Trials@uspto.gov
`571-272-7822
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`Paper: 44
`Entered: March 10, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.,
`Petitioner,
`
`v.
`
`NUVASIVE, INC.,
`Patent Owner.
`____________
`
`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
` IPR2019-00546 (Patent 8,187,334 B2)1
`____________
`
`
`
`Before DENISE M. POTHIER, HYUN J. JUNG, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`1 We exercise our discretion to issue one Order to be entered in each
`proceeding.
`
`
`571-272-7822
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`Paper: 44
`Entered: March 10, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALPHATEC HOLDINGS, INC. and ALPHATEC SPINE, INC.,
`Petitioner,
`
`v.
`
`NUVASIVE, INC.,
`Patent Owner.
`____________
`
`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
` IPR2019-00546 (Patent 8,187,334 B2)1
`____________
`
`
`
`Before DENISE M. POTHIER, HYUN J. JUNG, and
`SHEILA F. McSHANE, Administrative Patent Judges.
`
`JUNG, Administrative Patent Judge.
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`1 We exercise our discretion to issue one Order to be entered in each
`proceeding.
`
`
`
`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`
`We had previously revised the Scheduling Order for the above-listed
`proceedings because the parties were amenable to having the oral hearing
`conducted as part of the PTAB/TTAB Stadium Tour program to be held at
`the University of Oregon School of Law. See Paper 34, 2. 2 We also
`determined that Petitioner’s and Patent Owner’s requirement to request oral
`argument by Due Date 4, as per the original Scheduling Order, has been
`satisfied. Id. Unfortunately, we have been informed that the University of
`Oregon School of Law is in the process of canceling or postponing events
`scheduled for March and April, including the PTAB/TTAB Stadium Tour,
`due to health concerns.
`In view of this, we are modifying the hearing location, and the hearing
`will be conducted at the USPTO Central Headquarters in Alexandria,
`Virginia (the ninth floor of Madison Building East, 600 Dulany Street,
`Alexandria, Virginia, 22314), and will commence at 9:00 AM Eastern
`Time, on Friday, April 3, 2020. We will promptly advise the parties if any
`future changes to the oral hearing become necessary. The hearing will be
`open to the public for in-person attendance that will be accommodated on a
`first-come, first-served basis.
`Each party will have sixty (60) minutes of total oral argument time.
`Petitioner will argue first and may present arguments regarding the
`challenged claims. Patent Owner will then have the opportunity to respond
`to Petitioner’s arguments. Next, Petitioner may use any time it has reserved
`for rebuttal to respond to Patent Owner’s arguments. Lastly, Patent Owner
`
`
`2 For purposes of expediency, all citations are to IPR2019-00361 unless
`otherwise noted.
`
`2
`
`
`
`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`may use any time it has reserved for sur-rebuttal to respond to Petitioner’s
`rebuttal arguments. No other arguments will be heard.
`The Board will provide a court reporter, and the reporter’s transcript
`will constitute the official record of the hearing. The hearing transcript will
`be entered in the record of this proceeding.
`Under 37 C.F.R. § 42.70(b), demonstrative exhibits, if any, must be
`served at least (7) seven business days before the hearing. Demonstrative
`exhibits are visual 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.
`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”). Instead, demonstrative exhibits should
`cite to the briefs and evidence in the record. Demonstrative exhibits, marked
`as noted above, should be filed in accordance with 37 C.F.R. § 42.70(b) at
`least two (2) business days before the hearing.
`The Board expects that the parties will meet and confer in good faith
`to resolve any objections to demonstrative exhibits, but if any objections
`cannot be resolved, the unresolved objections must be filed with the Board at
`least (2) two business days before the hearing. Any objection to
`demonstrative exhibits that is not timely presented will be considered
`waived. The objections should identify with particularity which
`demonstratives and portions thereof are subject to objection, and include a
`
`3
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`
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`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`short (one sentence or less) statement of the reason for each objection. No
`argument or further explanation is permitted. The Board will consider the
`objections and schedule a conference if the Board deems necessary.
`Otherwise, the Board will rule on the objections at the hearing.
`To aid in the preparation of an accurate transcript, each party shall
`provide a paper copy of any demonstratives to the court reporter on the day
`of the oral argument. Such paper copies shall not become part of the record
`of this proceeding. The parties are reminded that, during the hearing, the
`presenter should identify clearly each demonstrative exhibit (e.g., by slide or
`screen number) to ensure the clarity and accuracy of the reporter’s transcript
`and permit any judge participating from a remote location to follow the
`arguments.
`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
`(2) 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 Texas Regional Office in Dallas, Texas; the
`Rocky Mountain Regional Office in Denver, Colorado; the Elijah J. McCoy
`Midwest Regional Office in Detroit, Michigan; and the Silicon Valley Office
`in San Jose, California. To request remote video viewing, a party must send
`an email message to Trials@uspto.gov at least ten business days prior to the
`
`4
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`
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`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`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.
`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 (5) days before the hearing. If the request is not received timely, the
`equipment may not be available on the day of the hearing.
`Any requests for a pre-hearing conference must be made by March 27,
`2020. To request such a conference, an email should be sent to
`Trials@uspto.gov including several dates and times of availability for all
`parties that are generally no later than three business days prior to the oral
`hearing and shall include list of issues to be discussed during the conference.
`It is
`ORDERED that an oral hearing, conducted in accordance with the
`procedures set forth above, shall commence at 9:00 AM ET on April 3, 2020
`in Alexandria, Virginia.
`
`
`
`
`
`
`5
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`
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`IPR2019-00361 (Patent 8,187,334 B2)
`IPR2019-00362 (Patent 8,361,156 B2)
`IPR2019-00546 (Patent 8,187,334 B2)
`
`FOR PETITIONER:
`
`Jovial Wong
`David P. Dalke
`Nimalka R. Wickramasekera (pro hac vice)
`WINSTON & STRAWN LLP
`jwong@winston.com
`ddalke@winston.com
`nwickramasekera@winston.com
`Alphatec-IPR@winston.com
`
`
`FOR PATENT OWNER:
`
`Michael T. Rosato
`Paul D. Tripodi II
`Sonja R. Gerrard
`WILSON SONSINI GOODRICH & ROSATI
`mrosato@wsgr.com
`ptripodi@wsgr.com
`sgerrard@wsgr.com
`
`
`6
`
`
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