Rackspace Hosting, Inc.v.Clouding Corp.

Patent Trial and Appeal Board

Dec 9, 2014

09950559 (P.T.A.B. Dec. 9, 2014)

Trials@uspto.gov Paper 28
571-272-7822 Entered: December 9, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

RACKSPACE HOSTING, INC.,
Petitioner,

v.

CLOUDING IP, LLC,
Patent Owner.
____________

Case CBM2014-00034
Patent 7,596,784
____________

Before JAMESON LEE, JUSTIN BUSCH, and DAVID C. MCKONE,
Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

ORDER
Termination of Proceeding
37 C.F.R. § 42.72
Case CMB2014-00034
Patent 7,596,784

2
On December 3, 2014, and pursuant to 35 U.S.C. § 327, the parties
filed a Joint Motion to Terminate Proceeding to terminate the above-
captioned proceeding (Paper 23), along with a copy of the settlement
agreement (Ex. 2003, identified as a “Release Agreement”). The parties
concurrently filed a Joint Request to File Release Agreement as Business
Confidential Information (“Request for Confidential Treatment”) to treat the
settlement agreement as business confidential information, to be kept
separate from the patent file pursuant to 35 U.S.C. § 327(b) and
37 C.F.R. § 42.74(c) (Paper 24).
Under 35 U.S.C. § 327(a), “[a] post-grant review instituted under this
chapter shall be terminated with respect to any petitioner upon the joint
request of the petitioner and patent owner, unless the Office has decided the
merits of the proceeding before the request for termination is filed.” The
requirement for terminating review, with respect to petitioner Rackspace
Hosting, Inc., is met.
Under 35 U.S.C. § 327(a), “[if] no petitioner remains in the post-grant
review, the Office may terminate the post-grant review or proceed to a final
written decision under section 328 (a).” The joint motion to terminate
involves the only petitioner in this review. The Board has discretion to
terminate this review with respect to Patent Owner, Clouding IP, LLC. “The
Board expects that a proceeding will terminate after the filing of a settlement
agreement, unless the Board has already decided the merits of the
proceeding.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
48,757 (Aug. 14, 2012).
Case CBM2014-00034
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The Joint Motion to Terminate Proceeding indicates that the parties
have settled their dispute, have reached agreement to terminate this
proceeding, and have memorialized the parties’ agreement with respect to
termination of the underlying litigation involving the ’438 patent in the
settlement agreement. Paper 23; Ex. 2003. This proceeding has not resulted
in a final decision on the merits.
Based on the facts of the case, it is appropriate to terminate the
proceeding as to both Petitioner and Patent Owner. Therefore, the Joint
Motion to Terminate Proceeding and the Request for Confidential Treatment
are granted.
Accordingly, it is
ORDERED that the Request for Confidential Treatment is granted;
FURTHER ORDERED that the Joint Motion to Terminate Proceeding
is granted; and
FURTHER ORDERED that this proceeding is terminated.

Case CBM2014-00034
Patent 7,596,784

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FOR PETITIONER:
Erika Arner
Jeffrey Totten
FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
erika.arner@finnegan.com
jeffrey.totten@finnegan.com

FOR PATENT OWNER:
Tarek Fahmi
Megan M. Gallant
tarek.fahmi@fseip.com
megan.gallant@fseip.com