Trials@uspto.gov
`571-272-7822
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` Paper 10
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` Entered: July 9, 2013
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORACLE CORPORATION
`Petitioner
`
`v.
`
`CLOUDING IP, LLC
`Patent Owner
`____________
`
`Case IPR2013-00091
`Patent 5,678,042
`____________
`
`
`Before JAMESON LEE and RAMA G. ELLURU, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`
`REVISED SCHEDULING ORDER
`
`
`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
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Paper 10
`
`
` Entered: July 9, 2013
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORACLE CORPORATION
`Petitioner
`
`v.
`
`CLOUDING IP, LLC
`Patent Owner
`____________
`
`Case IPR2013-00091
`Patent 5,678,042
`____________
`
`
`Before JAMESON LEE and RAMA G. ELLURU, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`
`REVISED SCHEDULING ORDER
`
`
`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
`
`
`
`Case IPR2013-00091
`Patent 5,678,042
`
`
`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
`Office Patent 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. A response to the petition (37 C.F.R. § 42.120), and
`
`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 and fully briefed in the
`response will be deemed waived.
`
`
`2
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`Case IPR2013-00091
`Patent 5,678,042
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`2. DUE DATE 2
`The petitioner must file any reply to the patent owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`
`3. 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.
`
`4. DUE DATE 4
`a. The petitioner 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 patent owner must file any reply to a petitioner 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
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`Case IPR2013-00091
`Patent 5,678,042
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`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 petitioner 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 Patent Trial Practice Guide, 77 Fed. Reg. at 48768. 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.
`
`4
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`Case IPR2013-00091
`Patent 5,678,042
`
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`DUE DATE APPENDIX
`
`DUE DATE 1…………….……...……………………………..…August 12, 2013
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2……………………………………………..…. ….October 15, 2013
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3…………………………...………..……….…...November 14, 2013
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4………………………....…………….….….........December 5, 2013
`Petitioner’s motion for observation regarding cross-examination of reply
`witness
`
`
`
`
`Motion to exclude evidence
`Request for oral argument
`
`
`
`DUE DATE 5…………………...…………………………..…December 19, 2013
`
`Patent owner’s response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6………………………………....……….…........December 26, 2013
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7……………………..……………………….……January 13, 2014
`
`Oral argument (if requested)
`
`
`5
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`
`
`Case IPR2013-00091
`Patent 5,678,042
`
`
`For PETITIONER:
`
`Greg Gardella
`Scott A. McKeown
`OBLON SPIVAK
`cpdocketgardella@oblon.com
`cpdocketmckeown@oblon.com
`
`
`For PATENT OWNER
`
`Tarek N. Fahmi
`Amy J. Embert
`FAHMI, SELLERS & EMBERT
`tarek.fahmi@fseip.com
`amy.embert@fseip.com
`
`6
`
`
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