Trials@uspto.gov
`571-272-7822
`
`Paper 23
`Date: March 24, 2014
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`AKER BIOMARINE AS
`Petitioner
`
`v.
`
`NEPTUNE TECHNOLOGIES AND BIORESSOURCES INC.
`Patent Owner
`_______________
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`_______________
`
`
`Before LORA M. GREEN, JACQUELINE WRIGHT BONILLA, and
`SHERIDAN K. SNEDDEN, Administrative Patent Judges.
`
`SNEDDEN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`571-272-7822
`
`Paper 23
`Date: March 24, 2014
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`AKER BIOMARINE AS
`Petitioner
`
`v.
`
`NEPTUNE TECHNOLOGIES AND BIORESSOURCES INC.
`Patent Owner
`_______________
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`_______________
`
`
`Before LORA M. GREEN, JACQUELINE WRIGHT BONILLA, and
`SHERIDAN K. SNEDDEN, Administrative Patent Judges.
`
`SNEDDEN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`
`A.
`
`INITIAL CONFERENCE CALL
`The initial conference call is scheduled for 10:00 AM Eastern Time on
`April 25, 2014.
`
`
`
`
`
`B. 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 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
`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 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).
`
`
`
`
`2
`
`
`
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`
`
`
`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 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.
`
`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, 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 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.
`
`3
`
`
`
`
`Case IPR2014-00003
`Patent 8,278,351 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.
`
`C. 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.
`
`D. 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 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 patent owner
`may respond to the observation. Any response must be equally concise and
`specific.
`
`4
`
`
`
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`
`
`
`
`
`
`DUE DATE APPENDIX
`DUE DATE 1…………………………………………………May 27, 2014
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2…………………………………………………. July 24, 2014
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3………………………………………………… August 25, 2014
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4………………………………………………… September 15, 2014
`
`Petitioner’s motion for observation regarding
`
`cross-examination of reply witness
`
`
`
`
`Motion to exclude evidence
`Request for oral argument
`
`
`
`DUE DATE 5………………………………………………… September 29, 2014
`
`Patent owner’s response to observation
`
`Opposition to motion to exclude
`
`
`DUE DATE 6………………………………………………… October 6, 2014
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7………………………………………………… October 21, 2014
`
`Oral argument (if requested)
`
`
`
`5
`
`
`
`
`
`
`
`
`Case IPR2014-00003
`Patent 8,278,351 B2
`
`PETITIONER:
`J. Mitchell Jones
`Casimir Jones SC
`jmjones@casimirjones.com
`Amanda Hollis
`Kirkland & Ellis
`amanda.hollis@kirkland.com
`
`PATENT OWNER:
`Stephen L. Altieri
`Cooley LLP
`saltieri@cooley.com
`J. Dean Farmer
`Cooley LLP
`dfarmer@cooley.com
`
`
`
`6
`
`
`
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