Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`
`Paper 21
`Date: November 2, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NETFLIX, INC.,
`Petitioner,
`v.
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2020-00041
`Patent 8,407,609 B2
`____________
`
`
`Before CHARLES J. BOUDREAU, DANIEL J. GALLIGAN, and
`JULIET MITCHELL DIRBA, Administrative Patent Judges.
`
`DIRBA, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`
`
`Paper 21
`Date: November 2, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NETFLIX, INC.,
`Petitioner,
`v.
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2020-00041
`Patent 8,407,609 B2
`____________
`
`
`Before CHARLES J. BOUDREAU, DANIEL J. GALLIGAN, and
`JULIET MITCHELL DIRBA, Administrative Patent Judges.
`
`DIRBA, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`ORDER
`Trial Hearing
`37 C.F.R. § 42.70
`
`
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`
`Both parties requested oral argument pursuant to 37 C.F.R. § 42.70.
`Papers 19, 20. Petitioner and Patent Owner both propose thirty minutes per
`side and intend to participate remotely via video conference, given the
`ongoing pandemic. Papers 19, 20.
`The oral argument requests are granted according to the terms set
`forth in this Order.
`Oral argument will commence at 2:00 p.m. Central Time on
`Thursday, December 3, 2020, by video. The parties are directed to contact
`the Board at least ten 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, 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 at least five business days prior to the oral
`hearing date 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 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.
`
`
`1 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`2
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`
`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 side will have a total of thirty minutes to present its argument.
`New arguments not previously raised in the parties’ substantive papers in
`this proceeding may not be raised during the oral argument. 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 fifteen 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.
`
`Pre-Hearing Conference
`
`A pre-hearing conference call will be held upon request. See
`Consolidated Trial Practice Guide 82 (Nov. 2019), available at
`https://www.uspto.gov/sites/default/files/documents/tpgnov.pdf. Any
`request for a pre-hearing conference must be made by Wednesday,
`November 18, 2020 (Paper 11 (Scheduling Order), 10) and must be
`submitted to Trials@uspto.gov, with an identification of several dates and
`times of availability for both parties. The prehearing conference is not
`required; absent a request, no call will be held.
`
`3
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`
`Prior to making a request, the parties should meet and confer and send
`one joint request to the Board with an agreed upon set of limited issues for
`discussion in the pre-hearing conference. If the parties are unable to agree
`on the issues to be addressed at the pre-hearing conference, the joint request
`shall specify which issues are disputed and provide a brief statement (not to
`exceed one sentence) of the opposing party’s objection. Issues appropriate
`for discussion in a pre-hearing conference may include objections to
`demonstratives, pending motions (particularly motions to exclude),
`procedures for handling confidential information during the hearing, and any
`other issue that may affect the ability of a party to present its arguments at
`the hearing. Any issues discussed at the pre-hearing conference do not limit
`the scope of the oral hearing.
`
`Demonstratives
`
`Under 37 C.F.R. § 42.70(b), the party’s demonstratives must be
`served on opposing counsel at least seven business days before the hearing.
`In addition, demonstratives shall be filed with the Board in accordance with
`37 C.F.R. § 42.70(b) at least three business days before 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 Consolidated 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 parties shall meet and confer to discuss any objections to the
`demonstratives. If any issues regarding demonstratives remain unresolved
`
`4
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`after the parties meet and confer by telephone, the parties shall jointly
`submit (by email to Trials@uspto.gov) a one-page list of objections to the
`demonstratives at least three business days before the hearing. Any
`objection not timely presented will be considered waived. For each
`objection, the one-page list must identify with particularity the
`demonstratives subject to the objection and include a short, one-sentence
`statement explaining the objection. 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.
`
`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 seven 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.
`
`5
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`
`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 business days
`before the hearing.
`Please unmute yourself 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 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 ten business days
`prior to the oral hearing date.
`
`6
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`
`ORDER
`
`It is:
`ORDERED that oral argument will commence at 2:00 p.m. Central
`Time on Thursday, December 3, 2020, by video; and
`FURTHER ORDERED that the measures set forth above shall govern
`the oral hearing in the above-captioned proceeding.
`
`
`
`
`7
`
`
`
`IPR2020-00041
`Patent 8,407,609 B2
`
`PETITIONER:
`Babak Tehranchi
`Patrick J. McKeever
`Kyle R. Canavera
`Matthew Bernstein
`PERKINS COIE LLP
`tehranchi-ptab@perkinscoie.com
`mckeever-ptab@perkinscoie.com
`canavera-ptab@perkinscoie.com
`bernstein-ptab@perkinscoie.com
`
`PATENT OWNER:
`Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`ETHERIDGE LAW GROUP
`ryan@etheridgelaw.com
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`
`
`8
`
`
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