Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper No. 25
`Entered: January 31, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`
`Petitioner,
`
`v.
`
`VIRNETX, INC.,
`
`Patent Owner.
`____________
`
`Case IPR2017-00337
`Patent 9,038,163 B2
`____________
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper No. 25
`Entered: January 31, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`
`Petitioner,
`
`v.
`
`VIRNETX, INC.,
`
`Patent Owner.
`____________
`
`Case IPR2017-00337
`Patent 9,038,163 B2
`____________
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`IPR2017-00337
`Patent 9,038,163 B2
`
`
`Petitioner has requested oral argument pursuant to 37 C.F.R.
`§ 42.70(a). Paper 22. Patent Owner does not seek oral argument, but states
`that if Petitioner seeks oral argument and the Board grants that request or
`finds that oral argument would be helpful in deciding any of the issues,
`Patent Owner requests participation in oral argument to the same extent as
`Petitioner. Paper 24. The Petitioner’s request for oral argument is hereby
`granted to the extent described below.
`Each party will have 30 minutes to present its arguments.
`Petitioner bears the ultimate burden of proof that the claims at issue in this
`review are unpatentable. See 35 U.S.C. § 316(e). At oral argument,
`therefore, Petitioner will proceed first to present its case on the grounds of
`patentability on which we instituted trial. Thereafter, Patent Owner will
`argue its opposition to Petitioner’s case. To the extent Petitioner reserves
`rebuttal time, Petitioner then may make use of its rebuttal time responding to
`Patent Owner.
`Oral argument will commence at 1:00 PM Eastern Time on
`Tuesday, February 27, 2018, at the U.S. Patent & Trademark Office,
`Madison Building East, Ninth Floor, 600 Dulany Street, Alexandria,
`Virginia. All attendees will need a valid form of government-issued
`identification in order to enter the building and may be subject to security
`screening. The hearing will be open to the public for in-person attendance,
`and in-person attendance will be accommodated on a first-come, first-served
`basis. If the parties have any concern about disclosing confidential
`information, they are to contact the Board at least ten (10) business days
`before the hearing to discuss the matter. The Board will provide a court
`
`2
`
`
`
`IPR2017-00337
`Patent 9,038,163 B2
`
`reporter for the hearing and the reporter’s transcript will constitute the
`official record of the oral argument.
`At least seven (7) business days prior to oral argument, each party
`shall serve on the other party any demonstrative(s) it intends to use during
`oral argument. See 37 C.F.R. § 42.70(b). The parties shall also provide the
`demonstrative(s) to the Board at trials@uspto.gov at least five (5) business
`days prior to oral argument. Demonstratives, however, are not evidence,
`but merely a visual aid at the oral arguments. Demonstratives may not
`introduce new evidence or raise new arguments, but instead, should cite
`to evidence in the record. Demonstratives shall not become part of the
`evidentiary record of this proceeding.
`The parties should attempt to resolve any objections to demonstratives
`prior to involving the Board. The parties must request a conference call with
`the Board at least three (3) business days before the hearing to present any
`unresolved objection regarding the propriety of any demonstrative. Any
`unresolved objection to demonstratives that is not timely presented will be
`considered waived. The Board asks the parties to confine demonstrative
`objections to those identifying egregious violations that are prejudicial to the
`administration of justice. To aid in the preparation of an accurate transcript,
`each party shall provide paper copies of its demonstratives to the court
`reporter on the day of the oral argument. Such paper copies shall not
`become part of the evidentiary record of this proceeding.
`The parties are reminded that each presenter must identify clearly and
`specifically each demonstrative (e.g., by slide or screen number), paper, or
`exhibit referenced during the oral arguments to ensure the clarity and
`accuracy of the transcript. The parties also should note that at least one
`
`3
`
`
`
`IPR2017-00337
`Patent 9,038,163 B2
`
`member of the panel may be attending the oral argument electronically from
`a remote location and that if any demonstrative is not made fully available or
`visible to the entire panel, that demonstrative will not be considered.
`Because of limitations of the audio transmission systems in the hearing
`rooms, the presenter may speak only when standing at the hearing room
`lectern. If the parties have questions as to whether demonstratives would be
`sufficiently visible and available to all of the judges, the parties are invited
`to contact the Board at (571) 272-9797.
`The Board expects lead counsel for each party to be present in person
`at oral argument. If a party anticipates that its lead counsel will not be
`attending oral argument, the parties should request a joint telephone
`conference with the Board no later than seven (7) business days prior to the
`oral argument to discuss the matter. Any counsel of record, however, may
`present the party’s arguments.
`Lead counsel and back-up counsel may use portable computers in the
`hearing room at the counsel tables and at the hearing room lectern. Requests
`for audio-visual equipment are to be made five (5) business days in advance
`of the oral argument date. The requests are to be sent to Trials@uspto.gov.
`If the requests are not received timely, the equipment may not be available
`on the day of the hearing.
`
`
`
`
`
`4
`
`
`
`IPR2017-00337
`Patent 9,038,163 B2
`
`
`
`
`ORDER
`
`It is
`ORDERED that oral argument for these proceedings shall take place
`beginning at 1:00 PM Eastern Time on Tuesday, February 27, 2018, at the
`U.S. Patent & Trademark Office, Madison Building East, Ninth Floor, 600
`Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`
`
`IPR2017-00337
`Patent 9,038,163 B2
`
`PETITIONER:
`
`Jeffrey P. Kushan
`Scott Border
`Thomas A. Broughan, III
`SIDLEY AUSTIN LLP
`jkushan@sidley.com
`sborder@sidley.com
`tbroughan@sidley.com
`
`Joseph A. Loy
`joseph.loy@kirkland.com
`
`
`PATENT OWNER:
`
`Joseph E. Palys
`Naveen Modi
`PAUL HASTINGS LLP
`josephpalys@paulhastings.com
`naveenmodi@paulhastings.com
`
`
`6
`
`
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