UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
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`---------------------------x
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`AKER BIOMARINE AS, :
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` Petitioner, :
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` v. : IPR Case
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`NEPTUNE TECHNOLOGIES AND : No. 2014-00003
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`BIORESSOURCES, INC., : Patent 8,278,351
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` Patent Owner. :
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`---------------------------x
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` Telephonic Judges' Conference Before
`
` The Honorable Lora M. Green and
`
` The Honorable Sheridan K. Snedden
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` Wednesday, May 28, 2014
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` 3:01 p.m.
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`Job No.: 59550
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`Pages: 1 - 42
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`Reported by: Micheal A. Johnson, RPR, CRR, CCR
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`NEPN Ex. 2027
`Aker v. Neptune
`IPR2014-00003
`
`
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
`
`---------------------------x
`
`AKER BIOMARINE AS, :
`
` Petitioner, :
`
` v. : IPR Case
`
`NEPTUNE TECHNOLOGIES AND : No. 2014-00003
`
`BIORESSOURCES, INC., : Patent 8,278,351
`
` Patent Owner. :
`
`---------------------------x
`
` Telephonic Judges' Conference Before
`
` The Honorable Lora M. Green and
`
` The Honorable Sheridan K. Snedden
`
` Wednesday, May 28, 2014
`
` 3:01 p.m.
`
`Job No.: 59550
`
`Pages: 1 - 42
`
`Reported by: Micheal A. Johnson, RPR, CRR, CCR
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`NEPN Ex. 2027
`Aker v. Neptune
`IPR2014-00003
`
`
`
`TELEPHONIC JUDGES' CONFERENCE
`CONDUCTED ON WEDNESDAY, MAY 28, 2014
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` Telephonic Judges' Conference with the Patent
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`Trial and Appeal Board.
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`2
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` Pursuant to Agreement, before Micheal A.
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`Johnson, Registered Professional Reporter and
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`Certified Realtime Reporter.
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
`CONDUCTED ON WEDNESDAY, MAY 28, 2014
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` A P P E A R A N C E S
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` ON BEHALF OF PETITIONER AKER BIOMARINE:
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` AMANDA HOLLIS, ESQUIRE
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` KIRKLAND & ELLIS LLP
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` 300 North LaSalle
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` Chicago, Illinois 60654
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` (312) 862-2000
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` J. MITCHELL JONES, J.D., Ph.D., ESQUIRE
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` CASIMIR JONES, SC
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` 2275 Deming Way
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` Suite 310
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` Middleton, Wisconsin 53562
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` (608) 662-1277
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` A P P E A R A N C E S C O N T I N U E D
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` ON BEHALF OF PATENT OWNER NEPTUNE
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` TECHNOLOGIES AND BIORESSOURCES, INC.:
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` STEPHEN L. ALTIERI, ESQUIRE
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` COOLEY LLP
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` 500 Boylston Street
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` 14th Floor
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` Boston, Massachusetts 02116
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` (617) 937-2300
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` LAURA CUNNINGHAM, ESQUIRE
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` COOLEY LLP
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` 1299 Pennsylvania Avenue, NW
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` Suite 700
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` Washington DC 20004
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` (202) 728-7072
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` ALANA MARTINEZ, ESQUIRE
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` COOLEY LLP
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` 11951 Freedom Drive
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` Reston Virginia 20190
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` (703) 456-8092
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
`CONDUCTED ON WEDNESDAY, MAY 28, 2014
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` P R O C E E D I N G S
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` JUDGE GREEN: Good afternoon. This
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`is Judge Lora Green. I also have on the line Judge
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`Sheridan Snedden. I would like to start with a roll
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`call. Who do I have for Petitioner?
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` MS. HOLLIS: Amanda Hollis and Mitch
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`Jones, Your Honor.
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` JUDGE GREEN: Thank you. And then
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`who do I have for Patent Owner?
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` MR. ALTIERI: Steve Altieri and
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`Laura Cunningham.
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` JUDGE GREEN: Okay. And then do we
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`have a court reporter on the line?
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` THE REPORTER: Yes, we do.
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` MS. MARTINEZ: Alana Martinez is
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`also on the line for Cooley.
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` JUDGE GREEN: So we do have a court
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`reporter for Patent Owner?
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` THE REPORTER: Yes. My name is
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`Micheal Johnson. I'm the court reporter.
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` JUDGE GREEN: Okay. And then,
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`Patent Owner, you'll supply the transcript of the
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
`CONDUCTED ON WEDNESDAY, MAY 28, 2014
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`call as an exhibit?
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` MR. ALTIERI: Yes, Your Honor, we
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`will do that.
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` JUDGE GREEN: Okay. Thank you very
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`much. It's my understanding that Patent Owner
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`requested the call to discuss filing a motion for
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`additional discovery. Would Patent Owner like to
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`begin?
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` MS. CUNNINGHAM: Yes, please. Thank
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`you, Your Honor. This is Laura Cunningham from
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`Cooley.
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` First, let me identify the discovery
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`that -- what we've proposed to seek in this motion.
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`These are documents that relate to the Beaudoin
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`experiments conducted by one of Petitioner's
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`declarants, Mr. Bjørn Haugsgjerd.
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` We deposed Mr. Haugsgjerd last
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`Wednesday and learned that he created -- he
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`identified a few different documents that he created
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`contemporaneously with his experiments, including
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`lab notebooks to -- and a protocol to memorialize
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`what he did.
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
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` This was a surprise to us because we
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`had previously sought this discovery in the ITC
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`proceedings and had understood that Aker did not
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`have these documents. Had we known that, we would
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`have sought them earlier. But now we're in a
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`position where we're getting towards the end of our
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`discovery period and we have our response upcoming.
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`So we would like to quickly file, under an
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`accelerated schedule, a motion for discovery of
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`these documents. We think these documents are
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`highly relevant. They go to the reliability of the
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`proceeding.
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` He also -- Mr. Haugsgjerd also
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`testified that they may include analyses performed
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`that were not reported in his declaration. He
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`couldn't recall from memory at his deposition. So
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`we think these are highly relevant and that it would
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`be appropriate for us to submit a motion to the
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`Board to seek production.
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` JUDGE GREEN: Okay. So my
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`understanding, and I am going to pronounce this
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`incorrectly and I apologize for that, was that
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`PLANET DEPOS
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`Mr. Haugsgjerd, Mr. -- what was the Declarant's
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`name?
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` MS. CUNNINGHAM: Your Honor, I think
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`I also pronounced it incorrectly. The name as I can
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`say it is Haugsgjerd, and I can also spell it.
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` JUDGE GREEN: That would be great.
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` MS. CUNNINGHAM: Sure. The last
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`name is H-a-u-g-s-g-j-e-r-d.
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` JUDGE GREEN: Okay. So there is a
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`possibility that I'm going to pronounce that
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`incorrectly and I'm going to apologize for that.
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` So these are documents that
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`Mr. Haugsgjerd discussed at his deposition?
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` MS. CUNNINGHAM: Correct, Your
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`Honor.
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` JUDGE GREEN: Okay. Petitioner?
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` MS. HOLLIS: Yes, Your Honor. This
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`is Amanda Hollis for Petitioner. We would oppose
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`the motion for discovery. We've asked the Patent
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`Owner to identify what it believes is -- is in these
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`documents that satisfies their burden of showing
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`that the discovery is required in the interest of
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
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`justice. They haven't identified anything. They
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`just have said that they're entitled to them because
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`they relate to the experiment. And there are two
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`separate types of documents. There are notebooks
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`and there are reports.
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` The notebooks, Your Honor, are
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`personal hard copy laboratory notebooks belonging to
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`Mr. Haugsgjerd. He's a Norweigian citizen and they
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`are in his possession in Norway. He has indicated
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`he would prefer not to release those notebooks. At
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`least one of them contains information that
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`relates -- does not relate at all to his work on the
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`Beaudoin extraction. And we did not ask him to --
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`"we" meaning Aker, did not ask him to create these
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`notebooks, so they are really his to give out.
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` The reports, we have a privilege
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`concern with those. The reports are two documents.
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`They're communications between Mr. Haugsgjerd and
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`Aker's legal team. Mr. Haugsgjerd was retained in
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`connection with both the '348 patent reexamination
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`and the litigation involving the '348 patent in the
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`District of Delaware, and the fact that they are
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
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`communications between him and attorneys working on
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`those litigations raises privilege concerns in our
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`mind. For those -- those are the reasons we would
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`object to this disclosure or discovery.
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` JUDGE GREEN: Just so I make sure
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`that my understanding is correct, the reports were
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`prepared for the litigation?
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` MS. HOLLIS: Yes, Your Honor. The
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`reexamination and the litigation.
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` JUDGE GREEN: Were any of them
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`committed during the reexamination?
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` MS. HOLLIS: No.
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` JUDGE GREEN: Okay. And they were
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`only between Mr. Haugsgjerd and the litigation team
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`and the attorneys?
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` MS. HOLLIS: The attorneys working
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`on the litigation. That would be Aker's in-house
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`counsel, Edvard Braekke, and there were also some
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`technical people working for Aker who were CC'd, I
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`believe, on the communication of the transmission.
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`They were also involved in the litigation.
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` JUDGE GREEN: Okay. Now, with
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`PLANET DEPOS
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`TELEPHONIC JUDGES' CONFERENCE
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`regard to the notebooks, I do understand that they
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`are Mr. Haugsgjerd's, but this sounds like they have
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`the data. It seems to me that his conclusions
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`wouldn't be entitled to much weight without having
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`the data that underlies his conclusions.
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` MS. HOLLIS: Well, there -- if you
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`recall, the declaration from Mr. Haugsgjerd that's
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`been submitted in this case reports his -- the steps
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`he took to conduct the experiments for the
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`extractions, but he doesn't himself analyze the
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`extracts, so it doesn't have underlying data in that
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`sense.
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` MS. CUNNINGHAM: Your Honor, this is
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`Laura Cunningham. May I respond on that point?
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` JUDGE GREEN: Sure.
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` MS. CUNNINGHAM: Thank you. I'd
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`like to note, again, that Mr. Haugsgjerd when asked
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`whether he performed any analysis on the starting
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`material, the krill used for the extractions, he
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`reported that he couldn't recall with certainty but
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`that had he done any such analysis, for example, the
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`tests for water content, it would be in either his
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`TELEPHONIC JUDGES' CONFERENCE
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`lab notebooks or reports. And we, the Patent Owner,
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`you know, believe that we don't have sufficient
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`disclosure of the procedure from the short
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`declarations that were provided and that these
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`additional details would be relevant.
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` JUDGE GREEN: Okay. With regard to
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`the lab notebooks, if they contain additional
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`information and they are in Norway, would it --
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`would you be satisfied with copies so that he
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`wouldn't have to push -- you know, provide his
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`personal notebooks and lose control over them?
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` MS. CUNNINGHAM: Yes, Your Honor, we
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`would be satisfied with copies. And we'd also --
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`wouldn't have any objection to Mr. Haugsgjerd
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`omitting if there are unrelated case files for other
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`clients besides Petitioner. We don't need those as
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`part of the notebook.
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` JUDGE GREEN: Okay. And then with
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`regard to the reports, I understand with the
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`privilege concerns, what is your response to that?
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` MS. CUNNINGHAM: Mr. Haugsgjerd
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`testified that he provided these reports to a
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`scientist at Aker named Nils Hoem. We're familiar
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`with Mr. Hoem from the ITC proceeding. I believe
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`he's a chief scientist at Aker. He also testified
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`that he did not provide these upon request to --
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`from Mr. Hoem. He said he sent them to him because
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`this is something that he typically does in doing
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`experiments such as these for clients.
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` So I'm not -- I'm not -- I can't be
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`sure the extent to which these documents now have
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`been circulated to counsel, but he did testify that
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`drafts and reports were sent to a scientist at Aker
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`and we don't see any basis for privilege as to those
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`documents. And Aker, you know, obviously has
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`custody of those documents. So we're not -- we
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`don't see a basis as to a privilege assertion.
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` JUDGE GREEN: Okay. I think I
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`understand the case. Patent Owner, is there
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`anything else that you would like to say -- I mean
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`Petitioner?
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` MS. HOLLIS: Your Honor, like I
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`mentioned, although Nils, the technical person, was
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`copied, these are communications between the expert
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`and the lawyers. And I --
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` JUDGE GREEN: This sounds like he
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`testified that they were -- they weren't requested
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`to be prepared by the attorneys; they were just
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`something that he did in his normal course of
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`business.
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` MS. HOLLIS: I will have to look at
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`the transcript to find that testimony. I'll take
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`Ms. Cunningham's representation on that. I just
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`don't recall whether he actually said that. I'm
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`just not aware of that making -- being the
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`dispositive point --
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` JUDGE GREEN: No, I understand. I'm
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`just trying to understand the whole -- I'm trying to
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`understand a little bit, and I haven't looked at the
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`transcript either, and I don't know if it's been
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`filed as an exhibit yet. Has it?
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` MR. ALTIERI: It's still in its
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`rough form, Your Honor.
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` JUDGE GREEN: Okay. But, you know,
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`if he brings these up as supporting some of his
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`analysis in his declaration, I do think that there
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`may be something here that Patent Owner may, in
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`fact, be entitled to. So it doesn't sound like this
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`is something that Patent Owner is fishing for. This
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`is something that came up in his deposition and
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`said, oh, by the way, I have these documents, I have
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`these laboratory notebooks, and that's where that
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`information that you're asking for would be.
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` So it does seem to be a narrowly
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`tailored request and something that came up during
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`the normal course of a deposition. So my
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`inclination at this point is to go ahead and
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`authorize the motion for additional discovery so
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`that I can look more clearly into the facts.
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` I would like to see the transcript
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`where he -- I would like to see the whole transcript
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`as best you can get it, but particularly pointing
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`out those portions of the transcript where he talks
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`about these to see the context in which they were
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`raised during the deposition and exactly how he
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`relied upon them.
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` And then -- and then I'll also allow
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`an opposition and you can raise the privilege
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`PLANET DEPOS
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`concerns as to the reports and explain to me why the
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`notebooks, if Patent Owner is willing to take copies
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`so that the notebooks don't have to leave his
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`possession, and also they don't -- he does not have
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`to provide copies of the portions of the notebooks
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`that don't pertain to this IPR why that would be
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`unreasonable for Patent Owner to obtain at this
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`point.
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` I understand that Patent Owner has
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`to show that in the interest of justice this was
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`something that was brought up during the deposition.
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` So, Patent Owner, any concerns with
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`that?
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` MS. CUNNINGHAM: No, Your Honor, but
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`just to -- I would like to clarify that in addition
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`to the lab notebooks and the reports, we would be
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`seeking draft protocols of the experiments that
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`Mr. Haugsgjerd used. I'm not sure the extent to
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`which those may exist as part of -- like the lab
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`notebooks or separately, but he also testified that
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`he received protocols and revised them and that
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`those -- and there were a lot of those in the
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`PLANET DEPOS
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`experiments and then put a revised form of the
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`protocol in his declaration, so I don't --
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` JUDGE GREEN: You can put those in
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`your -- in your motion. I will tell you that the
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`more things that you ask for, the more burdensome it
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`becomes; and the broader that it becomes, the harder
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`it is to show that it meets -- that those --
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`discovery that we've been using for these IPR
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`proceedings, which we're trying to keep these low
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`cost and keep them on track in the time that we have
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`allotted to us.
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` So I understand that there may be
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`additional things, but I would focus the parties'
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`attention to the Garmin decision and some other
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`decisions as to discovery to show that, you know,
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`this is a very limited -- we don't fill out too much
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`extra discovery in an IPR.
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` The reason that I'm allowing the
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`motion is because it does sound like Mr. Haugsgjerd
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`did discuss them in a deposition and deposition
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`testimony. I will allow you to file the deposition
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`as an exhibit, because I know that's going to be
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`PLANET DEPOS
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`long, so I can see the context, but you're going to
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`have to argue -- make some argument that, you know,
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`this is why we need this based on his testimony.
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` Okay, Petitioner?
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` MS. HOLLIS: Thank you, Your Honor.
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`I thank you for the guidance.
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` JUDGE GREEN: Is there anything
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`that -- anything further that you'd like to say at
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`this point?
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` MS. CUNNINGHAM: Not on that issue,
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`Your Honor.
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` JUDGE GREEN: Okay. I think at this
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`point I am willing to authorize ten pages for the
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`discovery request, the motion, and ten pages for the
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`opposition. I know that you want to get this done
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`quickly. Patent Owner, how quickly can you get this
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`in?
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` MS. CUNNINGHAM: Your Honor, we are
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`prepared to submit this by noon on Friday and also
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`potentially tomorrow. We're hoping for tomorrow,
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`but absent that, certainly by noon on Friday.
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` JUDGE GREEN: So April 30th -- not
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`PLANET DEPOS
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`April. I'm sorry. I'm looking at the wrong month.
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`May 30th?
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` MS. CUNNINGHAM: Yes, May 30th or
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`before.
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` JUDGE GREEN: Okay. And then,
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`Petitioner, how long will it take you to do an
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`opposition?
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` MS. HOLLIS: I can probably put that
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`together in two or three days as well, Your Honor.
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` JUDGE GREEN: Okay. So the
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`following Wednesday?
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` MS. HOLLIS: Yes, Your Honor.
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` JUDGE GREEN: That would be
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`June 4th. And then what date are we looking at that
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`you need -- what you would want a decision by? I
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`just have a lot on my plate as well, so I need to
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`kind of have an idea of when you're hoping to have a
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`decision from us.
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` MS. HOLLIS: Certainly, Your Honor.
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`We -- if an opposition is filed on June 4th, we
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`would propose a deadline of June 6th for a reply if
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`one is to be permitted. It seems that it may --
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` JUDGE GREEN: No, I'm not going to
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`20
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`authorize a reply at this point.
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` MS. HOLLIS: Okay.
`
` JUDGE GREEN: So I still need it --
`
`when do you need my decision?
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` MS. CUNNINGHAM: Well, our -- we
`
`would ask that if any -- the motion's to be granted
`
`at all, it would be ordering production to occur,
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`say within two business days before our response is
`
`due, which would be Friday, June 13.
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` JUDGE GREEN: Which due date is
`
`that? I just can't remember off the top of my head
`
`and I apologize for that.
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` MS. CUNNINGHAM: Sure. It would be
`
`the deadline for Patent Owner's response, which is
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`June 17.
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` JUDGE GREEN: We can also stipulate
`
`to changes in due dates once we decide if we need
`
`to.
`
` Do we have a motion to amend in this
`
`case? Are we going to have a motion to amend?
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` MR. JONES: We are not, Your Honor.
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` JUDGE GREEN: No motion to amend?
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` MR. JONES: That's correct.
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` JUDGE GREEN: Okay. So we do have a
`
`little bit of leeway if needed.
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` I can say that my schedule is very
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`busy, so I will do my best.
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` MR. JONES: Your Honor, just so
`
`we're on the same page, I just want to note that
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`there was a revised -- or a scheduling order filed
`
`by the parties recently.
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` JUDGE GREEN: Yes, I think I
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`remember seeing that. Okay. Well, so ten pages,
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`opposition -- I mean, the motion is due May 30th.
`
`The opposition is due June 4th, and hopefully with
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`some kind of response before Friday, June 13th.
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` Petitioner, is there any other
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`additional issues you'd like to discuss during this
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`call?
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` MS. HOLLIS: Your Honor, we
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`raised -- or we tried to get on the agenda a request
`
`for guidance for a motion for sanctions relating to
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`improper conduct at Mr. Haugsgjerd's deposition by
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`Patent Owner, particularly his being questioned
`
`outside the scope of his declarations or direct
`
`testimony.
`
` JUDGE GREEN: Okay. As to
`
`sanctions, that would be something that I would
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`refer to the Office of Enrollment and Discipline. I
`
`think the best thing to do is -- I think the
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`sanction that we would use the most is if it was
`
`outside the scope of his direct, you would point
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`that out to us and -- which we just wouldn't give it
`
`very much weight. I mean, I would -- I mean, was
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`the witness being badgered or anything else?
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` MS. HOLLIS: Well, Your Honor, his
`
`direct testimony was five paragraphs in two
`
`declarations, almost -- and the five paragraphs in
`
`each of those declarations were almost identical to
`
`each other. Nevertheless, Patent Owner questioned
`
`him for a full seven hours. The vast, vast majority
`
`of the questioning had nothing to do with his
`
`declaration. It was about his thesis work. It was
`
`about work he had performed on freeze-dried herring
`
`eggs, a 2012 publication that he coauthored. None
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`of that at all related to his declarations. So our
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`principal concern is going forward we would ask that
`
`Neptune be ordered to stay within the scope of the
`
`direct testimony, and then we would also seek relief
`
`in the form of an order that Neptune not be
`
`permitted to rely on this deposition since they
`
`violated the rules in exceeding the scope.
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` JUDGE GREEN: I mean, whether or not
`
`he exceeded the scope is something that we can
`
`determine in looking at the declaration. The rule
`
`that we use of whether or not it's related to the
`
`direct testimony is whether it's reasonably related
`
`or not. So I am hesitant to say we'll issue an
`
`order that we're not going to rely on that
`
`deposition testimony, but I do think it is something
`
`that we will take into account. And when we come to
`
`a final decision, I will remind both parties that
`
`they should stay within -- that they stay within the
`
`direct testimony.
`
` But their objections during the
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`deposition and your objecting to a question as
`
`beyond the scope or anything else, you can also call
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`PLANET DEPOS
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`
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`TELEPHONIC JUDGES' CONFERENCE
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`the Board during the deposition, during what is a
`
`good breaking point, or break to call the Board, and
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`there is always somebody here to rule on an
`
`objection.
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` MS. CUNNINGHAM: Your Honor --
`
` JUDGE GREEN: It's kind of hard for
`
`me to say anything after the fact. I do understand
`
`your frustration. And, you know, if you really
`
`think that their behavior was egregious, we can
`
`consider whether or not, you know, something needs
`
`to be done with the Office Enrollment and
`
`Discipline, but I'm not going to deal with
`
`disciplinary issues per se during the course of this
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`IPR. I will deal with whether or not that testimony
`
`should be entitled any weight because it went so
`
`far -- it went beyond the scope of the direct and
`
`things like that and that's something that we can
`
`take into account during the course of the trial.
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` MS. HOLLIS: Understood, Your Honor.
`
` JUDGE GREEN: We are both legally
`
`and scientifically trained. I think we can
`
`determine whether or not that testimony went beyond
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`the scope of the direct testimony. And I'm not
`
`trying to put you off, and I apologize if you think
`
`that's what it is, but it's very hard for me to
`
`determine without seeing it and also without hearing
`
`the questions. And in the future I think the best
`
`thing to do is, if this comes up again, call us
`
`during the deposition and, you know, let us know the
`
`kind of questions that are being asked and we can
`
`look at the record and say, no, that is reasonably
`
`related to the direct testimony or we'll allow it,
`
`or that's not reasonably related, we won't allow it.
`
`But at this point we're kind of after the fact.
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` MS. HOLLIS: Right, Your Honor. I
`
`mean, we weren't expecting this. Another concern we
`
`have is, I mean, now we don't have any idea what
`
`Neptune will be permitted or will ask in the
`
`deposition and we need to, I suppose, set out, you
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`know, much more time with our witnesses at the
`
`deposition itself than necessary. That is costly,
`
`and I understood that was contrary to the discovery
`
`policies for these proceedings.
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` I'm not sure if there's anything
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`that can be done about that other than what you have
`
`suggested and we'll go forward with that suggestion.
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`We will call the Board if this arises again and
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`raise it with the Office of Enrollment and
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`Discipline if necessary.
`
` JUDGE GREEN: I think that's about
`
`the only thing that we can do at this point.
`
`Without having listened to the question and
`
`everything else and I haven't really reviewed the
`
`declaration testimony and the cross-examination is
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`not of record at this point, I think it would be
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`premature of me to say anything else of whether it
`
`was beyond -- whether it was or was not beyond the
`
`scope.
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` Patent Owner, do you have any
`
`response to that?
`
` MS. CUNNINGHAM: Yes, Your Honor.
`
`And the first response would be that an e-mail was
`
`sent an hour before this call was scheduled that for
`
`the first time brought up the notion of a sanctions
`
`motion. We had heard some -- had gotten an e-mail
`
`complaint about scope objections during the
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`deposition and a demand that we explain the
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`relevance, but we are at a loss as to the basis for
`
`these objections. We did not have any sort of
`
`dispute or, you know, any kind of -- this had not
`
`come up during the deposition other than what seemed
`
`to be just repeated kind of just -- all day long we
`
`had scope objections on -- you know, for most of the
`
`questions that were asked, including those directly
`
`pertaining to the declaration.
`
` So we feel blindsided by this notion
`
`of sanctions. We don't understand the basis. We
`
`asked specifically what relief Petitioner is looking
`
`for as a result of its perceived -- you know, the
`
`perceived problems with this deposition and we
`
`received no response. So we think this is
`
`inappropriate. We're happy to work with Petitioner
`
`in good faith to try to reach a resolution here as
`
`to whatever -- you know, whatever it is they would
`
`like going forward, but we think our questioning was
`
`appropriate. We were certainly very respectful of
`
`the witness and would of course continue to be
`
`respectful of future witnesses and be respectful of
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`their time. So, you know, we abided by the rules,
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`we intend to continue abiding by the rules and I'm
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`not -- I'm not sure how else to address this at this
`
`point because I don't understand the basis for it or
`
`what relief they're looking for.
`
` I also -- I think our understanding
`
`was that scope objections, the proper time to raise
`
`those would be on a motion to exclude evidence,
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`which are provided for in our schedule, not through
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`sanctions.
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` JUDGE GREEN: And I think that's
`
`what I was trying to say, there are different levels
`
`whether or not that you went beyond the scope. If
`
`you did, we will exclude. If they feel that your
`
`behavior was beyond that, that would be something
`
`for Office Enrollment and Discipline because that is
`
`not something that we're really geared to do. And
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`honestly I would want to see some serious evidence
`
`of that before forwarding any type of that, but at
`
`this point I would not want to do that during the
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`trial anyway, unless it was so egregious.
`
` I think parties have to be careful
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`of raising the issues of sanctions in the IPR when
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`they're really talking about something else; i.e.,
`
`this is entitled to little weight or you should
`
`exclude this. The behavior that would lead to that
`
`is not necessarily the same behavior that would lead
`
`to a sanction a
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