Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 18
`Entered: February 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VMWARE, INC.,
`Petitioner,
`
`v.
`
`CLOUDING CORP.,
`Patent Owner.
`_______________
`
`Case IPR2014-01292
`Patent 7,032,089 B1
`_______________
`
`
`Before JAMESON LEE, JONI Y. CHANG, and DAVID C. MCKONE,
`Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 18
`Entered: February 9, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VMWARE, INC.,
`Petitioner,
`
`v.
`
`CLOUDING CORP.,
`Patent Owner.
`_______________
`
`Case IPR2014-01292
`Patent 7,032,089 B1
`_______________
`
`
`Before JAMESON LEE, JONI Y. CHANG, and DAVID C. MCKONE,
`Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`IPR2014-01292
`Patent 7,032,089 B1
`
`
`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 filed promptly.
`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 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. See 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 2 PM Eastern
`Time on March 2, 2015. The parties are directed to the Office Patent Trial Practice
`Guide, 77 Fed. Reg. at 48,765–66 for guidance in preparing for the initial
`conference call, and should be prepared to discuss any proposed changes to this
`Scheduling Order and any motions the parties anticipate filing during the trial.
`
`
` 2
`
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`
`IPR2014-01292
`Patent 7,032,089 B1
`
`
`2. DUE DATE 1
`The patent owner may file—
`
`a. A response to the petition (37 C.F.R. § 42.120), and
`
`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
`a. Each party must file any motion for an observation on the
`cross-examination testimony of a 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.
`
`
` 3
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`IPR2014-01292
`Patent 7,032,089 B1
`
`
`6. DUE DATE 5
`a. Each party must file any reply 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.
`
`
`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.
`See 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 witness, since no further substantive paper is permitted after the reply.
`See Office Trial Practice Guide, 77 Fed. Reg. at 48,768. The observation must be
`a concise statement of the relevance of precisely identified testimony to a precisely
`
` 4
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`IPR2014-01292
`Patent 7,032,089 B1
`
`identified argument or portion of an exhibit. Each observation should not exceed a
`single, short paragraph. The parties may respond to the observation. Any response
`must be equally concise and specific.
`
`
`
` 5
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`IPR2014-01292
`Patent 7,032,089 B1
`
`
`DUE DATE APPENDIX
`
`
`
`
`INITIAL CONFERENCE CALL…………..March 2, 2015, at 2 PM ET
`
`DUE DATE 1……………………….……………………Apr. 16, 2015
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2……………….…………………………... June 23, 2015
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3………….………………………………… July 23, 2015
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4……………………………………………... Aug. 13, 2015
`
`Motion for observation regarding cross-examination of a witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`DUE DATE 5………….……..…………………………… Aug. 27, 2015
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6……..…….………………………………… Sept. 3, 2015
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7….……..……………..…………………….. Sept. 24, 2015
`
`Oral argument (if requested)
`
`
`
`
`
`
`
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` 6
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`IPR2014-01292
`Patent 7,032,089 B1
`
`
`
`For PETITIONER:
`
`Don Daybell
`Mark Shean
`ORRICK, HERRINGTON, & SUTCLIFFE LLP
`d2dptabdocket@orrick.com
`m2sptabdocket@orrick.com
`
`For PATENT OWNER:
`
`Tarek N. Fahmi
`Ascenda Law Group, PC
`tarek.fahmi@ascendalaw.com
`
`
`
`
` 7
`
`
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`
`
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