Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 18
`Entered: November 17, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`NETFLIX, INC.,
`Petitioner,
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC,
`Patent Owner.
`
`
`
`
`
`
`
`Cases IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`
`ORDER
`Consolidating Oral Argument in IPR2016-01701 and IPR2017-00122
`37 C.F.R. § 42.70
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper 18
`Entered: November 17, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`NETFLIX, INC.,
`Petitioner,
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC,
`Patent Owner.
`
`
`
`
`
`
`
`Cases IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`
`ORDER
`Consolidating Oral Argument in IPR2016-01701 and IPR2017-00122
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`
`On October 26, 2017, we set oral argument in IPR2016-01701 for
`November 30, 2017. IPR2016-01701, Paper 19, 1. The parties have also
`requested oral argument in IPR2017-00122, which is preliminarily
`scheduled for December 21, 2017. IPR2017-00122, Papers 14, 15.
`On November 16, 2017, a conference call was held among Judges
`Tornquist, Turner, and Pettigrew and counsel for each party, in which the
`parties jointly requested that oral argument in IPR2016-01701 and IPR2017-
`00122 be consolidated and held on December 21, 2017. This request is
`granted.
`Petitioner and Patent Owner will each have 60 minutes total to present
`their arguments for the two consolidated cases. Petitioner bears the ultimate
`burden of proof that Patent Owner’s claims at issue are unpatentable.
`Therefore, Petitioner will open the hearing by presenting its argument. After
`Petitioner’s presentation, Patent Owner will respond to Petitioner’s
`argument. Petitioner may reserve time to respond to Patent Owner’s
`argument. Patent Owner may not reserve time.
`The hearing will commence at 1:00 PM Eastern Time on December
`21, 2017, on the ninth floor of Madison Building East, 600 Dulany Street,
`Alexandria, Virginia. The Board will provide a court reporter for the
`hearing and the reporter’s transcript will constitute the official record of the
`hearing. The hearing will be open to the public for in-person attendance that
`will be accommodated on a first-come, first-served basis. If the parties have
`any concern about disclosing confidential information, the parties should
`request a joint telephone conference with the Board no later than 10 days
`prior to the oral hearing to discuss the matter.
`
`2
`
`
`
`IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served at
`least seven business days before the hearing date. Notwithstanding 37
`C.F.R. § 42.70(b), each party also shall file its demonstrative exhibits with
`the Board as a separate paper at least two business days prior to the hearing.
`A hard copy of the demonstratives should be provided to the court reporter
`at the hearing, but hard copies of the demonstratives are not needed for the
`judges.
`The parties are directed to St. Jude Medical, Cardiology Division, Inc.
`v. The Board of Regents of the University of Michigan, IPR2013-00041
`(PTAB January 27, 2015) (Paper 65), for guidance regarding the appropriate
`content of demonstrative exhibits. Demonstrative exhibits are not evidence
`and may not introduce new evidence or arguments. Instead, demonstrative
`exhibits should cite to evidence in the record. The parties also should note
`that at least one member of the panel will be attending the oral hearing
`electronically from a remote location. Thus, the presenter should speak only
`when standing at the hearing room lectern and must identify clearly and
`specifically each demonstrative exhibit (e.g., by slide or screen number)
`referenced during the hearing.
`The parties shall meet and confer to discuss and resolve any
`objections to demonstrative exhibits. Any party with unresolved objections
`to a demonstrative exhibit must file a list of those objections with the Board
`at least two business days before the hearing. For each objection, the list
`must identify with particularity which portions of the exhibits are subject to
`the objection and may include a short, one-sentence statement explaining the
`objection. No argument or further explanation is permitted. The Board will
`
`3
`
`
`
`IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`consider any objections and schedule a conference call if deemed necessary.
`Otherwise, the Board will reserve ruling on the objections.
`Generally, the Board expects lead counsel for each party to be present
`in person at the oral hearing. If any party expects that its lead counsel will
`not be attending the oral hearing, the parties should request a joint telephone
`conference with the Board no later than 10 days prior to the oral hearing to
`discuss the matter.
`Any special requests for audio-visual equipment should be directed
`to Trials@uspto.gov. Requests for special equipment will not be honored
`unless presented in a separate communication not less than five days before
`the hearing directed to the above email address.
`In view of the foregoing, it is:
`ORDERED that oral argument in IPR2016-01701, currently
`scheduled for November 30, 2017, is hereby cancelled;
`FURTHER ORDERED that the parties’ requests for oral argument in
`IPR2017-0122 are hereby granted; and
`FURTHER ORDERED that a consolidated oral argument for
`IPR2016-01701 and IPR2017-00122 will be held on December 21, 2017, as
`outlined in this Order.
`
`
`
`
`
`4
`
`
`
`IPR2016-01701 (Patent 9,094,802 B2)
`IPR2017-00122 (Patent 9,444,868 B2)
`
`PETITIONER:
`
`Hector Ribera
`hector@martonribera.com
`
`David Schumann
`david@martonribera.com
`
`
`PATENT OWNER:
`
`Ryan Schultz
`rschultz@robinskaplan.com
`
`Shui Li
`sli@robinskaplan.com
`
`
`
`
`5
`
`
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