Trials@uspto.gov
`571-272-7822
`
` Paper 10
` Entered: January 30, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORACLE CORPORATION, NETAPP INC., and
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioners,
`
`v.
`
`CROSSROADS SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-01226
`Patent 6,425,035 B2
`____________
`
`Before HYUN J. JUNG, NEIL T. POWELL, and KRISTINA M. KALAN,
`Administrative Patent Judges.
`
`
`JUNG, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`571-272-7822
`
` Paper 10
` Entered: January 30, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ORACLE CORPORATION, NETAPP INC., and
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioners,
`
`v.
`
`CROSSROADS SYSTEMS, INC.,
`Patent Owner.
`____________
`
`Case IPR2014-01226
`Patent 6,425,035 B2
`____________
`
`Before HYUN J. JUNG, NEIL T. POWELL, and KRISTINA M. KALAN,
`Administrative Patent Judges.
`
`
`JUNG, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`A. INITIAL CONFERENCE CALL
`No initial conference call is scheduled for this case. The parties are
`
`encouraged to contact the Board to request a call if any issues arise during
`
`trial. The parties’ attention is directed to the following matters.
`
`1. Motion to Amend Conference
`
`Patent Owner is reminded that it must confer with the Board before
`
`filing a Motion to Amend. 37 C.F.R. § 42.121(a). Patent Owner should
`
`contact the Board to request the conference in sufficient time to ensure that
`
`the conference is conducted at least one week before DUE DATE 1.
`
`2.
`
`Confidential Information
`
`The parties must file confidential information using the appropriate
`
`availability indicator in PRPS (e.g., “Board and Parties Only”), regardless of
`
`whose confidential information it is. It is the responsibility of the party
`
`whose confidential information is at issue, not necessarily the proffering
`
`party, to file the motion to seal.
`
`A protective order does not exist in a case until one is filed in the case
`
`and is approved by the Board. If a motion to seal is filed by either party, the
`
`proposed protective order should be presented as an exhibit to the motion.
`
`The parties are urged to operate under the Board’s default protective order,
`
`should that become necessary. See Default Protective Order, Office Patent
`
`Trial Practice Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012).
`
`If the parties choose to propose a protective order deviating from the
`
`default protective order, they should submit the proposed protective order
`
`jointly. A marked-up comparison of the proposed and default protective
`
`orders should be presented as an additional exhibit to the motion to seal, so
`
`
`
`2
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`that differences can be understood readily. The parties should contact the
`
`Board if they cannot agree on the terms of the proposed protective order.
`
`a.
`
`Redactions
`
`Redactions should be limited strictly to isolated passages consisting
`
`entirely of confidential information. The thrust of the underlying argument
`
`or evidence must be clearly discernable from the redacted version.
`
`b.
`
`Confidential Information in Final Written Decisions
`
`Information subject to a protective order will become public if
`
`identified in a final written decision in this proceeding. A motion to
`
`expunge the information will not necessarily prevail over the public interest
`
`in maintaining a complete and understandable file history. See Office Patent
`
`Trial Practice Guide, 77 Fed. Reg. at 48,761.
`
`
`B. 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 the date set herein for
`
`DUE DATE 6). A notice of the stipulation, specifically identifying the
`
`changed due dates, must be promptly filed with the Board prior to any filing
`
`that depends on the stipulation for timeliness. The parties may not stipulate
`
`to an extension of DUE DATES 6 and 7.
`
`Regardless of whether the parties stipulate to a change of DUE DATE
`
`4, requests for oral argument must be filed no later than the date set forth in
`
`this order for DUE DATE 4, for Board planning purposes.
`
`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-
`
`
`
`3
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
`
`evidence and cross-examination testimony (see section C, 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. 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
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`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 D, 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.
`
`C. 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.
`
`
`
`5
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`D. 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.
`
`
`
`6
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................ Not Scheduled
`
`DUE DATE 1 ......................................................................... March 31, 2015
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. June 2, 2015
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................ June 30, 2015
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................. July 21, 2015
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 .......................................................................... August 4, 2015
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................ August 11, 2015
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................ August 27, 2015
`Oral argument (if requested)
`
`
`
`
`
`7
`
`
`
`IPR2014-01226
`Patent 6,425,035 B2
`
`PETITIONERS:
`
`David L. McCombs
`Andrew S. Ehmke
`Scott T. Jarratt
`HAYNES AND BOONE, LLP
`david.mccombs.ipr@haynesboone.com
`andy.ehmke.ipr@haynesboone.com
`scott.jarratt.ipr@haynesboone.com
`
`
`PATENT OWNER:
`
`Steven R. Sprinkle
`John L. Adair
`SPRINKLE IP LAW GROUP
`crossroadsipr@sprinklelaw.com
`
`Russell Wong
`James Hall
`WONG, CABELLO, LUTSCH, RUTHERFORD & BRUCCULERI, LLP
`CrossroadsIPR@counselip.com
`
`
`
`
`8
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