`Entered: March 12, 2018
`
`Trials@uspto.gov
`571.272.7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SPTS TECHNOLOGIES LTD.,
`Petitioner,
`
`v.
`
`PLASMA-THERM LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01674
`Patent 8,802,545 B2
`____________
`
`
`
`Before WILLIAM V. SAINDON, ELIZABETH M. ROESEL, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`WIEKER, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Granting Joint Motion to Expunge
`37 C.F.R. § 42.64(b)(2)
`
`
`
`
`
`
`
`
`IPR2017-01674
`Patent 8,802,545 B2
`
`
`On February 15, 2018, counsel for Patent Owner contacted the Board
`by email, seeking a conference call to discuss Petitioner’s filing of
`supplemental evidence, e.g., Paper 10 (“Submission of Supplemental
`Evidence Under 37 C.F.R. § 42.64(b)(2)”) and Exhibit 1031 (“Supplemental
`Declaration of Dr. John E. Spencer”). Counsel indicated its position that
`filing of supplemental evidence is not permitted under 37 C.F.R.
`§ 42.64(b)(2), and that Petitioner’s filings should be expunged. Counsel also
`indicated that Petitioner did not object to expungement.
`On February 26, 2018, also by email, the panel authorized the parties
`to file a Joint Motion to Expunge these filings.
`On March 7, 2018, the parties filed a Joint Motion to Expunge
`Petitioner’s Submission of Supplemental Evidence and Supplemental
`Declaration of Dr. John E. Spencer. Paper 12 (“Mot.” or “Motion”). The
`Motion states that on February 9, 2018, Petitioner filed supplemental
`evidence, e.g., Paper 10 and Exhibit 1031, in response to Patent Owner’s
`Objections to Evidence, which were filed on January 28, 2018. Id. at 1.
`The Motion recognizes that “Rule 42.64(b)(2) only permits service, not
`filing, of supplemental evidence,” and requests expungement of these
`documents. Id. at 1–2.
`As the parties correctly note, Rule 42.64(b)(2) does not authorize a
`party to file supplemental evidence. 37 C.F.R. § 42.64(b)(2) (“The party
`relying on the evidence to which an objection is timely served may respond
`to the objection by serving supplemental evidence within ten business days
`of service of the objection.”) (emphasis added). This process allows a party
`relying on evidence to which an objection is timely served, an opportunity to
`correct, by serving supplemental evidence within ten days of the service of
`2
`
`
`
`
`
`IPR2017-01674
`Patent 8,802,545 B2
`
`the objection. Supplemental evidence is offered solely to support
`admissibility of the originally filed evidence and not to support any
`argument on the merits. If, upon receiving the supplemental evidence, the
`opposing party is still of the opinion that the evidence is inadmissible, a
`motion to exclude the evidence may be filed. 37 C.F.R. § 42.64(c); see
`Paper 8, 7 (setting forth DUE DATE 4 for filing a motion to exclude
`evidence). The supplemental evidence may then be filed with an opposition
`to the motion (see Paper 8, 7 (DUE DATE 5 for opposition)), and the party
`objecting to the evidence may respond to the supplemental evidence in a
`reply to the opposition. Id. (DUE DATE 6 for reply).
`Accordingly, we grant the parties’ joint Motion to expunge Paper 10
`and Exhibit 1031, which were filed without authorization.
`ORDER
`Accordingly, in consideration of the foregoing, it is hereby:
`ORDERED that the parties’ joint Motion is granted and Petitioner’s
`Submission of Supplemental Evidence Under 37 C.F.R. § 42.64(b)(2)
`(Paper 10) and Supplemental Declaration of Dr. John E. Spencer (Ex. 1031)
`shall be expunged.
`
`
`
`
`
`
`
`
`3
`
`
`
`IPR2017-01674
`Patent 8,802,545 B2
`
`PETITIONER:
`
`Adam C. Volentine
`Josh Povsner
`Volentine, Whitt & Francos PLLC
`avolentine@volentine.com
`jpovsner@volentine.com
`
`PATENT OWNER:
`
`Harvey S. Kauget
`Ryan M. Corbett
`Burr & Forman LLP
`hkauget@burr.com
`rcorbett@burr.com
`
`
`
`
`
`4
`
`
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