Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 12
`Entered: January 9, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`THE SCOTTS COMPANY LLC,
`Petitioner,
`
`v.
`
`ENCAP, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01110
`Patent 8,474,183 B2
`____________
`
`
`Before LORA M. GREEN, JAMES P. CALVE, and RAMA G. ELLURU,
`Administrative Patent Judges.
`
`CALVE, Administrative Patent Judge.
`
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`
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`SCHEDULING ORDER
`
`
`
`
`Tel: 571-272-7822
`
`Paper 12
`Entered: January 9, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`THE SCOTTS COMPANY LLC,
`Petitioner,
`
`v.
`
`ENCAP, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01110
`Patent 8,474,183 B2
`____________
`
`
`Before LORA M. GREEN, JAMES P. CALVE, and RAMA G. ELLURU,
`Administrative Patent Judges.
`
`CALVE, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2014-01110
`Patent 8,474,183 B2
`
`
`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
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`through 5 (earlier or later, but no later than DUE DATE 6). A notice of the
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`stipulation, specifically identifying the changed due dates, must be promptly filed.
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`The parties 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-
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`examination 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
`
`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 CONFERENCE CALL
`
`An initial conference call with the Board is scheduled for 1 PM Eastern
`
`Time on January 23, 2015. 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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`IPR2014-01110
`Patent 8,474,183 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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` 3
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`DUE DATE 5.
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`IPR2014-01110
`Patent 8,474,183 B2
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`7.
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`DUE DATE 6
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`Each party must file any reply to an opposition for a motion to exclude
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`evidence by DUE 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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` 4
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`IPR2014-01110
`Patent 8,474,183 B2
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`DUE DATE APPENDIX
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`
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`INITIAL CONFERENCE CALL…………….. Jan. 23, 2015 at 1 PM ET
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`DUE DATE 1……………………….…………………….. Mar. 16, 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……………….…………………………...... May 26, 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………….………………………………….. June 23, 2015
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4……………………………………………... July 14, 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………….……..…………………………… July 28, 2015
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6……..…….………………………………..… Aug. 4, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7….……..……………..……………………… Aug. 18, 2015
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`Oral argument (if requested)
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` 6
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`IPR2014-01110
`Patent 8,474,183 B2
`
`
`For PETITIONER:
`
`Robert M. Schulman
`rschulman@hunton.com
`Christopher Yaen
`cyaen@hunton.com
`
`
`For PATENT OWNER
`
`Philip M. Weiss
`weissandweiss@aol.com
`Aaron T. Olejniczak
`aarono@andruslaw.com
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