`571-272-7822
`
`
`
`
`Paper 37
`Entered: January 22, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RIVERBED TECHNOLOGY, INC.,
`Petitioner,
`
`v.
`
`SILVER PEAK SYSTEMS, INC.,
`Patent Owner.
`
`Case IPR2014-00245
`Patent 8,392,684 B2
`
`
`
`
`
`
`
`
`
`Before DENISE M. POTHIER, JUSTIN T. ARBES, and HYUN J. JUNG,
`Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`IPR2014-00245
`Patent 8,392,684 B2
`
`Petitioner and Patent Owner each requested a hearing in the instant
`
`proceeding pursuant to 37 C.F.R. § 42.70(a). Papers 32, 33. The requests
`are granted.
`
`Each party will have forty-five (45) minutes of total time to present
`arguments. Patent Owner filed a motion to amend (Paper 16), but not a
`response, and thus waived any argument as to the patentability of the
`challenged claims. Patent Owner bears the burden of proof with respect to
`its motion to amend. See 37 C.F.R. § 42.20(c). Accordingly, Patent Owner
`will proceed first to present its case as to the proposed substitute claims, and
`may reserve rebuttal time. Petitioner then may respond to Patent Owner’s
`case as to the proposed substitute claims. Finally, Patent Owner may use the
`rest of its time to respond to Petitioner’s presentation.
`
`The hearing will commence at 10:00 AM Eastern Time on February 5,
`2015, and will be open to the public for in-person attendance on the ninth
`floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`Exhibit 2015 has been conditionally sealed in this proceeding. Given the
`substance of the exhibit, however, we conclude that the parties are capable
`of presenting their arguments at the hearing without discussing confidential
`information, and exercise our discretion to make the hearing open to the
`public for in-person attendance. If the parties believe discussion of the
`information in Exhibit 2015 is necessary during the hearing, the parties are
`required to contact the Board at least two days prior to the hearing.
`
`In-person attendance will be accommodated on a first come, first
`served basis. The Board will provide a court reporter for the hearing, and
`the reporter’s transcript will constitute the official record of the hearing.
`
`2
`
`
`
`IPR2014-00245
`Patent 8,392,684 B2
`
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served
`
`five business days prior to the hearing. The parties shall confer with each
`other regarding any objections to demonstrative exhibits in each proceeding,
`and file demonstrative exhibits with the Board at least two business days
`prior to the hearing. For any issue that cannot be resolved after conferring
`with the opposing party, the parties may file jointly a one-page list of
`objections at least two business days prior to the hearing. The list should
`identify with particularity which demonstrative exhibits are subject to
`objection and include a short statement (no more than one sentence) of the
`reason for each objection. No argument or further explanation is permitted.
`We will consider the objections and schedule a conference call if necessary.
`Otherwise, we will reserve ruling on the objections until after the hearing.
`Any objection to demonstrative exhibits that is not presented timely will be
`considered waived.
`The parties are directed to CBS Interactive Inc. v. Helferich Patent
`Licensing, LLC, IPR2013-00033, slip op. (PTAB Oct. 23, 2013) (Paper
`118), regarding the appropriate content of demonstrative exhibits. The
`parties are reminded that the presenter must identify clearly and specifically
`each demonstrative exhibit (e.g., by slide or screen number) referenced
`during the hearing to ensure the clarity and accuracy of the reporter’s
`transcript.
`The Board expects lead counsel for Petitioner and Patent Owner to be
`
`present at the hearing, although any back-up counsel may make the actual
`presentation, in whole or in part. If lead counsel for either party will not be
`in attendance at the hearing, the Board should be notified via a joint
`
`3
`
`
`
`IPR2014-00245
`Patent 8,392,684 B2
`
`conference call no later than two days prior to the hearing to discuss the
`matter.
`Requests for audio-visual equipment at the hearing are to be made
`five days in advance of the hearing date. The requests must be sent to
`Trials@uspto.gov. If the requests are not received timely, equipment may
`not be available on the day of the hearing. Further, if the parties have
`questions as to whether demonstrative exhibits would be sufficiently visible
`and available to all of the judges, the parties are invited to contact the Board
`at 571-272-9797.
`
`
`
`
`PETITIONER:
`
`David M. O’Dell
`Kyle Howard
`John Russell Emerson
`Andrew S. Ehmke
`HAYNES AND BOONE, LLP
`david.odell.ipr@haynesboone.com
`kyle.howard.ipr@haynesboone.com
`russell.emerson.ipr@haynesboone.com
`andy.ehmke.ipr@haynesboone.com
`
`PATENT OWNER:
`
`Darren E. Donnelly
`Jason E. Amsel
`FENWICK & WEST LLP
`ddonnelly-ptab@fenwick.com
`jamesl-ptab@fenwick.com
`
`
`4
`
`
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