Trials@uspto.gov
`571-272-7822
`
`
`Paper 25
`Entered: August 13, 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.
`
`
`
`REVISED SCHEDULING ORDER
`
`
`
`571-272-7822
`
`
`Paper 25
`Entered: August 13, 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.
`
`
`
`REVISED SCHEDULING ORDER
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`
`On May 8, 2014, we entered a Scheduling Order (Paper 17). We
`
`hereby revise the Scheduling Order as set forth below.
`
`
`
`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 5 (earlier or later, but no later than DUE DATE 6). 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 6 and 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 Patent Trial Practice Guide, 77 Fed.Reg. 48,756, 48,772 (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. INITIAL TELEPHONE CONFERENCE
`
`The parties are directed to the Office Patent Trial Practice Guide, 77 Fed.
`
`Reg. at 48,765-66, for guidance in preparing for the initial conference call.
`
`
`
`
`
`2
`
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`The parties should be prepared to discuss any proposed changes to this
`
`Scheduling Order and any motions the parties anticipate filing during the
`
`trial.
`
`2. DUE DATE 1
`
`The patent owner may file a response to the petition (37 C.F.R. § 42.120).
`
`The patent owner must file any such response 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.
`
`3. DUE DATE 2
`
`The petitioner must file any reply to the patent owner’s response by DUE
`
`DATE 2.
`
`4. DUE DATE 3
`
`None.
`
`5. 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, 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.
`
`
`
`
`
`3
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`
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`Case IPR2014-00108
`Patent 7,151,027 B1
`
`6. DUE DATE 5
`
`a. Each party must file any response 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.
`
`7. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by DUE
`
`DATE 6.
`
`8. 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, because no further substantive paper is
`
`permitted after the reply. See Office Patent Trial Practice Guide, 77 Fed.
`
`Reg. at 48,768. The observation must be a concise statement of the
`
`relevance of precisely identified testimony to a precisely identified argument
`
`
`
`
`
`4
`
`
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`
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`Case IPR2014-00108
`Patent 7,151,027 B1
`
`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.
`
`
`
`
`
`5
`
`
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`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ......................... June 5, 2014 at 2:00 PM Eastern
`
`DUE DATE 1 ........................................................................................ July 21, 2014
`
`
`
`Patent owner’s response to the petition
`
`
`
`DUE DATE 2 .................................................................................... October 6, 2014
`
`
`
`Petitioner’s reply to patent owner’s response to petition
`
`
`
`DUE DATE 3
`
`
`
`None1
`
`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 26, 2015
`
`
`
`Oral argument (if requested)
`
`
`1 Patent Owner was permitted to file a motion to amend under 37 C.F.R.
`§ 42.121 by DUE DATE 1, but did not do so. See Paper 17. Accordingly,
`no deadlines are set for a corresponding opposition from Petitioner and reply
`from Patent Owner. The numbering of due dates remains the same,
`however, to maintain consistency with the original trial schedule.
`
`
`6
`
`
`
`
`
`Case IPR2014-00108
`Patent 7,151,027 B1
`
`
`For PETITIONER:
`
`Michael Murray
`mmurray@winston.com
`
`Andrew Sommmer
`asommer@winston.com
`
`For PATENT OWNER:
`
`Steven Baughman
`Steven.baughman@ropesgray.com
`
`Gabrielle E. Higgins
`Gabrielle.higgins@ropesgray.com
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
`
`
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