`571-272-7822
`
`
`
`
`
`Paper 61
`Entered: August 20, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD.,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD,
`Patent Owner.
`____________
`
`Case IPR2018-01257 (Patent 8,552,978 B2)
`Case IPR2018-01258 (Patent 8,441,438 B2)
`____________
`
`
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`BOUCHER, Administrative Patent Judge.
`
`
`
`
`ORDER
`Requests for Oral Argument
`37 C.F.R. § 42.70
`
`
`
`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`
`Under the Scheduling Order, the date set for oral hearing in these
`proceedings is September 13, 2019, if hearing is requested by either party
`and granted by the Board. Paper 9.1 Both parties request oral hearing.
`Papers 43, 54. The requests are granted.
`Procedure
`A consolidated oral argument will be held for both proceedings. Each
`side will have 75 minutes, total, to present its argument, and may allocate its
`time among the proceedings as it wishes. Any representation made by
`counsel at the consolidated oral argument is applicable to and useable in all
`proceedings that have underlying basis for the representation.
`Petitioner bears the ultimate burden of proof that Patent Owner’s
`claims at issue in this review are unpatentable. Accordingly, Petitioner will
`open the hearing by presenting its case regarding the challenged claims on
`which the Board instituted trial. After Petitioner’s presentation, Patent
`Owner will respond to Petitioner’s argument. Petitioner may reserve time to
`respond to Patent Owner’s argument. Patent Owner may reserve time for a
`brief sur-rebuttal as set forth in the Board’s Revised Trial Practice Guide.
`No other arguments will be heard.
`The hearing will commence at 10:00 AM Mountain Time on
`September 13, 2019, on the 14th floor of the Byron G. Rogers Federal
`Building, 1961 Stout Street, Denver, Colorado. The Board will provide a
`court reporter for the hearing and the reporter’s transcript will constitute the
`official record of the hearing.
`
`
`1 Citations are to IPR2018-01257. Similar papers have been filed in both
`proceedings.
`
`2
`
`
`
`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`
`Attendance
`At least one judge may participate in the hearing via videoconference
`or telephonic conference from a remote location; counsel for the parties,
`however, must appear in person. Because the petitioner parties other than
`Google LLC have agreed to take an understudy role in the case, only counsel
`for Google LLC is authorized to present arguments on behalf of the
`petitioner parties.
`The Board expects lead counsel for each party to be present in person
`at the oral hearing. However, any counsel of record may present the party’s
`argument as long as that counsel is present in person. If either party expects
`that its lead counsel will not be attending the oral argument, the parties
`should initiate a joint telephone conference with the Board no later than two
`business days prior to the oral hearing to discuss the matter.
`A party may request remote video attendance for one or more of its
`other attendees to view the hearing from any USPTO location. The
`available locations include the USPTO headquarters in Alexandria, Virginia;
`the Texas Regional Office in Dallas, Texas; the Elijah J. McCoy Midwest
`Regional Office in Detroit, Michigan; and the Silicon Valley Office in San
`Jose, CA. To request remote video viewing, a party must send an email
`message to Trials@uspto.gov ten business days prior to the hearing,
`indicating the requested location and the number planning to view the
`hearing from the remote location. The Board will notify the parties if the
`request for video viewing is granted. Note that it may not be possible to
`grant the request due to the availability of resources.
`The hearing will be open to the public for in-person attendance that
`will be accommodated on a first-come, first-served basis. If the parties have
`
`3
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`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`concerns about disclosing confidential information, they should contact the
`Board at least ten days in advance of the hearing to discuss the matter.
`Exhibits
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits must be served at
`least seven business days before the hearing date. The parties also shall
`provide the demonstrative exhibits to the Board at least two business days
`prior to the hearing by emailing them to Trials@uspto.gov. The parties shall
`not file any demonstrative exhibits in this case without prior authorization.
`Demonstrative exhibits should cite to evidence in the record.
`Demonstrative exhibits are not evidence. Rather, they are merely visual aids
`to oral argument and should be clearly marked as such. For example, each
`slide may be marked with the words “DEMONSTRATIVE EXHIBIT –
`NOT EVIDENCE” in the footer. Demonstrative exhibits may not be used to
`advance arguments or introduce evidence not previously presented 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), for guidance regarding the appropriate
`content of demonstrative exhibits.
`A hard copy of the demonstratives should be provided to the court
`reporter at the hearing, but hard copies of the demonstratives are not needed
`for the judges. The parties are reminded that the presenter must identify
`clearly and specifically each demonstrative exhibit (e.g., by slide or screen
`
`4
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`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`number) referenced during the hearing to ensure the clarity and accuracy of
`the reporter’s transcript.
`No live witness testimony shall be taken at the oral argument. The
`parties are reminded that, under 37 C.F.R. § 42.53(f)(7), a proponent of
`deposition testimony must file such testimony as an exhibit. The Board will
`not consider any deposition testimony that has not been so filed.
`The parties shall meet and confer to discuss and resolve any
`objections to demonstrative exhibits. Any party with unresolved objections
`must file a list of those objections with the Board at least two business days
`before the hearing. For each objection, the list must identify with
`particularity which portions of the demonstrative exhibits are subject to the
`objection and may include a short, one-sentence statement explaining the
`objection. No argument or further explanation is permitted. The Board will
`consider any objections and schedule a conference call if deemed necessary.
`Otherwise, the Board will reserve ruling on the objections. Any objection to
`demonstrative exhibits not timely presented may be considered waived.
`Special Requests
`Any special requests for audio-visual equipment should be directed to
`Trials@uspto.gov. A party may also indicate any special requests related to
`appearing at an in-person oral hearing, such as a request to accommodate
`physical needs that limit mobility or visual or hearing impairments, and
`indicate how the PTAB may accommodate the special request. Any special
`requests must be presented in a separate communication not less than five
`days before the hearing. If the request is not received timely, the equipment
`may not be available on the day of the hearing.
`
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`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`
`Any requests for a pre-hearing conference must be made by
`August 30, 2019. 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.
`
`
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`
`
`
`6
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`
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`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`For Petitioner:
`
`Matthew A. Smith
`Andrew S. Baluch
`SMITH BALUCH LLP
`smith@smithbaluch.com
`baluch@smithbaluch.com
`
`James Sobieraj
`Jon Beaupre
`Yeuzhong Feng
`Andres Shoffstall
`BRINKS GILSON & LIONE
`jsobieraj@brinksgilson.com
`jbeaupre@brinksgilson.com
`yfen@brinksgilson.com
`ashoffstall@brinksgilson.com
`
`Naveen Modi
`Chetan Bansal
`PAUL HASTINGS LLP
`naveenmodi@paulhastings.com
`chetanbansal@paulhastings.com
`
`Collin Park
`Andrew Devkar
`Jeremy Peterson
`Adam Brooke
`MORGAN LEWIS & BOCKIUS LLP
`Collin.park@morganlewis.com
`Andrew.devkar@morganlewis.com
`jpeterson@morganlewis.com
`adam.brooke@morganlewis.com
`
`
`
`
`
`
`
`7
`
`
`
`IPR2018-01257 (Patent 8,552,978 B2)
`IPR2018-01258 (Patent 8,441,438 B2)
`
`Kristopher Reed
`Benjamin Klein
`Norris Booth
`KILPATRICK TOWNSEND
`kreed@kilpatricktownsend.com
`bkleinman@kilpatricktownsend.com
`nboothe@kilpatricktownsend.com
`
`
`For Patent Owner:
`
`Jay P. Kesan
`DIMURO GINSBERG PC-DGKEYIP GROUP
`jkesan@dimuro.com
`
`Ari Rafilson
`SHORE CHAN DEPUMPO LLP
`arafilson@shorechan.com
`
`
`8
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`