Trials@uspto.gov
`571.272.7822
`
`
`
`IPR2017-00087, Paper No. 27
`IPR2017-00091, Paper No. 29
`IPR2017-00094, Paper No. 29
`
`Entered: September 11, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CAMPBELL SOUP COMPANY,
`CAMPBELL SALES COMPANY, and
`TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`_____________
`
`Cases IPR2017-00087 (Patent 8,827,111 B2);
`IPR2017-00091 (Patent D621,645 S);
`IPR2017-00094 (Patent D612,646 S)1
` _____________
`
`Before TRENTON A. WARD, BART A. GERSTENBLITH, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`GERSTENBLITH, Administrative Patent Judge.
`
`
`DECISION
`Conduct of the Proceeding
`37 C.F.R. § 42.05
`
`
`
`1 Two of the three issues addressed herein apply only to IPR2017-00091 and
`IPR2017-00094, yet, for administrative efficiency, we exercise our
`discretion to issue one Decision and Order in each of these proceedings.
`The parties may not use this caption style.
`
`
`
`
`
`571.272.7822
`
`
`
`IPR2017-00087, Paper No. 27
`IPR2017-00091, Paper No. 29
`IPR2017-00094, Paper No. 29
`
`Entered: September 11, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CAMPBELL SOUP COMPANY,
`CAMPBELL SALES COMPANY, and
`TRINITY MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`GAMON PLUS, INC.,
`Patent Owner.
`_____________
`
`Cases IPR2017-00087 (Patent 8,827,111 B2);
`IPR2017-00091 (Patent D621,645 S);
`IPR2017-00094 (Patent D612,646 S)1
` _____________
`
`Before TRENTON A. WARD, BART A. GERSTENBLITH, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`GERSTENBLITH, Administrative Patent Judge.
`
`
`DECISION
`Conduct of the Proceeding
`37 C.F.R. § 42.05
`
`
`
`1 Two of the three issues addressed herein apply only to IPR2017-00091 and
`IPR2017-00094, yet, for administrative efficiency, we exercise our
`discretion to issue one Decision and Order in each of these proceedings.
`The parties may not use this caption style.
`
`
`
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`
`
`I.
`DISCUSSION
`A conference call was held on September 7, 2017, between respective
`counsel for the parties and Administrative Patent Judges Ward, Gerstenblith,
`and Kinder. Each of the issues discussed was resolved during the call, but
`this Decision and Order briefly summarize those issues and the decisions
`reached, along with any update received since the call.
`
`Expungement of Supplemental Evidence
`Petitioner requests that a supplemental declaration and evidence filed
`by Patent Owner on July 24, 2017, in IPR2017-00091 and IPR2017-00094,
`be expunged from the record. Patent Owner agrees that these materials,
`provided in response to an objection from Petitioner, should have been
`served, not filed, in accordance with 37 C.F.R. § 42.64, but asks that they
`remain on the dockets in each case in the event Patent Owner determines
`that filing is later necessary (e.g., in response to a motion to exclude).
`We agreed with the parties that the materials should not have been
`filed at this time. See 37 C.F.R. § 42.64. To avoid potential confusion, we
`ordered that the materials be expunged and filed at a later date, if necessary.
`We requested that the parties provide, via email, an agreed-upon list of all
`materials that should be expunged by 5:00 p.m. EST on September 8, 2017.
`Shortly after the conference call, we received said email indicating
`that the parties conferred and agreed that the following papers and exhibits
`shall be expunged per our instructions during the call:
`IPR2017-00091: Paper Nos. 22–24; Exhibits 2014–2017
`IPR2017-00094: Paper Nos. 22 and 23; Exhibits 2014–2017
`Accordingly, we hereby expunge these materials.
`
`2
`
`
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`Production of Documents
`Petitioner requests that Patent Owner produce additional documents,
`as routine discovery, that may have been referenced in, or relied upon during
`the preparation of, Mr. Johnson’s declarations or confirm that no such
`documents exist. Patent Owner contends that none of the additional
`documents sought by Petitioner fall within the scope of routine discovery as
`defined by 37 C.F.R. § 42.51(b)(1)(i).
`In view of the discussion during the conference call between the
`parties regarding the preparation of Mr. Johnson’s declaration, we determine
`that we need not decide whether the documents requested by Petitioner fall
`within the scope of routine discovery. Patent Owner intends to offer Mr.
`Johnson as both a fact and expert witness. Petitioner explained that it was
`difficult to tell whether certain portions of Mr. Johnson’s testimony are
`based on documents. Patent Owner explained that Mr. Johnson reviewed
`some documents in preparing some of his testimony, but that certain of these
`documents may not have been produced. The parties agreed that they would
`work together to identify the testimony of which Petitioner is concerned and
`Patent Owner would determine whether said testimony was based on a
`particular document and, if so, would produce those documents prior to any
`deposition of Mr. Johnson.
`In light of the parties’ agreement to meet and confer on the issue, no
`specific action was ordered. We commend the parties for being able to work
`together to resolve this issue.
`
`3
`
`
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`Depositions of Petitioner’s Declarations
`Patent Owner seeks to depose Mr. Gandy and Mr. Visser, each of
`whom submitted a declaration on behalf of Petitioner in support of the
`Petition filed in each case. Specifically, Patent Owner did not seek to
`depose either declarant prior to filing its Patent Owner Responses, but seeks
`to depose them now because of concern about the potential scope of
`Petitioner’s Reply Briefs and whether either witness will file a supplemental
`declaration. Petitioner contends that the time for seeking a deposition of
`each declarant has passed since Patent Owner already filed its Patent Owner
`Responses.
`We denied Patent Owner’s request as premature. In particular,
`Petitioner has not filed a Reply Brief in any of the above proceedings, the
`due dates of which are September 29, 2017, nor has Petitioner filed a
`supplemental declaration on behalf of either witness. Should Patent Owner
`determine it is necessary to depose one or both witnesses following the filing
`of Petitioner’s Reply Brief and any supplemental declaration, Patent Owner
`should contact us to schedule a subsequent conference call to discuss the
`matter. We requested that both parties be prepared to discuss prior Board
`decisions based on similar facts during any such conference call.
`
`4
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`
`II. ORDER
`
`
`
`It is:
`ORDERED that the parties shall provide a joint email response
`containing an agreed-upon list of all materials that should be expunged from
`IPR2017-00091 and IPR2017-00094 by 5:00 p.m. EST on September 8,
`2017;2
`FURTHER ORDERED that the following materials are expunged
`from the record in each of the following proceedings:
`IPR2017-00091: Paper Nos. 22–24; Exhibits 2014–2017
`IPR2017-00094: Paper Nos. 22 and 23; Exhibits 2014–2017; and
`FURTHER ORDERED that Patent Owner’s request to depose
`Mr. Gandy and Mr. Visser regarding Petitioner’s Reply Brief and any
`supplemental declaration is denied as premature.
`
`
`2 This clause is included to memorialize the instruction provided during the
`conference call, even though the parties already sent their email containing
`the agreed-upon list of materials.
`
`5
`
`
`
`IPR2017-00087 (Patent 8,827,111 B2)
`IPR2017-00091 (Patent D621,645 S)
`IPR2017-00094 (Patent D612,646 S)
`
`
`For PETITIONER ENTITIES CAMPBELL SOUP COMPANY and
`CAMPBELL SALES COMPANY CAMPBELL:
`
`Mark T. Vogelbacker
`Tracy Zurzolo Quinn
`REED SMITH LLP
`mvogelbacker@reedsmith.com
`tquinn@reedsmith.com
`
`
`For PETITINER ENTITY TRINITY MANUFACTURING, LLC:
`
`Martin B. Pavane
`Darren Mogil
`COZEN O’CONNOR
`mpavane@cozen.com
`dmogil@cozen.com
`
`Ira Jay Levy
`GOODWIN PROCTER LLP
`ILevy@goodwinlaw.com
`
`
`For PATENT OWNER:
`
`
`Andrew L. Tiajoloff,
`TIAJOLOFF & KELLY LLP
`atiajoloff@tkiplaw.com
`
`
`6
`
`
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