`Trials@uspto.gov
`571-272-7822
`
`
`
`Paper No. 29
`Entered: December 23, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`APPLE INC. and AUGUST HOME, INC.,
`Petitioner,
`
`v.
`
`MARK W. KILBOURNE,
`Patent Owner.
`____________
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`____________
`
`
`
`Before GEORGE R. HOSKINS, RICHARD H. MARSCHALL, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`HOSKINS, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`
`Petitioner and Patent Owner have both requested oral argument in this
`proceeding pursuant to 37 C.F.R. § 42.70. See Papers 27, 28. The requests
`are granted.
`Oral arguments will commence at 1:30 p.m. Eastern Time on
`January 30, 2020, at the USPTO Headquarters 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 that
`will be accommodated on a first-come, first-served basis. The parties are
`directed to contact the Board at least 10 days in advance of the hearing if
`there are any concerns about disclosing confidential information. The Board
`will provide a court reporter for the hearing, and the reporter’s transcript will
`constitute the official record of the hearing. To facilitate planning, each
`party must send an email message to PTABHearings@uspto.gov five days
`prior to the hearing if the number planning to attend the hearing in-person
`for its side (attorneys and others) exceeds five people.
`Petitioner requests 60 minutes of argument per party; Patent Owner
`does not specify a requested amount of time for argument. Paper 27;
`Paper 28, 2. Based on the scope of review in this case, each party will have
`60 minutes of argument time. Petitioner will proceed first to present its
`arguments, then Patent Owner will argue its opposition to Petitioner’s case.
`Petitioner may reserve rebuttal time, in which event any such rebuttal will be
`presented after Patent Owner’s argument. See 35 U.S.C. § 316(e); Aqua
`Prods., Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017).
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served at
`least seven business days before the oral argument. The parties may refer to
`CBS Interactive Inc. v. Helferich Patent Licensing, LLC, IPR2013-00033
`
`2
`
`
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`Paper 118 (PTAB Oct. 23, 2013), regarding the appropriate content of
`demonstrative exhibits. The parties shall meet and confer to discuss any
`objections to demonstrative exhibits. The parties shall file their
`demonstrative exhibits with the Board at least three business days before the
`hearing. If any issues regarding demonstrative exhibits remain unresolved
`after the parties meet and confer, the parties shall file jointly a one-page list
`of objections to the demonstrative exhibits at least three business days before
`the hearing. For each objection, the list must identify with particularity the
`demonstrative exhibit(s) subject to the objection and include a short,
`one-sentence statement explaining the objection. The panel will consider the
`objections and schedule a conference call if necessary. Otherwise, rulings
`on the objections will be reserved until the hearing or after the hearing. Any
`objection to demonstrative exhibits not presented timely will be considered
`waived. The parties are reminded that the demonstrative exhibits presented
`in this proceeding are not evidence and are intended only to assist the parties
`in presenting their oral argument to the panel.
`Each party shall provide a hard copy of its demonstrative exhibits to
`the court reporter at the hearing. At least one judge will be participating
`remotely via a videoconferencing device and will not be able to view the
`projection screen in the hearing room. The parties are reminded that the
`presenter should 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 transcript.
`The Board generally expects lead counsel for each party to be present
`in person at the oral hearing. Any counsel of record may present the party’s
`argument as long as that counsel is present in person.
`
`3
`
`
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`
`If a party requires a different arrangement, the party should contact
`the Board as directed below with their request. For example, a party may
`request that counsel be permitted to present arguments remotely from an
`alternative USPTO location. The available locations include the Texas
`Regional Office in Dallas, Texas; the Rocky Mountain Regional Office in
`Denver, Colorado; the Elijah J. McCoy Midwest Regional Office in Detroit,
`Michigan; and the Silicon Valley Office in San Jose, CA. To request that
`counsel be permitted to present arguments from a remote location, a party
`should send an email message to PTABHearings@uspto.gov at least ten
`business days or as soon as practical prior to the hearing and provide a short
`statement of reasons for the request. The Board will notify the parties if the
`request is approved. Approval of the request does not guarantee that a panel
`member will be present at the remote location.
`A party may also request remote video attendance for one or more of
`its other attendees to view the hearing from any USPTO location. To
`request remote video viewing, a party must send an email message to
`PTABHearings@uspto.gov ten business days prior to the hearing, indicating
`the requested location and the number planning to view the hearing from the
`remote location. The Board will notify the parties if the request for video
`viewing is granted. Note that it may not be possible to grant the request due
`to the availability of resources.
`Any special requests for audio-visual equipment should be directed to
`PTABHearings@uspto.gov. Any such special request must be presented in
`a communication to the indicated email address not less than five (5) days
`before the hearing. For example, Petitioner has requested “the ability to use
`audio/visual equipment to display demonstrative exhibits and evidence of
`
`4
`
`
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`record, including the use of a computer, projector and screen for a
`PowerPoint presentation, an overhead projector (“Elmo”), and other visual
`display.” Paper 28, 3. Patent Owner has requested “the ability to use video
`equipment (including use of a computer, projector and screen) to display
`exhibits potentially including demonstrative exhibits, during oral argument.
`Paper 27, 2. These requests should be made to the indicated email address.
`Additionally, counsel should note that the remotely participating judge(s)
`will have access to each party’s demonstrative exhibits for reference during
`the hearing, but will not be able to see what is projected onto the screen in
`the hearing room, whether via computer connection or Elmo projection.
`A party may also indicate any special requests related to appearing at
`an in-person oral hearing, such as a request to accommodate physical needs
`that limit mobility or visual or hearing impairments, and indicate how the
`PTAB may accommodate the special request. Any such request must be
`presented in an email communication directed to PTABHearings@uspto.gov
`not less than five (5) days before the hearing.
`It is:
`ORDERED that oral argument for this proceeding will commence at
`1:30 p.m. Eastern Time on January 30, 2020, at the USPTO
`Headquarters on the ninth floor of Madison Building East, 600 Dulany
`Street, Alexandria, Virginia.
`
`5
`
`
`
`IPR2019-00233
`Patent 7,373,795 B2
`
`PETITIONER:
`
`Joseph A. Hynds
`Jennifer P. Nock
`Eric D. Blatt
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`jhynds@rfem.com
`jnock@rfem.com
`eblatt@rfem.com
`litigationparalegals@rothwellfigg.com.
`
`
`PATENT OWNER:
`
`Robert J. McAughan, Jr.
`Albert B. Deaver
`Christopher M. Lonvick
`McAUGHAN DEAVER PLLC
`bmcaughan@md-iplaw.com
`adeaver@md-iplaw.com
`clonvick@md-iplaw.com
`
`6
`
`
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