Petitioner Allowed To Correct Clerical Mistake Of Submitting Unexecuted Declaration IPR2015-01332


Takeaway: In absence of any evidence of prejudice, the Board may allow a party to correct a clerical error by filing a paper “out-of-time.”

In its Order, the Board granted Petitioner’s Motion to Correct a Clerical Mistake Regarding Petition for Inter Partes Review of the ’547 patent.

Petitioner requested an Order that it be authorized to file a corrected version of Exhibit 1009, an unexecuted declaration of Mr. Michael Randall, by submitting the executed signature page. Petitioner alleged that due to a clerical error on the part of the declarant, an unsigned copy of Exhibit 1009 was filed in the present case even though the declarant was in possession of an executed copy of Exhibit 1009. Patent Owner opposed the Motion, arguing that Petitioner did not explain, inter alia, what processes existed to ensure correct filings and how and why Petitioner failed.

The Board determined that no credible prejudice to Patent Owner had been established. The Board may accept a paper filed out-of-time “upon a Board decision that consideration on the merits would be in the interests of justice” under 37 C.F.R. § 42.5(c)(3). Thus, the Board granted Petitioner’s motion. In closing, the Board stated, “[i]nadvertent mistakes generally not affecting the merits of a case can happen, and we expect the parties to address them amicably.

Paper 13: Conduct of the Proceedings
Dated: August 17, 2015
Patent 6,144,547
Before: Rama G. Elluru, Mitchell G. Weatherly, and Christopher G. Paulraj
Written by: Elluru