Trials@uspto.gov
`571–272–7822
`
`
`
`Paper 39
`Entered: June 22, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`OTICON MEDICAL AB; OTICON MEDICAL LLC; WILLIAM DEMANT
`HOLDINGS A/S,
`Petitioner,
`
`v.
`
`COCHLEAR BONE ANCHORED SOLUTIONS AB,
`Patent Owner.
`____________
`
`Case IPR2017-010181
`Patent 7,043,040 B2
`____________
`
`Before JAMES B. ARPIN, BARBARA A. PARVIS, and AMANDA F. WIEKER,
`Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`ORDER
`Oral Argument
`35 U.S.C. § 316(a)(10) and 37 C.F.R. § 42.70
`
`
`1 Case IPR2017-01019 has been consolidated with the instant proceeding.
`
`
`571–272–7822
`
`
`
`Paper 39
`Entered: June 22, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`OTICON MEDICAL AB; OTICON MEDICAL LLC; WILLIAM DEMANT
`HOLDINGS A/S,
`Petitioner,
`
`v.
`
`COCHLEAR BONE ANCHORED SOLUTIONS AB,
`Patent Owner.
`____________
`
`Case IPR2017-010181
`Patent 7,043,040 B2
`____________
`
`Before JAMES B. ARPIN, BARBARA A. PARVIS, and AMANDA F. WIEKER,
`Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`ORDER
`Oral Argument
`35 U.S.C. § 316(a)(10) and 37 C.F.R. § 42.70
`
`
`1 Case IPR2017-01019 has been consolidated with the instant proceeding.
`
`
`
`IPR2017-01018
`Patent 7,043,040 B2
`
`
`On September 5, 2017, we instituted an inter partes review
`proceeding as to claims 1–6 and 11–13 of U.S. Patent No. 7,043,040. See
`Papers 7, 9. On May 8, 2018, pursuant to the U.S. Supreme Court’s decision
`in SAS Inst. Inc. v. Iancu, 2018 WL 1914661 (U.S. Apr. 24, 2018), we
`modified our institution decision to include claims 7–10 in this proceeding.
`Paper 33, 3. In that order, we also modified the date set for oral argument in
`this proceeding. Id. at 4, 5; Paper 8, 4–5. Both parties request oral argument
`for this proceeding, pursuant to 37 C.F.R. § 42.70(a). Papers 30, 31.2 The
`parties’ requests are granted.
`The hearing will commence at 1:30 PM Eastern Time on July 11,
`2018, and will be open to the public for in-person attendance on the ninth
`floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`In-person attendance will be accommodated on a first-come, first-served
`basis. We will provide a court reporter for the hearing, and the reporter’s
`transcript will constitute the official record of the hearing.
`Patent Owner requests one hour of oral argument time. Paper 30.
`Petitioner does not request a specific amount of oral argument time.
`Paper 31. We have reviewed the issues that the parties intend to address in
`this proceeding, and we determine that each party should be accorded forty-
`five (45) minutes of total argument time.
`Petitioner bears the ultimate burden of proof that the challenged
`claims are unpatentable. 35 U.S.C. § 316(e). Petitioner, therefore, will open
`
`
`2 Because these papers were filed before we included claims 7–10 in this
`proceeding, the parties’ requests for oral argument do not mention claims 7–
`10. Nonetheless, we authorize the parties to present argument regarding
`those claims, commensurate with the parties’ briefing. As always, no new
`arguments may be presented.
`
`
`
`2
`
`
`
`IPR2017-01018
`Patent 7,043,040 B2
`
`the hearing by presenting its case regarding the challenged claims for which
`the Board instituted trial. After Petitioner’s presentation, Patent Owner may
`respond to Petitioner’s argument. Petitioner may reserve time for rebuttal,
`out of its allotted time, to respond to argument presented by Patent Owner.
`Pursuant to 37 C.F.R. § 42.70(b), demonstrative exhibits must be
`served no later than seven (7) business days before the hearing date. They
`shall be filed with the Board no later than five (5) business days before the
`hearing date. Demonstrative exhibits are not evidence, but merely a
`visual aid for use at the hearing. Demonstrative exhibits shall not
`introduce new arguments or evidence. The parties shall meet and confer to
`discuss any objections to demonstrative exhibits at least three (3) business
`days before the hearing. If any issues regarding demonstratives remain
`unresolved after the parties meet and confer, the parties shall file jointly a
`one-page list of objections to the demonstrative exhibits at least two (2)
`business days before the hearing. For each objection, the list must identify
`with particularity the demonstratives subject to the objection and include a
`short, one-sentence statement explaining the objection. We will consider the
`objections and schedule a conference call if necessary. Regardless of
`whether the propriety of any demonstrative exhibit is disputed by either
`party, we consider demonstrative exhibits only to the extent (1) they
`elucidate the parties’ arguments presented during the hearing and (2) they
`include only arguments and/or evidence already of record in the
`proceedings. For further guidance on what constitutes an appropriate
`demonstrative exhibit, the parties are directed to CBS Interactive Inc. v.
`Helferich Patent Licensing, LLC, Case IPR2013-00033 (PTAB Oct. 23,
`2013) (Paper 118).
`
`
`
`3
`
`
`
`IPR2017-01018
`Patent 7,043,040 B2
`
`
`We expect lead counsel for each party to be present at the hearing;
`however, any backup counsel may make the actual presentation, in whole or
`in part. See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,758
`(Aug. 14, 2012). If lead counsel for either party is unable to attend the
`hearing, the parties shall request a joint telephone conference call no later
`than two (2) business days prior to the hearing date to discuss the matter.
`At least one member of the panel will be attending the hearing
`electronically from a remote location and will have access only to the
`courtesy copy of the demonstratives provided in advance, as referenced
`above, and will not be able to view the projection screen in the hearing
`room. We take this opportunity to remind the parties that each presenter
`must identify clearly and specifically each demonstrative exhibit (e.g., by
`slide or screen number) referenced during the hearing to ensure the clarity
`and accuracy of the reporter’s transcript, and to enable any judge that is
`attending the hearing from a remote location to follow the presentation.
`Requests for special accommodations or audio-visual equipment are
`to be made at least five (5) business days in advance of the hearing date.
`Such requests must be sent to Trials@uspto.gov. If the requests are not
`received timely, requested accommodations and/or equipment may not be
`available on the day of the hearing.
`
`
`
`
`
`
`
`
`
`4
`
`
`
`IPR2017-01018
`Patent 7,043,040 B2
`
`
`PETITIONER:
`
`D. Richard Anderson
`Eugene T. Perez
`Lynde F. Herzbach
`BIRCH, STEWART, KOLASCH & BIRCH, LLP
`dra@bskb.com
`etp@bskb.com
`Lynde.Herzbach@bskb.com
`
`PATENT OWNER:
`
`Bruce G. Chapman
`Laura M. Burson
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`bchapman@sheppardmullin.com
`lburson@sheppardmullin.com
`
`
`
`5
`
`
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