`571.272.7822
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` Paper No. 52
`
` Entered: April 15, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`THE MANGROVE PARTNERS MASTER FUND, LTD., APPLE INC.,
`and BLACK SWAMP IP, LLC,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`____________
`
`Case IPR2015-01047
`Patent 7,490,151 B1
`____________
`
`
`
`Before MICHAEL P. TIERNEY, KARL D. EASTHOM, and STEPHEN C.
`SIU, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`A telephone conference was conducted on April 14, 2016 with the
`parties and Judges Tierney, Easthom, and Siu. Patent Owner filed a
`Declaration of Dr. Robert Dunham Short III (“Declaration”), which Patent
`
`
`
`
`
`IPR2015-01407
`Patent 7,490,151 B1
`
`
`Owner obtained from a prior related reexamination proceeding. Ex. 2050.
`The Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP,
`LLC (collectively, “Petitioner”) requested authorization to file a motion for
`additional discovery for cross examination of the declarant, Dr. Robert
`Dunham Short III.
`Under 37 C.F.R. § 42.51(b)(1)(ii), cross examination of affidavit
`testimony prepared for an ongoing trial is authorized as routine discovery.
`As discussed during the telephone conference (which included a court
`reporter provided by the parties), Petitioner’s request for authorization to file
`a motion for additional discovery is denied. However, Petitioner may file a
`motion to exclude the Declaration (as hearsay or otherwise) with its Reply
`by Due Date 4, if desired. The parties are reminded that little to no weight is
`given to testimony of declarants who are not subject to cross-examination,
`even if the testimony is not excluded as hearsay.
`
`ORDERED that Petitioner’s request for authorization to file a motion
`for additional discovery is denied;
`FURTHER ORDERED that Patent Owner will submit a copy of the
`transcript of the conference as an Exhibit; and
`FURTHER ORDERED that Petitioner may file a motion to exclude
`the Declaration by Due Date 4, with its Reply, at Petitioner’s discretion.
`
`2
`
`
`
`
`
`
`
`
`
`
`
`3
`
`IPR2015-01407
`Patent 7,490,151 B1
`
`
`PETITIONER:
`
`Abraham Kasdan
`WIGGIN AND DANA LLP
`AKasdan@wiggin.com
`
`James T. Bailey
`jtb@jtbaileylaw.com
`
`Jeffrey P. Kushan
`Scott M. Border
`SIDLEY AUSTIN LLP
`IPRNotices@sidley.com
`sborder@sidley.com
`
`
`
`PATENT OWNER:
`
`Joseph E. Palys
`Naveen Modi
`PAUL HASTINGS LLP
`josephpalys@paulhastings.com
`naveenmodi@paulhastings.com
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