Trials@uspto.gov
`571-272-7822
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`Paper 8
`Date: February 25, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`W. L. GORE & ASSOCIATES, INC.,
`Petitioner,
`
`v.
`
`LIFEPORT SCIENCES LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01323
`Patent 5,716,365
`____________
`
`
`Before JOSIAH C. COCKS, PHILLIP J. KAUFFMAN, and
`BENJAMIN D. M. WOOD, Administrative Patent Judges.
`
`COCKS, Administrative Patent Judge.
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`SCHEDULING ORDER
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`571-272-7822
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`
`Paper 8
`Date: February 25, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`W. L. GORE & ASSOCIATES, INC.,
`Petitioner,
`
`v.
`
`LIFEPORT SCIENCES LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01323
`Patent 5,716,365
`____________
`
`
`Before JOSIAH C. COCKS, PHILLIP J. KAUFFMAN, and
`BENJAMIN D. M. WOOD, Administrative Patent Judges.
`
`COCKS, Administrative Patent Judge.
`
`
`
`
`
`
`
`
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`
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`SCHEDULING ORDER
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`
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`IPR2014-01323
`Patent 5,716,365
`
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`A. DUE DATES
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`This order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6).
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`A notice of the stipulation, specifically identifying the changed due dates,
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`must be filed promptly. The parties may not stipulate to an extension of
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`DUE DATES 6 and 7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony (see section B, below).
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`The parties are reminded that the Testimony Guidelines appended
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`to the Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772
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`(Aug. 14, 2012) (Appendix D), apply to this proceeding. The Board may
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`impose an appropriate sanction for failure to adhere to the Testimony
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`Guidelines. 37 C.F.R. § 42.12. For example, reasonable expenses and
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`attorneys’ fees incurred by any party may be levied on a person who
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`impedes, delays, or frustrates the fair examination of a witness.
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`1. INITIAL CONFERENCE CALL
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`An initial conference call with the Board is scheduled for
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`11 AM Eastern Time on March 26, 2015. The parties are directed to
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`the Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66
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`(Aug. 14, 2012) for guidance in preparing for the initial conference call, and
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`should be prepared to discuss any proposed changes to this Scheduling
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`Order and any motions the parties anticipate filing during the trial.
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`2
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`IPR2014-01323
`Patent 5,716,365
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`2. DUE DATE 1
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`The patent owner may file—
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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
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`DUE DATE 1. If the patent owner elects not to file anything, the patent
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`owner must arrange a conference call with the parties and the Board. The
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`patent owner is cautioned that any arguments for patentability not raised in
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`the response will be deemed waived.
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`3. 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. DUE DATE 3
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`The patent owner must file any reply to the petitioner’s opposition to
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`patent owner’s motion to amend by DUE DATE 3.
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`5. 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
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`DUE DATE 4.
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`6. DUE DATE 5
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`a. Each party must file any reply to an observation on cross-
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`examination testimony by DUE DATE 5.
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`3
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`IPR2014-01323
`Patent 5,716,365
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`b. Each party must file any opposition to a motion to exclude evidence
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`by DUE DATE 5.
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`7. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`8. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`B. 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
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`for any paper in which the cross-examination testimony is expected to be
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`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
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`with a mechanism to draw the Board’s attention to relevant cross-
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`examination testimony of a witness, since no further substantive paper is
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`permitted after the reply. See Office Trial Practice Guide, 77 Fed. Reg.
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`48,756, 48,768 (Aug. 14, 2012). The observation must be a concise
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`statement of the relevance of precisely identified testimony to a precisely
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`identified argument or portion of an exhibit. Each observation should not
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`exceed a single, short paragraph. The parties may respond to the
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`observation. Any response must be equally concise and specific.
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`4
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`IPR2014-01323
`Patent 5,716,365
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`DUE DATE APPENDIX
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`INITIAL CONFERENCE CALL…….……March 26, 2015 at 11 AM ET
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`DUE DATE 1……………………….………………………May 26, 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……………….…………………………... August 24, 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………….……………………………..September 23, 2015
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`Patent owner’s reply to petitioner opposition to motion to amend
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`DUE DATE 4……………………………………………... October 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………….……..…………………………… October 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……..…….………………………………November 4, 2015
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`Reply to opposition to motion to exclude
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`DUE DATE 7….……..……………..…………………...November 16, 2015
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`Oral argument (if requested)
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`5
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`IPR2014-01323
`Patent 5,716,365
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`For PETITIONER:
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`Victor P. Jonas
`Victor.Jonas@FaegreBD.com
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`For PATENT OWNER:
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`
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`Robert W. Ashbrook, Jr.
`Robert.ashbrook@dechert.com
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`Kevin M. Flannery
`Kevin.flannery@dechert.com
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`6
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