Paper 22
`Date Entered: May 23, 2013
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KYOCERA CORPORATION
`Petitioner
`
`v.
`
`ADC TECHNOLOGY INC.
`Patent Owner
`____________
`
`Case IPR2013-00107 (TLG)
`Patent 8,103,313 B2
`____________
`
`
`
`Before ANTON W. FETTING, THOMAS L. GIANNETTI, and
`SCOTT E. KAMHOLZ, Administrative Patent Judges.
`.
`
`GIANNETTI, Administrative Patent Judge.
`
`
`
`ORDER
` Scheduling Order
`37 C.F.R. § 42.5
`
`
`Date Entered: May 23, 2013
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KYOCERA CORPORATION
`Petitioner
`
`v.
`
`ADC TECHNOLOGY INC.
`Patent Owner
`____________
`
`Case IPR2013-00107 (TLG)
`Patent 8,103,313 B2
`____________
`
`
`
`Before ANTON W. FETTING, THOMAS L. GIANNETTI, and
`SCOTT E. KAMHOLZ, Administrative Patent Judges.
`.
`
`GIANNETTI, Administrative Patent Judge.
`
`
`
`ORDER
` Scheduling Order
`37 C.F.R. § 42.5
`
`
`
`IPR2013-00107
`Patent 8,103,313 B2
`
`
`
`
`
`
`
`
`
`
`
`Initial Conference Call
`
`An initial conference call with the Board is scheduled for 2 PM Eastern
`Time on June 21, 2013. The parties are directed to the Office Trial Practice Guide,
`77 Fed. Reg. 48756, 48765-66 (Aug. 14, 2012) for guidance in preparing for the
`initial conference call, and should come prepared to discuss any proposed changes
`to the Scheduling Order entered herewith and any motions the parties anticipate
`filing during the trial.
`
`Schedule
`A. DUE DATES
`
`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, below).
`
`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 proceeding. The Board may impose an appropriate sanction for
`failure to adhere to the Testimony Guidelines. 37 C.F.R. § 42.12. For example,
`
`2
`
`
`
`
`
`
`
`IPR2013-00107
`
`Patent 8,103,313 B2
`
`
`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. 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.
`
`
`3
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`IPR2013-00107
`Patent 8,103,313 B2
`
`4. DUE DATE 4
`
`a. The petitioner must file any motion for observations 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.
`
`
`5. DUE DATE 5
`
`a. The patent owner must file any reply to petitioner observations 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.
`
`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—
`
`4
`
`
`
`
`IPR2013-00107
`
`Patent 8,103,313 B2
`
`
`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 OBSERVATIONS ON CROSS-EXAMINATION
`
`
`
`
` A
`
` motion for observations 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 Trial Practice Guide, 77 Fed.Reg. 48756, 48768 (Aug. 14, 2012). The
`observations must be concise statements 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 observations. Any response must be equally concise and specific.
`
`
`
`DUE DATE APPENDIX
`
`
`DUE DATE 1……………………………………………………August 23, 2013
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2…………………………………………………November 25, 2013
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`
`5
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`IPR2013-00107
`Patent 8,103,313 B2
`
`
`DUE DATE 3…………………………………………………..December 23, 2013
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4……………………………………………………..January 13, 2014
`
`Petitioner’s motion for observations regarding
`
`cross-examination of reply witness
`
`
`
`
`
`
`Motion to exclude evidence
`Request for oral argument
`
`
`
`DUE DATE 5……………………………………………………..January 27, 2014
`
`Patent owner’s response to observations
`
`Opposition to motion to exclude
`
`
`DUE DATE 6……………………………………………………...February 3, 2014
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`Reply to opposition to motion to exclude
`
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`DUE DATE 7…………………………………………………….February 18, 2014
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`Oral argument (if requested)
`
`
`
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`6
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`7
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`IPR2013-00107
`Patent 8,103,313 B2
`
`For Patent Owner:
`Michael J. Bujold
`Davis & Bujold, PLLC
`mbujold@davisandbujold.com
`
`David Potashnik
`Eschweiler & Associates LLC
`dpotashnik@eschweilerlaw.com
`
`For Petitioner:
`
`Richard P. Bauer
`Michael S. Tomsa
`Katten Munchin Rosenman LLP
`Richard.Bauer@Kattenlaw.com
`Michael.Tomsa@Kattenlaw.com
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