`
`
` Entered: June 19, 2013
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`
`
`Trials@uspto.gov
`Tel: 571-272-7822
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`GAME SHOW NETWORK, LLC and WORLDWINNER.COM
`Petitioner
`v.
`JOHN H. STEPHENSON
`Patent Owner
`____________________
`
`Case IPR2013-00289 (SCM)
`Patent 6,174,237 B1
`___________________
`
`Before SALLY C. MEDLEY, SCOTT R. BOALICK, and KEVIN F.
`TURNER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`ORDER
`Conduct of the Proceeding
` 37 C.F.R. § 42.5
`
`
`
`On June 18, 2013, the following individuals participated in a
`conference call:
`(1) Mr. Brenton Babcock and Mr. Ted Cannon, counsel for Petitioner;
`(2) Mr. Daniel McDonald and Mr. Robert Kalinsky, counsel for
`
`
`
`Case IPR2013-00289
`Patent 6,174,237 B1
`
`Patent Owner; and
`(3) Sally Medley, Scott Boalick, and Kevin Turner, Administrative
`Patent Judges.
`The purpose of the conference call was for Patent Owner to seek
`authorization to file a motion to strike portions of Exhibit 1005, which is a
`declaration of E. James Whitehead, Jr., Ph.D. (“Whitehead declaration”)
`submitted by Petitioner. Counsel for Patent Owner explained that the
`Whitehead declaration contained arguments that should have been part of
`the petition and therefore the petition, in effect, exceeds the 60 page limit.
`As explained, the request was not well articulated. The declaration
`and petition are two separate documents. There was no indication from
`counsel for Patent Owner that Petitioner had attempted to incorporate any
`substance from the Whitehead declaration as part of the petition. Facially,
`the separate Whitehead declaration cannot be considered part of the petition.
`The petition itself is not over the 60 page limit. Thus, there is no apparent
`page limit violation.
`Alternatively, counsel for Patent Owner expressed concern that the
`Whitehead declaration contains arguments that should have been part of the
`petition. Declaration testimony generally is considered as evidence, not
`argument. The petition should contain arguments and direct attention to the
`evidence in support of the arguments. As explained during the call, to the
`extent that Petitioner omits certain arguments in the petition, Petitioner does
`that at its own risk because the Board may not consider arguments made
`elsewhere. Moreover, if a declaration is based on argument or conclusory
`assertions, not supported by a factual basis, the Board may give such
`testimony little if any weight.
`
`2
`
`
`
`Case IPR2013-00289
`Patent 6,174,237 B1
`
`
`In light of the explanation provided by the Board, counsel for Patent
`Owner withdrew its request to file a motion to strike. Accordingly, Patent
`Owner is not authorized to file a motion to strike portions of the Whitehead
`declaration.
`
`PETITIONER:
`
`Brenton R. Babcock
`Ted M. Cannon
`Knobbe, Martens, Olson & Bear, LLP
`Brent.babcock@knobbe.com
`Ted.cannon@knobbe.com
`
`
`
`PATENT OWNER:
`
`Daniel McDonald
`Robert Kalinsky
`Merchant & Gould P.C.
`dmcdonald@merchantgould.com
`rkalinsky@merchantgould.com
`
`
`3
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