Case 1:14-cv-01498-JBS-KMW Document 28-10 Filed 07/11/14 Page 1 of 5 PageID: 281
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`Exhibit 6
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`Exhibit 6
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`Case 1:14-cv-01498-JBS-KMW Document 28-10 Filed 07/11/14 Page 2 of 5 PageID: 282
`Trials@uspto.gov
`
`Paper 16
`571-272-7822
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`Date: December 23, 2013
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CORNING GILBERT INC.
`Petitioner,
`
`v.
`
`PPC BROADBAND, INC.
`Patent Owner.
`____________
`
`Case IPR2013-00343
`Patent 8,313,353
`____________
`
`Before JAMESON LEE, MICHAEL R. ZECHER, and
`JACQUELINE WRIGHT BONILLA, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`ORDER
`Conduct of Proceeding
`37 C.F.R. § 42.5
`
`
`
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`Case 1:14-cv-01498-JBS-KMW Document 28-10 Filed 07/11/14 Page 3 of 5 PageID: 283
`IPR2013-00343
`Patent 8,313,353
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`Introduction
`This inter partes review was instituted on December 5, 2013 (Paper 14), and
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`final hearing was scheduled for June 23, 2014 (Paper 15). A joint telephone
`conference call was held on December 18, 2013. The participants of the call were
`Judges Lee, Zecher, and Bonilla, and respective counsel for the parties.
`
`Counsel for Petitioner initiated the conference call to request a change of
`each of Due Dates 1-7, which were set in the Scheduling Order dated December 5,
`2013 (Paper 15). Petitioner requested an extension of approximately twelve (12)
`weeks for each of Due Dates 1-7. Patent Owner does not oppose the request.
`Discussion
`Counsel for the Petitioner explained that Petitioner’s expert witness,
`
`Dr. Mroczkowski, has been diagnosed with cancer, and recently has undergone
`surgery. Counsel for the petitioner also explained that Dr. Mroczkowski will be
`receiving weekly chemotherapy and daily radiation treatment between now and the
`beginning of February. Counsel for Petitioner noted that if the twelve week
`extension requested by Petitioner does not leave enough time for the Board to write
`the final written decision within the 1-year time period specified in 35 U.S.C.
`§ 316(a)(11), commencing from the date of the notice of institution of review,
`35 U.S.C. § 316(a)(11) provides that the Director may, for good cause shown,
`extend the 1-year time period by not more than six months.
`
`The Board explained that the “up to six months” extension potentially
`available under 35 U.S.C. § 316(a)(11), for good cause, has a high bar, and likely
`would not apply if the situation can be resolved reasonably in another way. It is
`premature to be contemplating an extension under 35 U.S.C. § 316(a)(11), before
`Petitioner has attempted other ways to respond to the circumstance. The Board
`noted, for instance, that Petitioner may, with a much shorter extension, attempt to
`
`2
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`Case 1:14-cv-01498-JBS-KMW Document 28-10 Filed 07/11/14 Page 4 of 5 PageID: 284
`IPR2013-00343
`Patent 8,313,353
`
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`locate another expert who would be willing to present the same testimony as
`Dr. Mroczkowski. The Board further noted that Petitioner should be proceeding in
`that direction, in any event, to provide an option that is different from assuming the
`availability of Dr. Mroczkowski in a particular time period for cross-examination,
`because there is no certainty on what additional therapy Dr. Mroczkowski may
`need beyond that already noted by counsel for Petitioner.
`
`The Board considers reasonable an extension of approximately five weeks
`for Petitioner to locate and substitute, for Dr. Mroczkowski, another expert witness
`who would be willing to execute the same declaration executed by
`Dr. Mroczkowski, excluding the credentials and qualifications of
`Dr. Mroczkowski. Counsel for Petitioner expressed that obtaining another expert
`at this time would add to Petitioner’s cost, perhaps unnecessarily, because
`Dr. Mroczkowski may recover in time to be cross-examined.
`
`The Board explained that approximately five weeks will be provided to
`Petitioner to make an effort to resolve the difficulty presented by the illness of
`Petitioner’s original expert witness. Petitioner is free to forego that opportunity,
`and to depend on Dr. Mroczkowski’s getting well enough to be cross-examined at
`an appropriate time according to a revised schedule including the five-week
`extension. In that case, however, Petitioner will have made a litigation choice, and
`assumed the risk of events not proceeding according to plan.
`Order
`
`It is
`
`ORDERED that Petitioner’s request for a time extension of approximately
`
`twelve weeks is denied;
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`3
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`Case 1:14-cv-01498-JBS-KMW Document 28-10 Filed 07/11/14 Page 5 of 5 PageID: 285
`IPR2013-00343
`Patent 8,313,353
`
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`FURTHER ORDERED that Due Dates 4 through 7 in the Scheduling Order
`
`dated December 5, 2013 (Paper 15) are reset as follows, to reflect an extension of
`approximately five weeks for each due date:
`
`Due Date 4: June 25, 2013;
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`Due Date 5: July 9, 2013;
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`Due Date 6: July 16, 2013;
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`Due Date 7: July 25, 2013;
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`FURTHER ORDERED that the parties may stipulate to different dates for
`Due Dates 1-3 set in the Scheduling Order dated December 5, 2013 (Paper 15), so
`long as Due Dates 1-3 are no later than June 25, 2013; and
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`FURTHER ORDERED that if Petitioner is unable, after making diligent
`efforts within the next five weeks, to obtain another expert witness who is willing
`to execute the same declaration executed by Dr. Mroczkowski, except for the
`portions concerning the credentials and qualifications of Dr. Mroczkowski,
`Petitioner should initiate another telephone conference call with the Board.
`
`
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`
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`For Petitioner:
`Todd R. Walters, Esq.
`Roger H. Lee, Esq.
`todd.walters@bipc.com
`roger.lee@bipc.com
`
`For Patent Owner:
`Denis J. Sullivan, Esq.
`dsullivan@hblaw.com
`
`
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`4
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