Trials@uspto.gov
`571-272-7822
`
`Paper 32
`Date: December 1, 2020
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`GOOGLE LLC, LG ELECTRONICS, INC.,
`and LG ELECTRONICS U.S.A., INC.,
`Petitioners,
`
`v.
`
`ZIPIT WIRELESS, INC.,
`Patent Owner.
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)1
`
`
`
`
`Before TREVOR M. JEFFERSON, NEIL T. POWELL, and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`1 We exercise our discretion to issue one Order to be filed in each case. The
`parties, however, may not use this style heading without seeking prior
`authorization from the Board.
`
`
`571-272-7822
`
`Paper 32
`Date: December 1, 2020
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`GOOGLE LLC, LG ELECTRONICS, INC.,
`and LG ELECTRONICS U.S.A., INC.,
`Petitioners,
`
`v.
`
`ZIPIT WIRELESS, INC.,
`Patent Owner.
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)1
`
`
`
`
`Before TREVOR M. JEFFERSON, NEIL T. POWELL, and
`JOHN D. HAMANN, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`
`ORDER
`Oral Hearing
`37 C.F.R. § 42.70
`
`
`
`1 We exercise our discretion to issue one Order to be filed in each case. The
`parties, however, may not use this style heading without seeking prior
`authorization from the Board.
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`
`The Scheduling Order for this proceeding provided that an oral
`hearing would be conducted on December 8, 2020, if requested by either
`party and granted by the Board. Paper 11, 8, 9 (IPR2019-01567); Paper 10,
`8, 9 (IPR2019-01568).2 Petitioner and Patent Owner requested oral
`argument pursuant to 37 C.F.R. § 42.70. Paper 29 (Patent Owner); Paper 30
`(Petitioner). Petitioner requests ninety (90) minutes in which to present its
`arguments for this proceeding. Paper 30, 1. Patent Owner requested one
`hour. Paper 29, 2–3. Petitioner’s and Patent Owner’s requests are granted
`according to the terms set forth in this Order.
`Oral argument will commence at 1:00 PM Eastern Time on
`December 8, 2020, by video. The parties are directed to contact the Board
`at least five business 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, counsel encounters technical or
`other difficulties that fundamentally undermine counsel’s ability to
`adequately represent its client, counsel is to let the panel know immediately,
`and adjustments will be made.3
`To facilitate planning, each party must contact PTAB Hearings at
`PTABHearings@uspto.gov at least five business days prior to the oral
`hearing date to receive video set-up information. As a reminder, all
`
`
`2 Similar papers were filed in IPR2019-01567 and IPR2019-01568. All
`references herein are to papers filed in IPR2019-01567 unless otherwise
`noted.
`3 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`2
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`arrangements and the expenses involved with appearing by video, such as
`the selection of the facility 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 shall notify PTAB Hearings at the above email address
`at least five business days prior to the hearing to receive dial-in connection
`information.
`Each party will have a total of 75 minutes to present its argument.
`See Patent Trial and Appeal Board Patent Trial and Appeal Board
`Consolidated Trial Practice Guide, November 2019 Update, at 81–82,
`available at https://www.uspto.gov/sites/default/files/documents/tpgnov.pdf
`(“Consolidated TPG”) (“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 circumstance of the case.”). First, Petitioner
`will present its arguments regarding all issues for which it bears the ultimate
`burden of proof. Next, Patent Owner may respond to Petitioner’s arguments
`and present any issues for which it bears the ultimate burden (e.g., any
`pending motions). Finally, Petitioner may reply to the arguments presented
`by Patent Owner, and then Patent Owner may reply to Petitioner’s reply.
`Each party may reserve no more than thirty minutes for its rebuttal, and any
`arguments made during its rebuttal period must be responsive to arguments
`the opposing party made in its immediately preceding presentation. New
`arguments not previously raised in the parties’ substantive papers in this
`proceeding may not be raised during the oral argument.
`
`3
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`
`Demonstratives
`
`Under 37 C.F.R. § 42.70(b), each party’s demonstratives must be
`served on opposing counsel at least five business days before the hearing.
`The parties shall confer with each other regarding any objections to
`demonstrative exhibits, and file demonstrative exhibits with the Board, as a
`separate exhibit in accordance with 37 C.F.R. § 42.63, at least three
`business days prior to the hearing.
`Demonstratives are visual aids to oral argument, not evidence, and are
`intended only to assist the parties in presenting their oral argument to the
`panel. See Trial Practice Guide 84. Demonstratives may not advance
`arguments or introduce evidence not previously presented in the record, and
`each demonstrative must include a citation to the briefs and/or evidence in
`the record indicating the source(s) of its content. The Board expects the
`parties will meet and confer in good faith to resolve any objections to
`demonstrative exhibits. For any issue that cannot be resolved after
`conferring with the opposing party, the parties may file jointly a one-page
`list of objections at least two business days prior to the hearing. The list
`should identify with particularity which demonstrative exhibits are subject to
`objection and include a short statement (no more than one short sentence) of
`the reason for each objection. No argument or further explanation is
`permitted. The panel will consider the objections and may schedule a
`conference call if deemed necessary. Rulings on the objections may be
`reserved until the hearing or after the hearing.
`
`4
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`
`Live Testimony
`
`No live testimony from any witness will be permitted at the hearing
`without prior authorization from the Board. A party requesting authorization
`to present live testimony at the hearing shall initiate a joint telephone
`conference with the other party and the panel as soon as possible, and in any
`event no later than five business days prior to the hearing to discuss the
`matter. The parties are directed to the Board’s decision in K-40 Electronics,
`LLC v. Escort, Inc., IPR2013-00203, Paper 34 (PTAB May 21, 2014)
`(precedential) for guidance as to the limited circumstances in which live
`testimony may be authorized.
`
`Remote Hearing Instructions
`
`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 days before the
`hearing.
`Parties are instructed to unmute themselves only when speaking. The
`panel will have access to all papers filed with the Board and the
`demonstratives. During the oral hearing, the parties are advised to identify
`clearly and specifically each demonstrative referenced (e.g., by slide or
`
`5
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`screen number) to ensure the clarity and accuracy of the court reporter’s
`transcript. 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,
`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.
`
`ORDER
`
`It is:
`ORDERED that oral argument will commence at 1:00 PM ET on
`December 8, 2020, by video; and
`FURTHER ORDERED that the measures set forth above shall govern
`the oral hearing in the above-captioned proceeding.
`
`
`
`
`6
`
`
`
`IPR2019-01567 (Patent 7,292,870 B2)
`IPR2019-01568 (Patent 7,894,837)
`
`FOR PETITIONER:
`
`Elisabeth Hunt
`Richard Giunta
`Anant Saraswat
`WOLF GREENFIELD & SACKS, P.C.
`ehunt-ptab@wolfgreenfield.com
`rgiunta-ptab@wolfgreenfield.com
`asaraswat-ptab@wolfgreenfield.com
`
`
`FOR PATENT OWNER:
`
`Stephen R. Risley
`Cortney S. Alexander
`KENT & RISLEY LLC
`steverisley@kentrisley.com
`cortneyalexander@kentrisley.com
`
`
`7
`
`
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