`Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 54
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` Entered: July 12, 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`CRS ADVANCED TECHNOLOGIES, INC.
`Petitioner
`
`v.
`
`FRONTLINE TECHNOLOGIES, INC.
`Patent Owner
`____________________
`
`Case CBM2012-00005
`Patent 6,675,151C1
`
`___________________
`
`
`
`Before SALLY C. MEDLEY, THOMAS L. GIANNETTI, and JENNIFER
`S. BISK, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
` 37 C.F.R. § 42.5
`
`
`
`On July 12, 2013, the following individuals participated in a
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`conference call:
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`(1) Mr. Robert Yoches and Mr. Darrel Karl, counsel for CRS;
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`(2) Mr. John McGlynn, counsel for Frontline; and
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`
`
`Case CBM2012-00005
`Patent 6,675,151
`
`
`(3) Sally Medley, Thomas Giannetti, and Jennifer Bisk,
`
`Administrative Patent Judges.1
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`The purpose of the conference call was to discuss Frontline’s motion
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`to exclude, requests for further briefing, the schedule and oral argument.
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`
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`Frontline’s Motion to Exclude
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`On July 9, 2013, Frontline filed a paper styled “PATENT OWNER’S
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`MOTION TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64(c).” Paper
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`51; “Motion.” In the Motion, Frontline seeks to exclude a stipulation made
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`by the parties (Ex. 1020) and “the corresponding facts and argument recited
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`in CRS’s Reply.” Paper 51 at 1. CRS filed an opposition. Paper 53;
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`“Opposition.”
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`The Trial Practice Guide explains in detail what a motion to exclude is
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`and what a party should include in the motion. A motion to exclude is
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`available to a party “wishing to challenge the admissibility of evidence” and
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`to preserve an objection made previously. A motion to exclude must
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`identify where in the record the objection originally was made; identify
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`where in the record the evidence sought to be excluded was relied upon by
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`an opponent; address objections to exhibits in numerical order and explain
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`each objection. The Trial Practice Guide explains that a motion to exclude
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`must explain why the evidence is not admissible, providing the examples of
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`relevance or hearsay, and explains that a motion to exclude may not be used
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`to challenge the sufficiency of the evidence to prove a particular fact. See
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48767 (Aug. 14,
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`2012).
`
`
`1 A court reporter was present.
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`2
`
`
`
`Case CBM2012-00005
`Patent 6,675,151
`
`
`A party following these guidelines may file a motion to exclude
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`without prior authorization from the Board. The rule specifies as much and
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`explains that a motion to exclude must identify the objections in the record
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`and must explain the objections. 37 C.F.R. § 42.64(c).
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`A motion to exclude is not an opportunity for a party to request the
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`Board to not consider, or to strike, portions of an opponent’s brief because
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`the portions allegedly raise new issues in violation of 37 C.F.R. § 42.23(b).2
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`However, that is what Frontline has done. Paper 51. In essence, Frontline’s
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`“Motion to Exclude” is a motion under 37 C.F.R. § 42.20. Such a motion
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`will not be entered without Board authorization. Here, Frontline did not
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`obtain authorization and thus the paper was filed contrary to the rule.
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`CRS compounded the problem by responding to the motion and
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`raising additional issues. Such an opportunity is not available to CRS. The
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`time for briefing the issues has passed. This proceeding is coming to an end.
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`As explained during the conference call, the Motion to Exclude and the
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`Opposition are unauthorized papers and will be expunged from the record.
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`
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`Further Briefing
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`Frontline seeks authorization for the parties to submit a brief in light
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`of Ultramercial, Inc. v. Hulu, LLC, 107 USPQ2d 1193 (Fed. Cir. June 21,
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`2013). The panel has determined that such briefing is not necessary to
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`decide this case. As discussed, however, the parties may present arguments
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`2 The rule explains that all arguments for the relief requested in a motion
`must be made in the motion and that a reply may only respond to arguments
`raised in a corresponding opposition or patent owner response. 37 C.F.R. §
`42.23(b).
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`3
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`Case CBM2012-00005
`Patent 6,675,151
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`regarding Ultramercial during oral argument.
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`
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`Oral Argument
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`
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`Oral argument is scheduled for August 13, 2013. Counsel for CRS
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`requests an earlier date for oral argument. The request is denied. The oral
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`argument date has been scheduled since January 23, 2013. Paper 19. The
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`schedules of all involved must be considered in determining whether to alter
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`a scheduled oral argument date. Here, counsel for CRS did not provide a
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`compelling reason to alter the date. Based on the facts of the case, oral
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`argument will be held on August 13, 2013. An order setting forth the
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`procedure for oral argument will be filed in due course.
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`
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`Miscellaneous
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`Counsel for CRS confirmed that CRS is not relying on Exhibits 1015
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`and 1016, currently marked “private” in support of its papers. Nor is there a
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`need for the protective order (Exhibit 1019) or the “private” first CRS reply
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`(Paper 40) entered in the record. Since neither party relies on any of these
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`documents, the Board would not want to maintain such documents. Counsel
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`for the respective parties agreed that it is appropriate to expunge such papers
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`from the record.
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`4
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`
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`Case CBM2012-00005
`Patent 6,675,151
`
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`For the reasons provided above, it is
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`Order
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`ORDERED that Frontline’s Motion to Exclude (Paper 51) and CRS’s
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`Opposition (Paper 53) are expunged from the record of this proceeding as
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`unauthorized papers; 37 C.F.R. § 42.7(a);
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`FURTHER ORDERED that Frontline’s request for the parties to
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`submit briefing in light of Ultramercial is denied; however, the parties may,
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`present arguments regarding Ultramercial during oral argument;
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`FURTHER ORDERED that Exhibits 1015, 1016, 1019 and CRS’ first
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`reply to patent owner’s response, filed under seal (Paper 40), are expunged
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`from the record of this proceeding; and
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`FURTHER ORDERED that an order setting forth the procedure for
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`oral argument scheduled for August 13, 2013 will be filed in due course.
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`
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`
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`PETITIONER:
`
`E. Robert Yoches
`Finnegan, Henderson, Farabow
` Garrett & Dunner, LLP
`Bob.yoches@finnegan.com
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`PATENT OWNER:
`
`John P. Donohue, Jr.
`John E. McGlynn
`Woodcock Washburn
`Donohue@woodcock.com
`mcglynn@woodocock.com
`
`5
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`
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