`571-272-7822
`
`
`
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`
`
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`
`
`
`
`Paper No. 63
`
`
`
` Entered: August 9, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COASTAL INDUSTRIES, INC.
`Petitioner,
`
`v.
`
`SHOWER ENCLOSURES AMERICA, INC.
`Patent Owner.
`_________
`
`Case IPR2017-00573
`Patent 7,174,944
`____________
`
`
`Before MICHAEL W. KIM, CARL M. DEFRANCO, and
`ALYSSA A. FINAMORE, Administrative Patent Judges.
`
`KIM, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of Proceeding; Compelling Testimony
`37 C.F.R.. §§ 42.5, 42.52
`
`
`
`On August 8, 2018, a conference call was held between the parties
`and Judges Kim, DeFranco, and Finamore. A court reporter was on the call,
`and a transcript of the call will be filed as an exhibit to this proceeding
`within ten (10) business days.
`
`
`
`IPR2017-00573
`Patent 7,174,944
`
`
`Several issues were discussed during the call, but only the following
`issues required resolution. First, Patent Owner requests authorization to
`seek a subpoena pursuant to 37 C.F.R. § 42.52(a) to compel testimony from
`a third party concerning the authenticity of Exhibit 1035, which appears to
`be a specification for a product manufactured by Alumax Bath Enclosures,
`who appears to be a subsidiary of ALCOA. Petitioner did not oppose Patent
`Owner’s request in principle, but wanted Patent Owner to submit the request
`via motion, and reserved the right to oppose. The panel indicated that such
`motion practice may cause ancillary delays in the proceeding, which is
`already on a compressed timeline for the reasons to be addressed later.
`Given that, Petitioner agreed to not oppose the request.
`In light of the above, and what was discussed on the call, Patent
`Owner is authorized to seek a subpoena pursuant to 37 C.F.R. § 42.52(a) to
`compel third party testimony concerning the authenticity of Exhibit 1035.
`As the subpoena concerns a disinterested third party, however, the
`information sought will be strictly limited in scope and narrowly tailored to
`the issues concerning the authenticity of Exhibit 1035 only, and impose no
`more than a minimal administrative burden on the third party.
`The parties also disputed the propriety of the use of a non-court
`reporter provided video camera during the deposition of Petitioner’s Reply
`declarant, Jeffery Dowd, and which party would ultimately bear the expense
`of any court-reporter provided video. For the reasons set forth in the call,
`the parties are limited to taking a video deposition of Mr. Dowd by the court
`reporter only.
`Finally, the parties disagreed as to the appropriate timing for the due
`date for Patent Owner’s Reply to Petitioner’s Opposition to Motion to
`
`
`
`2
`
`
`
`IPR2017-00573
`Patent 7,174,944
`
`Amend, currently due August 14, 2018, given the various scheduling
`considerations and possibilities. For the reasons set forth in the call, Patent
`Owner’s Reply is due no later than August 29, 2018, and the parties are
`permitted to stipulate to due dates for filings of pre-authorized papers no
`later than September 21, 2018. The parties are reminded that the panel is
`disinclined to delay that date (i.e., Due Date 13 referred to in Paper 50) any
`further, absent unusual or unforeseeable circumstances, and that the parties
`are advised to work together to ensure that all readily foreseeable scheduling
`considerations and possibilities are addressed within the time remaining.
`In consideration of the foregoing, it is hereby:
`ORDERED that that Patent Owner’s request for authorization to seek
`a subpoena under 37 C.F.R. § 42.52(a) to compel testimony of a third party
`concerning the authenticity of Exhibit 1035 is granted, but only to the extent
`indicated above;
`FURTHER ORDERED that any video deposition is limited to being
`taken by a court reporter;
`FURTHER ORDERED that the Patent Owner’s Reply to Petitioner’s
`Opposition to Motion to Amend is due no later than August 29, 2018, and
`the parties are permitted to stipulate to due dates for filings of pre-authorized
`papers no later than September 21, 2018; and
`FURTHER ORDERED that a transcript of the call will be filed as an
`exhibit to this proceeding no later than ten (10) business days from the entry
`date of this Order.
`
`
`
`
`
`
`3
`
`
`
`IPR2017-00573
`Patent 7,174,944
`
`PETITIONER:
`
`Joseph P. Kincart
`ROGERS TOWERS P.A.
`jkincart@rtlaw.com
`
`Andres F. Arrubla
`COASTAL INDUSTRIES INC.
`aarrubla@coastalind.com
`
`PATENT OWNER:
`
`Ryan Fountain
`ryanfountain@aol.com
`
`J. John O’Banion
`O’BANION & RITCHY, LLP
`docketing@intellectual.com
`
`
`
`
`4
`
`
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