Inre: Redline Detection, LLC , 547 F. App'x 994 ( 2013 )

Case: 14-102 Document: 22 Page: 1 Filed: 12/11/2013
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
IN RE REDLINE DETECTION, LLC,
Petitioner.
__________________________
2014-102
__________________________
On Petition for Writ of Mandamus to the United
States Patent and Trademark Office, Patent Trial and
Appeal Board in No. IPR2013-00106.
__________________________
ON PETITION
__________________________
Before RADER, Chief Judge, LOURIE and TARANTO, Circuit
Judges.
RADER, Chief Judge.
ORDER
The Patent Trial and Appeal Board rejected Redline
Detection, LLC’s attempts to accept into the record cer-
tain documents not part of its initial submission. Redline
now asks this court to issue a writ of mandamus to com-
pel the Board to accept those documents. We deny the
petition.
Case: 14-102 Document: 22 Page: 2 Filed: 12/11/2013
IN RE REDLINE DETECTION, LLC 2
This petition arises out of Redline’s ongoing efforts to
challenge the validity of U.S. Patent No. 6,526,808, which
is owned by STAR EnviroTech, Inc.
In January 2013, Redline petitioned for inter partes
review (“IPR”) of claims 9 and 10 of that patent, alleging
those claims were invalid under 35 U.S.C. § 103. When it
did so, Redline apparently neglected to include expert
declarations in support of its arguments.
On the eve of the parties’ initial conference call with
the Board, Redline moved to submit two prior art patents
and two declarations providing testimony and support for
combining the references of record. Redline claimed that
the motion was proper under 37 C.F.R. § 42.123(a), enti-
tled “[m]otion to submit supplemental information,”
because the request was timely and the information was
relevant.
After the conference call, the Board denied the mo-
tion. The Board noted, among other things, that Redline
could have included the information in its petition and
that the information was not merely “supplemental,”
because it included arguments and responses to the
Board’s decision to institute the IPR.
Redline moved the Board to reconsider its holding.
The Board affirmed its holding, additionally noting that
Redline had failed to demonstrate that the two prior art
references were relevant to the claims at issue in the
present case. This petition followed.
Redline seeks a writ of mandamus to compel the
Board to accept its submissions. But, mandamus is rarely
a proper means by which an appellate court should take
up such evidentiary matters. See In re MSTG, Inc., 675
F.3d 1337, 1341 (Fed. Cir. 2012). An evidentiary ruling
by the Board can be reviewed after the Board’s final
decision, see, e.g., Chen v. Bouchard, 347 F.3d 1299, 1307-
08 (Fed. Cir. 2003), and this court sees no reason to
Case: 14-102 Document: 22 Page: 3 Filed: 12/11/2013
3 IN RE REDLINE DETECTION, LLC
depart from that usual course here. The petition is there-
fore denied without prejudice to Redline again raising its
§ 42.123 arguments on appeal after the Board’s final
decision in the IPR.
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
FOR THE COURT
/s/ Daniel E. O’Toole
Daniel E. O’Toole
Clerk of Court
s26