Trials@uspto.gov
`571–272–7822
`
`
`
`Paper 23
`Entered: June 26, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01295
`Patent 8,709,062 B2
`____________
`
`Before JAMES A. TARTAL, ROBERT L. KINDER, 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
`
`
`571–272–7822
`
`
`
`Paper 23
`Entered: June 26, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EDWARDS LIFESCIENCES CORPORATION,
`Petitioner,
`
`v.
`
`BOSTON SCIENTIFIC SCIMED, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01295
`Patent 8,709,062 B2
`____________
`
`Before JAMES A. TARTAL, ROBERT L. KINDER, 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
`
`
`
`IPR2017-01295
`Patent 8,709,062 B2
`
`
`On October 25, 2017, we instituted an inter partes review proceeding
`as to claims 1–7, 9–15, 17–21, an 23–36 of U.S. Patent No. 8,709,062, on
`one asserted ground of unpatentability, i.e., under 35 U.S.C. § 103(a) over
`Rupp, Sugiyama, Jendersee, and the knowledge of a POSITA. See Paper 9,
`33–34. On April 30, 2018, pursuant to the U.S. Supreme Court’s decision in
`SAS Institute, Inc. v. Iancu, 2018 WL 1914661 (U.S. Apr. 24, 2018), we
`modified our institution decision to include all challenged claims and
`grounds presented in the Petition. Paper 17, 2. August 7, 2018, is the date
`scheduled for oral argument in this proceeding, if requested by a party.
`Paper 10, 7. Both parties request oral argument for this proceeding, pursuant
`to 37 C.F.R. § 42.70(a). Papers 21, 22. The parties’ requests are granted.
`The hearing will commence at 10:00 AM Eastern Time on
`August 7, 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.
`Both Petitioner and Patent Owner request forty-five minutes of oral
`argument time. Paper 21, 3; Paper 22, 1. 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
`the hearing by presenting its case regarding the challenged claims for which
`the Board instituted trial. After Petitioner’s presentation, Patent Owner may
`
`
`
`2
`
`
`
`IPR2017-01295
`Patent 8,709,062 B2
`
`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).
`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
`
`
`
`3
`
`
`
`IPR2017-01295
`Patent 8,709,062 B2
`
`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 may 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
`
`
`
`IPR2017-01295
`Patent 8,709,062 B2
`
`PETITIONER:
`
`A. James Isbester
`KILPATRICK TOWNSEND & STOCKTON LLP
`jisbester@kilpatricktownsend.com
`
`Craig S. Summers
`Joshua Stowell
`KNOBBE, MARTENS, OLSON & BEAR, LLP
`2css@knobbe.com
`2jys@knobbe.com
`
`
`PATENT OWNER:
`
`Wallace Wu
`Jennifer A. Sklenar
`Nicholas M. Nyemah
`ARNOLD & PORTER KAYE SCHOLER LLP
`wallace.wu@apks.com
`jennifer.sklenar@apks.com
`nicholas.nyemah@apks.com
`
`
`
`5
`
`
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