Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 50
`Date Entered: June 18, 2014
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CYANOTECH CORPORATION
`Petitioner
`
`v.
`
`THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS
`Patent Owner
`____________
`
`Cases IPR2013-00401 and IPR2013-00404 (consolidated)
`Patent 5,527,533
`____________
`
`
`
`
`Before SCOTT E. KAMHOLZ, SHERIDAN K. SNEDDEN, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`
`KAMHOLZ, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`Cyanotech and the University requested oral argument. Papers 45, 46. The
`University also requested that the oral argument be rescheduled from July 16,
`
`
`571-272-7822
`
`
`Paper No. 50
`Date Entered: June 18, 2014
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CYANOTECH CORPORATION
`Petitioner
`
`v.
`
`THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS
`Patent Owner
`____________
`
`Cases IPR2013-00401 and IPR2013-00404 (consolidated)
`Patent 5,527,533
`____________
`
`
`
`
`Before SCOTT E. KAMHOLZ, SHERIDAN K. SNEDDEN, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`
`KAMHOLZ, Administrative Patent Judge.
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`Cyanotech and the University requested oral argument. Papers 45, 46. The
`University also requested that the oral argument be rescheduled from July 16,
`
`
`
`Cases IPR2013-00401, -00404
`Patent 5,527,533
`
`2014, as set in the Scheduling Order on December 19, 2013 (Paper 18), because its
`lead and backup counsel have a conflicting trial in an unrelated district court
`litigation. Paper 45, 2.*
`Oral argument will commence at 2:00 pm Eastern Time on July 16, 2014, on
`the ninth floor of Madison Building East, 600 Dulany Street, Alexandria, Virginia.
`Each party is allotted one hour total argument time.
`For each case, Cyanotech ultimately bears the burden of proof that the
`University’s claims are unpatentable. Cyanotech will open the hearing by
`presenting its arguments regarding the challenged claims for which the Board
`instituted trial. The University will then respond to Cyanotech’s arguments.
`Cyanotech may reserve rebuttal time to respond to arguments presented by the
`University. The University may not reserve rebuttal time.
`The Board will provide a court reporter for the hearing, and the reporter’s
`transcript will constitute the official record of the hearing. The final hearing will
`be publically available via in-person attendance. 37 C.F.R. § 42.14. Attendance
`by the public will be accommodated on a first-come, first-served basis.
`The parties are reminded that, under 37 C.F.R. § 42.53(f)(7), a proponent of
`deposition testimony must file such testimony as an exhibit. The Board will not
`consider any deposition testimony that has not been filed in accordance with our
`rules. Furthermore, under 37 C.F.R. § 42.70(b), demonstrative exhibits must be
`served at least five business days before the hearing. The Board requests that such
`exhibits be filed at the Board at least five business days before the hearing. The
`parties are directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of
`Regents of the University of Michigan, IPR2013-00041 (PTAB Jan. 27, 2014)
`
`
`* A copy of the trial order from the district court is attached to the request. The
`order is dated May 29, 2014 and adjourns trial to July 14, 2014.
`2
`
`
`
`
`
`Cases IPR2013-00401, -00404
`Patent 5,527,533
`
`(Paper 65), for guidance regarding the appropriate content of demonstrative
`exhibits. The parties must initiate a conference call with the Board at least two
`business days before the hearing to present any objection regarding the propriety of
`any demonstrative exhibit. Any objection to demonstrative exhibits that is not
`timely presented will be considered waived. The Board asks the parties to confine
`demonstrative exhibit objections to those identifying egregious violations that are
`prejudicial to the administration of justice.
`The parties are reminded that, during the hearing, the presenter must identify
`clearly and specifically each demonstrative exhibit (e.g., by slide or screen
`number) referenced to ensure the clarity and accuracy of the reporter’s transcript.
`The Board expects lead counsel for each party to be present in person at the
`hearing. If a party anticipates 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 business days prior to the oral hearing to discuss the matter. Any
`counsel of record, however, may present the party’s argument. A party’s argument
`may be divided, but interruptions for change of counsel should be kept to a
`minimum.
`A screen and computer projector will be provided for counsels’ use during
`the hearing. Any special requests for audio visual equipment should be directed to
`Trials@uspto.gov. Requests for special equipment will not be honored unless
`presented in a separate communication directed to the above email address not less
`than five days before the hearing.
`The parties should note that one member of the panel is expected to attend
`the oral hearing electronically from a remote location.
`The University’s request to change the date of oral argument is denied. We
`are mindful of the University’s preference for certain counsel to present oral
`
`
`
`3
`
`
`
`Cases IPR2013-00401, -00404
`Patent 5,527,533
`
`argument. The Board’s hearing room schedule, as well as the schedules of the
`judges empaneled for this proceeding, are not amendable, however, to rescheduling
`at this late date. Moreover, this proceeding is conducted on a strict statutory
`timeline and cannot deviate from the set schedule without risking failure to
`complete it on time. Consequently, modification of the oral argument date will be
`made only for good cause. The University provides no explanation for its request
`other than to state its counsels’ conflicting trial date. The University does not
`explain what efforts it undertook with the district court to schedule around the
`hearing date for this proceeding, of which the University has been aware since
`December 19, 2013. See Paper 18, 6. Nor does the University indicate that
`Cyanotech joins its request. If the University believes that good cause nevertheless
`exists to change the hearing date, it may request, no later than June 20, 2014, a
`conference call with the Board to seek authorization to file a motion to change Due
`Date 7. The University is reminded that, even if its filing is authorized, the motion
`will not be granted without a showing by the University that it is entitled to the
`requested relief. See 37 C.F.R. § 42.20(c).
`Accordingly, it is
`ORDERED that oral argument in the cases listed in the caption of this order
`shall take place beginning at 2:00 pm Eastern Time on July 16, 2014, on the ninth
`floor of Madison Building East, 600 Dulany Street, Alexandria; and
`FURTHER ORDERED that the University’s request to reschedule the oral
`argument is denied without prejudice to its requesting, no later than June 20, 2014,
`a conference call to seek authorization to file a motion to reset Due Date 7.
`
`
`
`
`
`
`
`
`4
`
`
`
`Cases IPR2013-00401, -00404
`Patent 5,527,533
`
`For PETITIONER:
`
`Joseph A. Rhoa
`NIXON & VANDERHYE P.C.
`jar@nixonvan.com
`
`George E. Darby
`PARADISE PATENT SERVICES, INC.
`gdarby@kanikapilarecords.com
`
`
`For PATENT OWNER:
`
`Mark D. Schuman
`Iain A. McIntyre
`Todd Werner
`CARLSON CASPERS
`mschuman@carlsoncaspers.com
`imcintyre@carlsoncaspers.com
`twerner@carlsoncaspers.com
`
`
`
`
`
`5
`
`
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