Trials@uspto.gov
`571-272-7822
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` Paper 19
`
` Entered: January 23, 2020
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`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, INC.,
`Patent Owner.
`____________
`
`PGR2019-00018
`Patent 9,891,799 B2
`____________
`
`
`
`Before LYNNE H. BROWNE, HYUN J. JUNG, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`BROWNE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Petitioner’s and Patent Owner’s Requests for Oral Hearing
`37 C.F.R. § 42.70
`
`
`571-272-7822
`
`
`
`
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`
`
`
`
` Paper 19
`
` Entered: January 23, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SUPERCELL OY,
`Petitioner,
`
`v.
`
`GREE, INC.,
`Patent Owner.
`____________
`
`PGR2019-00018
`Patent 9,891,799 B2
`____________
`
`
`
`Before LYNNE H. BROWNE, HYUN J. JUNG, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`BROWNE, Administrative Patent Judge.
`
`
`
`ORDER
`Granting Petitioner’s and Patent Owner’s Requests for Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`PGR2019-00018
`Patent 9,891,799 B2
`
`
`On June 3, 2019, we instituted trial in the above-referenced
`proceeding. Paper 8. The initial Scheduling Order set February 25, 2020 as
`the date for oral argument, if requested. Paper 10. Oral argument was
`subsequently rescheduled to March 3, 2020. Paper 11, 8. Pursuant to 37
`C.F.R. § 42.70, Petitioner and Patent Owner each filed a request for oral
`argument. Papers 17, 18. Each party requests one hour of time. Id. The
`requests for hearing are granted.
`The hearing will commence at 1:00 PM Eastern Time, on Tuesday,
`March 3, 2020, and will be conducted at the USPTO Central
`Headquarters in Alexandria, Virginia (the ninth floor of Madison
`Building East, 600 Dulany Street, Alexandria, Virginia, 22314). At least
`one judge may participate in the hearing via videoconference from a remote
`location; counsel for the parties, however, must appear in person. 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.
`Each party will have forty-five (45) minutes of total oral argument
`time. 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
`
`2
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`PGR2019-00018
`Patent 9,891,799 B2
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`for rebuttal to respond to Patent Owner’s arguments. 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, and the reporter’s transcript
`will constitute the official record of the hearing. The hearing transcript will
`be entered in the record of this proceeding.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits, if any, must be
`served at least (7) seven business days before the hearing. Demonstrative
`exhibits are visual aids to oral argument and not evidence, and should be
`clearly marked as such. For example, each slide may be marked with the
`words “DEMONSTRATIVE EXHIBIT – NOT EVIDENCE” in the footer.
`Demonstrative exhibits may not 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”). Instead, demonstrative exhibits should
`cite to the briefs and evidence in the record. Demonstrative exhibits, marked
`as noted above, should be filed in accordance with 37 C.F.R. § 42.70(b) at
`least five (5) business days before the hearing. If filing demonstrative
`exhibits with the Board is done by email, they should be sent to
`PTABHearings@uspto.gov.
`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
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`PGR2019-00018
`Patent 9,891,799 B2
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`waived. The objections should identify with particularity which
`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 rule on the objections at the hearing.
`To aid in the preparation of an accurate transcript, each party shall
`provide a paper copy of any demonstratives to the court reporter on the day
`of the oral argument. Such paper copies shall not become part of the record
`of this proceeding. The parties are reminded that, during the hearing, the
`presenter should identify clearly each demonstrative exhibit (e.g., by slide or
`screen number) to ensure the clarity and accuracy of the reporter’s transcript
`and permit any judge participating from a remote location to follow the
`arguments.
`The Board expects lead counsel for each party to be present in person
`at the oral hearing. However, any counsel of record may present the party’s
`argument as long as that counsel is present in person. If either party expects
`that its lead counsel will not be attending the oral argument, the parties
`should initiate a joint telephone conference with the Board no later than two
`(2) business days prior to the oral hearing to discuss the matter.
`A party may request that counsel be permitted to present arguments
`remotely from an alternative USPTO location. The available locations
`include the USPTO headquarters in Alexandria, Virginia; 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, California. To request
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`PGR2019-00018
`Patent 9,891,799 B2
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`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 request remote video attendance for one or more of its
`other attendees to view the hearing from any 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, California. To request remote video viewing, a party must send
`an email message to Trials@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 requests for audio-visual equipment should be directed to
`Trials@uspto.gov. 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 special
`requests must be presented in a separate communication not less than five
`(5) days before the hearing. If the request is not received timely, the
`equipment may not be available on the day of the hearing.
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`PGR2019-00018
`Patent 9,891,799 B2
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`Any requests for a pre-hearing conference must be made by February
`18, 2020. Paper 11, 6–8. 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
`business days prior to the oral hearing.
`It is
`ORDERED that oral argument will commence at 1:00 PM ET on
`March 3, 2020.
`
`
`
`
`
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`6
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`PGR2019-00018
`Patent 9,891,799 B2
`
`
`
`PETITIONER:
`
`Jennifer Bush
`jbush-ptab@fenwick.com
`
`
`
`PATENT OWNER:
`
`Scott McKeown
`scott.mckeown@ropesgray.com
`
`Matthew J. Rizzolo
`matthew.rizzolo@ropesgray.com
`
`
`
`
`7
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