Trials@uspto.gov Paper 24
`571-272-7822 Date: June 2, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`ALIPHCOM, INC. D/B/A JAWBONE,
`Patent Owner.
`
`____________
`
`Case IPR2016-00714
`Patent 8,446,275 B2
`____________
`
`
`
`Before BRYAN F. MOORE, TREVOR M. JEFFERSON, and MIRIAM
`QUINN, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`ORDER
`Request for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`571-272-7822 Date: June 2, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`ALIPHCOM, INC. D/B/A JAWBONE,
`Patent Owner.
`
`____________
`
`Case IPR2016-00714
`Patent 8,446,275 B2
`____________
`
`
`
`Before BRYAN F. MOORE, TREVOR M. JEFFERSON, and MIRIAM
`QUINN, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`ORDER
`Request for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`
`IPR2016-00714
`Patent 8,446,275 B2
`
`
`Patent Owner has requested an oral hearing1 for inter partes review
`proceeding IPR2016-00714 pursuant to 37 C.F.R. § 42.70. Paper 20. Upon
`consideration by the panel, the Patent Owner’s request is granted.
`Each party will have one-half hour of total time to present arguments.
`Petitioner bears the ultimate burden of proof that Patent Owner’s claims at
`issue in this review are unpatentable. Petitioner will, therefore, begin by
`presenting its case regarding the challenged claims and grounds for which the
`Board instituted trial in the proceeding. Patent Owner will then respond to
`Petitioner’s arguments. Petitioner may reserve time to respond to arguments
`presented by Patent Owner. There is no motion to amend pending in the
`subject proceeding.
`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 file 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 pending the outcome of
`
`
`1 Petitioner did not seek oral argument but indicated “[i]f, however, the
`Board grants Patent Owner’s request for oral argument, Petitioner requests
`that it be allowed to participate in oral argument to the same extent as Patent
`Owner.” Paper 21. Patent Owner, via email to the Board, sought leave to
`file a sur-reply to Petitioner’s Reply in lieu of an oral hearing. Petitioner
`objected via an email to the Board. We considered but did not grant Patent
`Owner’s request for a sur-reply.
`
`2
`
`
`
`
`
`IPR2016-00714
`Patent 8,446,275 B2
`
`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 10:00 AM Eastern Daylight
`Time, on June 13, 2017, on the ninth floor of Madison Building East, 600
`Dulany Street, Alexandria, Virginia. The hearing will be open to the public
`for in-person attendance that 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.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served five
`(5) 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. 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. Any issue regarding demonstrative exhibits should be
`resolved at least three 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. The parties also shall
`provide the demonstrative exhibits to the Board at least two business days
`prior to the hearing by emailing them to Trials@uspto.gov. The parties shall
`email demonstrative exhibits to the Board but shall not file any demonstrative
`
`3
`
`
`
`
`
`IPR2016-00714
`Patent 8,446,275 B2
`
`exhibits in this case without prior authorization from the Board. 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. Requests for audio-visual equipment are to
`be made five (5) days in advance of the hearing date. The request is to be sent
`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 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 made fully available or visible to the judge participating
`in 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. The parties are also 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 and the ability of the judge
`participating in the hearing remotely to closely follow the presenter’s
`arguments.
`The Board expects lead counsel for each party to be present in person
`at the oral hearing. However, lead or backup counsel may present the party’s
`argument. If either party anticipates that its lead counsel will not be attending
`the oral argument, 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
`
`
`
`
`
`IPR2016-00714
`Patent 8,446,275 B2
`
`
`
`FOR PETITIONER:
`
`Naveen Modi
`Yar Chaikovsky
`David Okano
`PH-Fitbit_Aliph-IPR@paulhastings.com
`
`
`
`FOR PATENT OWNER:
`
`Michael Rosato
`mrosato@wsgr.com
`
`Richard Torczon
`rtorczon@wsgr.com
`
`Andrew Brown
`asbrown@wsgr.com
`
`Jose Villarreal
`jvillarreal@wsgr.com
`
`Michael Guo
`mguo@wsgr.com
`
`
`5
`
`
`
`
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