`571-272-7822
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`Paper 8
`Entered: August 21, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SkyHawke Technologies, LLC,
`Petitioner,
`
`v.
`
`L&H Concepts, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00437
`Patent 5,779,566
`
`
`
`Before JAMES T. MOORE, Administrative Patent Judge.
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`SCHEDULING ORDER
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`IPR2014-00437
`Patent 5,779,566
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`A. DUE DATES
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`This order sets due dates for the parties to take action after institution
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`of this proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6).
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`A notice of the stipulation, specifically identifying the changed due dates,
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`must be promptly filed. The parties may not stipulate to an extension of
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`DUE DATES 6 and 7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)),
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`to supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct
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`cross-examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending
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`on the evidence and cross-examination testimony (see Section B, below).
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`The parties are reminded that the Testimony Guidelines appended to
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`the Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772 (Aug.
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`14, 2012) (Appendix D), apply to this proceeding. The Board may impose
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`an appropriate sanction for failure to adhere to the Testimony Guidelines.
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`37 C.F.R. § 42.12. For example, reasonable expenses and attorneys’ fees
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`incurred by any party may be levied on a person who impedes, delays, or
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`frustrates the fair examination of a witness.
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`1. INITIAL CONFERENCE CALL
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`The parties are directed to the Office Patent Trial Practice
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`Guide, 77 Fed. Reg. 48,756, 48,765-66 (Aug. 14, 2012), for guidance in
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`preparing for the initial conference call, and should be prepared to discuss
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`any proposed changes to the Scheduling Order and any motions the parties
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`anticipate filing during the trial.
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`2
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`Case IPR2014-00437
`Patent 5,779,566
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`2. DUE DATE 1
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`The patent owner may file—
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`a. A response to the petition (37 C.F.R. § 42.120), and
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`b. A motion to amend the patent (37 C.F.R. § 42.121).
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`The patent owner must file any such response or motion to amend by
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`DUE DATE 1. If the patent owner elects not to file anything, the patent
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`owner must arrange a conference call with the parties and the Board. The
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`patent owner is cautioned that any arguments for patentability not raised in
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`the response will be deemed waived.
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`3. 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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`4. DUE DATE 3
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`The patent owner must file any reply to the petitioner’s opposition to
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`the patent owner’s motion to amend by DUE DATE 3.
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`5. DUE DATE 4
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`a. Each party must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see Section C, below) by
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`DUE DATE 4.
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`b. Each party must file any motion to exclude evidence (37 C.F.R
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`3
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`Case IPR2014-00437
`Patent 5,779,566
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`6. DUE DATE 5
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`a. Each party must file any response to an observation on
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`cross-examination testimony by DUE DATE 5.
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`b. Each party must file any opposition to a motion to exclude evidence
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`by DUE DATE 5.
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`7. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`8. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`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.
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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
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`for any paper in which the cross-examination testimony is expected to be
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`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 parties
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`with a mechanism to draw the Board’s attention to relevant
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`4
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`Case IPR2014-00437
`Patent 5,779,566
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`cross-examination testimony of a reply witness, because no further
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`substantive paper is permitted after the reply. See Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012). The
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`observation must be a concise statement of the relevance of precisely
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`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.
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`The opposing party may respond to the observation. Any response must be
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`equally concise and specific.
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`5
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`Case IPR2014-00437
`Patent 5,779,566
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`DUE DATE APPENDIX
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`INITIAL CONFERENCE CALL……September 18, 2014 1:00 PM Eastern
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`DUE DATE 1…………….……………………………..November 10, 2014
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`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`DUE DATE 2………………………………………………January 29, 2015
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`Petitioner’s reply to patent owner response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3………………………………………………….March 2, 2015
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4……………………………………………..….March 23, 2015
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`Motion for observation regarding cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5………………………………………………...April 6, 2015
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6……………………………………………….April 13, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7……………………………………………….April 27, 2015
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`Oral argument (if requested)
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`6
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`Case IPR2014-00437
`Patent 5,779,566
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`PETITIONER:
`
`Thomas Fisher
`cpdocketfisher@oblon.com
`
`Scott McKeown
`cpdocketmckeown@oblon.com
`
`Christopher Ricciuti
`cpdocketricciuti@oblon.com
`
`Alexander Englehart
`cpdocketenglehart@oblon.com
`
`
`PATENT OWNER:
`
`David Hoffman
`hoffman@fr.com
`
`Matthew Wernli
`wernli@fr.com
`
`
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`7
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