Trials@uspto.gov
`Tel.: 571-272-7822
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`
`
`
`
`
`
`Paper 9
`Entered: March 21, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`
`BAXTER HEALTHCARE CORP.,
`APATECH, INC., and APATECH LIMITED
`Petitioner
`
`v.
`
`MILLENIUM BIOLOGIX, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00582
`Patent RE41,251
`_______________
`
`
`Before SCOTT E. KAMHOLZ, MICHELLE R. OSINSKI, and BRIAN P.
`MURPHY, Administrative Patent Judges.
`
`MURPHY, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`Tel.: 571-272-7822
`
`
`
`
`
`
`
`Paper 9
`Entered: March 21, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`
`BAXTER HEALTHCARE CORP.,
`APATECH, INC., and APATECH LIMITED
`Petitioner
`
`v.
`
`MILLENIUM BIOLOGIX, LLC
`Patent Owner
`_______________
`
`Case IPR2013-00582
`Patent RE41,251
`_______________
`
`
`Before SCOTT E. KAMHOLZ, MICHELLE R. OSINSKI, and BRIAN P.
`MURPHY, Administrative Patent Judges.
`
`MURPHY, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`IPR2013-00582
`Patent RE41,251
`
`
`
`
`
`INITIAL TELEPHONE CONFERENCE
`
`
`
`An initial conference call with the Board is scheduled for 11:00 am
`
`Eastern Time on Tuesday April 8, 2014. The parties are directed to the
`
`Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765-66 (Aug. 14,
`
`2012), for guidance in preparing for the initial conference call. The parties
`
`should be prepared to discuss any proposed changes to the Scheduling Order
`
`entered herewith and any motions the parties anticipate filing during the
`
`trial.
`
`
`
`A. DUE DATES
`
`
`
`This order sets due dates for the parties to take action after institution
`
`of the proceeding. 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 filed promptly after execution. 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 Office 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
`
`
`
`IPR2013-00582
`Patent RE41,251
`
`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
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`owner is cautioned that any arguments for patentability not raised in the
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`response will be deemed waived.
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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 patent
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`owner’s motion to amend by DUE DATE 3.
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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-
`
`examination testimony of a reply witness (see section C, below) by DUE
`
`DATE 4.
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`
`
`IPR2013-00582
`Patent RE41,251
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`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.
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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-
`
`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
`
`DATE 6.
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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. 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
`
`
`
`IPR2013-00582
`Patent RE41,251
`
`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
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`relevance of precisely identified testimony to a precisely identified argument
`
`or portion of an exhibit. Each observation should not exceed a single, short
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`paragraph. The patent owner may respond to the observation. Any response
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`must be equally concise and specific.
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`DUE DATE APPENDIX
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`
`
`
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`DUE DATE 1…………………………………………………June 6, 2014
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
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`
`
`
`
`
`
`
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`DUE DATE 2………………………………………………August 22, 2014
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`Petitioner’s reply to patent owner response to petition
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`
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`Petitioner’s opposition to motion to amend
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`
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`
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`DUE DATE 3……………………………………………September 19, 2014
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`Patent owner’s reply to petitioner opposition to motion to amend
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`
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`DUE DATE 4………………………………………………October 10, 2014
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`
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`
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`Petitioner’s motion for observation regarding
`cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`
`
`IPR2013-00582
`Patent RE41,251
`
`DUE DATE 5………………………………………………October 24, 2014
`
`Patent owner’s response to observation
`
`Opposition to motion to exclude
`
`
`
`
`
`
`
`
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`DUE DATE 6………………………………………………October 31, 2014
`
`
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`
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`Reply to opposition to motion to exclude
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`
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`DUE DATE 7……………………………………………November 14, 2014
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`Oral argument (if requested)
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`
`
`
`
`
`
`FOR PETITONER:
`
`Jeffrey P. Kushan
`Peter S. Choi
`Sidley Austin LLP
`1501 K Street NW
`Washington, DC 20005
`jkushan@sidley.com
`
`
`
`FOR PATENT OWNER:
`
`Keith A. Rutherford
`Wong Cabello Lutsch Rutherford
`& Brucculeri, L.L.P.
`
`20333 SH 249, Suite 600
`Houston, TX 77070
`mbipr@counselip.com
`
`
`
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