Trials@uspto.gov
`571-272-7822
`
`Paper 36
` Date: June 4, 2021
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`ASETEK DANMARK A/S,
`Petitioner,
`
`v.
`
`COOLIT SYSTEMS, INC.,
`Patent Owner.
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)1
`
`
`
`
`Before FRANCES L. IPPOLITO, SCOTT C. MOORE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`1 This is a combined Order to be filed in each case. These cases have not
`been consolidated, and the parties are not authorized to use this filing style
`in subsequent papers.
`
`
`571-272-7822
`
`Paper 36
` Date: June 4, 2021
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`ASETEK DANMARK A/S,
`Petitioner,
`
`v.
`
`COOLIT SYSTEMS, INC.,
`Patent Owner.
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)1
`
`
`
`
`Before FRANCES L. IPPOLITO, SCOTT C. MOORE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`1 This is a combined Order to be filed in each case. These cases have not
`been consolidated, and the parties are not authorized to use this filing style
`in subsequent papers.
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`
`I.
`
`ORAL ARGUMENT
`
`A.
`
`Time and Format
`The parties have both requested oral arguments in the above
`proceedings, with Petitioner requesting 60 minutes of oral argument per side
`per proceeding, and Patent Owner requesting 30 minutes per side in
`IPR2020-00747, and 45 minutes per side in IPR2020-00825. IPR2020-
`00747, Papers 27, 29; IPR2020-00825, Papers 31, 33.
`Oral arguments will commence at 11:00 am Eastern Time on June
`22, 2021, by video. 2 The Board will provide a court reporter for the
`hearings, and the reporter’s transcript will constitute the official record of
`the hearings.
`We note that these proceedings involve related patents, and that there
`is substantial overlap in the claimed subject matter and asserted prior art
`references. Accordingly, each party will be allotted 60 minutes of oral
`argument time in IPR2020-00747, which will be argued first, and each party
`will be allocated 30 minutes of oral argument time in IPR2020-00825.
`For each proceeding, Petitioner will open the hearing by presenting its
`case regarding the challenged claims for which the Board instituted trial.
`Thereafter, Patent Owner will respond to Petitioner’s argument. Petitioner
`may reserve rebuttal time to respond to arguments presented by Patent
`Owner. In accordance with the Consolidated Trial Practice Guide3
`
`
`2 If there are any concerns about disclosing confidential information, the
`parties must contact the Board at Trials@uspto.gov at least ten business days
`before the hearing date.
`3 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`(“CTPG”), issued in November 2019, Patent Owner may request to reserve
`time for a brief sur-rebuttal. See CTPG 83.
`
`B. Demonstratives
`As set forth in 37 C.F.R. § 42.70(b), demonstratives for each
`proceeding shall be served on opposing counsel at least seven business days
`before the hearing date for that proceeding and filed no later than five
`business days before the hearing.
`Demonstratives are not a mechanism for making new arguments.
`Demonstratives also are not evidence, and will not be relied upon as
`evidence. Rather, demonstratives are visual aids to a party’s oral
`presentation regarding arguments and evidence previously presented and
`discussed in the papers. Accordingly, demonstratives shall be clearly
`marked with the words “DEMONSTRATIVE EXHIBIT—NOT
`EVIDENCE” in the footer. See Dell Inc. v. Acceleron, LLC, 884 F.3d 1364,
`1369 (Fed. Cir. 2018) (holding that the Board is obligated under its own
`regulations to dismiss untimely argument “raised for the first time during
`oral argument”). “[N]o new evidence may be presented at the oral
`argument.” CTPG 85; see also St. Jude Med., Cardiology Div., Inc. v. The
`Bd. of Regents of the Univ. of Mich., IPR2013-00041, Paper 65, 2–3 (PTAB
`Jan. 27, 2014) (explaining that “new” evidence includes evidence already of
`record but not previously discussed in any paper of record).
`Furthermore, because of the strict prohibition against the presentation
`of new evidence or arguments at a hearing, each demonstrative shall cite to a
`paper or papers in the record in order to allow the Board to easily ascertain
`whether a given demonstrative contains “new” argument or evidence or,
`instead, contains only those that were developed in the existing record.
`
`3
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`
`Finally, the parties are reminded that each presenter should identify
`clearly and specifically each paper (e.g., by slide or screen number for a
`demonstrative) referenced during the hearing to ensure the clarity and
`accuracy of the court reporter’s transcript and for the benefit of all
`participants appearing electronically.
`
`C.
`
`Presenting Counsel
`The Board expects lead counsel for each party to be present at each of
`the hearings. See CTPG 11. Any counsel of record may present the party’s
`argument as long as that counsel is present by video.
`
`D. Video Hearing Details4
`To facilitate planning, each party must contact the Board at
`PTABHearings@uspto.gov at least five business days prior to the 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 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 hearing will be
`conducted telephonically.
`If one or both parties would prefer to participate in any of the hearings
`telephonically, they must contact the Board at PTABHearings@uspto.gov at
`
`
`4 USPTO facilities remain closed to the public. If and when conditions
`allow in-person hearing attendance, the parties will be notified and will be
`permitted to submit a joint request to convert the current video hearing to an
`in-person hearing. The requests will be considered on a case-by-case basis,
`and subject to resource availability.
`
`4
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`least five business days prior to the hearing date to receive dial-in
`connection information.
`Counsel should unmute only when speaking. In addition, the parties
`are advised to identify themselves each time they speak. Furthermore, the
`remote nature of the hearing may also result in an audio lag, and thus the
`parties are advised to observe a pause prior to speaking, so as to avoid
`speaking over others.
`If at any time during the hearing, counsel encounters technical or
`other difficulties that fundamentally undermine counsel’s ability to
`adequately represent its client, please let the panel know immediately, and
`adjustments will be made. 5
`
`E.
`
`Remote Attendance Requests
`Members of the public may request to listen to this 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 at PTABHearings@uspto.gov at least ten business days prior to the
`hearing date.
`
`F. Audio/Visual Equipment Requests
`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 hearing, such as a request to accommodate
`visual or hearing impairments, and indicate how the PTAB may
`
`
`5 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`5
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`accommodate the special request. Any special requests must be presented in
`a separate communication at least five business days before the hearing date.
`
`G.
`
`Legal Experience and Advancement Program
`The Board has established the “Legal Experience and Advancement
`Program,” or “LEAP,” to encourage advocates with less legal experience to
`argue before the Board to develop their skills. The Board defines a LEAP
`practitioner as a patent agent or attorney having three or fewer substantive
`oral arguments in any federal tribunal, including PTAB, and seven or fewer
`years of experience as a licensed attorney or agent.
`Either party may request that a qualifying LEAP practitioner
`participate in the program and conduct at least a portion of the party’s oral
`argument. The Board will grant up to fifteen minutes of additional argument
`time to that party, depending on the length of the proceeding and the
`PTAB’s hearing schedule. A party should submit a request, no later than at
`least five business days before the oral hearing, by email to the Board at
`PTABHearings@uspto.gov.6
`The LEAP practitioner may conduct the entire oral argument or may
`share time with other counsel, provided that the LEAP practitioner is offered
`a meaningful and substantive opportunity to argue before the Board.
`Whether the LEAP practitioner conducts the argument in whole or in part,
`the Board will permit more experienced counsel to provide some assistance
`to the LEAP practitioner, if necessary, and to clarify any statements on the
`
`
`6 Additionally, a LEAP Verification Form shall be submitted by the LEAP
`practitioner, confirming eligibility for the program. A combined LEAP
`Practitioner Request for Oral Hearing Participation and Verification Form is
`available on the LEAP website, www.uspto.gov/leap.
`
`6
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`record before the conclusion of the oral argument. The Board does not draw
`any inference about the importance of a particular issue or issues, or the
`merits of the party’s arguments regarding that issue, from the party’s
`decision to have (or not to have) a LEAP practitioner argue.
`In instances where an advocate does not meet the LEAP eligibility
`requirements, either due to the years of experience as a licensed
`attorney/patent agent or the number of “substantive” oral hearing arguments,
`but nonetheless has a basis for considering themselves to be in the category
`of advocates that this program is intended to assist, the Board encourages
`argument by such advocates during oral hearings. Even though additional
`argument time will not be provided when the advocate does not qualify for
`LEAP, a party may share argument time among counsel and the Board will
`permit the more experienced counsel to provide some assistance, if
`necessary, during oral argument, and to clarify any statements on the record
`before the conclusion of the oral argument.
`All practitioners appearing before the Board shall demonstrate the
`highest professional standards. All practitioners are expected to have a
`command of the factual record, the applicable law, and Board procedures, as
`well as the authority to commit the party they represent.
`
`II. ORDER
`
`Accordingly, it is
`ORDERED that oral argument for these proceedings shall commence
`at 11:00 am Eastern Time on June 22, 2021, by video, and proceed in the
`manner set forth herein.
`
`
`
`
`7
`
`
`
`IPR2020-00747 (Patent 9,057,567 B2)
`IPR2020-00825 (Patent 10,274,266 B2)
`
`FOR PETITIONER:
`
`Eric Raciti
`Arpita Bhattacharyya
`Marta Garcia Daneshvar
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`eric.raciti@finnegan.com
`arpita.bhattacharyya@finnegan.com
`marta.garcia@finnegan.com
`
`
`FOR PATENT OWNER:
`
`Lloyd L. Pollard II
`Bradley M. Ganz
`GANZ POLLARD LLC
`lloyd@ganzlaw.com
`brad@ganzlaw.com
`docketing@ganzlaw.com
`
`
`
`
`8
`
`
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