Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper 27
`Entered: December 24, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`INTERNATIONAL BUSINESS MACHINES CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`
`Cases IPR2014-006601
`Patent 5,745,574
`
`
`
`
`
`
`
`
`
`Before KRISTEN L. DROESCH and JUSTIN BUSCH, Administrative
`Patent Judges.
`
`Busch, Administrative Patent Judge.
`
`REVISED SCHEDULING ORDER
`
`A. DUE DATES
`
`This order sets revised 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,
`
`
`1 Case IPR2014-01410 has been consolidated with the instant proceeding.
`
`
`571-272-7822
`
`
`
`
`Paper 27
`Entered: December 24, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`INTERNATIONAL BUSINESS MACHINES CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`
`Cases IPR2014-006601
`Patent 5,745,574
`
`
`
`
`
`
`
`
`
`Before KRISTEN L. DROESCH and JUSTIN BUSCH, Administrative
`Patent Judges.
`
`Busch, Administrative Patent Judge.
`
`REVISED SCHEDULING ORDER
`
`A. DUE DATES
`
`This order sets revised 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,
`
`
`1 Case IPR2014-01410 has been consolidated with the instant proceeding.
`
`
`
`IPR2014-00660
`Patent 5,745,574
`
`must 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).
`
`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. DUE DATE 1
`
`The patent owner may file—
`
`a.
`
`b.
`
`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
`
`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.
`
`2
`
`
`
`IPR2014-00660
`Patent 5,745,574
`
`2. 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.
`
`3. 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.
`
`4. 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.
`
`5. 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.
`
`6. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`7. DUE DATE 7
`
`The oral argument (if requested by either party) is set for DUE
`
`DATE 7.
`
`3
`
`
`
`IPR2014-00660
`Patent 5,745,574
`
`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. 48,756, 48,768 (Aug. 14, 2012). The observation must be a
`
`concise 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.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`IPR2014-00660
`Patent 5,745,574
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ....................................................................... February 6, 2015
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... April 10, 2015
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .............................................................................. May 4, 2015
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ May 18, 2015
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ............................................................................ May 29, 2015
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. June 5, 2015
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ June 11, 2015
`
`Oral argument (if requested)
`
`5
`
`
`
`IPR2014-00660
`Patent 5,745,574
`
`
`
`PETITIONER:
`
`Kenneth Adamo
`Brent Ray
`Joel Merkin
`Eugene Goryunov
`Kirkland & Ellis LLP
`kenneth.adamo@kirkland.com
`brent.ray@kirkland.com
`jmerkin@kirkland.com
`eugene.goryunov@kirkland.com
`
`
`
`PATENT OWNER:
`
`Brenton Babcock
`Ted Cannon
`Knobbe, Martens, Olson & Bear, LLP
`2BRB@knobbe.com
`2tmc@knobbe.com
`
`
`Donald Coulman
`Intellectual Ventures II
`dcoulman@intven.com
`
`
`6
`
`
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