PTAB Allows Patent Owner Sur-Reply

August 18, 2016 – In an IPR proceeding, the Patent Trial and Appeal Board (PTAB) granted the patent owner, Nobel Biocare Services, authorization to file a patent owner sur-reply to address alleged new evidence submitted by the petitioner, Instradent USA, in its reply.  The PTAB reasoned that “as recognized by the Federal Circuit in Belden Inc. v. Bek-Tek LLC, we have discretion to strike or, alternatively, consider Patent Owner’s positions regarding the alleged new arguments or evidence in a sur-reply, a motion for observations, or during the oral hearing.” The PTAB further found that “the introduction of new evidence in the course of the trial is to be expected in inter partes review trial proceedings and, as long as the opposing party is given notice of the evidence and an opportunity to respond to it, the introduction of such evidence is perfectly permissible under the APA.”

The patent-in-issue is U.S. Patent No. 8,714,977, titled “Condensing Skeletal Implant that Facilitate Insertions.”  The case is captioned Instradent USA, Inc. v. Nobel Biocare Services AG, IPR2015-01786.

By:  Christopher J. Stankus

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