`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
` Paper 21
`Entered: September 26, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ANALYTICS FOR LIFE, INC.,
`Petitioner,
`
`v.
`
`8825319 CANADA LIMITED,
`Patent Owner.
`____________
`
`Case IPR2017-01742
`Patent 9,131,864 B2
`____________
`
`Before JOSIAH C. COCKS, SCOTT A. DANIELS, and
`BARRY L. GROSSMAN, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`IPR2017-01742
`Patent 9,131,864 B2
`As set forth in the Board’s Scheduling Order, oral argument, if
`requested, is scheduled for October 24, 2018, in connection with this
`proceeding. Paper 10. Patent Owner and Petitioner requested oral
`argument. Papers 19, 20. (“Requests”). The Requests are granted.
`Oral argument will commence at 10:00 am ET on October 24, 2018.
`The hearing will be conducted on the ninth floor of Madison Building East,
`600 Dulany Street, Alexandria, Virginia 22314. The hearing will be open to
`the public for in-person attendance, which will be accommodated on a first-
`come, first-served basis. The Board will provide a court reporter for the
`hearing, and the reporter’s transcript will constitute the official record of the
`hearing.
`Each party will have one hour of total argument time. At oral hearing,
`Petitioner will open the hearing by presenting its arguments, including
`arguments for any of its motions. Thereafter, Patent Owner may argue its
`opposition to Petitioner’s arguments and any of its motions. Petitioner may
`reserve time for rebuttal arguments and may present arguments in opposition
`to Patent Owner’s motion(s), if argued by Patent Owner. Patent Owner may
`reserve rebuttal time only to reply to Petitioner’s opposition to Patent
`Owner’s motion(s). Petitioner bears the ultimate burden of proof that the
`claims at issue in this review are unpatentable.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served at
`least five business days before the hearing and filed no later than the time of
`the hearing. The Board requests that such exhibits be filed at the Board at
`least five business days before the hearing to facilitate the panel’s
`preparation. A hard copy of the demonstratives should be provided to the
`court reporter at the oral argument. The pages of each demonstrative should
`be numbered. Demonstratives are not evidence and should be clearly
`
`2
`
`
`
`
`IPR2017-01742
`Patent 9,131,864 B2
`
`marked as such. For example, each slide of a demonstrative may be marked
`with the words “DEMONSTRATIVE – NOT EVIDENCE” in the
`footer. The parties are reminded that the presenter must identify clearly and
`specifically each demonstrative (e.g., by slide or screen number) referenced
`during the oral argument to ensure the clarity and accuracy of the transcript.
`Demonstratives cannot be used to advance arguments or introduce
`evidence not previously presented in the record. See Dell Inc. v. Acceleron,
`LLC, 884 F.3d 1364, 1369 (Fed. Cir. 2018) (noting that the “Board was
`obligated to dismiss [the petitioner’s] untimely argument . . . raised for the
`first time during oral argument”).
`The parties should strive to resolve any disagreement regarding
`demonstratives before involving the Board. If, however, the parties are
`unable to resolve their disagreement, either party may submit an objection to
`the demonstratives with the Board if filed at least two business days before
`the hearing. Any objection to demonstrative exhibits that is not timely
`presented will be considered waived. The objections should identify with
`particularity which demonstratives are subject to objection, and include a
`short (one sentence or less) statement of the reason for each objection. No
`argument or further explanation is permitted. The Board will consider the
`objections and schedule a conference if deemed necessary. Otherwise, the
`Board will reserve ruling on the objections until after the oral argument.
`Additionally, after meeting and conferring, either party may request a
`pre-hearing conference with the panel to occur no later than three business
`days prior to the oral hearing.
`At least one member of the panel hearing this case will attend the
`hearing remotely, by video and audio link. The parties are reminded that,
`
`3
`
`
`
`IPR2017-01742
`Patent 9,131,864 B2
`
`during the hearing, the presenter must identify clearly and specifically each
`demonstrative exhibit referenced (e.g., by slide or screen number) to ensure
`the clarity and accuracy of the reporter’s transcript, and to ensure that the
`remote judge can follow the argument even if the video connection is
`disrupted. The parties are requested to speak directly into the microphone,
`including during initial introduction of counsel.
`If either party anticipates that its lead counsel will not attend the
`hearing, the parties should notify the Board no later than two business days
`prior to the hearing. Any counsel of record may present a party’s argument.
`Either party’s argument may be divided, but interruptions for change of
`counsel should be kept to a minimum.
`Furthermore, the parties request permission to use certain audiovisual
`equipment. Papers 19, 20. The parties are allowed to use computers to
`display their demonstratives on the screen in the hearing room. Any
`requests for special equipment will not be honored unless presented in a
`separate communication directed to Trials@uspto.gov not less than five days
`before the hearing. If the request is not received timely, the equipment may
`not be available on the day of the hearing.
`Accordingly, it is
`ORDERED that oral argument for this proceeding shall take place
`beginning at 10:00 am Eastern Time on October 24, 2018, on the ninth floor
`of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`
`4
`
`
`
`IPR2017-01742
`Patent 9,131,864 B2
`
`For PETITIONER:
`
`David S. Moreland
`Lawrence Aaronson
`T. Paul Tanpitukpongse
`Meunier Carlin & Curfman LLC
`dmoreland@mcciplaw.com
`laaronson@mcciplaw.com
`ptanpitukpongse@mcciplaw.com
`
`For PATENT OWNER:
`
`Paul C. Haughey
`Kilpatrick Townsend & Stockton LLP
`phaughey@kilpatricktownsend.com
`
`Mirek A. Waraksa
`waraksa@sympatico.ca
`
`
`5
`
`
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