Trials@uspto.gov
`571-272-7822
`
`
`Paper 14
`Entered: November 29, 2013
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`OPENTV, INC.
`Petitioner
`
`v.
`
`CISCO TECHNOLOGY, INC.
`Patent Owner
`____________
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`
`
`Before KALYAN K. DESHPANDE, JUSTIN T. ARBES, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`571-272-7822
`
`
`Paper 14
`Entered: November 29, 2013
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`OPENTV, INC.
`Petitioner
`
`v.
`
`CISCO TECHNOLOGY, INC.
`Patent Owner
`____________
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`
`
`Before KALYAN K. DESHPANDE, JUSTIN T. ARBES, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`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 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 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
`
`
`
`2
`
`
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`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
`
`the patent owner’s motion to amend by DUE DATE 3.
`
`
`
`4. 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) 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. Each party must file any reply to an 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.
`
`
`
`
`
`3
`
`
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`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—
`
`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 parties
`
`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 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 opposing party may respond to the
`
`observation. Any response must be equally concise and specific.
`
`
`
`4
`
`
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1…………….…………………………………January 27, 2014
`
`
`
`
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2………………………………………………...March 27, 2014
`
`
`
`
`
`Petitioner’s reply to patent owner response to petition
`
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`DUE DATE 3………………………………………………….April 28, 2014
`
`
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4…………………………………………………..May 19, 2014
`
`Motion for observation regarding cross-examination of reply witness
`
`
`
`
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`DUE DATE 5……………………………………………………June 2, 2014
`
`
`
`
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6……………………………………………………June 9, 2014
`
`
`
`Reply to opposition to motion to exclude
`
`
`
`DUE DATE 7…………………………..………………………June 23, 2014
`
`Oral argument (if requested)
`
`
`
`
`
`5
`
`
`
`Case IPR2013-00328
`Patent 6,744,892 B2
`
`PETITIONER:
`
`Nicholas T. Bauz
`Bing Ai
`Amy E. Simpson
`PERKINS COIE LLP
`opentv-cisco-ipr@perkinscoie.com
`
`
`
`PATENT OWNER:
`
`David L. McCombs
`Theodore M. Foster
`Jamie McDole
`HAYNES AND BOONE, LLP
`David.mccombs.ipr@haynesboone.com
`theo.foster@haynesboone.com
`jamie.mcdole@haynesboone.com
`
`6
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