Trials@uspto.gov Paper 32
`571-272-7822
`
`Date Entered: May 25, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`_______________
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)1
`_______________
`
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5(a)(1)
`
`
`
`
`
`1 This Order addresses issues that are identical in all cases. The parties are
`not authorized to use this style heading for any subsequent papers.
`
`
`
`
`
`571-272-7822
`
`Date Entered: May 25, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`_______________
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)1
`_______________
`
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`ANDERSON, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5(a)(1)
`
`
`
`
`
`1 This Order addresses issues that are identical in all cases. The parties are
`not authorized to use this style heading for any subsequent papers.
`
`
`
`
`
`
`
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)
`
`
`Apple Inc. (“Petitioner”) requested an oral hearing in each of these
`proceedings pursuant to 37 C.F.R. § 42.70 and VirnetX Inc. (“Patent
`Owner”) filed a Notice Regarding Oral Argument stating that if Petitioner
`requested oral argument, it would also present oral argument. See, Papers
`29, 31.2 We grant Petitioner’s request.
`These proceedings will be heard on June 27, 2016. Each party will
`have 40 minutes of total argument time. Petitioner bears the ultimate
`burden of proof that the claims at issue in this review are unpatentable.
`Therefore, Petitioner will proceed first to present Petitioner’s case with
`regard to the challenged claims on which basis we instituted trial.
`Thereafter, Patent Owner will respond to Petitioners’ case and present
`argument regarding its motion to exclude (Paper 36). After that, Petitioner
`will make use of the rest of its time responding to Patent Owner. There are
`no motions to amend or other motions to be addressed at the hearing, and
`no rebuttal time will be allotted to Patent Owner.
`There is a strong public policy interest in making all information
`presented in these proceedings public, as the review determines the
`patentability of claims in an issued patent and thus affects the rights of the
`public. This policy is reflected in part, for example, in 35 U.S.C.
`§ 316(a)(1) and 35 U.S. C. § 326(a)(1), which provide that the filing of
`any inter partes review or post grant review be made available to the
`public, except that any petition or document filed with the intent that it be
`sealed shall, if accompanied by a motion to seal, be treated as sealed
`
`
`2 All citations are to papers filed in IPR2015-00866.
`2
`
`
`
`
`
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)
`
`
`pending the outcome of the ruling on the motion. Accordingly, we
`exercise our discretion to make the oral hearing publically available via in-
`person attendance.
`Specifically, the hearing will commence at 1:30 PM Eastern Time, on
`the aforementioned date, on the ninth floor of Madison Building East, 600
`Dulany Street, Alexandria, Virginia, and it will be open to the public for in-
`person attendance. In-person attendance will be accommodated on a first
`come first serve basis.
`The Board will provide a court reporter for the hearing, and the
`reporter’s transcript will constitute the official record of the hearing.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served five
`business days before the hearing. The parties are directed to CBS
`Interactive Inc. v. Helferich Patent Licensing, LLC, IPR2013-00033, Paper
`118 (Oct. 23, 2013), regarding the appropriate content of demonstrative
`exhibits.
`Any issue regarding demonstrative exhibits should be resolved at
`least two business days prior to the hearing by way of a joint telephone
`conference call to the Board. The parties are responsible for requesting
`such a conference sufficiently in advance of the hearing to accommodate
`this requirement. Any objection to demonstrative exhibits that is not
`timely presented will be considered waived.
`Demonstratives should be filed at the Board no later than two days
`before the hearing. A hard copy of the demonstratives should be provided
`to the court reporter at the hearing. Questions regarding specific audio-
`visual equipment should be directed to the Board at (571) 272-9797.
`3
`
`
`
`
`
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)
`
`
`Requests for audio-visual equipment are to be made 5 days in advance
`of the hearing date. The request is to be sent directly to
`Trials@uspto.gov. If the request is not received timely, the equipment
`may not be available on the day of the hearing. 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 parties also should note that at least one member of the panel
`will be attending the hearing electronically from a remote location, and
`that if a demonstrative is not filed or otherwise made fully available or
`visible to the judge presiding over the hearing remotely, that
`demonstrative will not be considered. 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. Documents presented on the Elmo projector may not be
`visible to remote judges, so please plan accordingly.
`The Board expects lead counsel for each party (including each of the
`joined Petitioners) to be present in person at the oral hearing. However,
`lead or backup counsel of the presenting party may put forward the party’s
`argument. If either party anticipates that its lead counsel will not be
`attending the oral hearing, the parties should initiate a joint telephone
`conference with the Board no later than two business days prior to the oral
`hearing to discuss the matter.
`
`
`4
`
`
`
`
`
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)
`
`
`
`
`
`
`
`
`
`ORDER
`ORDERED that oral argument will be held in the identified cases on
`June 27, 2016, commencing at the time and place stated above; and
`FURTHER ORDERED that a copy of this Order shall be filed in
`IPR2015-00866, IPR2015-00868, IPR2015-00870, and IPR2015-00871.
`
`
`
`
`5
`
`
`
`
`
`
`Case IPR2015-00866 (Patent 8,458,341 B2)
`Case IPR2015-00868 (Patent 8,516,131 B2)
`Case IPR2015-00870 (Patent 8,560,705 B2)
`Case IPR2015-00871 (Patent 8,560,705 B2)
`
`
`For Petitioner:
`Jeffrey Kushan
`Thomas A. Broughan, III
`SIDLEY AUSTIN LLP
`IPRNotices@sidley.com
`tbroughan@sidley.com
`
`For Patent Owner:
`Joseph Palys
`Naveen Modi
`PAUL HASTINGS LLP
`josephpalys@paulhastings.com
`naveenmodi@paulhastings.com
`
`Jason Stach
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P.
`jason.stach@finnegan.com
`
`6
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