Trials@uspto.gov
`Tel: 571.272.7822
`
`
`
`
`Paper No. 12
`Filed: February 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS INC.,
`Petitioner,
`
`v.
`
`RPX CLEARINGHOUSE LLC1,
`Patent Owner.
`
`
`
`Case IPR2014-01220
`Patent 6,128,649
`
`
`
`Before JAMESON LEE, JEREMY M. PLENZLER, and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 On February 6, 2015, RPX Clearinghouse LLC filed an updated mandatory
`disclosure in this proceeding notifying the Board that the patent at issue in this
`proceeding had been transferred to it on January 28, 2015. Paper 8, 2. We have
`updated the caption in this proceeding to reflect that transfer.
`
`
`Tel: 571.272.7822
`
`
`
`
`Paper No. 12
`Filed: February 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS INC.,
`Petitioner,
`
`v.
`
`RPX CLEARINGHOUSE LLC1,
`Patent Owner.
`
`
`
`Case IPR2014-01220
`Patent 6,128,649
`
`
`
`Before JAMESON LEE, JEREMY M. PLENZLER, and KEVIN W. CHERRY,
`Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 On February 6, 2015, RPX Clearinghouse LLC filed an updated mandatory
`disclosure in this proceeding notifying the Board that the patent at issue in this
`proceeding had been transferred to it on January 28, 2015. Paper 8, 2. We have
`updated the caption in this proceeding to reflect that transfer.
`
`
`
`IPR2014-01220
`Patent 6,128,649
`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 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 Testimony Guidelines appended to the Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,772 (Aug. 14, 2012) (Appendix D), applies to this
`proceeding. The Board may impose sanctions 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
`
`The Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66
`(Aug. 14, 2012) contains 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. DUE DATE 1
`
`The patent owner may file—
`a.
`A response to the petition (37 C.F.R. § 42.120), and
`
`
`
`2
`
`
`
`IPR2014-01220
`Patent 6,128,649
`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
`
`Each party must file any motion for an observation on the
`a.
`cross-examination testimony of a reply witness (see section C, below) by DUE
`DATE 4.
`Each party must file any motion to exclude evidence (37 C.F.R
`b.
`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by DUE
`DATE 4.
`
`6. DUE DATE 5
`
`Each party must file any response to an observation on
`a.
`cross-examination testimony by DUE DATE 5.
`b.
`Each party must file any opposition to a motion to exclude evidence
`by DUE DATE 5.
`
`
`
`3
`
`
`
`IPR2014-01220
`Patent 6,128,649
`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. 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
`
`
`
`IPR2014-01220
`Patent 6,128,649
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ......... February 27, 2015, at 11:00 AM ET
`
`DUE DATE 1 ........................................................................... April 29, 2015
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................. July 14, 2015
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................ August 14, 2015
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .................................................................... September 4, 2015
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .................................................................. September 18, 2015
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .................................................................. September 25, 2015
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................ October 5, 2015
`Oral argument (if requested)
`
`5
`
`
`
`
`
`
`
`IPR2014-01220
`Patent 6,128,649
`
`
`PETITIONER:
`
`Scott A. McKeown
`Greg Gardella
`Christopher Ricciuti
`OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P
`CPDocketMcKeown@oblon.com
`CPDocketGardella@oblon.com
`CPDocketRicciuti@oblon.com
`
`
`
`PATENT OWNER:
`
`Hong Zhong
`IRELL & MANELLA LLP
`hzhong@irell.com
`patents@irell.com
`
`
`
`6
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