Paper 60
`Entered: April 2, 2014
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.
`Petitioner
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`Case CBM2013-00023
`Patent 5,966,440
`
`
`
`Before MICHAEL P. TIERNEY, JUSTIN T. ARBES, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`REVISED SCHEDULING ORDER
`
`
`
`Entered: April 2, 2014
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.
`Petitioner
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`Case CBM2013-00023
`Patent 5,966,440
`
`
`
`Before MICHAEL P. TIERNEY, JUSTIN T. ARBES, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`REVISED SCHEDULING ORDER
`
`
`
`
`Case CBM2013-00023
`Patent 5,966,440
`
`A. DUE DATES
`
`This order sets due dates for the parties to take action in this trial. The
`parties may stipulate to different dates for DUE DATES 1 through 3 (earlier
`or later, but no later than DUE DATE 4). A notice of the stipulation,
`specifically identifying the changed due dates, must be promptly filed. The
`parties may not stipulate to an extension of DUE DATES 4-7.
`
`In stipulating to different times, the parties should consider the effect
`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
`evidence and cross-examination testimony (see Section B).
`
`The parties are reminded that the Testimony Guidelines appended to
`the Trial Practice Guide, 77 Fed. Reg. 48756, 48772 (Aug. 14, 2012)
`(Appendix D), apply to this trial. The Board may impose an appropriate
`sanction for failure to adhere to the Testimony Guidelines. 37 C.F.R.
`§ 42.12. For example, reasonable expenses and attorneys’ fees incurred by
`any party may be levied on a person who impedes, delays, or frustrates the
`fair examination of a witness.
`
`1. DUE DATE 1
`The patent owner may file a response to the petition (37 C.F.R.
`§ 42.120). The patent owner must file any such response by DUE DATE 1.
`If the patent owner elects not to file anything, the patent owner must arrange
`a conference call with the parties and the Board. The patent owner is
`cautioned that any arguments for patentability not raised and fully briefed in
`the response will be deemed waived.
`
`
`
`2
`
`
`
`Case CBM2013-00023
`Patent 5,966,440
`
`2. DUE DATE 2
`The petitioner must file any reply to the patent owner’s response by
`DUE DATE 2.
`
`3. DUE DATE 3
`None.
`
`
`4. DUE DATE 4
`a. The patent owner must file any motion for an observation on the
`cross-examination testimony of a reply witness (see Section C) by DUE
`DATE 4.
`b. Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
` 5. DUE DATE 5
`a. The petitioner must file any reply to a patent owner observation on
`cross-examination testimony by DUE DATE 5.
`b. Each party must file any opposition to a motion to exclude evidence
`by DUE DATE 5.
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`
`
`
`3
`
`
`
`Case CBM2013-00023
`Patent 5,966,440
`
`7. DUE DATE 7
`
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`B. CROSS-EXAMINATION
`
`Except as the parties might otherwise agree, for each due date—
`1. Cross-examination begins after any supplemental evidence is due.
`37 C.F.R. § 42.53(d)(2).
`2. Cross-examination ends no later than a week before the filing date
`for any paper in which the cross-examination testimony is expected to be
`used. Id.
`
`C. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
`A motion for observation on cross-examination provides the parties
`with a mechanism to draw the Board’s attention to relevant
`cross-examination testimony of a reply witness, since no further substantive
`paper is permitted after the reply. See Office Trial Practice Guide, 77 Fed.
`Reg. 48756, 48768 (Aug. 14, 2012). The observation must be a concise
`statement of the relevance of precisely identified testimony to a precisely
`identified argument or portion of an exhibit. Each observation should not
`exceed a single, short paragraph. The opposing party may respond to the
`observation. Any response must be equally concise and specific.
`
`
`
`4
`
`
`
`Case CBM2013-00023
`Patent 5,966,440
`
`DUE DATE APPENDIX
`DUE DATE 1…………….…………………………………..January 3, 2014
`
`Patent owner’s response to the petition
`DUE DATE 2………………………………………………...March 21, 2014
`
`Petitioner’s reply to patent owner response to petition
`
`DUE DATE 3
`None1
`
`DUE DATE 4
`
`Motion to exclude evidence……………………………...April 4, 2014
`
`Request for oral argument……………………………….April 4, 2014
`Patent Owner’s motion for observation regarding
`cross-examination of reply witness…………………….April 11, 2014
`DUE DATE 5………………………………………………….April 18, 2014
`
`Petitioner’s response to observation
`
`Opposition to motion to exclude
`DUE DATE 6………………………………………………….April 25, 2014
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7……………………………………………………May 6, 2014
`Oral argument (if requested)
`
`
`
`1 The patent owner was permitted to file a motion to amend under 37 C.F.R.
`§ 42.121 by DUE DATE 1, but did not do so. See Paper 13. Accordingly,
`no deadlines are set for a corresponding opposition from the petitioner and
`reply from the patent owner. The numbering of due dates remains the same,
`however, to maintain consistency with the original trial schedule.
`
`
`
`5
`
`
`
`Case CBM2013-00023
`Patent 5,966,440
`
`PETITIONER:
`
`J. Steven Baughman
`Ching-Lee Fukuda
`ROPES & GRAY LLP
`steven.baughman@ropesgray.com
`ching-lee.fukuda@ropesgray.com
`
`PATENT OWNER:
`
`David R. Marsh
`Kristan L. Lansbery
`ARNOLD & PORTER LLP
`david.marsh@aporter.com
`kristan.lansbery@aporter.com
`
`
`
`
`
`
`
`6
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