`Tel: 571-272-7822
`
`
`
`
`Paper 23
`Entered: January 28, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`CARDIOCOM, LLC
`Petitioner
`
`v.
`
`ROBERT BOSCH HEALTHCARE SYSTEMS, INC.
`Patent Owner
`_______________
`
`Case IPR2013-00468
`Patent 7,516,192 B2
`_______________
`
`
`
`Before JUSTIN T. ARBES, BRYAN F. MOORE, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`IPR2013-00468
`Patent 7,516,192 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 patent owner is
`
` 2
`
`
`
`
`
`
`
`IPR2013-00468
`Patent 7,516,192 B2
`
`
`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
`
` 3
`
`
`
`DUE DATE 5.
`
`
`
`
`
`IPR2013-00468
`Patent 7,516,192 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
`
`
`
`
`
`
`
`IPR2013-00468
`Patent 7,516,192 B2
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1…………….……………………………………..April 1, 2014
`
`
`
`
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2…………………………………………………..June 10, 2014
`
`
`
`
`
`Petitioner’s reply to patent owner response to petition
`
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`DUE DATE 3…………………………………………………..July 10, 2014
`
`
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4…………………………………………………..July 31, 2014
`
`Motion for observation regarding cross-examination of reply witness
`
`
`
`
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`DUE DATE 5……………………………………………….August 14, 2014
`
`
`
`
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6……………………………………………….August 21, 2014
`
`
`
`Reply to opposition to motion to exclude
`
`
`
`DUE DATE 7……………………………………………..September 9, 2014
`
`Oral argument (if requested)
`
`
`
`
`
` 5
`
`
`
`
`
`
`
`IPR2013-00468
`Patent 7,516,192 B2
`
`
`
`PETITIONER:
`
`Daniel W. McDonald
`Andrew J. Lagatta
`MERCHANT & GOULD, P.C.
`dmcdonald@merchantgould.com
`alagatta@merchantgould.com
`
`
`
`PATENT OWNER:
`
`Don Daybell
`Davin M. Stockwell
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`ddaybell@orrick.com
`dstockwell@orrick.com
`ptabdocket@orrick.com
`
`
`
` 6
`
`
`
`
`
`