`571.272.7822
`
`
`Paper No. 56
`
` Entered: April 13, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC., and SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`SUMMIT 6 LLC,
`Patent Owner.
`____________
`
`Case IPR2015-008061
`Patent 7,765,482 B2
`____________
`
`
`Before HOWARD B. BLANKENSHIP, GEORGIANNA W. BRADEN, and
`KERRY BEGLEY, Administrative Patent Judges.
`
`BEGLEY, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`1 Samsung Electronics Co., Ltd., who filed a Petition in IPR2016-00029,
`has been joined as a petitioner in the instant proceeding.
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`On April 13, 2016, a conference call was held between counsel for the
`respective parties and Judges Begley and Braden. Petitioner, who provided
`a court reporter for the call, will file a transcript of the call when it is
`available. The purpose of the call was to discuss Petitioner’s request that
`Patent Owner’s Motion for Observations on the Cross Examination of Gary
`L. Frazier (Paper 52) be expunged.
`As explained in the Office Patent Trial Practice Guide, 77 Fed. Reg.
`48,756 (Aug. 14, 2012) (“Practice Guide”) and the Scheduling Order
`(Paper 20) in this proceeding, a motion for observation provides a party with
`a mechanism to draw the Board’s attention to relevant cross-examination
`testimony of a reply witness because no further substantive paper is
`permitted after the reply. See Practice Guide, 77 Fed. Reg. at 48,767–69;
`Paper 20, 4. The observation must be a concise statement of the relevance
`of identified testimony to an identified argument or portion of an exhibit.
`See Practice Guide, 77 Fed. Reg. at 48,767–69; Paper 20, 4. “An
`observation . . . is not an opportunity to raise new issues, re-argue issues, or
`pursue objections.” Practice Guide, 77 Fed. Reg. at 48,768. To that end,
`“[e]ach observation should be in the following form: In exhibit __, on
`page __, lines __, the witness testified __. This testimony is relevant to
`the __ on page __ of __. The testimony is relevant because __.” Id. “The
`Board may refuse entry of excessively long or argumentative
`observations . . . .” Id.
`
`During the call, Petitioner argued that Patent Owner’s Motion should
`be expunged because it fails to comply with the guidelines in the Practice
`Guide and other cases of the Board. Specifically, according to Petitioner,
`the Motion contains improper argument and summarizes broad sections of
`
`2
`
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`Dr. Frazier’s testimony in a manner that mischaracterizes his testimony.
`Patent Owner contested Petitioner’s position, contending that the Motion
`complies with the relevant guidance provided by the Board. In addition,
`Patent Owner argued that expunging the Motion is not appropriate, because
`the observations are not evidence and are only a vehicle to direct to the
`Board’s attention the most relevant excerpts of Dr. Frazier’s testimony.
`
`Based on the parties’ arguments during the call and our review of
`Patent Owner’s Motion, we agree with Patent Owner that the Motion is
`consistent with the guidance, including the format, provided in our Trial
`Practice Guide. We are not persuaded that the Motion is “excessively . . .
`argumentative” such that expunging the Motion would be warranted. See id.
`Moreover, regarding the Motion’s citations to Dr. Frazier’s testimony, the
`Motion often quotes or includes narrow citations to the testimony, and
`lengthy citations to the testimony are followed by more specific citations to
`support more specific statements within the same observation. See, e.g.,
`Paper 52, 1–2 (observation 2); see generally id. In addition, Petitioner has
`the opportunity to address any alleged mischaracterization of Dr. Frazier’s
`testimony, as well as any other allegedly improper statement in the Motion,
`in a response to Patent Owner’s Motion.
`ORDER
`
`
`
`Accordingly, it is:
`ORDERED that Petitioner’s request that Patent Owner’s Motion for
`Observations on the Cross Examination of Gary L. Frazier (Paper 52) be
`expunged is denied.
`
`
`
`
`3
`
`
`
`
`IPR2015-00806
`Patent 7,765,482 B2
`
`For PETITIONER:
`
`John Alemanni
`Michael Morlock
`KILPATRICK TOWNSEND & STOCKTON LLP
`JAlemanni@kilpatricktownsend.com
`MMorlock@kilpatricktownsend.com
`
`Brian K. Erickson
`James M. Heintz
`DLA PIPER LLP(US)
`Samsung_Summit-IPR@dlapiper.com
`
`
`
`For PATENT OWNER:
`
`Peter J. Ayers
`John Shumaker
`Brian Mangum
`Robert Carlson
`LEE & HAYES, PLLC
`peter@leehayes.com
`jshumaker@leehayes.com
`brianm@leehayes.com
`bob@leehayes.com
`
`4
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