Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 13
`Date: September 19, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`MERCEDES-BENZ USA, LLC,
`Petitioner,
`
`v.
`
`AMERICAN VEHICULAR SCIENCES LLC,
`Patent Owner.
`_______________
`
`Case IPR2014-00644
`Patent 6,746,078 B2
`_______________
`
`
`Before JAMESON LEE, BARBARA A. PARVIS, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper 13
`Date: September 19, 2014
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`MERCEDES-BENZ USA, LLC,
`Petitioner,
`
`v.
`
`AMERICAN VEHICULAR SCIENCES LLC,
`Patent Owner.
`_______________
`
`Case IPR2014-00644
`Patent 6,746,078 B2
`_______________
`
`
`Before JAMESON LEE, BARBARA A. PARVIS, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`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 the initial
`telephone conference, DUE DATE 6, or DUE DATE 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. 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
`
`
`
`
`
`
`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`2. 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 in the
`response will be deemed waived.
`
`3. 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.
`
`4. DUE DATE 3
`The patent owner must file any reply to the petitioner’s opposition to patent
`owner’s motion to amend by DUE DATE 3.
`
`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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`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`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
`
`4
`
`
`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`
`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.
`
`
`
`5
`
`
`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`DUE DATE APPENDIX
`
`
`
`
`
`INITIAL CONFERENCE CALL .................. October 14, 2014 at 2:00 PM Eastern
`
`DUE DATE 1 ............................................................................. November 24, 2014
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2 .................................................................................. January 22, 2015
`
`Petitioner’s reply to patent owner’s response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3 ................................................................................ February 23, 2015
`
`Patent owner’s reply to petitioner’s opposition
`to motion to amend
`
`DUE DATE 4 .................................................................................... March 16, 2015
`
`Motion for observation regarding
`
`cross-examination of reply witness
`
`
`
`
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .................................................................................... March 30, 2015
`
`Response to observation
`
`Opposition to motion to exclude
`
`
`
`DUE DATE 6 ....................................................................................... April 6, 2015
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ...................................................................................... April 21, 2015
`
`Oral argument (if requested)
`
`
`
`6
`
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`
`
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`
`
`
`IPR2014-00644
`Patent 6,746,078 B2
`
`For PETITIONER:
`
`Scott W. Doyle
`Jonathan DeFosse
`SHEARMAN & STERLING LLP
`Scott.Doyle@shearman.com
`jonathan.defosse@shearman.com
`
`For PATENT OWNER:
`
`Scott P. McBride
`Thomas J. Wimbiscus
`Stephanie Samz
`MCANDREWS HELD & MALLOY, LTD.
`smcbride@mcandrews-ip.com
`twimbiscus@mcandrews-ip.com
`ssamz@mcandrews-ip.com
`
`
`
`
`
`
`
`
`7
`
`
`
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