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Paper 41 (IPR2014-00041)
`Paper 38 (IPR2014-00043)
`Paper 39 (IPR2014-00051)
`Paper 38 (IPR2014-00054)
`Paper 32 (IPR2014-00055)
`Entered: June 11, 2014
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GEA PROCESS ENGINEERING, INC.
`Petitioner
`
`v.
`
`STEUBEN FOODS, INC.
`Patent Owner
`____________
`
`Cases1
`IPR2014-00041 (Patent 6,945,013 B2)
`IPR2014-00043 (Patent 6,475,435 B1)
`IPR2014-00051 (Patent 6,209,591 B1)
`IPR2014-00054 (Patent 6,481,468 B1)
`IPR2014-00055 (Patent 6,536,188 B1)
`
`
`Before RAMA G. ELLURU, BEVERLY M. BUNTING, and
`CARL M. DEFRANCO, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`
`
`ORDER
`
`
`1 This order addresses issues raised in all five cases. We exercise our
`discretion to issue one order to be filed in each case. The parties, however,
`are not authorized to use this style heading in subsequent papers.
`
`

`
`IPR2014-00041 (Patent 6,945,013 B2)
`IPR2014-00043 (Patent 6,475,435 B1)
`IPR2014-00051 (Patent 6,209,591 B1)
`IPR2014-00054 (Patent 6,481,468 B1)
`IPR2014-00055 (Patent 6,536,188 B1)
`
`
`A conference call in IPR2014-00041, IPR2014-00043, IPR2014-
`
`00051, IPR2014-00054 and IPR2014-00055 was held on June 9, 2014,
`
`among respective counsel for Petitioner, GEA Process Engineering, Inc.
`
`(“GEA”), and Patent Owner, Steuben Foods, Inc. (“Steuben Foods”), and
`
`Judges Elluru, DeFranco, and Bunting. A court reporter was present on the
`
`call, and Steuben Foods indicated that it would file a copy of the hearing
`
`transcript as an exhibit.2 GEA requested the call because it seeks cross-
`
`examination, either as routine discovery or additional discovery, of Thomas
`
`Taggart and Dr. Norbert Buchner. Steuben Foods has filed declarations
`
`from Mr. Taggart and Dr. Buchner in all five cases identified above in
`
`support of its Patent Owner responses. See Ex. 20383 (declaration from Mr.
`
`Taggart dated April 1, 2011) and Ex. 2043 (declaration from Dr. Buchner
`
`dated January 20, 2011). The declarations are from the parallel
`
`reexamination of U.S. Patent No. 6,945,013, which is being challenged in
`
`IPR2014-00041. Id.
`
`
`
`GEA contends that the declaration testimony is either inadmissible
`
`hearsay or direct testimony requiring cross examination of the declarants as
`
`routine discovery pursuant to 37 C.F.R. § 42.5(b)(1)(ii). GEA stated that the
`
`credibility of the declaration testimony was at issue and its cross
`
`examination of Mr. Taggart and Dr. Buchner would be limited to
`
`
`2 This Order summarizes the statements made during the conference call. A
`more detailed record may be found in the transcript.
`3 While the analysis herein applies to each of these trials, we refer to the
`papers and exhibits filed in IPR2014-00041 for convenience.
`
`
`2
`
`
`
`

`
`IPR2014-00041 (Patent 6,945,013 B2)
`IPR2014-00043 (Patent 6,475,435 B1)
`IPR2014-00051 (Patent 6,209,591 B1)
`IPR2014-00054 (Patent 6,481,468 B1)
`IPR2014-00055 (Patent 6,536,188 B1)
`
`challenging that testimony. Referring to CBS Interactive Inc. v. Helferich
`
`Patent Licensing, LLC, IPR2013-00033 (Paper 85 at 2), Steuben Foods
`
`argues that the declarations were not prepared for purposes of these inter
`
`partes reviews, and thus, cross examination of the witnesses is not provided
`
`as routine discovery. See id. (“In contrast, if the declaration was not
`
`prepared for purposes of the instant inter partes review—such as preexisting
`
`documentary evidence that was filed previously in another proceeding—
`
`cross-examination of the witness would not be provided as routine discovery
`
`under 37 C.F.R. § 42.51(b)(1)(ii)”.). Steuben Foods further asserted that the
`
`declarations were cited for limited purposes, and that two other declarants
`
`provided overlapping testimony and those declarants would be cross
`
`examined by GEA.
`
`The panel has considered the parties’ arguments and reviewed the
`
`declarations of Mr. Taggart and Dr. Buchner, as well as Steuben Foods’
`
`references to those declarations in its Patent Owner Responses. Given the
`
`facts of this case, and in particular that the declarations of Mr. Taggart and
`
`Dr. Buchner were prepared several years ago for purposes of another
`
`proceeding and not the instant inter partes reviews, we do not consider
`
`cross examination of those witnesses to be routine discovery. See CBS
`
`Interactive Inc., Order 85 at 3. We will take into consideration that GEA did
`
`not have the opportunity to cross examine Mr. Taggart and Dr. Buchner and
`
`will give the declarations appropriate weight, if any, in our final decision.
`
`See id. at 2. Thus, the parties may agree between themselves whether to
`
`provide the requested cross-examinations. Id.
`
`3
`
`
`
`
`
`
`
`

`
`IPR2014-00041 (Patent 6,945,013 B2)
`IPR2014-00043 (Patent 6,475,435 B1)
`IPR2014-00051 (Patent 6,209,591 B1)
`IPR2014-00054 (Patent 6,481,468 B1)
`IPR2014-00055 (Patent 6,536,188 B1)
`
`
`In consideration of the foregoing, it is hereby:
`
`ORDERED that GEA’s request to cross-examine Mr. Taggart and Dr.
`
`Buchner is denied; and
`
`FURTHER ORDERED that Steuben Foods shall file the transcript of
`
`the June 9, 2014, teleconference as an exhibit in all five proceedings
`
`identified in the caption of this Order.
`
`4
`
`
`
`
`
`
`
`

`
`IPR2014-00041 (Patent 6,945,013 B2)
`IPR2014-00043 (Patent 6,475,435 B1)
`IPR2014-00051 (Patent 6,209,591 B1)
`IPR2014-00054 (Patent 6,481,468 B1)
`IPR2014-00055 (Patent 6,536,188 B1)
`
`PETITIONER:
`
`William P. Atkins
`Benjamin Kiersz
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`1650 Tysons Boulevard,
`McLean, VA 22102
`william.atkins@pillsburylaw.com
`benjamin.kiersz@pillsburylaw.com
`
`
`
`PATENT OWNER:
`
`Greg H. Gardella
`Kevin B. Laurence
`OBLON, SPIVAK, MCCLELLAND MAIER & NEUSTADT, L.L.P.
`1940 Duke Street
`Alexandria, VA 22314
`CPDocketGardella@oblon.com
`CPDocketLaurence@oblon.com
`
`5

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