`Tel: 571-272-7822
`
`Paper 32
`Entered: May 15, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`EXOCAD GMBH AND EXOCAD AMERICA, INC.,
`Petitioner,
`
`v.
`
`3SHAPE A/S,
`Patent Owner.
`
`Case IPR2018-00788
`Patent 9,336,336 B2
`
`
`
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, IRVIN E. BRANCH, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
`
`BRANCH, Administrative Patent Judge.
`
`ORDER
`
` Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`Case IPR2018-00788
`Patent 9,336,336 B2
`
`
`On May 14, 2019, the Board received an email message from
`
`Petitioner’s counsel requesting a conference call and an authorization to file
`
`a motion to strike two portions of Patent Owner’s Sur-Reply (Paper 31),
`
`namely:
`
` (1) Patent Owner’s claim construction argument at pages 3–4
`(starting at the first full paragraph on page 3, beginning with
`words “Where both . . .”) addressing the part of the Board’s
`construction in the Institution Decision in which the Board stated
`that its construction “does not preclude subsequent merging or
`fusing together of the separate data representations after
`alignment, provided the 2D image and the 3D model remain
`separate at least momentarily after having been ‘aligned’” (Paper
`7 at 8–9); and
`
`(2) Section II(C).
`
`Ex. 3001.
`
`The email states that “Petitioner believes that such portions of Patent
`
`Owner’s Sur-Reply contain new arguments that were not presented in the
`
`Response (Paper 23), and thus are improperly raised for the first time in
`
`Patent Owner’s Sur-Reply” and that “Patent Owner has indicated that it
`
`opposes the filing of the motion to strike.” Id.
`
`We determine that having a separate motion to strike, and all that that
`
`entails (e.g., an opposition and reply), would not further the goal of securing
`
`the just, speedy, and inexpensive resolution of this proceeding. 37 C.F.R.
`
`§ 41.1(b). We have noted these sections for the record and will consider
`
`Petitioner’s arguments when we review the briefs for the Final Written
`
`Decision.
`
`
`
`ORDER
`
`2
`
`
`
`Case IPR2018-00788
`Patent 9,336,336 B2
`
`
`Accordingly, it is
`
`ORDERED that Petitioner’s request for authorization to file a motion
`
`to strike is denied.
`
`
`
`
`
`
`
`
`
`PETITIONER:
`
`Matthew Lowrie
`mlowrie@foley.com
`
`Christopher McKenna
`cmckenna@foley.com
`
`
`PATENT OWNER:
`
`Todd Walters
`todd.walters@bipc.com
`
`Roger Lee
`roger.lee@bipc.com
`
`
`3
`
`
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