`Tel: 571-272-7822
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`Paper 26
`Entered: May 15, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EBAY ENTERPRISE, INC. and EBAY, INC.
`Petitioner
`
`v.
`
`LAWRENCE B. LOCKWOOD
`Patent Owner
`_______________
`
`Case CBM2014-00026
`Patent 5,576,951
`_______________
`
`
`Before SALLY C. MEDLEY, MICHAEL W. KIM, and
`BENJAMIN D. M. WOOD, Administrative Patent Judges.
`
`WOOD, Administrative Patent Judge.
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`SCHEDULING ORDER
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`Case CBM2014-00026
`Patent 5,576,951
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`A. DUE DATES
`This order sets due dates for the parties to take action after institution of the
`proceeding. The parties may stipulate to different dates for DUE DATES 1 through
`5 (earlier or later, but no later than DUE DATE 6). 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 6 and 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, below).
`The parties are reminded that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772 (Aug. 14, 2012)
`(Appendix D), apply to this proceeding. 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.
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`INITIAL CONFERENCE CALL
`1.
`An initial conference call with the Board is scheduled for 2 PM Eastern
`Time on June 12, 2014. The parties are directed to the Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) for guidance in preparing
`for the initial conference call, and should be prepared to discuss any proposed
`changes to this Scheduling Order and any motions the parties anticipate filing
`during the trial.
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`2
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`Case CBM2014-00026
`Patent 5,576,951
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`DUE DATE 1
`2.
`The patent owner may file—
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`a. A response to the petition (37 C.F.R. § 42.120), and
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`b. A motion to amend the patent (37 C.F.R. § 42.121).
`The patent owner must file any such response or motion to amend 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 in the response will be
`deemed waived.
`DUE DATE 2
`3.
`The petitioner must file any reply to the patent owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`4.
`DUE DATE 3
`The patent owner must file any reply to the petitioner’s opposition to patent
`owner’s motion to amend by DUE DATE 3.
`5.
`DUE DATE 4
`a. Each party must file any motion for an observation on the cross-
`examination testimony of a reply witness (see section C, below) 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.
`DUE DATE 5
`6.
`a. Each party must file any response to an observation on cross-examination
`testimony by DUE DATE 5.
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`Case CBM2014-00026
`Patent 5,576,951
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`b. Each party must file any opposition to a motion to exclude evidence by
`DUE DATE 5.
`DUE DATE 6
`7.
`Each party must file any reply for a motion to exclude evidence by DUE
`DATE 6.
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`DUE DATE 7
`8.
`The oral argument (if requested by either party) is set for DUE DATE 7.
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`CROSS-EXAMINATION
`B.
`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.
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`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 because no further substantive paper is permitted after the reply.
`See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (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 patent owner
`may respond to the observation. Any response must be equally concise and
`specific.
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`Patent 5,576,951
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`DUE DATE APPENDIX
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`DUE DATE 1…………………………………………………Aug. 5, 2014
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`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`DUE DATE 2…………………………………………………. Oct. 28, 2014
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`Petitioner’s reply to patent owner response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3………………………………………………… Nov. 18, 2014
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4………………………………………………… Dec. 9, 2014
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`Motion for observation regarding Cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5………………………………………………… Dec. 23, 2014
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6………………………………………………… Dec. 30, 2014
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`Reply to opposition to motion to exclude
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`DUE DATE 7………………………………………………… Jan. 20, 2015
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`Oral argument (if requested)
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`5
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`Case CBM2014-00026
`Patent 5,576,951
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`PETITIONER:
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`Don Daybell
`James Maune
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`ddaybell@orrick.com
`jmaune@orrick.com
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`PATENT OWNER:
`
`Robert Greene Sterne
`Donald J. Featherstone
`Jason D. Eisenberg
`Byron L. Pickard
`Richard M. Bemben
`STERNE KESSLER GOLDSTEIN & FOX PLLC
`rsterne@skgf.com
`donf-PTAB@skgf.com
`jasone-PTAB@skgf.com
`bpickard-PTAB@skgf.com
`rbemben-PTAB@skgf.com
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`6
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