`571-272-7822
`
`
`
`
`
`
`
`
`Paper: 24
`Entered: September 10, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ELITE PERFORMANCE FOOTWEAR, LLC,
`Petitioner,
`
`v.
`
`REEBOK INTERNATIONAL LIMITED,
`Patent Owner.
`____________
`
`IPR2017-01676 (Patent 7,637,035 B1)
`IPR2017-01680 (Patent 8,505,221 B2)
`IPR2017-01689 (Patent 8,020,320 B2)
`____________
`
`
`
`Before MEREDITH C. PETRAVICK and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`IPR2017-01676 (Patent 7,637,035 B1)
`IPR2017-01680 (Patent 8,505,221 B2)
`IPR2017-01689 (Patent 8,020,320 B2)
`
`
`Counsel for the parties and Judges Petravick, Cherry, and Worth held
`
`a conference call on September 6, 2018. The purpose of the call was to
`
`discuss Patent Owner’s request to file a sur-reply to Petitioner’s Reply in
`
`Support of its Petition in each of these proceedings.
`
`The August 2018 Update to the Trial Practice Guide1 (“Trial Practice
`
`Guide Update”) provides that “[s]ur-replies to principal briefs (i.e., to a reply
`
`to a patent owner response or to a reply to an opposition to a motion to
`
`amend) normally will be authorized by the scheduling order entered at
`
`institution.” Trial Practice Guide Update, 14. The Trial Practice Guide
`
`Update states, “sur-reply practice essentially replaces the previous practice
`
`of filing observations on cross-examination testimony.” Id.
`
`During the call, we granted Patent Owner’s request. The sur-reply
`
`must comply with all of the requirements for a sur-reply set forth in the Trial
`
`Practice Guide Update. See id. at 6, 14–15. In particular, the sur-reply is
`
`limited to 5,600 words. Id. at 6. “The sur-reply may not be accompanied by
`
`new evidence other than deposition transcripts of the cross-examination of
`
`any reply witness.” Id. at 14. “Sur-replies should only respond to
`
`arguments made in reply briefs, comment on reply declaration testimony, or
`
`point to cross-examination testimony.” Id. Patent Owner agreed that the
`
`filing of the sur-reply would be lieu of filing motion for observations. See
`
`Paper 242, 2. On September 7, 2018, the parties filed a Joint Stipulation to
`
`
`1 Available at
`https://www.uspto.gov/sites/default/files/documents/2018_Revised_Trial_Pr
`actice_Guide.pdf
`
`2 IPR2017-01676 is representative and all citations are to IPR2017-01676.
`
`2
`
`
`
`IPR2017-01676 (Patent 7,637,035 B1)
`IPR2017-01680 (Patent 8,505,221 B2)
`IPR2017-01689 (Patent 8,020,320 B2)
`
`Adjust the Scheduling Order allowing for the filing of a sur-reply by
`
`September 25, 2018. Paper 24, Appx.
`
`It is:
`
`ORDERED that Patent Owner is authorized to file, in each of these
`
`proceedings, a sur-reply to Petitioner’s Reply in Support of its Petition;
`
`FURTHER ORDERED that the sur-replies must comply with the
`
`requirements for sur-replies set forth in the Trial Practice Guide Update and
`
`must be filed no later than September 25, 2018; and
`
`FURTHER ORDER that motions for observations are no longer
`
`authorized in these proceedings.
`
`
`
`
`
`
`
`FOR PETITIONER:
`
`Richard LaCava
`Michael Scarpati
`ARENT FOX, LLP
`richard.lacava@arentfox.com
`michael.scarpati@arentfox.com
`
`
`FOR PATENT OWNER:
`
`Mitchell G. Stockwell
`Matias Ferrario
`KILPATRICK TOWNSEND & STOCKTON LLP
`mstockwell@kilpatricktownsend.com
`mferrario@kilpatricktownsend.com
`
`
`
`3
`
`
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