Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 16
`Entered: March 13, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`HEARTLAND TANNING, INC.
`Petitioner
`
`v.
`
`SUNLESS, INC.
`Patent Owner
`_______________
`
`Case IPR2014-00018
`Patent 8,201,288 B2
`_______________
`
`
`Before FRANCISCO C. PRATS, RAMA G. ELLURU, and JAMES A. TARTAL,
`Administrative Patent Judges.
`
`PRATS, Administrative Patent Judge.
`
`
`
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`
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`SCHEDULING ORDER
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 16
`Entered: March 13, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`HEARTLAND TANNING, INC.
`Petitioner
`
`v.
`
`SUNLESS, INC.
`Patent Owner
`_______________
`
`Case IPR2014-00018
`Patent 8,201,288 B2
`_______________
`
`
`Before FRANCISCO C. PRATS, RAMA G. ELLURU, and JAMES A. TARTAL,
`Administrative Patent Judges.
`
`PRATS, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`Case IPR2014-00018
`Patent 8,201,288 B2
`
`
`A.
`
`INITIAL CONFERENCE CALL
`
`The initial conference call is scheduled for 2:00 PM Eastern Time on April
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`7, 2014.
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`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
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`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. The parties
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`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.
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`§ 42.53(d)(2)), and to draft papers depending on the evidence and cross-
`
`examination testimony (see section C, 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,
`
`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
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`Case IPR2014-00018
`Patent 8,201,288 B2
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`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.
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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-
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`examination testimony of a reply witness (see section D, below) by DUE DATE 4.
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`b. Each party must file any motion to exclude evidence (37 C.F.R § 42.64(c))
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`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-
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`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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` 3
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`DUE DATE 5.
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`Case IPR2014-00018
`Patent 8,201,288 B2
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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
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`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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`C. 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.
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`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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`D. 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, because no further substantive paper is permitted
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`after the reply. See Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug.
`
`14, 2012). The observation must be a concise statement of the relevance of
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`precisely identified testimony to a precisely identified argument or portion of an
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`exhibit. Each observation should not exceed a single, short paragraph. The patent
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`owner may respond to the observation. Any response must be equally concise and
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` 4
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`specific.
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`Case IPR2014-00018
`Patent 8,201,288 B2
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`DUE DATE APPENDIX
`
`
`DUE DATE 1 .......................................................................... June 16, 2014
`
`
`
`
`
`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`
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`DUE DATE 2 .......................................................................... September 15, 2014
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`
`
`
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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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`DUE DATE 3 .......................................................................... October 14, 2014
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`
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4 .......................................................................... November 4, 2014
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`Petitioner’s motion for observation regarding cross-examination
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`of reply witness
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`
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5 .......................................................................... November 18, 2014
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`Patent owner’s response to observation
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`Opposition to motion to exclude
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`
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`DUE DATE 6 .......................................................................... November 25, 2014
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`
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`Reply to opposition to motion to exclude
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`DUE DATE 7 .......................................................................... December 10, 2014
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`Oral argument (if requested)
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` 5
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`Case IPR2014-00018
`Patent 8,201,288 B2
`
`
`FOR PETITIONER:
`
`Rudolph A. Telscher, Jr.
`Douglas A. Robinson
`Greg W. Meyer
`HARNESS, DICKEY & PIERCE, PLC
`rtelscher@hdp.com
`drobinson@hdp.com
`gmeyer@hdp.com
`
`FOR PATENT OWNER:
`
`Steven M. Auvil
`Bryan J. Jaketic
`SQUIRE SANDERS (US) LLP
`steven.auvil@squiresanders.com
`bryan.jaketic@squiresanders.com
`
`
` 6
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