Trial@uspto.gov
`571-272-7822
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` Paper 17
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` Entered: May 17, 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EMC CORPORATION AND VMWARE, INC.
`Petitioner
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`Case IPR2013-00087 (JYC)
`U.S. Patent No. 8,001,096 B2
`____________
`
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and
`MICHAEL R. ZECHER, Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge
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`
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`A. DUE DATES
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`SCHEDULING ORDER
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`This order sets due dates for the parties to take action in this trial.
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`The parties may stipulate to different dates for DUE DATES 1 through 3 (earlier or
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`later, but no later than DUE DATE 4). A notice of the stipulation, specifically
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`571-272-7822
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` Paper 17
`
`
`
`
` Entered: May 17, 2013
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EMC CORPORATION AND VMWARE, INC.
`Petitioner
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC
`Patent Owner
`____________
`
`Case IPR2013-00087 (JYC)
`U.S. Patent No. 8,001,096 B2
`____________
`
`
`
`Before KEVIN F. TURNER, JONI Y. CHANG, and
`MICHAEL R. ZECHER, Administrative Patent Judges.
`
`
`CHANG, Administrative Patent Judge
`
`
`
`A. DUE DATES
`
`SCHEDULING ORDER
`
`
`
`
`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
`
`
`
`Case IPR2013-00087
`U.S. Patent No. 8,001,096 B2
`
`identifying the changed due dates, must be promptly filed. The parties may not
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`stipulate to an extension of DUE DATES 4-7.
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`
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`In stipulating to different times, the parties should consider the effect of the
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`stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to supplement
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`evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-examination (37 C.F.R.
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`§ 42.53(d)(2)), and to draft papers depending on the evidence and cross-
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`examination testimony (see Section B).
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`
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`The parties are reminded that the Testimony Guidelines appended to the
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48772 (Aug. 14, 2012)
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`(Appendix D), apply to this trial. The Board may impose an appropriate sanction
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`for failure to adhere to the Testimony Guidelines. 37 C.F.R. § 42.12. For
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`example, reasonable expenses and attorneys’ fees incurred by any party may be
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`levied on a person who impedes, delays, or frustrates the fair examination of a
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`witness.
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`
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`1. DUE DATE 1
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`The patent owner may file—
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`
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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 DUE
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`DATE 1. If the patent owner elects not to file anything, the patent owner must
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`arrange a conference call with the parties and the Board. The patent owner is
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`cautioned that any arguments for patentability not raised and fully briefed in the
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`response will be deemed waived.
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`2
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`Case IPR2013-00087
`U.S. Patent No. 8,001,096 B2
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`2. DUE DATE 2
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`The petitioner 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 petitioner’s opposition to the
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`patent owner’s motion to amend by DUE DATE 3.
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`
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`4. DUE DATE 4
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`a. The petitioner must file any motion for an observation on the cross-
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`examination testimony of a reply witness (see Section C) by 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 DUE
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`DATE 4.
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` 5. DUE DATE 5
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`a. The patent owner must file any reply to a petitioner observation on cross-
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`examination testimony by DUE DATE 5.
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`b. Each party must file any opposition to a motion to exclude evidence by
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`DUE DATE 5.
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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 DUE
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`DATE 6.
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`3
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`Case IPR2013-00087
`U.S. Patent No. 8,001,096 B2
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`7. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE 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 for
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`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
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`A motion for observation on cross-examination provides the petitioner with
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`a mechanism to draw the Board’s attention to relevant cross-examination
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`testimony of a reply witness, since no further substantive paper is permitted after
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`the reply. See Office Patent Trial Practice Guide, 77 Fed. Reg. at 48768. The
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`observation must be a concise statement of the relevance of precisely identified
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`testimony to a precisely identified argument or portion of an exhibit. Each
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`observation should not exceed a single, short paragraph. The patent owner may
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`respond to the observation. Any response must be equally concise and specific.
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`4
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`
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`Case IPR2013-00087
`U.S. Patent No. 8,001,096 B2
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`DUE DATE APPENDIX
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`DUE DATE 1…………….………………………………….……... July 17, 2013
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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……………………………………….…….…. September 17, 2013
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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………………………………..……….................. October 17, 2013
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4………………………..………………….…..... November 7, 2013
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`Petitioner’s 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………………...…………………………….… November 21, 2013
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`Patent owner’s response to observation
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`Opposition to motion to exclude
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`DUE DATE 6………………………………….....…..….…… November 27, 2013
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`Reply to opposition to motion to exclude
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`DUE DATE 7………………………………………………… December 16, 2013
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`Oral argument (if requested)
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`5
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`Case IPR2013-00087
`U.S. Patent No. 8,001,096 B2
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`For PETITIONER:
`Peter Dichiara
`David L. Cavanaugh
`WILMER CUTLER PICKERING HALE AND DORR LLP
`Peter.Dichiara@wilmerhale.com
`David.Cavanaugh@wilmerhale.com
`
`
`For PATENT OWNER:
`
`Joseph A. Rhoa
`Updeep S. Gill
`NIXON & VANDERHYE P.C.
`jar@nixonvan.com
`usg@nixonvan.com
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`
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`6
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