Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`Paper 19
`Entered: August 2, 2022
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., LG ELECTRONICS, INC.,
`LG ELECTRONICS U.S.A., INC., AND GOOGLE LLC,
`Petitioner,
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS, LLC,
`Patent Owner.
`____________
`
`IPR2021-00921 (Patent 8,878,949 B2)1, 2
`IPR2021-00923 (Patent 8,194,924 B2)3
`____________
`
`
`
`Before PATRICK R. SCANLON, GREGG I. ANDERSON, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`1 We exercise our discretion to issue one Order to be entered in each
`proceeding. The Parties are not authorized to use this joint heading.
`2 IPR2022-00092 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00362 (Google LLC) have been joined with this proceeding.
`3 IPR2022-00093 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00361 (Google LLC) have been joined with this proceeding.
`
`
`Tel: 571-272-7822
`
`
`
`
`
`Paper 19
`Entered: August 2, 2022
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC., LG ELECTRONICS, INC.,
`LG ELECTRONICS U.S.A., INC., AND GOOGLE LLC,
`Petitioner,
`
`v.
`
`GESTURE TECHNOLOGY PARTNERS, LLC,
`Patent Owner.
`____________
`
`IPR2021-00921 (Patent 8,878,949 B2)1, 2
`IPR2021-00923 (Patent 8,194,924 B2)3
`____________
`
`
`
`Before PATRICK R. SCANLON, GREGG I. ANDERSON, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`ORDER
`Setting Oral Argument
`37 C.F.R. § 42.70
`
`
`1 We exercise our discretion to issue one Order to be entered in each
`proceeding. The Parties are not authorized to use this joint heading.
`2 IPR2022-00092 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00362 (Google LLC) have been joined with this proceeding.
`3 IPR2022-00093 (LG Electronics, Inc. and LG Electronics U.S.A., Inc.) and
`IPR2022-00361 (Google LLC) have been joined with this proceeding.
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`
`I. ORAL ARGUMENT
`
`A. Time and Format
`Oral argument in IPR2021-00921 will commence at 11 AM
`Mountain Time on September 14, 2022 by Video. The Board will provide
`a court reporter for the hearings, and the reporter’s transcript will constitute
`the official record of the hearings. 4
`Each party will have 60 minutes of argument time. Petitioner will
`present its case, followed by Patent Owner’s response. Petitioner may
`reserve rebuttal time to respond to Patent Owner’s arguments. Patent Owner
`may request to reserve time for a brief sur-rebuttal. See Consolidated Trial
`Practice Guide5 (“CTPG”), issued in November 2019, 83.
`Oral argument in IPR2021-00923 will commence after the completion
`of the oral argument in IPR2021-00921. Each party will have 60 minutes of
`argument time and will follow the same procedures as IPR2021-00921.
`If either party desires a pre-hearing conference, the parties should
`jointly contact the Board at Trials@uspto.gov at least 7 business days before
`the hearing. See Id. at 82. “The purpose of the pre-hearing conference is to
`afford the parties the opportunity to preview (but not argue) the issues to be
`discussed at the hearing, and to seek the Board’s guidance as to particular
`issues that the panel would like addressed by the parties.” Id.
`
`
`4 If there are any concerns about disclosing confidential information, the
`parties must contact the Board at Trials@uspto.gov at least 10 business days
`before the hearing.
`5 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`B. Demonstratives
`As set forth in 37 C.F.R. § 42.70(b), demonstratives shall be served on
`opposing counsel at least 7 business days before the hearing and filed6 no
`later than 3 business days before the hearing. 7
`Demonstratives are not evidence and are not a mechanism for making
`new arguments. Rather, demonstratives are visual aids to a party’s oral
`presentation regarding arguments and evidence previously discussed in the
`papers. Accordingly, demonstratives shall include “DEMONSTRATIVE
`EXHIBIT – NOT EVIDENCE” in the footer.
`Because of the strict prohibition against the presentation of new
`evidence or arguments at a hearing, it is strongly recommended that each
`demonstrative include a citation to a paper in the record, which allows the
`Board to easily ascertain whether a given demonstrative contains “new”
`argument or evidence or, instead, contains only that which is developed in
`the existing record. See Dell Inc. v. Acceleron, LLC, 884 F.3d 1364, 1369
`(Fed. Cir. 2018) (holding that the Board is obligated under its own
`regulations to dismiss untimely argument “raised for the first time during
`oral argument”); see also St. Jude Med., Cardiology Div., Inc. v. The Bd. of
`Regents of the Univ. of Mich., IPR2013-00041, Paper 65, 2–3 (PTAB Jan.
`27, 2014) (explaining that “new” evidence includes evidence already of
`record but not previously discussed in any paper of record).
`
`
`6 Demonstratives should be filed as an Exhibit in the USPTO’s electric filing
`system.
`7 The parties may stipulate to an alternative schedule for serving
`demonstratives at least 7 business days before the hearing.
`3
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`
`Due to the nature of the Board’s consideration of demonstratives and
`the opportunity afforded for the parties to reach an agreement without
`involving the Board, the Board does not anticipate that objections to
`demonstratives are likely to be sustained. Nevertheless, if a party objects to
`the propriety of any demonstrative, the parties shall meet and confer in good
`faith to resolve any objections to demonstratives prior to filing the objections
`with the Board. If such objections cannot be resolved, the parties may file
`any objections to demonstratives with the Board no later than the time of the
`hearing. The objections shall identify with particularity which portions of the
`demonstratives are subject to objection (and should include a copy of the
`objected-to portions) and include a one sentence statement of the reason for
`each objection. No argument or further explanation is permitted. The Board
`will consider any objections, and may reserve ruling on the objections. 8 Any
`objection to demonstratives that is not timely presented will be considered
`waived.
`
`C. Presenting Counsel
`The Board generally expects lead counsel for each party to be present
`at the hearing. See CTPG 11. Any counsel of record may present the party’s
`argument as long as that counsel is present.
`
`a. Legal Experience and Advancement Program
`The Board has established the “Legal Experience and Advancement
`Program,” or “LEAP,” to encourage advocates with less legal experience to
`
`
`8 If time permits, the Board may schedule a conference call with the parties
`to discuss any filed objections.
`
`4
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`argue before the Board to develop their skills. 9 The Board defines a LEAP
`practitioner as a patent agent or attorney having 3 or fewer substantive oral
`arguments in any federal tribunal, including PTAB.10
`Parties are encouraged to participate in the Board’s LEAP program.
`Either party may request that a qualifying LEAP practitioner participate in
`the program and conduct at least a portion of the party’s oral argument. The
`Board will grant up to 15 minutes of additional argument time to that party.
`A party should submit the LEAP Practitioner Request for Oral Hearing
`Participation and Verification Form, 11 at least 5 business days before the oral
`hearing, by email to the Board at PTABHearings@uspto.gov.
`Even where an advocate does not meet the LEAP eligibility
`requirements, but nonetheless considers themselves to be in the category of
`advocates that this program is intended to assist, the Board encourages
`argument by such advocates during oral hearings. Though additional
`argument time will not be provided, a party may share argument time among
`counsel and the Board will permit the more experienced counsel to provide
`some assistance, if necessary, during oral argument, and to clarify any
`statements on the record before the conclusion of the oral argument.
`
`
`9 Information about the LEAP program and the combined LEAP Practitioner
`Request for Oral Hearing Participation and Verification Form can be found
`at www.uspto.gov/leap.
`10 Whether an argument is “substantive” will be made on a case-by-case
`basis, considering 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.
`11 Available at www.uspto.gov/leap.
`5
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`
`All practitioners appearing before the Board shall demonstrate the
`highest professional standards. All practitioners are expected to have a
`command of the factual record, the applicable law, and Board procedures, as
`well as the authority to commit the party they represent.
`
`D. Video Hearing Details
`To facilitate planning, each party must contact the Board at
`PTABHearings@uspto.gov at least 5 business days prior to the hearing 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 hearing will be conducted
`telephonically.
`If one or both parties would prefer to participate in the hearing
`telephonically, they must contact the Board at PTABHearings@uspto.gov at
`least 5 business days prior to the hearing to receive dial-in information.
`Counsel should unmute only when speaking. The panel will have
`access to all papers filed with the Board, including demonstratives. During
`the hearing, the parties are reminded to identify clearly and specifically each
`paper referenced (e.g., by slide or screen number for a demonstrative) to
`ensure the clarity and accuracy of the court reporter’s transcript and for the
`benefit of all participants appearing electronically. In addition, the parties
`are advised to identify themselves each time they speak. Furthermore, the
`remote nature of the hearing may also result in an audio lag, and thus the
`parties are advised to observe a pause prior to speaking, so as to avoid
`speaking over others.
`
`6
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`
`If at any time during the hearing, 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. 12
`
`E. Remote Attendance Requests
`Members of the public may request to listen to and/or view this
`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 at PTABHearings@uspto.gov at least 10 business days
`prior to the hearing.
`
`F. Audio/Visual Equipment Requests
`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 hearing, such as a request to accommodate
`deaf or hard-of-hearing individuals and blind or low vision individuals, and
`indicate how the PTAB may accommodate the special request. Any special
`requests must be presented in a separate communication at least 5 business
`days before the hearing.
`
`
`12 For example, if a party is experiencing poor video quality, the Board may
`provide alternate dial-in information.
`
`7
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`
`II. ORDER
`
`Accordingly, it is
`ORDERED that oral argument will commence at 11 AM Mountain
`Time on September 14, 2022, by Video, and proceed in the manner set
`forth herein.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`
`
`IPR2021-00921 (Patent 8,878,949 B2)
`IPR2021-00923 (Patent 8,194,924 B2)
`
`FOR PETITIONER:
`Adam Seitz
`Paul Hart
`Erise IP, P.A
`adam.seitz@eriseip.com
`paul.hart@eriseip.com
`
`Matthew D. Satchwell
`Gianni Minutoli
`Paul R. Steadman
`DLA PIPER LLP
`matthew.satchwell@dlapiper.com
`gianni.minutoli@us.dlapiper.com
`paul.steadman@dlapiper.com
`
`Erika Arner
`Daniel Cooley
`Mingji Jin
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER LLP
`erika.arner@finnegan.com
`daniel.cooley@finnegan.com
`mingji.jin@finnegan.com
`
`
`FOR PATENT OWNER:
`Todd Landis
`John Wittenzellner
`WILLIAMS SIMONS & LANDIS PLLC
`tlandis@wsltrial.com
`johnw@wsltrial.com
`
`9
`
`
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