Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 11
`Entered: April 22, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`AYLUS NETWORKS, INC.,
`Patent Owner
`
`
`Case IPR2014-01565
`Patent RE44,412 E
`
`
`
`
`Before BRIAN J. MCNAMARA, PATRICK R. SCANLON, and
`MICHAEL J. FITZPATRICK, Administrative Patent Judges.
`
`FITZPATRICK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`Tel: 571-272-7822
`
`Paper 11
`Entered: April 22, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`AYLUS NETWORKS, INC.,
`Patent Owner
`
`
`Case IPR2014-01565
`Patent RE44,412 E
`
`
`
`
`Before BRIAN J. MCNAMARA, PATRICK R. SCANLON, and
`MICHAEL J. FITZPATRICK, Administrative Patent Judges.
`
`FITZPATRICK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`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 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) as 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
`
`The parties are directed to contact the Board within three weeks of
`
`this Scheduling Order if there is a need to discuss proposed changes to the
`
`schedule or proposed motions. See Office Patent Trial Practice Guide, 77
`
`Fed. Reg. at 48,765–66 (guidance in preparing for the initial conference
`
`call).
`
`2
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`2. 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 a
`
`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 reply 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
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`6. 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.
`
`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 and granted) 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. at 48,768. The observation must be a concise statement of the
`
`4
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`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.
`
`D. MOTION TO AMEND
`
`
`
`Notwithstanding the page limits set forth in 37 C.F.R. § 42.24, a
`
`motion to amend, if filed in this proceeding, as well as petitioner’s
`
`opposition to the motion to amend, each are limited to twenty-five (25)
`
`pages, and patent owner’s reply to an opposition to a motion to amend is
`
`limited to twelve (12) pages. Also, the claim listing may be contained in an
`
`appendix to the motion to amend that does not count toward the page limit
`
`of the motion. See 37 C.F.R. § 42.5(b).
`
`E.
`
`PETITIONER’S REPLY
`
`
`
`Notwithstanding the page limit set forth in 37 C.F.R. § 42.24(c),
`
`petitioner’s reply to patent owner’s response is limited to twenty-five (25)
`
`pages. See 37 C.F.R. § 42.5(b).
`
`
`
`
`
`
`
`5
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL (if requested) ...................... May 21, 2015
`
`DUE DATE 1 ............................................................................... July 7, 2015
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... Sept. 21, 2015
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................. Oct. 21, 2015
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................... Nov. 12, 2015
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ........................................................................... Nov. 25, 2015
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. Dec. 2, 2015
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ Dec. 16, 2015
`
`Oral argument (if requested and granted)
`
`
`
`6
`
`
`
`IPR2014-001565
`Patent RE44,412 E
`
`Petitioner:
`
`James M. Heintz
`Robert Buergi
`DLA PIPER LLP
`Apple-Aylus-IPR@dlapiper.com
`robert.buergi@dlapiper.com
`
`
`
`Patent Owner:
`
`Bruce R. Zisser
`Joseph Richetti
`QUINN EMANUEL URQUHART
` & SULLIVAN LLP
`brucezisser@quinnemanuel.com
`joe.richetti@bryancave.com
`
`7
`
`
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