Luv N’ Care, Ltd. v. Michael L McGinley
Paper No. 13, Sept. 18, 2017
IPR2017-01216 (Patent 8,636,178 B2)
Petitioner Luv N’ Care filed an inter partes review Petition on March 30, 2017. The Office did not receive the petition fee payment. Petitioner made payment on April 11, 2017. The Petition was accorded a filing date of April 11, 2017. Institution was denied as being time barred under 35 U.S.C. § 315(b). See Paper 13, p. 3.
Since 35 U.S.C. § 312(a)(1) requires payment of the government fee, an IPR Petition will not be accorded a filing date without the fee.
The Petitioner successfully filed the IPR Petition and exhibits on March 30th. However, the $23,000 was not made because records show that the deposit account lacked sufficient funds. Sufficient funds were made on March 30th (same day), but there is no record that another attempt to pay the fee was made.
The PTAB determined that Petitioner’s own Exhibit 1011 shows an explicit warning message that payment was not received on March 30th. See Paper 13, p. 4. Further, Petitioner does not explain the more than 10 day delay as well. Id. Further, 35 U.S.C. § 312(a)(1) statutorily states payment of the fee is needed for the Petition to be considered. See Paper 13, p. 5. Payment must be received, not merely tendered. Id. No filing date is accorded without the fee. Id. (citing 37 C.F.R. § 42.103(b)). The record does not show good cause to waive the fee requirement. Thus, Petitioner’s Motion to change the Petition filing date is denied.
And because the filing date is more than one year after service of complaint alleging infringement, the Petition is time barred. See Paper 13, pp. 12-13.
A copy of the PTAB order can be found here.