: When multiple Petitioner companies each execute a power of attorney, it is sufficient for each such company to grant power to its own representative counsel without expressly granting power to any counsel representing any of the other Petitioner companies.

In its Order, the Board denied Patent Owner’s Motion for Rehearing. First, the Board found that the Motion for Rehearing was improper under 37 C.F.R. § 42.71(d).  Second, the Board found that the Motion for Rehearing was incorrect in asserting that the Petition did not comply with 37 C.F.R. §§ 42.8 and 42.10.

With respect to 37 C.F.R. § 42.71(d), the Board found that the Motion for Rehearing failed to identify where the issues concerning 37 C.F.R. § 42.8 and § 42.10 were previously addressed. In particular, it did not specifically identify all matters that Patent Owner believed had been misapprehended or overlooked, or the place where each matter was previously addressed via motion, opposition, or reply as required by 37 C.F.R. § 42.71(d).  The Board noted that these matters could have been raised, but were not, in Patent Owner’s Preliminary Response, and that Patent Owner’s attempt to raise these matters in its Motion for Joinder was unsuccessful because that portion of the Motion for Joinder was deemed by the Board to be an unauthorized motion.  According to the Board, the reference to “a motion” in Rule 42.71(d) applies to authorized motions, not unauthorized motions.

As for 37 C.F.R. §§ 42.8 and 42.10, the Petition had identified a first practitioner as lead counsel and five other practitioners as back-up counsel. Lead counsel and one of the back-up counsel practitioners were from the same law firm, while the other four back-up counsel were each from different firms – and presumably representing different Petitioner companies – respectively.  Moreover, as correctly noted by Patent Owner, “each one of the various Powers of Attorney for the seven companies bringing the Petition [was] granted to only one or two of the six practitioners listed as counsel in the Petition,” i.e., “none of the Powers of Attorney filed in this proceeding [was] granted to all six practitioners.”  Nonetheless, the Board found this arrangement to be acceptable, and to be in compliance with the requirements in 37 C.F.R. § 42.8 and § 42.10 that counsel must be identified; that the party must designate lead counsel and a back-up counsel; and that a power of attorney designating counsel must be filed.

Subaru of America, Inc., Toyota Motor North America, Inc., American Honda Motor Co., Inc., Nissan North America, Inc., Ford Motor Company, Jaguar Land Rover North America, LLC, and Volvo Cars of North America, LLC v. Cruise Control Technologies LLC, IPR2014-00279 
Paper 23: Order on Patent Owner’s Motion for Rehearing
Dated: July 29, 2014 
Patent: 6,324,463 
Before: Josiah C. Cocks, Hyun J. Jung, and George R. Hoskins 
Written by: Hoskins