Trials@uspto.gov
`571-272-7822
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`Paper 13
`Date: August 28, 2014
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`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 IPR2014-00645
`Patent 6,738,697 B2
`_______________
`
`
`Before JAMESON LEE, BARBARA A. PARVIS, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
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`
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`
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`571-272-7822
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`
`
`
`
`
`
`
`Paper 13
`Date: August 28, 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 IPR2014-00645
`Patent 6,738,697 B2
`_______________
`
`
`Before JAMESON LEE, BARBARA A. PARVIS, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`IPR2014-00645
`Patent 6,738,697 B2
`
`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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`
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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 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).
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`
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`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
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`impose an appropriate sanction for failure to adhere to the Testimony
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`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
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`impedes, delays, or frustrates the fair examination of a witness.
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`1. INITIAL TELEPHONE CONFERENCE
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`
`
`The parties are directed to the Office Patent Trial Practice Guide,
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`77 Fed. Reg. at 48,765-66, for guidance in preparing for the initial
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`conference call. The parties should be prepared to discuss any proposed
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`changes to this Scheduling Order and any motions the parties anticipate
`
`filing during the trial.
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`2
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`
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`IPR2014-00645
`Patent 6,738,697 B2
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`2. DUE DATE 1
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`The patent owner may file—
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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
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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 DUE
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`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 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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`IPR2014-00645
`Patent 6,738,697 B2
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`6. DUE DATE 5
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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
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`permitted after the reply. See Office Patent Trial Practice Guide, 77 Fed.
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`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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`IPR2014-00645
`Patent 6,738,697 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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`IPR2014-00645
`Patent 6,738,697 B2
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`DUE DATE APPENDIX
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`
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`INITIAL CONFERENCE CALL ...................... Sept. 18, 2014 at 2:00 PM Eastern
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`DUE DATE 1 .................................................................................. October 28, 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 .............................................................................. December 28, 2014
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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 .................................................................................. January 28, 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 ................................................................................ February 18, 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 ...................................................................................... March 4, 2015
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 ................................................................................... March 11, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7 .................................................................................... March 25, 2015
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`Oral argument (if requested)
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`6
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`IPR2014-00645
`Patent 6,738,697 B2
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`FOR PETITIONER:
`
`Scott Doyle
`Jonathan DeFosse
`scott.doyle@shearman.com
`jonathan.defosse@shearman.com
`
`
`FOR PATENT OWNER:
`
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher Scharff
`twimbiscus@mcandrews-ip.com
`smcbride@mcandrews-ip.com
`cscharff@mcandrews-ip.com
`
`7
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`
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