Trials@uspto.gov
`Tel: 571-272-7822
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`
`
`
`
`Paper 28
`Date: June 10, 2021
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`
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)1
`____________
`
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`
`
`1 This Order applies to each of the above-identified cases. The parties may
`not use this style caption unless authorized.
`
`
`Tel: 571-272-7822
`
`
`
`
`
`
`
`Paper 28
`Date: June 10, 2021
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)1
`____________
`
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`ROBERT L. KINDER Administrative Patent Judges.
`
`KINDER, Administrative Patent Judge.
`
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`
`
`
`
`1 This Order applies to each of the above-identified cases. The parties may
`not use this style caption unless authorized.
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`
`I. ORAL ARGUMENT
`
`A. Time and Format
`The parties filed requests for oral argument in each of the above-
`identified proceedings. IPR2020-00821, Papers 27, 28.2 Patent Owner
`requests thirty (30) minutes of argument time per side for each proceeding,
`while Petitioner requests ninety (90) minutes of argument time per side. Id.
`In addition, Petitioner requests holding oral arguments for the proceedings
`on successive days. Paper 28, 2.
`The above-identified proceedings involve the same parties and the
`same counsel, and the Scheduling Orders set the same date for oral
`argument. Paper 11, 10. Accordingly, oral arguments will commence at
`1:00 PM Eastern Time on Tuesday, June 29, 2021, by video.3 The Board
`will provide a court reporter, and the reporter’s transcript will constitute the
`official record of each respective hearing. Each proceeding will have a
`distinct oral hearing with its own transcript. Between the oral hearing for
`each proceeding, the panel will plan for an approximate ten minute break.
`The order of presentation will be: (1) IPR2020-00821, (2) PGR2020-00054,
`and (3) PGR2020-00055. The parties may stipulate to a different order of
`presentation by notifying the Board one day before the hearing.
`In each of the above-identified proceedings, Petitioner will have a
`total of thirty (30) minutes to present argument and Patent Owner will have
`
`
`2 We cite to IPR2020-00821 for expediency. The parties filed similar papers
`in PGR2020-00054 and PGR2020-00055.
`3 If there are any concerns about disclosing confidential information, the
`parties must contact the Board at Trials@uspto.gov at least ten (10) business
`days before the hearing date.
`
`2
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`a total of thirty (30) minutes to respond. For each proceeding, Petitioner
`will open the hearing by presenting its case regarding the challenged claim.
`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 Guide4
`(“CTPG”), issued in November 2019, Patent Owner may request to reserve
`time for a brief sur-rebuttal. See CTPG 83.
`Either party may request a pre-hearing conference. See Office
`Consolidated Trial Practice Guide at 82; see also 84 Fed. Reg. 64,280 (Nov.
`21, 2019). Requests must be made by June 15, 2021. See Paper 11, 9 (Due
`Date 6). To request such a conference, the parties should jointly contact the
`Board at Trials@uspto.gov and include several dates and times of
`availability that are generally no later than three business days prior to the
`oral hearing.
`
`B. Demonstratives
`As set forth in 37 C.F.R. § 42.70(b), demonstratives shall be served on
`opposing counsel at least seven (7) business days before the hearing date and
`filed at least one day before the hearing.5
`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
`
`4 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`5 The parties may stipulate to an alternative schedule for serving and filing
`demonstratives, and request that the Board modify the schedule for filing
`and serving demonstratives at least seven (7) business days before the
`hearing date.
`
`3
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`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 86; 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, it is strongly recommended that
`each demonstrative include a citation to a paper in the record, which allows
`the Board to easily ascertain whether a given demonstrative contains “new”
`argument or evidence or, instead, contains only that which is developed in
`the existing record.
`Due to the nature of the Board’s consideration of demonstratives and
`the opportunity afforded for the parties to reach an agreement without
`involving the Board, the Board does not anticipate that objections to
`demonstratives are likely to be sustained. Nevertheless, to the extent that a
`party objects to the propriety of any demonstrative, the parties shall meet
`and confer in good faith to resolve any objections to demonstratives prior to
`filing the objections with the Board. If such objections cannot be resolved,
`the parties may file any objections to demonstratives with the Board no later
`
`4
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`than the time of the hearing. The objections shall identify with particularity
`which portions of the demonstratives are subject to objection (and should
`include a copy of the objected-to portions) and include a one (1) sentence
`statement of the reason for each objection. No argument or further
`explanation is permitted. The Board will consider any objections, and may
`reserve ruling on the objections.6 Any objection to demonstratives that is
`not timely presented will be considered waived.
`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 generally expects lead counsel for each party to be present
`at the hearing. 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 Details
`To facilitate planning, each party must contact the Board at
`PTABHearings@uspto.gov at least five (5) 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
`
`6 If time permits, the Board may schedule a conference call with the parties
`to discuss any filed objections.
`
`5
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`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 the hearing
`telephonically, they must contact the Board at PTABHearings@uspto.gov at
`least five (5) business days prior to the hearing date to receive dial-in
`connection information.
`Counsel should unmute only when speaking. The panel will have
`access to all papers filed with the Board, including demonstratives. During
`the hearing, the parties are reminded to identify clearly and specifically each
`paper referenced (e.g., by slide or screen number for a demonstrative) to
`ensure the clarity and accuracy of the court reporter’s transcript and for the
`benefit of all participants appearing electronically. 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.7
`
`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.
`
`
`7 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`6
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`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 (10) 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
`accommodate the special request. Any special requests must be presented in
`a separate communication at least five (5) 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. 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. In these proceedings, the Board
`may grant additional argument time to that party. A party should submit a
`request, no later than at least five (5) business days before the oral hearing,
`by email to the Board at PTABHearings@uspto.gov. Additional
`information and a combined LEAP Practitioner Request for Oral Hearing
`Participation and Verification Form is available on the LEAP website,
`www.uspto.gov/leap.
`
`
`7
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`
`II. ORDER
`
`Accordingly, it is
`ORDERED that oral argument for this proceeding shall commence at
`1:00 PM Eastern Time on Tuesday, June 29, 2021, by video, and proceed
`in the manner set forth herein.
`
`
`
`8
`
`
`
`IPR2020-00821 (Patent D813,759 S)
`PGR2020-00054 (Patent D864,065 S)
`PGR2020-00055 (Patent D855,508 S)
`
`
`
`FOR PETITIONER:
`
`Barry Irwin
`birwin@irwinip.com
`
`Reid Huefner
`rhuefner@irwinip.com
`
`
`
`FOR PATENT OWNER:
`
`Dorothy Whelan
`whelan@fr.com
`
`Jennifer Huang
`jjh@fr.com
`
`Craig Deufsch
`deufsch@fr.com
`
`Grace Kim
`gkim@fr.com
`
`Joseph A. Herriges
`herriges@fr.com
`
`
`
`9
`
`
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