Trials@uspto.gov
`571-272-7822
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`Paper 11
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` Entered: October 14, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NOVEN PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`NOVARTIS AG AND LTS LOHMANN THERAPIE-SYSTEME AG,
`Patent Owners.
`____________
`
`Case IPR2014-00550
`Patent 6,335,031 B1
`_____________
`
`
`Before FRANCISCO C. PRATS, ERICA A. FRANKLIN, and
`SCOTT E. KAMHOLZ, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`SCHEDULING ORDER
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`
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`571-272-7822
`
`
`
`
`
`
`Paper 11
`
`
` Entered: October 14, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NOVEN PHARMACEUTICALS, INC.,
`Petitioner,
`
`v.
`
`NOVARTIS AG AND LTS LOHMANN THERAPIE-SYSTEME AG,
`Patent Owners.
`____________
`
`Case IPR2014-00550
`Patent 6,335,031 B1
`_____________
`
`
`Before FRANCISCO C. PRATS, ERICA A. FRANKLIN, and
`SCOTT E. KAMHOLZ, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
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`
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`
`
`
`
`
`
`IPR2014-00550
`Patent 6,335,031 B1
`
`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 the 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). 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
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`DATES 6 and 7.
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`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
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony (see section B, below).
`
`The parties are reminded that the Testimony Guidelines appended
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`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.
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`1. INITIAL CONFERENCE CALL
`
`The parties are directed to the Office Patent Trial Practice Guide,
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`77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) for guidance in preparing
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`for the initial conference call, and should be prepared to discuss any
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`proposed changes to this 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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`
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`IPR2014-00550
`Patent 6,335,031 B1
`
`2. DUE DATE 1
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`The patent owner may file—
`
`a.
`
`b.
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`A response to the petition (37 C.F.R. § 42.120), and
`
`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
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`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
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`patent owner’s motion to amend by DUE DATE 3.
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`5. DUE DATE 4
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`a.
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`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.
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`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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`IPR2014-00550
`Patent 6,335,031 B1
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`6. DUE DATE 5
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`a.
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`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.
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`Each party must file any opposition to a motion to exclude
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`evidence 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.
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`Cross-examination begins after any supplemental evidence is
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`due. 37 C.F.R. § 42.53(d)(2).
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`2.
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`Cross-examination ends no later than a week before the filing
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`date for any paper in which the cross-examination testimony is expected to
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`be 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 cross-
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`examination testimony of a reply witness because no further substantive
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`paper is permitted after the reply. See Office Patent Trial Practice Guide,
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`77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012). The observation must be a
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`
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`4
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`
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`IPR2014-00550
`Patent 6,335,031 B1
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`concise statement of the relevance of precisely identified testimony to a
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`precisely identified argument or portion of an exhibit. Each observation
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`should not exceed a single, short paragraph. The opposing party may
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`respond to the observation. Any response must be equally concise and
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`specific.
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`5
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`IPR2014-00550
`Patent 6,335,031 B1
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`DUE DATE APPENDIX
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`INITIAL CONFERENCE CALL ............. October 30, 2014 at 2:30 P.M. ET
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`DUE DATE 1 ................................................................... December 23, 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 ........................................................................... March 3, 2015
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`Petitioner’s reply to patent owner’s response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3 ......................................................................... March 31, 2015
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`Patent owner’s reply to petitioner’s opposition to motion to amend
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`DUE DATE 4 ........................................................................... April 28, 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 ............................................................................ May 12, 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 19, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7 .............................................................................. June 2, 2015
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`Oral argument (if requested)
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`6
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`IPR2014-00550
`Patent 6,335,031 B1
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`
`PETITIONER:
`
`Steven J. Lee
`Michael K. Levy
`KENYON & KENYON LLP
`slee@kenyon.com
`mlevy@kenyon.com
`
`
`PATENT OWNER:
`
`Raymond R. Mandra
`Nicholas N. Kallas
`FITZPATRICK, CELLA, HARPER & SCINTO
`rmandra@fchs.com
`nkallas@fchs.com
`ExelonPatchIPR@fchs.com
`
`
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`7
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