`Trials@uspto.gov
`Entered: August 24, 2018
`Tel: 571-272-7822
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`NAUTILUS, INC.,
`Petitioner,
`v.
`ICON HEATH & 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.
`
`GOODSON, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceedings
`37 C.F.R. § 42.5
`
`
`
`
`
`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 (Patent 9,403,047 B2)
`IPR2017-01407 (Patent 9,616,276 B2)
`IPR2017-01408 (Patent 9,616,276 B2)
`
`A hearing in these proceedings is scheduled for August 29, 2018. Our
`Order scheduling the hearing provided that Petitioner may reserve time to
`respond to arguments by Patent Owner, but did not provide for Patent
`Owner’s ability to reserve time for a sur-rebuttal. See Paper 28.2 On
`Wednesday, August 22, 2018, the parties sent an email to the Board
`requesting that we resolve a dispute as to whether Patent Owner will be
`allowed sur-rebuttals during the oral hearing. Patent Owner “requests
`permission for a sur-rebuttal on all issues,” while Petitioner “does not
`oppose a surrebuttal argument for issues where [Patent Owner] bears the
`burden of proof . . ., but does oppose granting one . . . on issues where
`[Patent Owner] does not.” The email further indicates that the parties agree
`that the “request is relatively straightforward and therefore could be decided
`without a conference call with the Board.”
`
`The Board recently published an update to its Trial Practice Guide,
`which states the following regarding hearing procedures:
`At the oral hearing, a petitioner generally will argue first,
`followed by the patent owner, after which a rebuttal may be given
`by the petitioner. . . . The Board may also permit patent owners
`the opportunity to present a brief sur-rebuttal if requested.
`Trial Practice Guide August 2018 Update, p. 20, available at
`www.uspto.gov/sites/default/files/documents/2018_Revised_Trial_Practice_
`Guide.pdf. In light of that guidance, the panel will permit Patent Owner to
`reserve a portion of its time for a brief sur-rebuttal. The panel does not think
`it necessary to restrict the topics that can be addressed in that sur-rebuttal
`
`
`2 For expediency, this Order cites only to papers filed in Case IPR2017-
`01363. The other proceedings include similar or identical papers.
`
`2
`
`
`
`IPR2017-01363 (Patent 9,403,047 B2)
`IPR2017-01407 (Patent 9,616,276 B2)
`IPR2017-01408 (Patent 9,616,276 B2)
`time to issues on which Patent Owner carries the burden of proof. However,
`we remind the parties that rebuttal and sur-rebuttal time should only be used
`to respond to arguments the opposing party made during its directly
`preceding presentation. The parties are also reminded that during the
`hearing, the parties “may only present arguments relied upon in the papers
`previously submitted.” Trial Practice Guide August 2018 Update, p. 23.
`ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that Patent Owner may reserve a portion of its allocated
`time during the oral argument in these proceedings for sur-rebuttal.
`
`
`
`
`3
`
`
`
`IPR2017-01363 (Patent 9,403,047 B2)
`IPR2017-01407 (Patent 9,616,276 B2)
`IPR2017-01408 (Patent 9,616,276 B2)
`
`
`PETITIONER:
`
`Ryan McBrayer
`Amy E. Simpson
`Daniel T. Keese
`PERKINS COIE LLP
`rmcbrayer@perkinscoie.com
`asimpson@perkinscoie.com
`DKeesed@perkinscoie.com
`
`PATENT OWNER:
`
`John Gadd
`Mark Ford
`Adam Smoot
`MASCHOFF BRENNAN
`jgadd@mabr.com
`mford@mabr.com
`asmoot@mabr.com
`
`
`
`
`
`
`
`4
`
`
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