By Matthew L. Cutler, Principal
Having a bad day? It can’t be worse than the series of errors a Patent Owner found itself in the middle of in Euro-Pro Operating LLC v. Acorne Enterprises, LLC, (IPR2014-000351 and IPR2014-00352). In those cases, a series of missteps resulted in an order instituting sanctions for the “inconvenience of the Board.”
In each proceeding, Patent Owner attempted to file a Motion to Exclude evidence. In the first submission, a page was missing. Realizing its error, but without authorization from the Board, Patent Owner filed a second version of the motion…but this time, the motion was submitted upside down. Order at 2.
Realizing this second error, Patent Owner emailed the Board asking that the earlier sent files be expunged, without conferring with opposing counsel. The Board subsequently requested that Patent Owner: (1) properly identify which files needed to be expunged; and (2) confer with opposing counsel as to any objection. Patent Owner emailed with instructions regarding what documents were to be expunged, but did not confer with opposing counsel. Id. at 2.
Certainly of significance in this case was the fact that these were not the first transgressions by Patent Owner. For example, Patent Owner had previously missed two conference calls, filed papers filled with copious typos, and filed papers which did not comply with formatting requirements. Having already warned Patent Owner that continued actions that waste the Board’s time would result in sanctions, the Board cited 37 C.F.R. § 42.12(a)(1) and (7) (allowing for sanctions for failing to comply with rule that causes unnecessary delay or costs) and ordered that Patent Owner may not file a Motion to Exclude in either proceeding at issue regarding evidence already of record. Id. at 3.
See, today isn’t going so bad after all.