Trials@uspto.gov
`571-272-7822
`
` Paper 70
`Entered: November 3, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`——————
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`——————
`ZTE (USA), INC. and LG ELECTRONICS INC.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD,
`Patent Owner.
`
`——————
`Case IPR2019-00143
`Patent 8,441,438 B2
`——————
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`OGDEN, Administrative Patent Judge.
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`571-272-7822
`
` Paper 70
`Entered: November 3, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`——————
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`——————
`ZTE (USA), INC. and LG ELECTRONICS INC.,
`Petitioner,
`
`v.
`
`CYWEE GROUP LTD,
`Patent Owner.
`
`——————
`Case IPR2019-00143
`Patent 8,441,438 B2
`——————
`
`Before PATRICK M. BOUCHER, KAMRAN JIVANI, and
`CHRISTOPHER L. OGDEN, Administrative Patent Judges.
`
`OGDEN, Administrative Patent Judge.
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`
`On May 17, 2019, we instituted inter partes review in this proceeding.
`See Paper 7. In a Third Revised Scheduling Order, we set the date for oral
`argument as November 18, 2020. See Paper 55.
`Joined Petitioner LG Electronics, Inc. (“Petitioner”) filed a request for
`oral argument pursuant to 37 C.F.R. § 42.70(a). Paper 63. Patent Owner
`CyWee Group Ltd. (“Patent Owner”) objects to LGE’s participation in an
`oral hearing. Paper 61, 2. In a previous Decision (Paper 50), we authorized
`Petitioner to request an oral hearing limited to the issues raised in Patent
`Owner’s Revised Motion to Amend (Paper 38).
`The parties both request 60 minutes, per side, for oral argument. See
`Paper 61, 2; Paper 63, 1. The parties’ requests are granted according to the
`terms set forth in this Order.
`Oral arguments will commence at 1:00 PM Eastern Time on
`November 18, 2020, by video. The parties are directed to contact the Board
`at least 10 days in advance of the hearing if there are any concerns about
`disclosing confidential information. The Board will provide a court reporter
`for the hearing, and the reporter’s transcript will constitute the official record
`of the hearing.
`If at any time during the proceeding, you encounter technical or other
`difficulties that fundamentally undermine your ability to adequately
`represent your client, please let the panel know immediately, and
`adjustments will be made.1
`To facilitate planning, each party must contact PTAB Hearings at
`PTABHearings@uspto.gov five business days prior to the oral hearing date
`
`
`1 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`
`
`2
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`to receive video set-up information. As a reminder, all arrangements and the
`expenses involved with appearing by video, such as the selection of the
`facility to be used from which a party will attend by video, must be borne by
`that party. If a video connection cannot be established, the parties will be
`provided with dial-in connection information, and the oral hearing will be
`conducted telephonically.
`If one or both parties would prefer to participate in the oral hearing
`telephonically, they should notify PTAB Hearings at the above email address
`five business days prior to the hearing to receive dial-in connection
`information.
`Each side will receive 60 minutes of total presentation time to present
`all arguments. See Office Consolidated Trial Practice Guide, November
`2019 Edition, 81, available at https://go.usa.gov/xpvPF; see also 84 Fed.
`Reg. 64,280 (Nov. 21, 2019) (“The Board expects to ordinarily provide for
`an hour of argument per side for a single proceeding, but a party may request
`more or less time depending on the circumstances of the case.”). Petitioner
`will open the hearing by presenting its case regarding the alleged
`unpatentability or impropriety of proposed substitute claims 20–24 of the
`’438 patent. This presentation must be limited to issues raised in CyWee’s
`Revised Motion to Amend. Patent Owner then will respond to Petitioner’s
`presentation. Petitioner may reserve rebuttal time (of no more than half of its
`total presentation time) to reply to Patent Owner’s arguments. Patent Owner
`may reserve sur-rebuttal time (of no more than half its total presentation
`time) to respond to Petitioner’s rebuttal. See Office Consolidated Trial
`Practice Guide, November 2019 Edition, 83.
`
`
`
`
`3
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`
`Petitioner ZTE (USA), Inc. (“ZTE”) has not requested to participate in
`the oral hearing, and has stated that it does not oppose the Revised Motion to
`Amend, and agrees with Patent Owner “to have the validity of the original
`claims determined solely on current written submissions.” Paper 41, 2. If
`ZTE wishes to be allotted time during the hearing for any reason, it should
`contact the Board within three (3) business days of this Order.
`For other issues relating to the oral hearing, either party may request a
`pre-hearing conference by the date set forth in our Scheduling Order. See
`Consolidated Trial Practice Guide at 82; see also 84 Fed. Reg. 64,280 (Nov.
`21, 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. Please refer to the Guide for more information
`on the pre-hearing conference.
`At least seven (7) business days prior to the hearing, each party shall
`serve on the other party any demonstrative exhibit(s) it intends to use during
`the hearing. See 37 C.F.R. § 42.70(b). Demonstrative exhibits used at the
`oral hearing are aids to oral argument and not evidence, and should be
`clearly marked as such. For example, each slide may be marked with the
`words “DEMONSTRATIVE EXHIBIT – NOT EVIDENCE” in the footer.
`See Office Consolidated Trial Practice Guide, November 2019 Edition, 84.
`Demonstrative exhibits cannot 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”). Instead, demonstrative exhibits must cite
`
`
`
`
`4
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`to evidence in the record. Demonstrative exhibits, marked as noted above,
`should be filed with the Board in accordance with 37 C.F.R. § 42.70(b) at
`least five (5) business days before the hearing.
`The parties should attempt to work out any objections to
`demonstratives prior to involving the Board. Should either party disagree
`with the propriety of any of the opposing parties’ demonstratives, the party
`may send, two (2) business days prior to the hearing, an email to
`Trials@uspto.gov including a paper limited to identifying the opposing
`parties’ slide(s) objected to and a brief sentence as to the general basis of the
`objection. No further argument is permitted in that paper. The Board will
`then take the objections under advisement, and if the content is
`inappropriate, it will not be considered. Any 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. 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. In general, if the content on a
`slide cannot be readily associated with an argument made, or evidence
`referenced, in a substantive paper, it is inappropriate. The best practice is to
`indicate on each slide where support may be found in a substantive paper
`and/or an exhibit of record in this proceeding.
`The parties are reminded that each presenter must identify clearly and
`specifically each demonstrative exhibit (e.g., by slide or screen number)
`referenced during the hearing to ensure the clarity and accuracy of the
`
`
`
`
`5
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`reporter’s transcript. As noted above, all members of the panel will be
`attending the hearing electronically from a remote location. If a
`demonstrative exhibit is not emailed to the Board or otherwise made fully
`available or visible to all judges at the hearing, that demonstrative exhibit
`will not be considered. 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 generally expects lead counsel for each party to be present
`by video at the oral hearing. Any counsel of record may present the party’s
`argument as long as that counsel is present by video.
`Any special requests for audio-visual equipment should be directed to
`PTABHearings@uspto.gov. A party may also indicate any special requests
`related to appearing at a video oral hearing, such as a request to
`accommodate 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 (5) days before the
`hearing.
`Please unmute yourself only when speaking. The panel will have
`access to all papers filed with the Board, including demonstratives. In
`addition, the parties are advised to identify themselves each time they speak.
`Furthermore, the remote nature of the oral hearing may also result in an
`audio lag, and so the parties are advised to observe a pause prior to speaking,
`so as to avoid speaking over others.
`Members of the public may request to listen in on this oral hearing. If
`resources are available, the Board generally expects to grant such requests. If
`either party objects to the Board granting such requests, for example,
`
`
`
`
`6
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`because confidential information may be discussed, the party must notify the
`Board by contacting PTABHearings@uspto.gov at least five business days
`prior to the oral hearing date.
`
`It is
`ORDERED that oral argument will commence at 1:00 PM (ET) on
`November 18, 2020 by video.
`
`
`
`
`7
`
`
`
`IPR2019-00143
`Patent 8,441,438 B2
`
`For PETITIONER:
`
`Steve Moore
`Zhong Lun Law Firm
`stevemoore@zhonglun.com
`
`Howard Wisnia
`howard@wisnialaw.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
`
`
`For PATENT OWNER:
`
`Jay P. Kesan
`DIMURO GINSBERG PC–DGKEYIP GROUP
`jay@jaykesan.com
`
`
`
`
`
`
`
`8
`
`
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