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` Paper 9
`Entered: April 25, 2013
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`MUNCHKIN, INC. AND TOYS “R” US, INC.
`Petitioners
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`v.
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` LUV N’ CARE, LTD.
`Patent Owner
`____________
`
`Case IPR2013-00072
`Patent D617,465
`____________
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`
`
`
`
`Before SALLY C. MEDLEY, JENNIFER S. BISK, and
`MICHAEL J. FITZPATRICK, Administrative Patent Judges.
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`FITZPATRICK, Administrative Patent Judge.
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`SCHEDULING ORDER
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`Case IPR2013-00072
`Patent D617,465
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`A. DUE DATES
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`This order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 3 (earlier or later, but no later than DUE DATE 4). A
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`notice of the stipulation, specifically identifying the changed due dates, must
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`be promptly filed. The parties may not stipulate to an extension of DUE
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`DATES 4-7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony (see section B, below).
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`The parties are reminded that the Testimony Guidelines appended to
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`the Trial Practice Guide, 77 Fed. Reg. 48756, 48772 (Aug. 14, 2012)
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`(Appendix D), apply to this proceeding. The Board may impose an
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`appropriate sanction for failure to adhere to the Testimony Guidelines. 37
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`C.F.R. § 42.12. For example, reasonable expenses and attorneys’ fees
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`incurred by any party may be levied on a person who impedes, delays, or
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`frustrates the fair examination of a witness.
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`1. DUE DATE 1
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`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).
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`The patent owner must file any such response or motion to amend by
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`DUE DATE 1. If the patent owner elects not to file anything, the patent
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`2
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`Case IPR2013-00072
`Patent D617,465
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`owner must arrange a conference call with the parties and the Board. The
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`patent owner is cautioned that any arguments for patentability not raised and
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`fully briefed in the response will be deemed waived.
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`2. DUE DATE 2
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`The petitioners must file any reply to the patent owner’s response and
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`opposition to the motion to amend by DUE DATE 2.
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`3. DUE DATE 3
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`The patent owner must file any reply to the petitioners’ opposition to
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`patent owner’s motion to amend by DUE DATE 3.
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`4. DUE DATE 4
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`a. The petitioners must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see section C, below) by
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`DUE DATE 4.
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`b. Each party must file any motion to exclude evidence (37 C.F.R
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`5. DUE DATE 5
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`a. The patent owner must file any reply to a petitioners’ observation
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`on cross-examination testimony by DUE DATE 5.
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`b. Each party must file any opposition to a motion to exclude evidence
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`by DUE DATE 5.
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`3
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`Case IPR2013-00072
`Patent D617,465
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`6. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`7. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`B. CROSS-EXAMINATION
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`Except as the parties might otherwise agree, for each due date—
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`1. Cross-examination begins after any supplemental evidence is due.
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`37 C.F.R. §§ 42.53(d)(2).
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`2. Cross-examination ends no later than a week before the filing date
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`for any paper in which the cross-examination testimony is expected to be
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`used. Id.
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`C. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
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`A motion for observation on cross-examination provides the
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`petitioners with a mechanism to draw the Board’s attention to relevant cross-
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`examination testimony of a reply witness, since no further substantive paper
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`is permitted after the reply. See Office Trial Practice Guide, 77 Fed. Reg.
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`48756, 48768 (Aug. 14, 2012). The observation must be a concise statement
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`of the relevance of precisely identified testimony to a precisely identified
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`argument or portion of an exhibit. Each observation should not exceed a
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`single, short paragraph. The patent owner may respond to the observation.
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`Any response must be equally concise and specific.
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`4
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`Case IPR2013-00072
`Patent D617,465
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`DUE DATE APPENDIX
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`DUE DATE 1 ......................................................................................... July 25, 2013
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`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
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`DUE DATE 2 ................................................................................... October 25, 2013
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`Petitioners’ reply to patent owner response to petition
`Petitioners’ opposition to motion to amend
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`DUE DATE 3 ............................................................................... November 25, 2013
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`Patent owner’s reply to petitioners’ opposition to motion to amend
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`DUE DATE 4 ............................................................................... December 16, 2013
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`Petitioners’ motion for observation regarding
`cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
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`DUE DATE 5 ............................................................................... December 30, 2013
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`Patent owner’s response to observation
`Opposition to motion to exclude
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`DUE DATE 6 ..................................................................................... January 6, 2014
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ................................................................................... January 22, 2014
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`Oral argument (if requested)
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`5
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`Case IPR2013-00072
`Patent D617,465
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`PETITIONERS:
`Dane Baltich
`Alston & Bird LLP
`dane.baltich@alston.com
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`PATENT OWNER:
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`Morris Cohen
`Goldberg Cohen LLP
`mcohen@goldbergcohen.com
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`6
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