`571-272-7822
`
`Paper 28
`Entered: October 1, 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, KEVIN W. CHERRY, and
`JAMES A. WORTH, 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 Petitioner contacted the Board via email on
`
`October 1, 2018 to request authorization to file a sur-reply to Patent Owner’s
`
`Reply in Support of its Contingent Motion to Amend in each of these
`
`proceedings. The email stated: “Petitioner respectfully requests the
`
`opportunity to file a sur-reply to Patent Owner’s Reply in Support of its
`
`Contingent Motion to Amend filed September 25, 2018, in each of these
`
`proceedings (IPR2017-01676; -01680; -01689). If allowed, Petitioner will
`
`file the sur-replies by October 9, 2018 (DUE DATE 4).” The email
`
`indicated that Patent Owner does not oppose the request.
`
`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.
`
`Petitioner’s request is granted. In each proceeding, the sur-reply must
`
`comply with all of the requirements for a sur-reply set forth in the Trial
`
`Practice Guide Update. See Trial Practice Guide Update, 6, 14–15. The sur-
`
`reply is limited to 12 pages. 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. Sur-replies should only respond to
`
`
`1 Available at
`https://www.uspto.gov/sites/default/files/documents/2018_Revised_Trial_
`Practice_Guide.pdf
`
`2
`
`
`
`IPR2017-01676 (Patent 7,637,035 B1)
`IPR2017-01680 (Patent 8,505,221 B2)
`IPR2017-01689 (Patent 8,020,320 B2)
`
`arguments made in reply briefs, comment on reply declaration testimony, or
`
`point to cross-examination testimony.” Id. at 14.
`
`It is:
`
`ORDERED that Petitioner is authorized to file, in each of these
`
`proceedings, a sur-reply to Patent Owner’s Reply in Support of its
`
`Contingent Motion to Amend; and
`
`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 October 9, 2018.
`
`
`
`
`
`
`
`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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