Paper 35
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: March 12, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`SNAP INC.,
`Petitioner,
`
`v.
`
`VAPORSTREAM, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00200 (Patent 8,886,739 B2)
`Case IPR2018-00312 (Patent 9,306,885 B2)
`Case IPR2018-00369 (Patent 9,313,155 B2)
`Case IPR2018-00397 (Patent 9,306,886 B2)
`Case IPR2018-00404 (Patent 8,935,351 B2)
`Case IPR2018-00408 (Patent 9,338,111 B2)1
`
`
`
`
`Before JUSTIN T. ARBES, STACEY G. WHITE, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Requests for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`1 We exercise our discretion to issue one Order to be filed in each
`proceeding. The Parties, however, are not authorized to use this style
`heading in any subsequent papers.
`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822 Entered: March 12, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`SNAP INC.,
`Petitioner,
`
`v.
`
`VAPORSTREAM, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00200 (Patent 8,886,739 B2)
`Case IPR2018-00312 (Patent 9,306,885 B2)
`Case IPR2018-00369 (Patent 9,313,155 B2)
`Case IPR2018-00397 (Patent 9,306,886 B2)
`Case IPR2018-00404 (Patent 8,935,351 B2)
`Case IPR2018-00408 (Patent 9,338,111 B2)1
`
`
`
`
`Before JUSTIN T. ARBES, STACEY G. WHITE, and
`JENNIFER MEYER CHAGNON, Administrative Patent Judges.
`
`WHITE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Requests for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`1 We exercise our discretion to issue one Order to be filed in each
`proceeding. The Parties, however, are not authorized to use this style
`heading in any subsequent papers.
`
`
`
`IPR2018-00200 (Patent 8,886,739 B2)
`IPR2018-00312 (Patent 9,306,885 B2)
`IPR2018-00369 (Patent 9,313,155 B2)
`IPR2018-00397 (Patent 9,306,886 B2)
`IPR2018-00404 (Patent 8,935,351 B2)
`IPR2018-00408 (Patent 9,338,111 B2)
`
`The parties have requested oral hearing pursuant to 37 C.F.R. § 42.70
`
`and the Scheduling Order in these proceedings (see, e.g., IPR2018-00200,
`Paper 23). IPR2018-00200, Papers 33, 35; IPR2018-00312, Papers 31, 33;
`IPR2018-00369, Papers 31, 33; IPR2018-00397, Papers 28, 29;
`IPR2018-00404, Papers 30, 31; IPR2018-00408, Papers 28, 29. In each
`proceeding, Petitioner “requests 30 minutes of time” for argument.
`E.g., IPR2018-00200, Paper 35. Patent Owner requests that each side be
`allotted ninety (90) total minutes for argument. E.g., IPR2018-00200,
`Paper 33. The requests for oral hearing are granted as provided below.
`Time and Format
`Oral argument will begin at 1:00 PM Eastern Time on March 27,
`
`2019, on the ninth floor of Madison Building East, 600 Dulany Street,
`Alexandria, Virginia. The hearing will be open to the public for in-person
`attendance, which will be accommodated on a first come, first served basis.
`Each party will have ninety (90) minutes total time to present its
`
`arguments in the above-captioned proceedings. Petitioner bears the ultimate
`burden of persuasion that the claims at issue in these proceedings are
`unpatentable. 35 U.S.C. § 316(e). Petitioner will proceed first to present its
`case with regard to the claims and grounds on which trial was instituted.
`Petitioner may reserve no more than half of its time for rebuttal. Thereafter,
`Patent Owner may respond to Petitioner’s case and may reserve some of its
`time for sur-rebuttal. Petitioner then may use any of its remaining time for
`rebuttal regarding the challenged claims. Patent Owner may then present a
`brief sur-rebuttal, if requested.
`
`
`
`IPR2018-00200 (Patent 8,886,739 B2)
`IPR2018-00312 (Patent 9,306,885 B2)
`IPR2018-00369 (Patent 9,313,155 B2)
`IPR2018-00397 (Patent 9,306,886 B2)
`IPR2018-00404 (Patent 8,935,351 B2)
`IPR2018-00408 (Patent 9,338,111 B2)
`
`The Board will provide a court reporter for the hearing and the
`
`reporter’s transcript will constitute the official record of the hearing. No live
`testimony from any witness will be taken at the oral argument. Any counsel
`of record may present the party’s argument. There will be only one
`transcript, which will be entered into the record of each case. If an argument
`is not applicable to all cases, the presenter should clearly state to which case
`the argument is directed.
`
`Demonstratives
`Under 37 C.F.R. § 42.70(b), any demonstrative exhibits must be
`
`served on opposing counsel at least seven (7) business days before the
`hearing. Any argument presented in the demonstrative exhibits must be
`supported by evidence already of record. The demonstrative exhibits,
`however, are not evidence. Instead, they are intended to assist the parties in
`presenting their oral arguments to the Board. Also, the demonstrative
`exhibits are not a mechanism for making arguments not previously
`presented. The panel will not consider arguments or evidence appearing
`only in demonstrative exhibits. The parties are directed to St. Jude Medical,
`Cardiology Division, Inc. v. The Board of Regents of the University of
`Michigan, Case IPR2013-00041 (PTAB Jan. 27, 2014) (Paper 65), for
`guidance regarding the appropriate content of demonstrative exhibits. In
`general, if the content on a slide cannot be readily associated with an
`argument made, or evidence referenced, in a substantive paper, it is
`inappropriate. The best practice is to indicate on each slide where support
`
`
`
`IPR2018-00200 (Patent 8,886,739 B2)
`IPR2018-00312 (Patent 9,306,885 B2)
`IPR2018-00369 (Patent 9,313,155 B2)
`IPR2018-00397 (Patent 9,306,886 B2)
`IPR2018-00404 (Patent 8,935,351 B2)
`IPR2018-00408 (Patent 9,338,111 B2)
`
`may be found in a substantive paper and/or an exhibit of record in these
`proceedings.
`Demonstrative exhibits are only an aid to oral argument and are not
`evidence of record in the proceedings, and should be clearly marked as such.
`For example, each slide may be marked with the words
`“DEMONSTRATIVE EXHIBIT – NOT EVIDENCE” in the footer. The
`parties shall file any demonstrative exhibits with the Board at least two (2)
`business days prior to the hearing.
`
`The Board expects that the parties will meet and confer in good faith
`to resolve any objections to demonstrative exhibits, but if any such
`objections cannot be resolved, the parties must file any objections to the
`demonstratives with the Board at least two (2) business days before the
`hearing. Any unresolved objection to demonstrative exhibits that is not
`timely presented will be considered waived. The objecting party should
`identify with particularity which portions of the demonstrative exhibits it
`objects to, and include a one-sentence statement of the reason for each
`objection. No argument or further explanation is permitted. We will
`consider the objections and schedule a conference call if necessary.
`Otherwise, we will reserve ruling on the objections until the hearing or after
`the hearing.
`
`The parties are reminded that each presenter must identify clearly and
`specifically each demonstrative exhibit (e.g., by slide or screen number)
`referenced during the hearing to ensure the clarity and accuracy of the
`reporter’s transcript.
`
`
`
`IPR2018-00200 (Patent 8,886,739 B2)
`IPR2018-00312 (Patent 9,306,885 B2)
`IPR2018-00369 (Patent 9,313,155 B2)
`IPR2018-00397 (Patent 9,306,886 B2)
`IPR2018-00404 (Patent 8,935,351 B2)
`IPR2018-00408 (Patent 9,338,111 B2)
`
`
`Lead Counsel
`The Board expects lead counsel for each party to be present at the oral
`
`hearing, although any counsel of record may present the party’s argument.
`If either lead counsel is unable to be present at the hearing, the Board shall
`be advised by email no later than two (2) business days prior to the oral
`hearing, and such lead counsel shall be available for a conference call if
`necessary.
`
`Audio/Visual Equipment Requests
`Questions regarding specific audio-visual equipment should be
`
`directed to the Board at (571) 272-9797. Requests for audio-visual
`equipment must be made five business days prior to 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.
`
`
`ORDER
`
`
`ORDERED that oral argument for these proceedings shall take place
`beginning at 1:00 PM Eastern Time on March 27, 2019, on the ninth floor of
`Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`
`It is
`
`
`
`
`
`
`
`
`
`IPR2018-00200 (Patent 8,886,739 B2)
`IPR2018-00312 (Patent 9,306,885 B2)
`IPR2018-00369 (Patent 9,313,155 B2)
`IPR2018-00397 (Patent 9,306,886 B2)
`IPR2018-00404 (Patent 8,935,351 B2)
`IPR2018-00408 (Patent 9,338,111 B2)
`
`PETITIONER:
`Heidi Keefe
`Andrew mace
`Mark Weinstein
`Reuben Chen
`Yuan Liang
`COOLEY LLP
`hkeefe@cooley.com
`amace@cooley.com
`mweinstein@cooley.com
`rchen@cooley.com
`yliang@cooley.com
`
`
`PATENT OWNER:
`
`Michael Heim
`Douglas Wilson
`Blaine Larson
`HEIM PAYNE & CHORUSH, LLP
`mheim@hpcllp.com
`dwilson@hpcllp.com
`blarson@hpcllp.com
`
`Jamie Gallagher
`BIRCH TREE IP LAW & STRATEGY PLLC
`jamie@birchtreeip.com
`
`
`
`
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