Trials@uspto.gov IPR2017-00350, Paper 29
` 571-272-7822 IPR2017-00351, Paper 29
` 571-272-7822 IPR2017-00352, Paper 29
` 571-272-7822 IPR2017-00524, Paper 27
` Trials@uspto.gov Entered: February 16, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`v.
`BEDGEAR, LLC,
`Patent Owner.
`_______________
`
`Cases1
` IPR2017-00350 (Patent 8,887,332 B2);
` IPR2017-00351 (Patent 9,015,883 B2);
` IPR2017-00352 (Patent 8,646,134 B1);
`IPR2017-00524 (Patent 9,155,408 B2)
`_______________
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`1 We exercise our discretion to issue one order to be entered in each case.
`The parties are not authorized to use a caption identifying multiple
`proceedings.
`
`
` 571-272-7822 IPR2017-00351, Paper 29
` 571-272-7822 IPR2017-00352, Paper 29
` 571-272-7822 IPR2017-00524, Paper 27
` Trials@uspto.gov Entered: February 16, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`FREDMAN BROS. FURNITURE COMPANY, INC.,
`Petitioner,
`v.
`BEDGEAR, LLC,
`Patent Owner.
`_______________
`
`Cases1
` IPR2017-00350 (Patent 8,887,332 B2);
` IPR2017-00351 (Patent 9,015,883 B2);
` IPR2017-00352 (Patent 8,646,134 B1);
`IPR2017-00524 (Patent 9,155,408 B2)
`_______________
`
`
`Before HYUN J. JUNG, BART A. GERSTENBLITH, and
`AMANDA F. WIEKER, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`1 We exercise our discretion to issue one order to be entered in each case.
`The parties are not authorized to use a caption identifying multiple
`proceedings.
`
`
`
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,883 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,408 B2)
`
`
`Patent Owner requested by email authorization to file a paper
`identifying portions of Petitioner’s Replies in the above-captioned
`proceedings that Patent Owner believes raise new arguments or evidence.
`According to our rules, “[a] reply may only respond to arguments
`raised in the corresponding . . . patent owner response.” 37 C.F.R.
`§ 42.23(b). Indeed, “[a] reply that raises a new issue or belatedly presents
`evidence will not be considered and may be returned.” See Office Patent
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012). For
`example, our Trial Practice Guide explains that “[e]xamples of indications
`that a new issue has been raised in a reply include new evidence necessary to
`make out a prima facie case for the patentability or unpatentability of an
`original or proposed substitute claim, and new evidence that could have been
`presented in a prior filing.” Id.
`Also, a determination of which arguments may exceed the proper
`scope for a reply brief often requires consideration of the entire record. We
`are capable of making that determination, in most instances, without
`additional briefing by the parties. Nonetheless, it is helpful when the
`complaining party is given an opportunity to identify the precise arguments
`complained of and the opposing party is given an opportunity to respond.
`Patent Owner may file, in each proceeding, a paper titled “Patent
`Owner’s List of Improper Reply Arguments,” which shall include a
`numbered list of citations to those passages of the reply that Patent Owner
`
` 2
`
`
`
`
`
`
`
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,883 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,408 B2)
`
`believes exceed the scope of a proper reply.2 This list must include page and
`line numbers, and may include a brief explanation (akin to that in a motion
`for observation). Then, Petitioner may file, in each proceeding, a paper
`titled “Petitioner’s Response to Patent Owner’s List of Improper Reply
`Arguments,” responding to each item in Patent Owner’s list and citing to
`where the reply argument is supported by a theory of unpatentability
`expressed in the Petition and/or is responsive to an argument raised in the
`Patent Owner Response. Again, this response must include page and line
`numbers, and may include a brief explanation (again, akin to that in a motion
`for observation). To the extent the panel determines that any item identified
`by Patent Owner warrants additional briefing, an order will be issued,
`providing such instruction to the parties.
`The parties may, if desired, devote a portion of their argument time
`during the upcoming hearing to a discussion of this issue. The propriety or
`impropriety of the identified portions of the reply will be addressed, to the
`extent necessary, in our Final Written Decision. Should we determine that
`portions of Petitioner’s Reply exceed the proper scope for a reply brief, we
`
`
`2 For purposes of this Order, an improper argument is an argument made by
`Petitioner in its Reply where (1) it is beyond the scope of a reply under 37
`C.F.R. § 42.23(b) or (2) if we were to rely on it in finding the challenged
`claims unpatentable, Patent Owner would not have had sufficient notice and
`opportunity to respond (see, e.g., Belden Inc. v. Berk-Tek LLC, 805 F.3d
`1064, 1080 (Fed. Cir. 2015)). Because arguments are supported by
`evidence, and evidence not argued is not considered, we purposely omit a
`separate class of “improper evidence.”
`
` 3
`
`
`
`
`
`
`
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,883 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,408 B2)
`
`will explain any such determination in our Final Written Decision and
`identify the arguments and evidence we consider improper for a reply.3
`Accordingly, it is:
`ORDERED that Patent Owner is authorized to file, in each captioned
`proceeding, a List of Improper Reply Arguments, as outlined above, within
`one week of the date of entry of this Order;
`FURTHER ORDERED that Petitioner is authorized to file, in each
`captioned proceeding, a Response, as outlined above, within two weeks of
`the entry date of this Order; and
`FURTHER ORDERED that neither paper is to be more than
`two (2) pages, excluding the cover page, signature block, and certificate of
`service.
`
`
`
`
`3 To the extent Patent Owner seeks to exclude evidence offered in
`conjunction with the alleged improper arguments raised in Petitioner’s
`Reply, Patent Owner may do so in a motion to exclude, to the extent Patent
`Owner has preserved an objection thereto. We will address any motion to
`exclude, to the extent necessary, in our Final Written Decision.
`
` 4
`
`
`
`
`
`
`
`IPR2017-00350 (Patent 8,887,332 B2)
`IPR2017-00351 (Patent 9,015,883 B2)
`IPR2017-00352 (Patent 8,646,134 B1)
`IPR2017-00524 (Patent 9,155,408 B2)
`
`PETITIONER:
`Jason R. Mudd
`Eric A. Buresh
`ERISE IP
`jason.mudd@eriseip.com
`eric.buresh@eriseip.com
`ptab@eriseip.com
`
`PATENT OWNER:
`Joseph J. Richetti
`Frank Fabiani
`Alexander Walden (pro hac vice)
`BRYAN CAVE LLP
`joe.richetti@bryancave.com
`frank.fabiani@bryancave.com
`alexander.walden@bryancave.com
`PTAB-NY@bryancave.com
`
`
`
` 5
`
`
`
`
`
`
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