`Tel: 571-272-7822
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`Paper 23
`Date: June 17, 2022
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`RING CENTRAL, INC.,
`Petitioner,
`
`v.
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`ESTECH SYSTEMS, INC.,
`Patent Owner.
`____________
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
`____________
`
`
`
`Before THOMAS L. GIANNETTI, JENNIFER MEYER CHAGNON, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`PER CURIAM.
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`
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
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`
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`I. ORAL ARGUMENT
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`A. Time and Format
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`Petitioner and Patent Owner have each requested an oral hearing in
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`these cases. The parties have jointly requested that the hearings be
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`conducted virtually by video conference. Those requests are granted.
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`A consolidated oral argument will commence at 1 PM Eastern Time
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`on July 12, 2022, by video. The Board will provide a court reporter for the
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`hearing, and the reporter’s transcript will constitute the official record of the
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`hearing. The parties are directed to contact the Board at least ten days in
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`advance of the hearing if there are any concerns about disclosing
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`confidential information.
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`Each party will have a total of 90 minutes to present its argument in
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`both cases. Based on the issues presented, Petitioner will open the hearing
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`by presenting its case regarding the unpatentability of the challenged claims
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`in both cases. After Petitioner’s presentation, Patent Owner will present its
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`case and respond to Petitioner’s arguments regarding the patentability of the
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`challenged claims in both cases. Petitioner may reserve rebuttal time to
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`respond to Patent Owner’s argument. Patent Owner may request a brief sur-
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`rebuttal as set forth in the Board’s Consolidated Trial Practice Guide
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`(November 2019), available at https://www.uspto.gov/
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`TrialPracticeGuideConsolidated.
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`The parties may request a pre-hearing conference in advance of the
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`hearing. See id. at 82. “The purpose of the pre-hearing conference is to
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`afford the parties the opportunity to preview (but not argue) the issues to be
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`discussed at the hearing, and to seek the Board’s guidance as to particular
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`issues that the panel would like addressed by the parties.” Id. If either party
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`2
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`desires a pre-hearing conference, the parties should jointly contact the Board
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`at Trials@uspto.gov at least seven business days before the hearing date to
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`request a conference call for that purpose.
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`B. Demonstratives
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`As set forth in 37 C.F.R. § 42.70(b), demonstratives shall be served on
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`opposing counsel at least seven business days before the hearing date. In
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`addition to the service requirement of 37 C.F.R. § 42.70(b), each party also
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`shall file its demonstrative exhibits with the Board as a separate paper at
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`least five business days prior to the hearing. A copy of the demonstratives
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`should also be sent by email to PTABHearings@uspto.gov.
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`Demonstratives are not a mechanism for making new arguments.
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`Demonstratives also are not evidence, and will not be relied upon as
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`evidence. Rather, demonstratives are visual aids to a party’s oral
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`presentation regarding arguments and evidence previously presented and
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`discussed in the papers. Accordingly, demonstratives shall be clearly
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`marked with the words “DEMONSTRATIVE EXHIBIT – NOT
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`EVIDENCE” in the footer. See Dell Inc. v. Acceleron, LLC, 884 F.3d 1364,
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`1369 (Fed. Cir. 2018) (holding that the Board is obligated under its own
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`regulations to dismiss untimely argument “raised for the first time during
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`oral argument”). “[N]o new evidence may be presented at the oral
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`argument.” Consolidated Trial Practice Guide 85; see also St. Jude Med.,
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`Cardiology Div., Inc. v. The Bd. of Regents of the Univ. of Mich., IPR2013-
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`00041, Paper 65, 2–3 (PTAB Jan. 27, 2014) (explaining that “new” evidence
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`includes evidence already of record but not previously discussed in any
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`paper of record).
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`3
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`Furthermore, because of the strict prohibition against the presentation
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`of new evidence or arguments at a hearing, it is strongly recommended that
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`each demonstrative include a citation to a paper in the record.
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`To the extent that a party objects to any demonstrative, the parties
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`shall meet and confer in good faith to resolve any objections to
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`demonstratives prior to filing the objections with the Board. If such
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`objections cannot be resolved, the parties may file any objections to
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`demonstratives with the Board no later than the time of the hearing. The
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`objections shall identify with particularity which portions of the
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`demonstratives are subject to objection (and should include a copy of the
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`objected-to portions) and include a one sentence statement of the reason for
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`each objection. No argument or further explanation is permitted. The Board
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`will consider any objections, and may reserve ruling on the objections. Any
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`objection to demonstratives that is not timely presented will be considered
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`forfeited.
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`Finally, the parties are reminded that each presenter should identify
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`clearly and specifically each demonstrative (e.g., by slide or screen number)
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`or other paper referenced during the hearing to ensure the clarity and
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`accuracy of the court reporter’s transcript and for the benefit of all
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`participants appearing electronically.
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`C. Presenting Counsel
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`The Board generally expects lead counsel for each party to be present
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`at the hearing. See Consolidated Trial Practice Guide 11. Any counsel of
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`record may present the party’s argument as long as that counsel is present by
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`video.
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`4
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`
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`D. Video or Telephonic Hearing Details
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`To facilitate planning, each party must contact the Board at
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`PTABHearings@uspto.gov at least five business days prior to the hearing
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`date to receive video set-up information. As a reminder, all arrangements
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`and the expenses involved with appearing by video, such as the selection of
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`the facility from which a party will attend by video, must be borne by that
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`party. If a video connection cannot be established, the parties will be
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`provided with dial-in connection information, and the hearing will be
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`conducted telephonically.
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`If one or both parties would prefer to participate in the hearing
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`telephonically, they must contact the Board at PTABHearings@uspto.gov at
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`least five business days prior to the hearing date to receive dial-in
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`connection information.
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`Counsel should unmute only when speaking. The panel will have
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`access to all papers filed with the Board, including demonstratives. During
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`the hearing, the parties are reminded to identify clearly and specifically each
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`paper referenced (e.g., by slide or screen number for a demonstrative) to
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`ensure the clarity and accuracy of the court reporter’s transcript and for the
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`benefit of all participants appearing electronically. In addition, the parties
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`are advised to identify themselves each time they speak. Furthermore, the
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`remote nature of the hearing may also result in an audio lag, and thus the
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`parties are advised to observe a pause prior to speaking, so as to avoid
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`speaking over others.
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`If at any time during the hearing, counsel encounters technical or
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`other difficulties that fundamentally undermine counsel’s ability to
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`5
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`adequately represent its client, please let the panel know immediately, and
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`adjustments will be made.1
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`E. Remote Attendance Requests
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`Members of the public may request to listen to and/or view this
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`hearing. If resources are available, the Board generally expects to grant such
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`requests. If either party objects to the Board granting such requests, for
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`example, because confidential information may be discussed, the party must
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`notify the Board at PTABHearings@uspto.gov at least ten business days
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`prior to the hearing date.
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`F. Audio/Visual Equipment Requests
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`Any special requests for audio-visual equipment should be directed to
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`PTABHearings@uspto.gov. A party may also indicate any special requests
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`related to appearing at a video hearing, such as a request to accommodate
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`deaf or hard-of-hearing individuals and blind or low vision individuals, and
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`indicate how the PTAB may accommodate the special request. Any special
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`requests must be presented in a separate communication at least five
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`business days before the hearing date.
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`G. Legal Experience and Advancement Program (“LEAP”)
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`The Board has established the “Legal Experience and Advancement
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`Program,” or “LEAP,” to encourage advocates with less legal experience to
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`argue before the Board to develop their skills. The Board defines a LEAP
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`
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`1 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
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`6
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`practitioner as a patent agent or attorney having three or fewer substantive
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`oral arguments in any federal tribunal, including PTAB. 2
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`The parties are encouraged to participate in the Board’s LEAP
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`program. Either party may request that a qualifying LEAP practitioner
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`participate in the program and conduct at least a portion of the party’s oral
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`argument. The Board will grant up to fifteen minutes of additional argument
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`time to that party, depending on the length of the proceeding and the
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`PTAB’s hearing schedule. A party should submit a request, no later than at
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`least five business days before the oral hearing, by email to the Board at
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`PTABHearings@uspto.gov.3
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`The LEAP practitioner may conduct the entire oral argument or may
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`share time with other counsel, provided that the LEAP practitioner is offered
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`a meaningful and substantive opportunity to argue before the Board. The
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`party has the discretion as to the type and quantity of oral argument that will
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`be conducted by the LEAP practitioner.4 Moreover, whether the LEAP
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`practitioner conducts the argument in whole or in part, the Board will permit
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`
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`2 Whether an argument is “substantive” for purposes of determining whether
`an advocate qualifies as a LEAP practitioner will be made on a case-by-case
`basis with considerations to include, for example, the amount of time that
`the practitioner argued, the circumstances of the argument, and whether the
`argument concerned the merits or ancillary issues.
`3 Additionally, a LEAP Verification Form shall be submitted by the LEAP
`practitioner, confirming eligibility for the program. A combined LEAP
`Practitioner Request for Oral Hearing Participation and Verification Form is
`available on the LEAP website, www.uspto.gov/leap.
`4 Examples of the issues that a LEAP practitioner may argue include claim
`construction argument(s), motion(s) to exclude evidence, or patentability
`argument(s) including, e.g., analyses of prior art or objective indicia of non-
`obviousness.
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`7
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
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`more experienced counsel to provide some assistance to the LEAP
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`practitioner, if necessary, during oral argument, and to clarify any statements
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`on the record before the conclusion of the oral argument. Importantly, the
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`Board does not draw any inference about the importance of a particular issue
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`or issues, or the merits of the party’s arguments regarding that issue, from
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`the party’s decision to have (or not to have) a LEAP practitioner argue.
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`In instances where an advocate does not meet the LEAP eligibility
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`requirements due to the number of “substantive” oral hearing arguments, but
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`nonetheless has a basis for considering themselves to be in the category of
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`advocates that this program is intended to assist, the Board encourages
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`argument by such advocates during oral hearings. Even though additional
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`argument time will not be provided when the advocate does not qualify for
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`LEAP, a party may share argument time among counsel and the Board may,
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`at its discretion, permit the more experienced counsel to provide some
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`assistance, if necessary, during oral argument, and to clarify any statements
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`on the record before the conclusion of the oral argument.
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`All practitioners appearing before the Board shall demonstrate the
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`highest professional standards. All practitioners are expected to have a
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`command of the factual record, the applicable law, and Board procedures, as
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`well as the authority to commit the party they represent.
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`II. ORDER
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`Accordingly, it is
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`ORDERED that oral argument for this proceeding shall commence at
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`1 PM Eastern Time on July 12, 2022, by video, and proceed in the manner
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`set forth herein.
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`8
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`IPR2021-00573 (Patent 6,067,349)
`IPR2021-00574 (Patent 8,391,298)
`
`FOR PETITIONER:
`
`K. Patrick Herman
`Alyssa Caridis
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`p52ptabdocket@orrick.com
`a8cptabdocket@orrick.com
`
`
`FOR PATENT OWNER:
`
`Todd Landis
`John Wittenzellner
`WILLIAMS SIMONS & LANDIS PLLC
`tlandis@wsltrial.com
`johnw@wsltrial.com
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`9
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