`571-272-7822 Entered: April 26, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ACCLARENT, INC.,
`Petitioner,
`
`v.
`
`FORD ALBRITTON, IV,
`Patent Owner.
`____________
`
`Case IPR2017-00498
`Patent 9,011,412 B2
`____________
`
`
`
`Before JOSIAH C. COCKS, BEVERLY M. BUNTING, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`
`MARSCHALL, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`
`
`IPR2017-00498
`Patent 9,011,412 B2
`
`
`An oral hearing was held in this proceeding on April 24, 2018.
`
`During the hearing, counsel for Ford Albritton, IV (“Patent Owner”)
`
`asserted that claim 1 of U.S. Patent No. 9,011,412 B2 (“the ’412 patent”)
`
`does not cover Figure 2 of the ’412 patent. Counsel for Acclarent, Inc.
`
`(“Petitioner”) asserted that Patent Owner never made the argument
`
`previously, and that claim 1 covers Figure 2.
`
`Whether claim 1, or any other claim in the ’412 patent, encompasses
`
`the embodiment depicted in Figure 2, and as described in associated text in
`
`the specification, may be germane to one or more issues in this proceeding.
`
`Given the potential relevance of the issue, and the lack of adequate briefing
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`on the subject, we request further input from the parties. More specifically,
`
`we seek input from the parties regarding whether any of the claims of the
`
`’412 patent covers the structure depicted in Figure 2 and described in
`
`associated text. Timing and length requirements of the authorized briefing
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`are set forth in the Order below. The parties are not authorized to file
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`additional evidence in support of their respective briefs beyond that already
`
`of record in this proceeding.
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`
`
`It is
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`ORDERED that both Petitioner and Patent are authorized to submit a
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`brief addressing whether any claims of the ’412 patent cover the structure
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`depicted in Figure 2 and described in associated text, including the reasoning
`
`supporting the position; and
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`FURTHER ORDERED that the briefs shall not exceed three (3) pages
`
`in length and shall be filed no later than May 2, 2018.
`
`
`
`2
`
`
`
`IPR2017-00498
`Patent 9,011,412 B2
`
`For PETITIONER:
`
`Lisa Adams
`ladams@mintz.com
`
`Peter Cuomo
`pjcuomo@mintz.com
`
`
`
`For PATENT OWNER:
`
`Ashley Moore
`amoore@mckoolsmith.com
`
`Meredith Elkins
`melkins@mckoolsmith.com
`
`Travis DeArman
`tdearman@mckoolsmith.com
`
`
`
`3
`
`
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