Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 28
`Entered: August 14, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NAUTILUS, INC.,
`Petitioner,
`
`v.
`
`ICON HEALTH & FITNESS INC.,
`Patent Owner.
`
`Case IPR2017-01363 (Patent 9,403,047 B2);
`Case IPR2017-01407 (Patent 9,616,276 B2)
`Case IPR2017-01408 (Patent 9,616,276 B2)1
`
`
`
`
`
`
`
`
`
`
`Before GEORGE R. HOSKINS, TIMOTHY J. GOODSON, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`WORTH, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`1 This Order applies to each of the listed cases. These proceedings have not
`been consolidated. The parties may use a consolidated caption only if a
`paper contains a footnote indicating that the identical paper has been filed in
`each proceeding.
`
`
`Tel: 571-272-7822
`
`Paper 28
`Entered: August 14, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NAUTILUS, INC.,
`Petitioner,
`
`v.
`
`ICON HEALTH & FITNESS INC.,
`Patent Owner.
`
`Case IPR2017-01363 (Patent 9,403,047 B2);
`Case IPR2017-01407 (Patent 9,616,276 B2)
`Case IPR2017-01408 (Patent 9,616,276 B2)1
`
`
`
`
`
`
`
`
`
`
`Before GEORGE R. HOSKINS, TIMOTHY J. GOODSON, and
`JAMES A. WORTH, Administrative Patent Judges.
`
`WORTH, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`1 This Order applies to each of the listed cases. These proceedings have not
`been consolidated. The parties may use a consolidated caption only if a
`paper contains a footnote indicating that the identical paper has been filed in
`each proceeding.
`
`
`
`IPR2017-01363, -01407, -01408
`Patents 9,403,047 B2 and 9,616,276 B2
`
`
`
`Inter partes reviews IPR2017-01363, -01407, and -01408 were
`
`instituted on December 4, 2017. IPR2017-01363, Paper 7; IPR2017-01407,
`
`Paper 6; IPR2017-01408, Paper 7. A Scheduling Order was issued on the
`
`same day, which set the date for oral hearing to August 29, 2018, if hearing
`
`were requested by the parties and granted by the Board. IPR2017-01363,
`
`Paper 8; IPR2017-01407, Paper 7; IPR2017-01408, Paper 8. Both parties
`
`have requested oral hearing pursuant to 37 C.F.R. § 42.70. IPR2017-01363,
`
`Papers 26, 27; IPR2017-01407, Papers 39, 40; IPR2017-01408, Papers 40,
`
`41.
`
`Petitioner’s and Patent Owner’s requests for oral hearing are granted.
`
`Although these cases are not consolidated, the hearing for the cases will be
`
`held on the same day. There will be a single transcript for IPR2017-01363
`
`and a single transcript for IPR2017-01407 and IPR2017-01408. The hearing
`
`will commence at 1:00 p.m. EDT, on August 29, 2018, on the ninth floor of
`
`Madison Building East, 600 Dulany Street, Alexandria, Virginia. The Board
`
`will provide a court reporter for the hearing and the reporter’s transcripts
`
`will constitute the official record of the hearing. The hearing will be open to
`
`the public for in-person attendance that will be accommodated on a first-
`
`come, first-served basis.
`
`Petitioner bears the ultimate burden of proof that Patent Owner’s
`
`claims at issue in these proceedings are unpatentable. Patent Owner has
`
`filed a motion to amend in two of the proceedings. IPR2017-01407, Paper
`
`16; IPR2017-01408, Paper 17.
`
`There will be three hours of argument in total. Each party will have a
`
`total of 90 minutes to present arguments, which will be presented in the
`
`following sequence. The hearing for IPR2017-01363 will be held first,
`
`2
`
`
`
`IPR2017-01363, -01407, -01408
`Patents 9,403,047 B2 and 9,616,276 B2
`
`followed by the hearing for IPR2017-01407 and IPR2017-01408. The
`
`parties should meet and confer regarding how the time should be allocated
`
`between the proceedings. Absent agreement by the parties, the Board will
`
`allot each party 30 minutes for IPR2017-01363 and 60 minutes for IPR2017-
`
`01407 and IPR2017-01408. Petitioner will open the hearing for each set of
`
`inter partes reviews by presenting its case regarding the patentability of any
`
`claim at issue in the proceedings including original claims and any claims
`
`proposed in a Motion to Amend. Patent Owner will then respond to
`
`Petitioner’s argument and also argue in support of its motion to amend
`
`claims. Petitioner may reserve time to respond to arguments presented by
`
`Patent Owner.
`
`Demonstrative exhibits in these proceedings are not evidence and are
`
`intended only to assist the parties in presenting their oral argument to the
`
`panel. Under 37 C.F.R. § 42.70(b), demonstrative exhibits shall be served
`
`on opposing counsel at least seven (7) business days before the oral hearing,
`
`and filed as an exhibit no later than the time of the oral hearing. The parties
`
`also shall provide a courtesy copy of any demonstrative exhibits to the
`
`Board at least three (3) business days prior to the oral hearing by emailing
`
`the exhibits to Trials@uspto.gov. The parties are directed to St. Jude
`
`Medical, Cardiology Division, Inc. v. The Board of Regents of the University
`
`of Michigan, IPR2013-00041 (PTAB January 27, 2015) (Paper 65), for
`
`guidance regarding the appropriate content of demonstrative exhibits, which
`
`must include citations to the record. If either party objects to demonstrative
`
`exhibits, the parties shall meet and confer in good faith to resolve any such
`
`objections. A party may file a paper addressing any unresolved objections to
`
`demonstrative exhibits with the Board no later than three (3) business days
`
`3
`
`
`
`IPR2017-01363, -01407, -01408
`Patents 9,403,047 B2 and 9,616,276 B2
`
`before the oral hearing. The paper shall include a single sentence per
`
`objection stating the basis for that objection and be accompanied by a copy
`
`of the allegedly objectionable demonstrative exhibit that identifies the
`
`objectionable portion of the exhibit with particularity. No further argument
`
`or explanation is permitted. We will consider the objections and, if we deem
`
`it necessary, we will further address the objections in a conference call or at
`
`the oral hearing. Otherwise, we will reserve ruling on the objections until
`
`after the oral hearing.
`
`Requests for audio-visual equipment are to be made no later than five
`
`(5) days in advance of the hearing date via email to Trials@uspto.gov. If the
`
`request is not received timely, the equipment may not be available on the
`
`day of the hearing.
`
`We expect lead counsel for each party to be present in person at the
`
`oral hearing. However, lead or backup counsel 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 panel no later than two (2) business days prior to the
`
`oral hearing to discuss the matter.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`IPR2017-01363, -01407, -01408
`Patents 9,403,047 B2 and 9,616,276 B2
`
`PETITIONER:
`
`Ryan McBrayer
`Amy E. Simpson
`PERKINS COIE LLP
`rmcbrayer@perkinscoie.com
`asimpson@perkinscoie.com
`
`
`PATENT OWNER:
`
`John Gadd
`Mark Ford
`Adam Smoot
`MASCHOFF BRENNAN
`jgadd@mabr.com
`mford@mabr.com
`asmoot@mabr.com
`
`
`
`
`
`5
`
`
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