ZOLL LIFECOR CORPORATIONv.PHILIPS ELECTRONICS NORTH AMERICA CORP. and KONINKLIJKE PHILIPS ELECTRONICS N.V.

Patent Trial and Appeal Board

Mar 20, 2014

8691755 (P.T.A.B. Mar. 20, 2014)

Trials@uspto.gov Paper 17
571-272-7822 Entered: March 20, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

ZOLL LIFECOR CORPORATION
Petitioner

v.

PHILIPS ELECTRONICS NORTH AMERICA CORP. and
KONINKLIJKE PHILIPS N.V.
Patent Owner

Case IPR2013-00616
Patent 5,749,905

Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
MIRIAM L. QUINN, Administrative Patent Judges.

Jefferson, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
35 U.S.C. §§ 312(a), 315(b)

Case IPR2013-00616
Patent 5,749,905

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I. INTRODUCTION
ZOLL Lifecor Corporation (“Petitioner”) filed a petition requesting
inter partes review of claims 1-11 (the “challenged claims”) of U.S. Patent
No. 5,749,905 (Ex. 1001, “the ’905 patent”). Paper 5 (“Pet.”). Philips
Electronics North America Corporation (“Patent Owner”) filed a preliminary
response. Paper 11 (“Prelim. Resp.”). The Board authorized the Petitioner
to file a brief addressing the privity and real party-in-interest issues raised in
the preliminary response. Paper 14. Petitioner filed a brief addressing those
issues. Paper 15 (“Br.”). We have jurisdiction under 35 U.S.C. § 314.
Upon consideration of the petition, we determine that ZOLL Medical,
Petitioner’s parent company, is a real party-in-interest that was served with a
complaint alleging infringement of the ’905 patent more than one year
before the filing of this petition. The petition is, therefore, untimely under
35 U.S.C. § 315(b). Moreover, because the petition does not identify ZOLL
Medical as a real party-in-interest, the petition fails to identify “all the real
parties in interest,” as required by 35 U.S.C. § 312(a). Accordingly, the
petition is denied.
A. Related Proceedings
The ’905 patent is involved in a co-pending case filed against
Petitioner on September 21, 2012, and captioned Koninklijke Philips Elecs.
N.V. v. Zoll Lifecor Corp., Civ. A. No. 2:12-cv-01369 (W.D. Pa.) (the
“Pennsylvania Action”). Pet. 2; Prelim. Resp. 5. Petitioner was served with
a complaint in that proceeding on September 21, 2012. Prelim. Resp. 5
(citing Ex. 2006). The Pennsylvania Action also involves seven other
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patents, all related to the ’905 patent. Prelim. Resp. 6. Each of these
patents, including the ’905 patent, claims priority to the same application:
No. 08/103,837, filed on August 6, 1993.
The ’905 patent also is involved in a co-pending case filed against
Petitioner’s parent company, ZOLL Medical Corporation (“ZOLL
Medical”), on June 18, 2010, and captioned Koninklijke Philips Elecs. N.V.
v. Zoll Med. Corp., Civ. A. No. 1:10-cv-11041 (D. Mass.) (the
“Massachusetts Action”). Prelim. Resp. 4-5. ZOLL Medical was served
with an amended complaint alleging infringement of six of the eight patents
at issue in the Pennsylvania Action, including the ’905 patent, on October
13, 2010. Prelim. Resp. 4-5 (citing Exs. 2003, 2004).
Petitioner also has filed petitions for inter partes review of the other
seven patents in the Pennsylvania Action: IPR2013-00606 (U.S. Patent No.
5,593,427); IPR2013-00607 (U.S. Patent No. 5,749,904); IPR2013-00609
(U.S. Patent No. 5,836,978); IPR2013-00612 (U.S. Patent No. 5,803,927);
IPR2013-00613 (U.S. Patent No. 5,735,879); IPR2013-00615 (U.S. Patent
No. 6,047,212); and IPR2013-00618 (U.S. Patent No. 5,607,454). Pet. 2;
Prelim. Resp. 5-6.
The Petition identified as a related matter the Pennsylvania Action,
but not the Massachusetts Action. Pet. 2. On January 3, 2014, after Patent
Owner filed its Preliminary Response, Petitioner amended its Mandatory
Notice to include the Massachusetts Action as a related matter. Paper 13 at
2-3.
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II. DISCUSSION
A. Factual Background
ZOLL Medical is a manufacturer of resuscitation devices and related
software solutions. Ex. 2001. On April 10, 2006, ZOLL Medical
announced that it had acquired the assets and business of Lifecor, Inc., a
privately held company that designs, manufactures, and markets a wearable
external defibrillator system. Id. At the time ZOLL Medical acquired
Lifecor, Inc., ZOLL Medical announced that it would operate the Lifecor,
Inc. business through the ZOLL Lifecor subsidiary, based in Pittsburgh,
Pennsylvania. Id. A parent-subsidiary relationship was formed in 2006
when ZOLL Medical acquired Lifecor, Inc. It is undisputed that ZOLL
Lifecor, Petitioner, is a wholly-owned subsidiary of ZOLL Medical. Prelim.
Resp. 1; Br. 1, 5.
After the acquisition, ZOLL Medical referred to itself and Petitioner
collectively as “ZOLL.” Ex. 2008 (ZOLL Medical’s Annual Report, Form
10-K, dated Dec. 15, 2006). In filed public financial statements, ZOLL
Medical asserted that it “now manufactures and markets [a] wearable
external defibrillator system [i.e., LifeVest] through its subsidiary, ZOLL
Lifecor Corporation.” Ex. 2008 at 10. Under the ZOLL brand, ZOLL
Medical used a dedicated sales force to sell Petitioner’s LifeVest product.
Ex. 2008 at 19. In 2008, ZOLL Medical asserted in public financial
documents that ZOLL was conducting clinical trials related to the LifeVest
product. Ex. 2010 at 27.
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The LifeVest is Petitioner’s only product, which is marketed on the
ZOLL Medical website. Ex. 2011.
Petitioner sought a stay of the Pennsylvania Action based on the
overlap with, and the impact of, the Massachusetts Action. Ex. 2015 at 5.
Petitioner took the position that issues of invalidity addressed in the
Massachusetts Action would be directly applicable to the eight patents
involved in the Pennsylvania Action. Ex. 2025 at 2. The district court
granted a stay of the Pennsylvania Action, and required the parties to
mediate. Prelim. Resp. 36-37 (citing Ex. 2027). Three officers of ZOLL
Medical, which is not a party to the Pennsylvania Action, attended the
mediation on behalf of Petitioner. Ex. 2017, 6-7, 9; compare Ex. 2018 with
Ex. 2019. One of those officers, Mr. Grossman, is also Petitioner’s
Secretary, and provides legal guidance to both ZOLL Medical and
Petitioner. Br. 5.
To maintain the stay, Petitioner again relied on the “high degree of
overlap between this [Pennsylvania Action] and the Massachusetts
[Action],” and that resolution of the parties’ negotiations with Patent Owner
involved a “global resolution” that included both pending Actions. Ex. 2016
at 6. Petitioner argued against ramping up activity in the Pennsylvania
Action because the parties were focusing on preparing for the trial in the
Massachusetts Action. Ex. 2016 at 3-4.
The instant Petition for inter partes review was filed on September 23,
2013. Paper 2. The petitions rely on declarations from the same expert
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witness disclosed in the Massachusetts Action on behalf of ZOLL Medical.
Prelim. Resp. 13 (citing Exs. 1003, 2021).
B. Arguments Presented
Patent Owner argues that the close relationship between Petitioner and
ZOLL Medical support its contention that ZOLL Medical is both a “real
party-in-interest as well as a privy of the Petitioner.” Prelim. Resp. 2
(quotations omitted). Patent Owner further argues that ZOLL Medical’s
close involvement in the Pennsylvania Action shows control of Petitioner in
the Pennsylvania Action and in this proceeding. Prelim. Resp. 12-14.
Furthermore, Patent Owner argues that ZOLL Medical could have controlled
Petitioner’s involvement in this proceeding because:
(1) ZOLL Medical has the legal right of a parent corporation to
control its wholly-owned subsidiary when there are common interests and
the relationship justifies the parent’s control, id.at 15-16 (citing Copperweld
Corp. v. Independence Tube Corp., 467 U.S. 752, 771-72 (1984)); and
(2) the Federal Circuit has recognized the legal right of a parent
corporation to control an administrative proceeding, id. at 16-17 (citing
Dalton v. Honda Motor Co., 425 F. App’x 886, 890 (Fed. Cir. 2011)
(dealing with standing by a parent corporation having a “real interest” in a
TTAB proceeding)); and
(3) a favorable outcome in this proceeding would directly benefit
ZOLL Medical, id. at 17-18 (citing Ex. 2002 at 6-7; Ex. 2005 at 9-11).
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In response, Petitioner argues that ZOLL Medical is not a real party-
in-interest because (1) Petitioner, not ZOLL Medical, has the greater liability
for infringement of the patents for which inter partes review is requested;
and (2) Petitioner is paying for and supervising the inter partes reviews and
district court litigation without compensation from ZOLL Medical. Br. 3-5
(citing Exs. 1015-1018).
Petitioner further argues that had the Board allowed testimonial
evidence,
1
Petitioner would have established facts that show:
(1) Petitioner’s management develops the plans and budget for Petitioner’s
business, which are presented to ZOLL Medical for approval, as is typical in
a parent-subsidiary relationship, but the direction is provided from ground
up, not top down; (2) ZOLL Medical does not hold the LifeVest regulatory
approval, does not control LifeVest research, development, and
manufacture, and does not control LifeVest marketing, sales, leasing, and
revenue collection; (3) Petitioner is paying the costs of the litigation and the
IPRs, and is not being compensated by ZOLL Medical for those costs; and
(4) Petitioner’s management is supervising the conduct of the IPRs and the
litigation against Petitioner. Br. 4-5.

1
We note that the Board’s authorization to file a brief on the issue of privity
and real party-in-interest gave Petitioner discretion to file all evidence
supporting Petitioner’s arguments. Petitioner did not request authorization
to file testimony and such request was not precluded. See Paper 14.
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Petitioner further argues that Patent Owner’s allegations are
unsupported insofar as (1) Petitioner controls its hiring; (2) Petitioner was
represented at settlement by Mr. Grossman, its Secretary; (3) the use of
common counsel is not evidence of control; (4) the use of “we” in an SEC
filing is not evidence of control; and (5) the LifeVest facility is subject to an
obligation to ZOLL Medical, but not to its control. Br. 5-6 (citing Exs.
1016, 1019, 1020).
C. 35 U.S.C. § 315(b) and 37 C.F.R. § 42.101(b)
Section 315(b) of Title 35 of the United States Code provides:
(b) PATENT OWNER’S ACTION.—An inter partes review
may not be instituted if the petition requesting the proceeding is
filed more than 1 year after the date on which the petitioner,
real party in interest, or privy of the petitioner is served with a
complaint alleging infringement of the patent. The time
limitation set forth in the preceding sentence shall not apply to a
request for joinder under subsection (c).
The legislative history of 35 U.S.C. § 315(b) indicates that Congress
intended inter partes reviews to “provid[e] quick and cost effective
alternatives to litigation.” H.R.REP. NO. 112-98, at 48 (2011), as reprinted
in 2011 U.S.C.C.A.N. 67, 78. The legislative history indicates also that 35
U.S.C. § 315(b) was intended to set a “deadline for allowing an accused
infringer to seek inter partes review after he has been sued for
infringement.” 157 CONG. REC. S5429 (daily ed. Sept. 8, 2011) (statement
of Sen. Kyl). The deadline helps to ensure that inter partes review is not
used as a “tool[] for harassment” by “repeated litigation and administrative
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attacks.” H.R. REP. NO. 112-98 at 48, as reprinted in 2011 U.S.C.C.A.N. at
78. Allowing such attacks “would frustrate the purpose of the section as
providing quick and cost effective alternatives to litigation.” Id.
Rule 42.101 of Section 37 of the Code of Federal Regulations
provides:
A person who is not the owner of a patent may file with the
Office a petition to institute an inter partes review of the patent
unless:
. . .
(b) The petition requesting the proceeding is filed more than
one year after the date on which the petitioner, the petitioner's
real party-in-interest, or a privy of the petitioner is served with a
complaint alleging infringement of the patent . . . .
37 C.F.R. § 42.101; 77 Fed. Reg. 48,688 (Aug. 14, 2012).
A threshold issue for the Board to determine is whether ZOLL
Medical is a real party-in-interest or privy under 35 U.S.C. § 315(b) and 37
C.F.R. § 42.101(b).
D. Real Party-in-Interest Analysis
Patent Owner contends that ZOLL Medical controls and could have
controlled both the business and legal proceedings of its wholly-owned
subsidiary Zoll Lifecor. Prelim. Resp. 1-2. In response, Petitioner argues
that: (1) control is the wrong standard to apply in the real party-in-interest
determination; (2) Petitioner is the sole real party-in-interest; and (3)
Petitioner is not estopped because the parties, the accused products, and the
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asserted claims are different in the Pennsylvania and Massachusetts Actions.
Br. 1.
“Whether a party who is not a named participant in a given
proceeding nonetheless constitutes a ‘real party-in-interest’ . . . to that
proceeding is a highly fact-dependent question.” 77 Fed. Reg. at 48,759.
“[T]he spirit of that formulation as to IPR . . . proceedings means that, at a
general level, the ‘real party-in-interest’ is the party that desires review of
the patent. Thus, the ‘real party-in-interest’ may be the petitioner itself,
and/or it may be the real party or parties at whose behest the petition has
been filed.” Id. (emphasis added). “Courts invoke the terms ‘real party-in-
interest’ and ‘privy’ to describe relationships and considerations sufficient to
justify applying conventional principles of estoppel and preclusion.” Id.
The determination of whether a non-party is a real party-in-interest involves
a consideration of “control.” Id.
Factors for determining actual control or the opportunity to control
include existence of a financially controlling interest in the petitioner. 77
Fed. Reg. at 48,617 (discussing the mandatory notice codified in 37 C.F.R.
§ 42.8). Additional relevant factors include: the non-party’s relationship
with the petitioner; the non-party’s relationship to the petition itself,
including the nature and/or degree of involvement in the filing; and the
nature of the entity filing the petition. 77 Fed. Reg. at 48,760.
The non-party’s participation may be overt or covert, and the evidence
may be direct or circumstantial, but the evidence as a whole must show that
the non-party possessed effective control from a practical standpoint.
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Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 759 (1st Cir. 1994). The
inquiry is not based on isolated facts, but rather must consider the totality of
the circumstances. Id.
After considering the evidence presented by Petitioner and Patent
Owner we are persuaded by the evidence presented that ZOLL Medical is a
real party-in-interest for purposes of 35 U.S.C. § 315(b) because it “‘has the
actual measure of control or opportunity to control that might reasonably be
expected between two formal coparties.’” 77 Fed. Reg. at 48,759 (quoting
Wright & Miller § 4451). We are persuaded that the evidence presented by
Patent Owner shows sufficiently that ZOLL Medical has exercised
consistent control over Petitioner’s business since 2006. The relationship is
one that has been very close with aligned interests and sufficient
opportunities for ZOLL Medical to control all aspects of Petitioner’s
business, including controlling this inter partes review.
Petitioner acknowledges that ZOLL Medical controls 100% of
Petitioner and authorizes its budget and plans. Br. 4. Based on the record
before us, such control and authorization of budget and plans has been
ongoing since ZOLL Medical acquired Petitioner in 2006, and, importantly,
since at least 2010 when ZOLL Medical was served a complaint alleging
infringement of the ’905 patent. Although Petitioner asserts that it is paying
the costs and supervising the conduct of the IPRs, and that Petitioner’s
management is held responsible for its performance, Petitioner also
acknowledges that its budgets and plans are approved by ZOLL Medical.
Id. What Petitioner does not state affirmatively also is telling—that neither
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Mr. Grossman, who by admission provides legal counsel for both ZOLL
Medical and Petitioner, nor any other legal counsel for ZOLL Medical,
provided input into the preparation of the IPRs filed by Petitioner.
The circumstantial evidence shows unified actions by Petitioner and
ZOLL Medical in the “multi-state patent war” (Ex. 2016, 2)—of which the
instant IPR is a part—with Patent Owner. While common counsel alone is
not dispositive of control, we are persuaded that Petitioner’s actions have
blurred sufficiently the lines of corporate separation with its parent, ZOLL
Medical, such that ZOLL Medical has had control, or could have controlled
Petitioner, in all aspects of its business. For example, the absence of
Petitioner’s management team, and presence of ZOLL Medical’s
management team, at the court-ordered mediation in the Pennsylvania
Action suggests an involved and controlling parent corporation representing
the unified interests of itself and Petitioner. Ex. 2017, 6-7, 9; compare Ex.
2018 with Ex. 2019.
The Board provided Petitioner with an opportunity to rebut Patent
Owner’s assertions that ZOLL Medical is a real party-in-interest that should
have been identified in its petition in accordance with 37 C.F.R. § 42.8 and
35 U.S.C. § 315(b). Petitioner argued, unpersuasively, that control is not the
legal standard and that its relationship with ZOLL Medical is like that of co-
defendants who face the same plaintiff. Br. 5. We disagree that control is
not a factor to consider. See 77 Fed. Reg. at 48,759. We also are not
persuaded that the relationship between ZOLL Medical and Petitioner
merely is one of co-defendants who face the same plaintiff. Petitioner does
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not rebut the other indicia of control over its legal proceedings, such as
ZOLL Medical’s management team representing the Petitioner in the court-
ordered mediation in the Pennsylvania Action, and Petitioner’s argument for
a stay in district court on the basis that the parties (ZOLL Medical and
Petitioner) would be busy with the ZOLL Medical trial. Further, we are not
persuaded by Petitioner’s argument that it is not estopped because of the
differences between the Pennsylvania Action and the Massachusetts
Action. Differences between the actions do not overcome the Board’s
determination that a non-party is a real party-in-interest because of
considerations of control.
Based on the foregoing, we determine that ZOLL Medical is a real
party-in-interest for purposes of 35 U.S.C. § 315(b). ZOLL Medical has
been a real party-in-interest since at least the time it was served with the
complaint alleging infringement of the ’905 patent in the Massachusetts
Action. As discussed above, since the filing of the Massachusetts Action, in
2010, ZOLL Medical and Petitioner have enjoyed four years of a close
parent/wholly-owned-subsidiary relationship. Thus, Patent Owner has
provided persuasive evidence that ZOLL Medical was a real party-in-interest
at least as of October 13, 2010, when it was served with the complaint in the
Massachusetts Action. Because ZOLL Medical is a real party-in-interest
that was served with a complaint alleging infringement of the ’905 patent
more than one year before the filing of this petition on September 23, 2013,
the petition is untimely under 35 U.S.C. § 315(b).
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E. Privity Analysis
We also are persuaded by Patent Owner’s arguments that ZOLL
Medical is a privy of Petitioner under 35 U.S.C. § 315(b). Prelim. Resp. 14.
The evidence presented by Patent Owner sufficiently shows that ZOLL
Medical and Petitioner have been in privity since ZOLL Medical acquired
Petitioner’s assets in 2006, and at least since 2010 when ZOLL Medical was
served a complaint alleging infringement of the ’905 patent.
Notwithstanding Petitioner’s assertions of corporate formalities, the
facts show ZOLL Medical making public financial disclosures concerning
its ownership and participation in all aspects of Petitioner’s operation, from
sales to regulatory approval. See, e.g., Exs. 2008, 2010. For example,
Petitioner concedes that ZOLL Medical must approve all of Petitioner’s
plans and budget, and that both companies receive legal counsel from the
same legal representative, Mr. Grossman. Indeed, regardless of whether
ZOLL Medical keeps a tight rein over Petitioner, the evidence presented is
that ZOLL Medical and Petitioner’s interests are aligned—they have
operated continuously with a common corporate consciousness. See
Copperweld, 467 U.S. at 771-72. The relationship between ZOLL Medical
and Petitioner is, and has been, so close that Petitioner and ZOLL Medical
should enjoy the benefits, as well as the burden, of being in privity for
purposes of inter partes review proceedings.
As of the filing of the Massachusetts Action, in 2010, ZOLL Medical
and Petitioner had enjoyed four years of a close parent/wholly-owned-
subsidiary relationship. And by the filing of the Pennsylvania Action, in
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2012, ZOLL Medical and Petitioner represented in unison their interests in
staying the litigation and settling the dispute. Patent Owner has shown that
Petitioner and ZOLL Medical repeatedly held themselves out to the district
court in the Pennsylvania Action as a single entity: ZOLL.
Based on the facts discussed above, the evidence in its totality shows
that the close relationship between ZOLL Medical and Petitioner is not just
one of mere collaboration between two separate and distinct entities. For
example, Petitioner and ZOLL Medical have held themselves out as a
unified entity (“ZOLL”) to allege prejudice in going forward with both
district court cases. Prelim. Resp. 13 (citing Exs. 2017, 2020, 2021, 1003),
10-11 (citing Ex. 2015, 10 (emphasizing the “unfair burden to ZOLL of
serial lawsuits”)). Further, the evidence sufficiently shows that ZOLL
Medical and Petitioner acted in concert in the two litigations. For example,
ZOLL Medical represented Petitioner at the mediation and attempted to
delay the Pennsylvania Action (involving Petitioner) while focusing
resources on the Massachusetts Action (involving ZOLL Medical). This
conduct by Petitioner and ZOLL Medical is not indicative of separate and
distinct entities, as Petitioner argues. To set aside the history of involvement
of ZOLL Medical in the business and legal affairs of Petitioner in favor of
upholding the corporate formality of these entities would contradict the
factor-based analysis of what constitutes sufficient control for a non-party to
be recognized as a privy.
We conclude that ZOLL Medical is a privy under 35 U.S.C. 315(b)
based on the relationship between ZOLL Medical and Petitioner since at
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least 2010 when ZOLL Medical was served a complaint alleging
infringement of the ’905 patent. Because ZOLL Medical is a privy of
Petitioner that was served with a complaint alleging infringement of the ’905
patent more than one year before the filing of this petition, the petition is
untimely under 35 U.S.C. § 315(b).
F. Failure to Comply with 35 U.S.C. § 312(a)
Because ZOLL Medical is a real party-in-interest, the Petition does
not identify “all real parties in interest.” As a result, the Board determines
that the Petition is incomplete and may not be considered until corrected.
Section 42.106(b) of Title 37 of the Code of Federal Regulations
provides:
(b) Incomplete petition. Where a party files an incomplete
petition, no filing date will be accorded, and the Office will
dismiss the petition if the deficiency in the petition is not
corrected within one month from the notice of an incomplete
petition.
Ordinarily, because the Petition is incomplete, the Board would give
Petitioner one month from the date of this decision to correct the deficiency
and list ZOLL Medical as a real party-in-interest. In this instance, however,
curing the omission of ZOLL Medical as a real party-in-interest would be
futile because, even if corrected, the earliest filing date that could be
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accorded to the Petition would not fall within the one-year period specified
by 35 U.S.C. § 315(b).
2
Accordingly, we deny this petition as untimely.
III. CONCLUSION
The Board denies the petition because it was not filed within the time
limit imposed by 35 U.S.C. § 315(b) and does not comply with 35 U.S.C.
§ 312(a).
IV. ORDER
Accordingly, it is
ORDERED that the petition is denied and no trial is instituted.

2
Petitioner was served with a complaint alleging infringement of the ’905
patent on September 21, 2012. Thus, the one year period expired on
September 21, 2013. See 35 U.S.C. § 21(b).
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For PETITIONER:

John C. Phillips
Dorothy P. Whelan
Fish & Richardson
phillips@fr.com
whelan@fr.com
IPR38855-00091IP1@fr.com

For PATENT OWNER

J. Michael Jakes
Denise W. DeFranco
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
mike.jakes@finnegan.com
denise.defranco@finnegan.com
PTABdocket@finnegan.com
Philips-Zoll@finnegan.com