Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 7
`Entered: October 31, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`RAPAK, LLC,
`Petitioner,
`
`v.
`
`SCHOLLE CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2014-00847
`Patent 8,448,799 B2
`____________
`
`Before JOSIAH C. COCKS, PHILLIP J. KAUFFMAN,
`and JAMES P. CALVE, Administrative Patent Judges.
`
`CALVE, Administrative Patent Judge.
`
`
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`
`
`SCHEDULING ORDER
`
`
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`Tel: 571-272-7822
`
`Paper 7
`Entered: October 31, 2014
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`RAPAK, LLC,
`Petitioner,
`
`v.
`
`SCHOLLE CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2014-00847
`Patent 8,448,799 B2
`____________
`
`Before JOSIAH C. COCKS, PHILLIP J. KAUFFMAN,
`and JAMES P. CALVE, Administrative Patent Judges.
`
`CALVE, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
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`
`
`
`IPR2014-00847
`Patent 8,448,799 B2
`
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`A. DUE DATES
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`This order sets due dates for the parties to take action after institution of the
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`proceeding. The parties may stipulate to different dates for DUE DATES 1 through
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`5 (earlier or later, but no later than DUE DATE 6). A notice of the stipulation,
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`specifically identifying the changed due dates, must be promptly filed. The parties
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`may not stipulate to an extension of DUE DATES 6 and 7.
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`In stipulating to different times, the parties should consider the effect of the
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`stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to supplement
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`evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-examination (37 C.F.R. §
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`42.53(d)(2)), and to draft papers depending on the evidence and cross-examination
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`testimony (see section B, below).
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`The parties are reminded that the Testimony Guidelines appended to the
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`Office Trial Practice Guide, 77 Fed.Reg. 48,756, 48,772 (Aug. 14, 2012)
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`(Appendix D), apply to this proceeding. The Board may impose an appropriate
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`sanction for failure to adhere to the Testimony Guidelines. 37 C.F.R. § 42.12. For
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`example, reasonable expenses and attorneys’ fees incurred by any party may be
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`levied on a person who impedes, delays, or frustrates the fair examination of a
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`witness.
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`1.
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`INITIAL CONFERENCE CALL
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`An initial conference call with the Board is scheduled for 11 AM Eastern
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`Time on October 30, 2014. The parties are directed to the Office Patent Trial
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`Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) for guidance in
`
`preparing 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 anticipate
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` 2
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`
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`filing during the trial.
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`IPR2014-00847
`Patent 8,448,799 B2
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`2.
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`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 must
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`arrange a conference call with the parties and the Board. The patent owner is
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`cautioned that any arguments for patentability not raised in the response will be
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`deemed waived.
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`3.
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`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.
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`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.
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`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 witness (see section C, below) by DUE 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 DUE
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`DATE 4.
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`6.
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`DUE DATE 5
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`a. Each party must file any reply to an observation on cross-examination
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`testimony by DUE DATE 5.
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`b. Each party must file any opposition to a motion to exclude evidence by
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`DUE DATE 5.
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`IPR2014-00847
`Patent 8,448,799 B2
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`7.
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`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.
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`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.
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`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. 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 testimony
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`of a witness, since no further substantive paper is permitted after the reply. See
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`Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012). The
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`observation must be a concise statement of the relevance of precisely identified
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`testimony to a precisely identified argument or portion of an exhibit. Each
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`observation should not exceed a single, short paragraph. The parties may respond
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`to the observation. Any response must be equally concise and specific.
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`IPR2014-00847
`Patent 8,448,799 B2
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`DUE DATE APPENDIX
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`
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`INITIAL CONFERENCE CALL………December 2, 2014 at 11 AM ET
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`DUE DATE 1……………………….……………………Jan. 19, 2015
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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……………….…………………………... Apr. 6, 2015
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`Petitioner’s reply to patent owner response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3………….………………………………… May 6, 2015
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4……………………………………………... May 27, 2015
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`Motion for observation regarding cross-examination of a witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5………….……..…………………………… June 10, 2015
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6……..…….………………………………… June 17, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7….……..……………..……………………… July 1, 2015
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`Oral argument (if requested)
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`IPR2014-00847
`Patent 8,448,799 B2
`
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`
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`PETITIONER:
`
`Peter McAndrews
`Deborah Laughton
`Christopher Scharff
`MCANDREWS, HELD & MALLOY, LTD.
`pmcandrews@mcandrews-ip.com
`dlaughton@mcandrews-ip.com
`cscharff@mcandrews-ip.com
`
`PATENT OWNER:
`
`Allan J. Sternstein
`Timothy K. Sendek
`LATHROP & GAGE LLP
`asternstein@LathropGage.com
`tsendek@LathropGage.com
`
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