Trials@uspto.gov Paper No. 62
`571-272-7822
`
`Entered: September 25, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TWITTER, INC.,
`Petitioner,
`
`v.
`
`VIDSTREAM, LLC,
`Patent Owner.
`____________
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)1
`____________
`
`
`Before SALLY C. MEDLEY, CHARLES J. BOUDREAU, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`1 This Order will be entered in each case. The parties are not authorized to
`use this caption style.
`
`
`571-272-7822
`
`Entered: September 25, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TWITTER, INC.,
`Petitioner,
`
`v.
`
`VIDSTREAM, LLC,
`Patent Owner.
`____________
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)1
`____________
`
`
`Before SALLY C. MEDLEY, CHARLES J. BOUDREAU, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`1 This Order will be entered in each case. The parties are not authorized to
`use this caption style.
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`
`
`
`Petitioner and Patent Owner have each filed requests for oral hearing
`in the above captioned proceedings, pursuant to 37 C.F.R. § 42.70.
`IPR2017-01131, Papers 58, 61.2 Both parties propose that the hearing for
`these cases be combined and that each party be allocated sixty (60) minutes
`to present its argument for the combined hearing. Paper 58, 2; Paper 61, 1.
`The requests are granted according to the terms set forth in this Order.
`The combined oral hearing will commence at approximately 3:15 PM
`Eastern Time3 on Friday, October 19, 2018, in Hearing Room B on the ninth
`floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`Each party will have sixty (60) minutes total time to present its arguments in
`the above-captioned proceedings. Petitioner bears the ultimate burden of
`proof that the claims at issue in these reviews are unpatentable. Therefore,
`at oral argument, Petitioner will proceed first to present its case regarding
`the challenged patent claims and the grounds on which the Board instituted
`trial. Petitioner may reserve some (but not more than half) of its argument
`time to respond to arguments presented by the Patent Owner. After
`Petitioner’s initial presentation, Patent Owner will be given an opportunity
`to respond and also may reserve some of its argument time for sur-rebuttal.
`Thereafter, Petitioner may use any reserved time to reply to Patent Owner’s
`presentation, and finally, Patent Owner may present a brief sur-rebuttal if it
`has reserved time.
`
`
`2 For convenience, we cite to papers in IPR2017-01131. Similar papers
`were filed in IPR2017-01133.
`3 Upon conclusion of the hearing for IPR2017-00829 and IPR2017-00830,
`there will be a short recess, followed by the commencement of the hearing
`for IPR2017-01131 and IPR2017-01133.
`2
`
`
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`
`New arguments not previously presented in the parties’ substantive
`papers in these proceeding shall not be raised at oral hearing, and no live
`testimony from any witness will be taken at the oral argument. The hearing
`will be open to the public for in-person attendance that will be
`accommodated on a first-come, first-served basis. Please be advised,
`available seating is limited. The Board will provide a court reporter, and the
`reporter’s transcript shall constitute the official record of the oral hearing.
`The parties shall serve any demonstrative exhibits on opposing
`counsel at least seven business days before the hearing or at least seven
`business days before the pre-hearing conference if one is scheduled. The
`parties shall also provide a courtesy copy of any demonstrative exhibits to
`the Board no later than five business days before the hearing, or five
`business days prior to a pre-hearing conference if one is scheduled, by
`emailing them to Trials@uspto.gov. In addition, the parties shall file any
`demonstrative exhibits in these proceedings within two days of the hearing.
`Demonstrative exhibits are not evidence and are intended only to assist the
`parties in presenting their oral argument to the panel. The parties are
`directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of
`Regents of the University of Michigan, IPR2013-00041 (PTAB Jan. 27,
`2014) (Paper 65) for guidance regarding the appropriate content of
`demonstrative exhibits. The parties shall confer with each other regarding
`any objections to demonstrative exhibits. For any issue that cannot be
`resolved after conferring, the parties may each send by email to
`Trials@uspto.gov a one-page list of objections at least two business days
`before the hearing if no pre-hearing conference is requested or two business
`days before a pre-hearing conference if one is scheduled. The list should
`
`
`
`3
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`identify with particularity which demonstrative exhibits are subject to
`objection and include a short statement of the reason for each objection and
`the reason the other party opposes the objection. No argument or further
`explanation is permitted. The Board will consider the objections and, if no
`pre-hearing conference is requested, may schedule a telephone conference if
`deemed necessary. Any objection to demonstrative exhibits that is not
`timely presented may be considered waived.
`No later than DUE DATE 6, either party may request a pre-hearing
`conference, which if requested, will be held at 12:00 PM Eastern Time on
`Tuesday, October 16, 2018. Prior to such a request, the parties shall meet
`and confer to discuss potential issues for the pre-hearing conference. The
`parties shall then send a joint request to the Board by email to
`Trials@uspto.gov. Such a request shall include a bullet list of items the
`parties would like to discuss with the panel, which may include:
`• a brief preview (but not argument) as to issues the parties plan
`to address at the oral hearing;
`• issues for which the parties would like the panel’s guidance on
`whether to address at the oral hearing;
`• a limited number of objections in the parties’ motions to
`exclude for which a party seeks early resolution; and
`• any motions to strike.
`If the parties are unable to agree on the issues to be addressed at the
`pre-hearing conference, the joint request shall specify which issues are
`disputed and provide a brief statement (not to exceed one sentence) of the
`opposing party’s objection.
`
`
`
`4
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`
`The panel may, at its discretion, indicate certain issues during the pre-
`hearing conference that it wishes the parties to emphasize at the oral hearing.
`Although the parties and the panel may discuss issues for the oral hearing at
`the pre-hearing conference, the issues discussed at the pre-hearing
`conference do not limit the scope of the oral hearing. Instead, the parties
`remain free to address at the oral hearing any issue properly raised during
`the trial, and the panel may ask questions on issues other than those
`identified at the pre-hearing conference. The parties may also discuss
`objections to demonstrative exhibits at the pre-hearing conference, but the
`panel may reserve ruling on such objections until a later time.
`The parties are reminded that, at the oral hearing, the 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 assist Judge Boudreau who will
`join the hearing remotely from San Jose, California, and Judge Kaiser who
`will join the hearing remotely from Denver, Colorado. Judge Boudreau and
`Judge Kaiser will be unable to view images projected in the hearing room.
`Similarly, to ensure presenters may be heard by Judge Boudreau and Judge
`Kaiser, the parties are reminded to speak only when standing at the hearing
`room podium and toward the attached microphone. No live testimony from
`any witness will be taken at the oral argument. The Board expects lead
`counsel for each party to be present in person at the oral hearing. Any
`counsel of record, however, may present the party’s argument. If either
`party anticipates that its lead counsel will not be attending the oral argument,
`the parties should initiate a joint telephone conference with the Board no
`later than two business days prior to the oral hearing to discuss the matter.
`
`
`
`5
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`
`The parties may request the use of audio-visual equipment during the
`oral hearing. Such requests should be directed to Trials@uspto.gov at least
`five business days in advance of the hearing date. If the request is not
`received timely, the equipment may not be available on the day of the
`hearing.
`Accordingly, it is
`ORDERED that the oral arguments for IPR2017-01131 and IPR2017-
`01133 will be consolidated,4 and the consolidated oral argument shall take
`place on Friday, October 19, 2018, in Hearing Room B on the ninth floor of
`Madison Building East, 600 Dulany Street, Alexandria, at approximately
`3:15 PM Eastern Time; and
`FURTHER ORDERED that the parties should note that arguments
`made at the consolidated oral hearing shall have application only in
`proceeding(s) the record of which supports the argument.
`
`
`
`
`4 The proceedings, however, have not been consolidated.
`6
`
`
`
`
`
`IPR2017-01131 (Patent 8,464,304 B2)
`IPR2017-01133 (Patent 8,601,506 B2)
`
`
`For PETITIONER:
`
`Todd Siegel A
`Andrew Mason
`Robert T. Cruzen
`KLARQUIST SPARKMAN, LLP
`Todd.siegel@klarquist.com
`Andrew.mason@klarquist.com
`Rob.cruzen@klarquist.com
`
`For PATENT OWNER:
`
`Eagle Robinson
`Eric Hall
`Eric Green
`NORTON ROSE FULBRIGHT US LLP
`eagle.robinson@nortonrosefulbright.com
`eric.hall@nortonrosefulbright.com
`eric.green@nortonrosefulbright.com
`
`
`
`
`7
`
`
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