Trials@uspto.gov
`571.272.7822
`
`
`
` Paper 39
`
` Entered: January 30, 2019
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VF OUTDOOR, LLC,
`Petitioner,
`
`v.
`
`COCONA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00190
`Patent 8,945,287 B2
`____________
`
`
`
`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`KALAN, Administrative Patent Judge.
`
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`571.272.7822
`
`
`
` Paper 39
`
` Entered: January 30, 2019
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VF OUTDOOR, LLC,
`Petitioner,
`
`v.
`
`COCONA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00190
`Patent 8,945,287 B2
`____________
`
`
`
`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`KALAN, Administrative Patent Judge.
`
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`
`We instituted inter partes review in the above-referenced proceeding.
`Paper 14. The Scheduling Order set February 28, 2019 as the date for oral
`argument, if requested. Paper 15. Petitioner filed a request for oral
`argument pursuant to 37 C.F.R. § 42.70(a), requesting one (1) hour for oral
`argument, including any time reserved for rebuttal. Paper 37. Patent Owner
`also filed a request for oral argument pursuant to 37 C.F.R. § 42.70(a).
`Paper 38. These requests are granted. We allocate each party one (1) hour
`of total argument time.
`The hearing will commence at 1:00 pm Eastern Time, on Thursday,
`February 28, 2019 and will be conducted at the USPTO Central
`Headquarters in Alexandria, Virginia (the ninth floor of Madison Building
`East, 600 Dulany Street, Alexandria, Virginia, 22314). At least one judge
`may participate in the hearing via videoconference from a remote location;
`counsel for the parties, however, must appear in person. The hearing will be
`open to the public for in-person attendance that will be accommodated on a
`first-come, first-served basis.
`Petitioner bears the ultimate burden of proof that the claims at issue
`are unpatentable. Therefore, the arguments will proceed as follows:
`Petitioner will argue first and may present arguments with regard to the
`challenged claims. Petitioner may reserve up to half its allotted time for
`rebuttal. Patent Owner will then have the opportunity to respond to
`Petitioner’s arguments. Next, Petitioner may use any time it has reserved for
`rebuttal to respond to Patent Owner’s arguments. Lastly, Patent Owner may
`use any time it has reserved for a brief sur-rebuttal to respond to Petitioner’s
`arguments. No other arguments will be heard.
`
`2
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`
`The Board will provide a court reporter, and the reporter’s transcript
`will constitute the official record of the hearing. The hearing transcript will
`be entered in the record of this proceeding.
`Petitioner has requested the ability to display demonstrative exhibits.
`Paper 37. Demonstrative exhibits are visual aids to oral argument and not
`evidence, and shall be clearly marked as such. For example, each slide may
`be marked with the words “DEMONSTRATIVE EXHIBIT – NOT
`EVIDENCE” in the footer. Demonstrative exhibits may not 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”).
`Instead, demonstrative exhibits should cite to the briefs and evidence in the
`record. The parties shall serve any demonstrative exhibits on opposing
`counsel at least seven (7) business days before the hearing and shall file
`them with the Board at least five (5) business days before the hearing.
`37 C.F.R. § 42.70(b).
`The Board expects that the parties will meet and confer in good faith
`to resolve any objections to demonstrative exhibits, but if any objections
`cannot be resolved, the unresolved objections must be filed with the Board at
`least (2) 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 and portions thereof 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
`
`3
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`
`objections and schedule a conference if the Board deems necessary.
`Otherwise, the Board will rule on the objections at the hearing.
`To aid in the preparation of an accurate transcript, each party shall
`provide a paper copy of any demonstratives to the court reporter on the day
`of the oral argument. Such paper copies shall not become part of the record
`of this proceeding. The parties are reminded that, during the hearing, the
`presenter should identify clearly each demonstrative exhibit (e.g., by slide or
`screen number) to ensure the clarity and accuracy of the reporter’s transcript
`and permit any judge participating from a remote location to follow the
`arguments.
`If the parties have questions as to whether demonstrative exhibits will
`be sufficiently visible and available to all of the judges, or the parties have
`questions regarding specific audio-visual equipment, the parties are invited
`to contact the Board at (571) 272-9797. Requests for audio-visual
`equipment are to be made five (5) business days in advance of the hearing
`date. The request is to be sent to Trials@uspto.gov. If the request is not
`received timely, the equipment may not be available on the day of the
`hearing.
`
`4
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`
`
`PETITIONER:
`Kathleen Ott
`Marianne Timm-Schreiber
`Andrew Larsen
`Peter A. Gergely
`MERCHANT & GOULD P.C.
`kott@merchantgould.com
`mtimm-schreiber@merchantgould.com
`alarsen@merchantgould.com
`pgergely@merchantgould.com
`
`
`PATENT OWNER:
`Jason Jackson
`Jacob Song
`KUTAK ROCK LLP
`jason.jackson@kutakrock.com
`jacob.song@kutakrock.com
`
`5
`
`
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