`571-272-7822
`
` Paper 42
`Entered: March 22, 2019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ZTE (USA) INC.,
`Petitioner,
`
`v.
`
`FUNDAMENTAL INNOVATION SYSTEMS INTERNATIONAL LLC,
`Patent Owner.
`____________
`
`Case IPR2018-00425
`Patent 7,893,655 B2
`____________
`
`
`Before LYNNE E. PETTIGREW and PAUL J. KORNICZKY, Administrative
`Patent Judges.
`
`KORNICZKY, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2018-00425
`Patent 7,893,655 B2
`
`In an email dated March 20, 2019, Petitioner requested permission to file
`(1) a motion to exclude evidence, and (2) a motion to strike portions of Patent
`Owner’s sur-reply that rely on the disputed evidence.
`According to the email, Petitioner seeks to exclude certain cross-
`examination testimony of Mr. Geier (Exhibit 2030) that Petitioner contends
`exceeded the scope of the direct testimony and a related exhibit (Exhibit 2031) that
`was generated during this cross-examination. We understand that Petitioner does
`not object to the admissibility of the evidence on evidentiary grounds. Patent
`Owner opposes the motion to exclude but does not oppose Petitioner’s request to
`file the motion out of time.
`Petitioner also seeks to strike portions of Patent Owner’s sur-reply that rely
`on the disputed evidence. Patent Owner opposes Petitioner’s request to file the
`motion to strike and the motion to strike itself.
`A motion to exclude challenges the admissibility of evidence on evidentiary
`grounds. See Office Trial Practice Guide Update referenced at 83 Fed. Reg.
`39,989 (“Trial Practice Guide Update”) (Aug. 13, 2018), at 16-18 (available at
`https://go.usa.gov/xU7GP). A motion to strike challenges allegedly new or late-
`filed issues, evidence, and arguments. Id. In most cases, the Board is capable of
`identifying new issues or belatedly presented evidence when weighing the
`evidence at the close of trial, and disregarding any new issues or belatedly
`presented evidence that exceeds the proper scope of reply or sur-reply. Id. As
`such, striking the entirety or a portion of a party’s brief is an exceptional remedy
`that the Board expects will be granted rarely. Id.
`Based on Petitioner’s explanation, it appears that a motion to strike is the
`proper vehicle for Petitioner to challenge the allegedly new/untimely evidence and
`arguments. Accordingly, Petitioner is authorized to file a motion to strike portions
`
`
`
`2
`
`
`
`IPR2018-00425
`Patent 7,893,655 B2
`
`of Mr. Geier’s cross-examination testimony (Exhibit 2030), Exhibit 2031, and
`portions of Patent Owner’s sur-reply. Petitioner shall file its motion on or before
`March 27, 2019; Patent Owner shall file its opposition to the motion, if any, on or
`before April 3, 2019; and Petitioner shall file its reply, if any, on or before April 8,
`2019. The parties’ briefs are limited to five pages.
`In view of the foregoing, it is
`ORDERED that Petitioner may file a motion to strike certain
`evidence/arguments, limited to five pages, on or before March 27, 2019;
`FURTHER ORDERED that Patent Owner may file an opposition to
`Petitioner’s motion, limited to five pages, on or before April 3, 2019; and
`FURTHER ORDERED that Petitioner may file a reply, limited to five
`pages, on or before April 8, 2019.
`
`
`
`
`
`3
`
`
`
`IPR2018-00425
`Patent 7,893,655 B2
`
`PETITIONER:
`
`Charles McMahon
`Brian A. Jones
`Thomas M. DaMario
`Jiaxiao Zhang
`Hersh Mehta
`MCDERMOTT WILL & EMERY LLP
`cmcmahon@mwe.com
`bajones@mwe.com
`tdamario@mwe.com
`jiazhang@mwe.com
`hmehta@mwe.com
`
`
`PATENT OWNER:
`
`Hong Zhong
`Michael Fleming
`IRELL & MANELLA LLP
`hzhong@irell.com
`mfleming@irell.com
`
`
`
`
`4
`
`
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