Trials@uspto.gov
`571-272-7822
`
`
`Paper 17
`Entered: May 8, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MACRONIX INTERNATIONAL CO., LTD.,
`MACRONIX ASIA LIMITED, MACRONIX (HONG KONG) CO., LTD.,
`and MACRONIX AMERICA, INC.
`Petitioner
`
`v.
`
`SPANSION LLC
`Patent Owner
`____________
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`
`
`Before DEBRA K. STEPHENS, JUSTIN T. ARBES, and
`RICHARD E. RICE, Administrative Patent Judges.
`
`RICE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`571-272-7822
`
`
`Paper 17
`Entered: May 8, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MACRONIX INTERNATIONAL CO., LTD.,
`MACRONIX ASIA LIMITED, MACRONIX (HONG KONG) CO., LTD.,
`and MACRONIX AMERICA, INC.
`Petitioner
`
`v.
`
`SPANSION LLC
`Patent Owner
`____________
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`
`
`Before DEBRA K. STEPHENS, JUSTIN T. ARBES, and
`RICHARD E. RICE, Administrative Patent Judges.
`
`RICE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`A. INITIAL CONFERENCE CALL
`
`The initial conference call is scheduled for 2:00 PM Eastern on
`
`June 5, 2014. The parties are directed to the Office Patent Trial Practice
`
`Guide, 77 Fed. Reg. 48,756, 48,765-66 (Aug. 14, 2012), for guidance in
`
`preparing for the initial conference call, and should be prepared to discuss
`
`any proposed changes to the Scheduling Order and any motions the parties
`
`anticipate filing during the trial.
`
`
`
`B. 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 Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772 (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.
`
`
`
`
`
`2
`
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`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 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 D) 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.
`
`
`
`
`
`
`
`3
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`
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`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
` 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.
`
`
`
`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 parties
`
`with a mechanism to draw the Board’s attention to relevant
`
`
`
`
`
`4
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`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`cross-examination testimony of a reply witness, since no further substantive
`
`paper is permitted after the reply. See Office Patent Trial Practice Guide, 77
`
`Fed. Reg. 48,756, 48,768 (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.
`
`
`
`
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`5
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`
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`Case IPR2014-00108
`Patent 7,151,027 B1
`
`DUE DATE APPENDIX
`
`DUE DATE 1…………….…………………………………….July 21, 2014
`
`
`
`
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2………………………………………………..October 6, 2014
`
`
`
`
`
`Petitioner’s reply to patent owner response to petition
`
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`DUE DATE 3……………………………………………..November 5, 2014
`
`
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4……………………………………………November 26, 2014
`
`Motion for observation regarding cross-examination of reply witness
`
`
`
`
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`DUE DATE 5…………………………………………….December 10, 2014
`
`
`
`
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6…………………………………………….December 17, 2014
`
`
`
`Reply to opposition to motion to exclude
`
`
`
`DUE DATE 7……………………………………………….January 13, 2015
`
`Oral argument (if requested)
`
`
`
`
`
`6
`
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`PETITIONER:
`
`Michael M. Murray
`Andrew R. Sommer
`mmurray@winston.com
`asommer@winston.com
`
`
`PATENT OWNER:
`
`J. Steven Baughman
`Gabrielle E. Higgins
`steven.baughman@ropesgray.com
`gabrielle.higgins@ropesgray.com
`
`
`
`
`
`
`
`7
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`
`
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