`571-272-7822
` Date Entered: December 8, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FOX FACTORY, INC.,
`Petitioner,
`
`v.
`
`SRAM, LLC,
`Patent Owner.
`____________
`
`Cases
` IPR2016-01876 (Patent 9,182,027 B2)
` IPR2017-00118 (Patent 9,182,027 B2)
` IPR2017-00472 (Patent 9,182,027 B2)1
`____________
`
`Before FRANCES L. IPPOLITO and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`Petitioner’s Request Regarding Observations on Cross Examination
`37 C.F.R. § 42.5
`
`
`
`
`1 The Board is entering this Order in each proceeding. The parties are not
`authorized to use a caption identifying multiple proceedings.
`
`
`
`
`
`
`
`IPR2016-01876 (Patent 9,182,027 B2)
`IPR2017-00118 (Patent 9,182,027 B2)
`IPR2017-00472 (Patent 9,182,027 B2)
`
`
`On December 6, 2017, Judges Cherry and Ippolito conducted a
`conference call with counsel for the parties.2 The conference call was held
`to discuss Petitioner’s request to include in its Response to Patent Owner’s
`Observations on Cross-Examination observations responsive to the topics in
`Patent Owner’s Sur-Reply. Patent Owner opposed the request. Patent
`Owner also noted that, if we granted the request, that it only cited the
`testimony of Dr. Neptune in its Sur-Reply and objected to any citations to
`testimony by other witnesses. We will grant Petitioner an exception to the
`ordinary practice of observations and allow Petitioner to include responsive
`observations related to Patent Owner’s Sur-Reply. As we explained in detail
`on the call, we determine that the interests of a complete record weigh in
`favor of allowing Petitioner to provide citations to testimony by
`Dr. Neptune, and any other deposition testimony cited by Patent Owner in
`the Sur-Reply, that might clarify or give context to that witness’s testimony
`that is cited in the Sur-Reply.
`However, we will not allow Petitioner to provide responsive
`observations of testimony for other witnesses not cited in the Sur-Reply that
`it believes are related to the arguments raised in Patent Owner’s Sur-Reply.
`We believe that allowing such an open-ended opportunity to introduce
`evidence and testimony by witnesses that were not cited by Patent Owner in
`its Sur-Reply would amount to an improper attempt at a Sur-Sur-Reply that
`would introduce new arguments and issues not raised in the Sur-Reply.
`Given that we are already granting Petitioner an exception from the normal
`
`
`2 A court reporter was present and transcribed the call. Petitioner filed a
`copy of the transcript as Exhibit 1076 in all of these cases.
`2
`
`
`
`
`IPR2016-01876 (Patent 9,182,027 B2)
`IPR2017-00118 (Patent 9,182,027 B2)
`IPR2017-00472 (Patent 9,182,027 B2)
`
`
`
`practice of observations, we determine that such an exception should be kept
`narrow out of fairness to Patent Owner. Thus, we denied that part of the
`request.
`We cautioned Petitioner that the observations related to the Sur-Reply
`should be concise and consistent with our guidance contained in the
`scheduling orders for these cases. We warned Petitioner that if the
`observations were excessive and unreasonable we would consider
`authorizing a motion to strike.
`We further note that, as we explained on the call, Petitioner will still
`have the opportunity at the oral hearing to direct the panel’s attention to the
`other relevant testimony by the other witnesses that it wishes to cite.
`We also informed the parties that if any party has any objections to
`demonstrative exhibits of the other party, the parties should contact the
`Board. The procedures regarding objections to demonstratives will be
`contained in our oral hearing order.
`Accordingly, it is
`ORDERED that Petitioner is permitted include observations
`responsive to Patent Owner’s Sur-Reply in its Response to Patent Owner’s
`Observations; and
`FURTHER ORDERED that such observations responsive to Patent
`Owner’s Sur-Reply will be limited to the testimony of the witness or
`witnesses cited by Patent Owner in its Sur-Reply.
`
`
`
`
`3
`
`
`
`
`
`
`IPR2016-01876 (Patent 9,182,027 B2)
`IPR2017-00118 (Patent 9,182,027 B2)
`IPR2017-00472 (Patent 9,182,027 B2)
`
`
`
`
`For Petitioner:
`
`Joshua Goldberg
`Joshau.goldberg@finnegan.com
`
`Arpita Bhattacharyya
`Arpita.chattacharyya@finnegan.com
`
`Daniel Klodowski
`Daniel.klodowski@finnegan.com
`
`
`For Patent Owner:
`Michael Hickey
`mhickey@lewisrice.com
`
`Kirk Damman
`kdamman@lewisrice.com
`
`Benjamin Siders
`bsiders@lewisrice.com
`
`
`4
`
`
`
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