Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 17
`Entered: May 12, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`NUNA BABY ESSENTIALS, INC. and
`NUNA INTERNATIONAL B.V.,
`Nuna Baby,
`v.
`BRITAX CHILD SAFETY, INC.,
`Britax.
`
`Case IPR2019-00663
`Patent 9,187,016 B2
`
`
`
`
`Before LINDA E. HORNER, SCOTT A. DANIELS, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`Oral Argument
`37 C.F.R. § 42.5
`
`
`Tel: 571-272-7822
`
`Paper 17
`Entered: May 12, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`NUNA BABY ESSENTIALS, INC. and
`NUNA INTERNATIONAL B.V.,
`Nuna Baby,
`v.
`BRITAX CHILD SAFETY, INC.,
`Britax.
`
`Case IPR2019-00663
`Patent 9,187,016 B2
`
`
`
`
`Before LINDA E. HORNER, SCOTT A. DANIELS, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`Oral Argument
`37 C.F.R. § 42.5
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`The parties requested oral argument pursuant to 37 C.F.R. § 42.70.
`See Papers 15, 16. Patent Owner requested 60 minutes of total time to
`present its case and Petitioner requested an equal amount of time. The
`requests for 60 minutes of time, for each party, are granted.
`Our Scheduling Order in this case set the date of oral argument, if
`requested, as June 2, 2020. Paper 9 (Scheduling Order). The statutory
`deadline for issuing a final written decision in this proceeding is September
`4, 2020.
`On March 15, 2020, the USPTO announced:
`Out of an abundance of caution for the health and safety of the
`public and USPTO employees, all USPTO offices will be closed
`to the public beginning Monday, March 16, 2020 until further
`notice. USPTO offices will remain open for employees,
`contractors, and those with access badges. Unless otherwise
`notified, USPTO operations will continue without interruption.
`Patent and trademark application deadlines and other deadlines
`are not extended.
`
`See https://www.uspto.gov/about-us/news-updates/uspto-offices-closed
`public. Therefore, as discussed in detail below, oral argument in this
`proceeding will occur by video.
`Oral Argument
`Oral arguments will commence at 1:00 p.m. (ET) on Tuesday, June 2,
`by video. 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. Petitioner will argue first and may present
`arguments regarding the challenged claims. 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.
`
`2
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`Lastly, Patent Owner may use any time it has reserved for sur-rebuttal to
`respond to Petitioner’s rebuttal arguments. No other arguments will be
`heard.
`The Board will provide a court reporter for the hearing, and the
`reporter’s transcript will constitute the official record of the hearing.
`If at any time during the proceeding, you encounter technical or other
`difficulties that fundamentally undermine your ability to adequately
`represent your client, please let the panel know immediately, and
`adjustments will be made.1
`To facilitate planning, each party must contact PTAB Hearings at
`(571) 272-9797 five (5) business days prior to the oral hearing date to
`receive video set-up information. As a reminder, all arrangements and the
`expenses involved with appearing by video, such as the selection of the
`facility to be used from which a party will attend by video, must be borne by
`that party. If a video connection cannot be established, the parties will be
`provided with dial-in connection information, and the oral hearing will be
`conducted telephonically.
`If one or both parties would prefer to participate in the oral hearing
`telephonically, they should notify PTAB Hearings at the above telephone
`number five (5) business days prior to the hearing to receive dial-in
`connection information.
`Demonstratives
`Demonstratives are not required. Demonstratives, if used, are aids in
`support of oral argument; they are not evidence or exhibits in the review.
`
`
`1 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`3
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`They will not become part of the official record of this review other than via
`the transcript of oral argument. Only demonstratives that are specificaaly
`discussed by counsel will be considered as part of the argument.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits, if any, must be
`served at least (7) seven business days before the hearing. Thus, the parties
`shall serve on opposing counsel demonstrative exhibits no later than Noon
`Eastern Time, Friday, May 22, 2020. Copies should also be sent at the same
`time by email (not filed via electronic filing) to the Board at
`PTABHearings@uspto.gov.
`The pages of each demonstrative should be numbered.
`Demonstratives should be clearly marked as such. For example, each slide
`of a demonstrative may be marked with the words “DEMONSTRATIVE –
`NOT EVIDENCE” in the footer. Demonstratives cannot 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”). To ensure
`compliance with this requirement, each demonstrative should, if reasonably
`feasible, also include citations to the record for each argument or evidence
`included in a demonstrative.
`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
`
`4
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`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
`objections and schedule a conference if the Board deems necessary.
`Otherwise, the Board will reserve ruling on the objections until after the
`hearing.
`Any special requests for audio-visual equipment should be directed to
`PTABHearings@uspto.gov. A party may also indicate any special requests
`related to appearing at a video oral hearing, such as a request to
`accommodate visual or hearing impairments, and indicate how the PTAB
`may accommodate the special request. Any special requests must be
`presented in a separate communication not less than five (5) days before the
`hearing.
`No New Evidence or Arguments
`The parties are reminded that, at the oral argument, a party may only
`rely upon evidence that has been submitted previously in this proceeding,
`and may only present arguments relied upon in papers submitted previously.
`Evidence that is subject to a motion to exclude may be discussed at the
`hearing. The Board will rule on motions to exclude evidence in its Final
`Written Decision.
`Lead Counsel
`The Board expects lead counsel for each party to be present by video
`at the oral argument. However, lead or backup counsel may present the
`party’s argument. If either party anticipates that its lead counsel will not be
`attending the oral argument, the parties should initiate a joint telephone
`
`5
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`conference with the Board no later than two business days prior to the oral
`argument to discuss the matter.
`Other Hearing Considerations
`Please unmute yourself only when speaking. The panel will have
`access to all papers filed with the Board, including demonstratives. During
`the oral hearing, the parties are advised to identify clearly and specifically
`each demonstrative referenced (e.g., by slide or screen number) to ensure the
`clarity and accuracy of the court reporter’s transcript. In addition, the parties
`are advised to identify themselves each time they speak. Furthermore, the
`remote nature of the oral hearing may also result in an audio lag, and so the
`parties are advised to observe a pause prior to speaking, so as to avoid
`speaking over others.
`Members of the public may request to listen in on this oral hearing. If
`resources are available, the Board generally expects to grant such requests.
`If either party objects to the Board granting such requests, for example,
`because confidential information may be discussed, the party must notify the
`Board by contacting PTABHearings@uspto.gov at least five (5) business
`days prior to the oral hearing.
`Any requests for a pre-hearing conference must be made by May 18,
`2020. To request such a conference, an email should be sent to
`Trials@uspto.gov including several dates and times of availability for one or
`both parties, as appropriate, that are generally no later than three (3) business
`days prior to the oral hearing.
`It is
`ORDERED that the parties’ requests for oral argument are granted
`subject to the conditions set forth in this Order; and
`
`6
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`FURTHER ORDERED that oral argument will commence at 1:00 PM
`Eastern Time on June 2, 2020 by video.
`
`
`
`7
`
`
`
`IPR2019-00663
`Patent 9,187,016 B2
`
`
`
`PETITIONER:
`
`Trenton Ward
`Gary Ma
`Nathan I. North
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, L.L.P.
`trenton.ward@finnegan.com
`gary.ma@finnegan.com
`nathan.north@finnegan.com
`
`Roger Taylor
`THE LAW OFFICE OF ROGER TAYLOR, LLC
`roger@taylorfirm.law
`
`PATENT OWNER:
`
`Chad L. Thorson
`Tara M. Lay
`BURR FORMAN MCNAIR
`cthorson@burr.com
`tlay@burr.com
`
`N. Dean Powell, Jr.
`KILPATRICK TOWNSEND
`dpowell@kilpatricktownsend.com
`
`
`8
`
`
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