Trials@uspto.gov
`571-272-7822
`
`Paper No. 33
`Entered: January 22, 2019
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORTHOPEDIATRICS CORP.,
`Petitioner,
`
`v.
`
`K2M, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00429
`Case IPR2018-00521
`Patent 9,532,816 B21
`_______________
`
`Before LYNNE H. BROWNE, MICHAEL L. WOODS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`BROWNE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Parties Request for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`
`
`1 This Order applies to both of the listed cases. We exercise our discretion to issue
`one Order to be filed in each case. The parties, however, are not authorized to use
`this style heading in subsequent papers.
`
`
`
`
`
`
`571-272-7822
`
`Paper No. 33
`Entered: January 22, 2019
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORTHOPEDIATRICS CORP.,
`Petitioner,
`
`v.
`
`K2M, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00429
`Case IPR2018-00521
`Patent 9,532,816 B21
`_______________
`
`Before LYNNE H. BROWNE, MICHAEL L. WOODS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`BROWNE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Parties Request for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`
`
`1 This Order applies to both of the listed cases. We exercise our discretion to issue
`one Order to be filed in each case. The parties, however, are not authorized to use
`this style heading in subsequent papers.
`
`
`
`
`
`
`
`IPR2018-00429
`IPR2018-00521
`Patent 9,532,816 B2
`:
`
`
`
`REQUESTS FOR ORAL ARGUMENT
`
`Both parties have requested oral hearing pursuant to 37 C.F.R. § 42.70. See
`
`Papers 32, 34. These requests are granted.
`
`Oral arguments will commence at 2:00 pm Eastern Standard Time on
`February 20, 2019, at the USPTO Headquarters in 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. 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 to present arguments
`for both proceedings. 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). Petitioner bears the ultimate
`burden of proof that the claims at issue in these inter partes reviews 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. The parties are
`directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of Regents of
`the University of Michigan, IPR2013-00041, Paper 65 (PTAB Jan. 27, 2014), for
`guidance regarding the appropriate content of demonstrative exhibits.
`
`
`
`
`
`2
`
`
`
`IPR2018-00429
`IPR2018-00521
`Patent 9,532,816 B2
`
`
`:
`
`
`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 the 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 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
`the oral hearing.
`
`At least one member of the panel hearing the case will attend the reading
`remotely, by video and audio link. The parties are reminded that, during the
`hearing, the presenter must identify clearly and specifically each demonstrative
`exhibit references (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(s) 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.
`
`Both parties request use of audio/visual equipment to display demonstrative
`exhibits. See Papers 32, 34. The parties are allowed to use computers, but requests
`for special equipment will not be honored unless presented in a separate
`communication directed to Trails@uspto.gov not less than five days before the
`
`
`
`3
`
`
`
`:
`
`IPR2018-00429
`IPR2018-00521
`Patent 9,532,816 B2
`
`
`hearing. If the request is not timely received, the equipment may not be available
`on the day of the hearing. Furthermore, if the demonstratives are filed in a timely
`manner, the panel members will have copies of the demonstrative exhibits
`available on their computer screens and display of demonstrative exhibits should
`not be necessary.
`If either party anticipates that its lead counsel will not attend the hearing,
`that party 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.
`Weather/potential USPTO shutdown: The parties should monitor OPM’s
`official website for shutdowns of the federal government due to weather
`emergencies (https://www.opm.gov/policy-data-oversight/snow-dismissal-
`procedures/current-status/). The parties also should monitor the USPTO and Board
`official websites for notices related to the ongoing partial federal government
`shutdown.
`
`Accordingly, it is
`
`ORDERED that oral argument for these proceedings shall take place
`beginning at 2:00 pm Eastern Standard Time on February 20, 2019, at the USPTO
`Headquarters in Alexandria, VA.
`
`
`
`
`
`4
`
`
`
`
`
`:
`
`IPR2018-00429
`IPR2018-00521
`Patent 9,532,816 B2
`
`For PETITIONER:
`
`Paul M. Ulrich
`Christopher A. Singh
`John Bennett
`Ulmer & Berne LLP
`pulrich@ulmer.com
`csingh@ulmer.com
`jbennett@ulmer.com
`
`
`For PATENT OWNER:
`
`Christopher TL Douglas
`Michael S. Connor
`Lauren E. Burrow
`Brian D. Hill
`Alston & Bird LLP
`christopher.douglas@alston.com
`mike.connor@alston.com
`lauren.burrow@alston.com
`brian.hill@alston.com
`
`
`
`
`5
`
`
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