Paper 10
`Date: August 21, 2014
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`FINISAR CORP.,
`Petitioner,
`
`v.
`
`THOMAS SWAN & CO. LTD.,
`Patent Owner.
`_______________
`
`Case IPR2014-00462
`Patent 8,089,683 B2
`_______________
`
`
`
`Before SALLY C. MEDLEY, MICHELLE R. OSINSKI, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`OSINSKI, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`Date: August 21, 2014
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`FINISAR CORP.,
`Petitioner,
`
`v.
`
`THOMAS SWAN & CO. LTD.,
`Patent Owner.
`_______________
`
`Case IPR2014-00462
`Patent 8,089,683 B2
`_______________
`
`
`
`Before SALLY C. MEDLEY, MICHELLE R. OSINSKI, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`OSINSKI, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2014-00460
`Patent 7,145,710 B2
`
`A. DUE DATES
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`
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`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
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`notice of the stipulation, specifically identifying the changed due dates, must
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`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).
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`
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`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. 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
`
`
`
`
`IPR2014-00460
`Patent 7,145,710 B2
`
`2. DUE DATE 1
`
`The patent owner may file—
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`
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`
`
`
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`
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`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
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`owner is cautioned that any arguments for patentability not raised in the
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`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 patent
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`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 cross-
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`examination testimony of a reply witness (see section C, below) by DUE
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`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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`
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`IPR2014-00460
`Patent 7,145,710 B2
`
`6. DUE DATE 5
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`
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`
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`a. Each party must file any response to an 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
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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 DUE
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`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 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 for
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`any paper in which the cross-examination testimony is expected to be used.
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`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 with a
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`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 after the reply. See Office Patent Trial Practice Guide, 77 Fed.
`
`Reg. at 48,768. The observation must be a concise statement of the
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`relevance of precisely identified testimony to a precisely identified argument
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`4
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`
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`IPR2014-00460
`Patent 7,145,710 B2
`
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`or portion of an exhibit. Each observation should not exceed a single, short
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`
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`paragraph. The opposing party may respond to the observation. Any
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`response must be equally concise and specific.
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`5
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`
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`IPR2014-00460
`Patent 7,145,710 B2
`
`DUE DATE APPENDIX
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`
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`
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`INITIAL CONFERENCE CALL ............. September 22, 2014 at 2:00 PM Eastern
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`DUE DATE 1 ............................................................................. November 24, 2014
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`
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`
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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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`
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`DUE DATE 2 ................................................................................ February 23, 2015
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`Petitioner’s reply to patent owner’s 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 .................................................................................... March 23, 2015
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`
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`Patent owner’s reply to petitioner’s opposition
`to motion to amend
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`DUE DATE 4 ...................................................................................... April 13, 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 27, 2015
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 ........................................................................................ May 4, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ....................................................................................... May 19, 2015
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`6
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`Oral argument (if requested)
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`IPR2014-00460
`Patent 7,145,710 B2
`
`FOR PETITIONER:
`
`David Radulescu
`Gregory Maskel
`Radulescu LLP
`david@radulescullp.com
`greg@radulescullp.com
`
`
`
`Kurt Rauschenbach
`Rauschenbach Patent Law Group
`kurt@rauschenbach.com
`
`
` PATENT OWNER:
`
`Marc M. Wefers
`W. Karl Renner
`Fish & Richardson P.C.
`wefers@fr.com
`IPR28733-002IP1@fr.com
`
`
`7
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