Trials@uspto.gov
`571-272-7822
`
` Paper No. 26
`
`Date Entered: November 30, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
` Paper No. 26
`
`Date Entered: November 30, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`____________
`
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`
`
`The Scheduling Order sets December 12, 2018, as the date for oral
`argument, if requested by the parties and granted by the Board (Paper 9, 8).
`Petitioner and Patent Owner have requested oral argument pursuant to 37 C.F.R.
`§ 42.70(a) (Paper 22; Paper 23). The parties’ requests for oral argument are
`granted.
`Each party will have sixty (60) minutes to present arguments. At the oral
`hearing, Petitioner will proceed first to present the issues for which it bears the
`ultimate burden. Thereafter, Patent Owner will argue its opposition to Petitioner’s
`case, and present the issues for which it bears the ultimate burden. To the extent
`Petitioner reserves rebuttal time, Petitioner then may make use of its rebuttal time
`responding to Patent Owner. To the extent Patent Owner reserves rebuttal time,
`Patent Owner then may make use of its rebuttal time responding to Petitioner.
`Oral argument will commence at 2:00 PM Eastern Time on December 12,
`2018, on the ninth floor of Madison Building East, 600 Dulany Street,
`Alexandria, Virginia. All attendees will need a valid form of government-issued
`identification in order to enter the building and may be subject to security
`screening. The hearing will be open to the public for in-person attendance, and in-
`person attendance will be accommodated on a first-come, first-served basis. If the
`parties have any concern about disclosing confidential information, they are to
`contact the Board at least five (5) business days before the hearing to discuss the
`matter. The Board will provide a court reporter for the hearing and the reporter’s
`transcript will constitute the official record of the oral argument.
`At least seven (7) business days prior to oral argument, each party shall
`serve on the other party any demonstrative exhibit(s) it intends to use during oral
`argument (see 37 C.F.R. § 42.70(b)). The parties also shall provide the
`demonstrative exhibits to the Board at least five (5) business days prior to oral
`
`
`
`2
`
`
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`
`argument by e-mailing them to Trials@uspto.gov. The parties shall not submit
`any demonstrative exhibits in this case without our prior authorization.
`Demonstrative exhibits are not evidence, but merely a visual aid at the oral
`arguments, and should be clearly marked as such. For example, each slide of a
`demonstrative exhibit may be marked with the words “DEMONSTRATIVE
`EXHIBIT – NOT EVIDENCE” in the footer. Demonstrative exhibits may not
`introduce new evidence or raise new arguments, but instead, should cite to
`evidence in the record (see Dell Inc. v. Acceleron, LLC, 884 F.3d 1364, 1369 (Fed.
`Cir. 2018) (noting that the “Board was obligated to dismiss [the petitioner’s]
`untimely argument . . . raised for the first time during oral argument”)). The
`parties are directed to St. Jude Medical, Cardiology Division, Inc. v. The Board of
`Regents of the University of Michigan, Case IPR2013-00041 (PTAB Jan. 27, 2014)
`(Paper 65) and CBS Interactive Inc. v. Helferich Patent Licensing, LLC, Case
`IPR2013-00033 (PTAB Oct. 23, 2013) (Paper 118), for guidance regarding the
`appropriate content of demonstrative exhibits.
`The parties should attempt to resolve any objections to demonstratives prior
`to involving the Board. The parties must request a conference call with the Board
`at least two (2) business days before the hearing to present any unresolved
`objection regarding the propriety of any demonstrative exhibit. Any unresolved
`objection to demonstrative exhibits that is not timely presented will be considered
`waived. The Board asks the parties to confine demonstrative exhibit objections to
`those identifying egregious violations that are prejudicial to the administration of
`justice. To aid in the preparation of an accurate transcript, each party shall provide
`paper copies of its demonstratives to the court reporter on the day of the oral
`arguments. Such paper copies shall not become part of the record of this
`proceeding.
`
`
`
`3
`
`
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`
`
`The parties are reminded that each presenter must identify clearly and
`specifically each demonstrative exhibit (e.g., by slide or screen number), paper, or
`exhibit referenced during the oral arguments to ensure the clarity and accuracy of
`the reporter’s transcript. The parties also should note that at least one member of
`the panel will be attending the oral arguments electronically from a remote location
`and that if any demonstrative is not made fully available or visible to the judge
`presiding over the oral arguments, that demonstrative will not be considered.
`Because of limitations of the audio transmission systems in our hearing rooms, the
`presenter may speak only when standing at the hearing room lectern. If the parties
`have questions as to whether demonstrative exhibits would be sufficiently visible
`and available to all of the judges, the parties are invited to contact the Board at
`(571) 272-9797.
`The Board expects lead counsel for each party to be present in person at oral
`argument. If a party anticipates that its lead counsel will not be attending the oral
`arguments, the parties should request a joint telephone conference with the Board
`no later than seven (7) business days prior to the oral arguments to discuss the
`matter. Any counsel of record, however, may present the party’s arguments.
`Per the recent update to the Office Patent Trial Practice Guide, either party
`may request a pre-hearing conference (Office Patent Trial Practice Guide, August
`2018 Update, 83 Fed. Reg. 39,989 (Aug. 13, 2018) (found at the following link to
`the USPTO website: https://go.usa.gov/xU7GP)). Requests for a pre-hearing
`conference must be made by December 5, 2018. To request such a conference, an
`email should be sent to Trials@uspto.gov including several dates and times of
`availability for one or both parties, as appropriate, that are generally no later than
`three business days prior to the oral hearing. Please refer to the Guide for more
`information on the prehearing conference.
`
`
`
`4
`
`
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`
`
`Requests for audio-visual equipment are to be made at least five (5) business
`days in advance of the date of the hearing by sending the request to
`Trials@uspto.gov. If the request is not received timely, the equipment may not be
`available on the day of the hearing.
`
`
`ORDER
`
`It is hereby:
`ORDERED that oral argument for this proceeding shall take place beginning
`at 2:00 PM Eastern Time on December 12, 2017, on the ninth floor of Madison
`Building East, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`
`
`Case IPR2017-02012
`Patent 6,434,212 B2
`
`
`For PETITIONER:
`
`Harper Batts
`Christopher Ponder
`SHEPPARD, MULLIN, RICHTER & HAMPTON
`hbatts@sheppardmullin.com
`cponder@sheppardmullin.com
`
`John Gaustad
`BAKER BOTTS LLP
`john.gaustad@bakerbotts.com
`
`For PATENT OWNER:
`
`Walter Davis
`Aldo Noto
`Wayne Helge
`DAVIDSON BERQUIST JACKSON & GOWDEY
`wdavis@davidsonberquist.com
`anoto@davidsonberquist.com
`whelge@davidsonberquist.com
`
`
`
`6
`
`
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