`571-272-7822
`
`
`
` Paper 24
`Entered: March 10, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CAMELBAK PRODUCTS, LLC,
`Petitioner,
`
`v.
`
`IGNITE USA, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01034
`Patent 8,863,979 B2
`____________
`
`
`Before SALLY C. MEDLEY, KEN B. BARRETT, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`Case IPR2015-01034
`Patent 8,863,979 B2
`
`
`On March 8, 2016, Patent Owner sent an electronic mail message to
`
`the Board requesting authorization to file a ten page surreply to Petitioner’s
`
`reply (Paper 22), along with ten pages of supporting declaration testimony.
`
`Patent Owner stated that the surreply would “address new arguments and
`
`evidence” raised in Petitioner’s reply. Petitioner opposed the request.
`
`Patent Owner’s request is denied. In its request, Patent Owner did not
`
`specifically argue that Petitioner’s reply exceeds the proper scope of a reply.
`
`Nonetheless, this appears to be Patent Owner’s contention. Whether a reply
`
`contains arguments or evidence that is outside the scope of a proper reply
`
`under 37 C.F.R. § 42.23(b) is left to the determination of the Board. The
`
`Board will determine whether Petitioner’s reply and evidence are outside the
`
`scope of a proper reply and evidence when the Board reviews all of the
`
`parties’ briefs and prepares the final written decision. If there are improper
`
`arguments and evidence presented with a reply, the Board may exclude the
`
`reply and related evidence.
`
`Patent Owner is permitted to cross-examine reply declarants and, if
`
`necessary, Patent Owner may file a motion for observation regarding cross-
`
`examination of a reply witness by DUE DATE 4. As noted in the
`
`Scheduling Order (Paper 16), a motion for observation on cross-examination
`
`is a mechanism to draw the Board’s attention to relevant cross-examination
`
`testimony of a reply witness. The observation must be a concise statement
`
`of the relevance of precisely identified testimony to a precisely identified
`
`argument or portion of an exhibit (including another part of the same
`
`testimony). An observation is not an opportunity to raise new issues, to re-
`
`argue issues, or to pursue objections.
`
`2
`
`
`
`
`
`Case IPR2015-01034
`Patent 8,863,979 B2
`
`
`Each observation should be in the following form:
`
`In exhibit ___, on page ___, lines ___, the witness testified ___.
`That testimony is relevant to the ____ [stated or argued] on
`page ___, lines ___ of ___. The testimony is relevant because
`___.
`
`Each observation should not exceed one short paragraph. The Board may
`
`decline consideration or entry of argumentative observations. In accordance
`
`with the Scheduling Order, Petitioner may file a response to any motion for
`
`observation by DUE DATE 5.
`
`
`
`It is:
`
`ORDERED that Patent Owner’s request to file a surreply is denied;
`
`
`
`FURTHER ORDERED that Patent Owner is authorized to file a
`
`motion for observation on cross-examination by DUE DATE 4 consistent
`
`with this Order;
`
`FURTHER ORDERED that Petitioner is authorized to file a response
`
`to any motion for observation by DUE DATE 5 consistent with this Order.
`
`3
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`Case IPR2015-01034
`Patent 8,863,979 B2
`
`PETITIONER:
`
`David D'Ascenzo
`david@dascenzoiplaw.com
`
`
`
`PATENT OWNER:
`
`XXXX David Moreland
`litdocketing@mcciplaw.com
`
`Jessica Keesee
`jkeesee@mcciplaw.com
`
`Walter Levie, III
`tlevie@mcciplaw.com
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