throbber
Trials@uspto.gov IPR2015-00122 Paper 37; IPR2015-00123 Paper 37
`571-272-7822
` IPR2015-00124 Paper 36; IPR2015-00125 Paper 22
`
`
` IPR2015-00133 Paper 33; IPR2015-00137 Paper 32
`
` Entered: April 23, 2015
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ASKELADDEN LLC,
`Petitioner,
`
`v.
`
`SEAN I. MCGHIE and BRIAN K. BUCHHEIT,
`Patent Owner.
`____________
`
`Cases IPR2015-00122 (Patent 8,523,063 B1)
`IPR2015-00123 (Patent 8,523,063 B1)
`IPR2015-00124 (Patent 8,540,152 B1)
`IPR2015-00125 (Patent 8,540,152 B1)
`IPR2015-00133 (Patent 8,297,502 B1)
`IPR2015-00137 (Patent 8,297,502 B1)1
`____________
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`GEORGIANNA W. BRADEN, Administrative Patent Judges.
`
`CHANG, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`
`1 This order addresses issues that are the same in the identified cases.
`We exercise our discretion to issue one order to be filed in each case.
`The parties are not authorized to use this style heading.
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`I. DUE DATES
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`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) (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.
`
`A. INITIAL CONFERENCE CALL
`
`The parties are directed to contact the Board within a month of this
`
`decision if there is a need to discuss proposed changes to this Scheduling
`
`Order or proposed motions. To request a conference call, the parties should
`
`2
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`submit a list of dates and times when they are available for a call. If an
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`initial conference call is requested, the parties should be prepared to discuss
`
`any proposed changes to this Scheduling Order and any motions the parties
`
`anticipate filing during the trial. 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.
`
`B. 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.
`
`C. 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.
`
`D. 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.
`
`3
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`
`E. DUE DATE 4
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`1.
`
`Each party must file any motion for an observation on the
`
`cross-examination testimony of a reply witness (see section III, below) by
`
`DUE DATE 4.
`
`2.
`
`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.
`
`F. DUE DATE 5
`
`1.
`
`Each party must file any reply to an observation on cross-
`
`examination testimony by DUE DATE 5.
`
`2.
`
`Each party must file any opposition to a motion to exclude
`
`evidence by DUE DATE 5.
`
`G. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`H. DUE DATE 7
`
`The oral argument (if requested by either party) is set for DUE
`
`DATE 7.
`
`II. 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).
`
`4
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`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.
`
`III. 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 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.
`
`IV. MOTION TO AMEND
`
`
`
`Notwithstanding the page limits set forth in 37 C.F.R. § 42.24, we
`
`hereby expand those limits for the following papers: 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; patent owner’s reply to
`
`the opposition to the motion to amend is limited to twelve (12) pages; and
`
`the claim listing may be contained in an appendix to the motion to amend,
`
`and does not count toward the page limit of the motion. See 37 C.F.R.
`
`§ 42.5(b).
`
`5
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`V. PETITIONER’S REPLY
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`
`
`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).
`
`VI. PROTECTIVE ORDER
`
`
`
`No protective order has been entered in this proceeding. The parties
`
`are reminded of the requirement for a protective order when filing a motion
`
`to seal. 37 C.F.R. § 42.54. If the parties have agreed to a proposed
`
`protective order, including the Standing Default Protective Order, 77 Fed.
`
`Reg. 48,756, App. B (Aug 14, 2012), they should file a signed copy of the
`
`proposed protective order with the motion to seal. If the parties choose to
`
`propose a protective order other than, or departing from, the default Standing
`
`Protective Order, they must submit a joint, proposed protective order,
`
`accompanied by a red-lined version based on the default protective order in
`
`Appendix B to the Board’s Office Patent Trial Practice Guide.
`
`
`
`
`
`6
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`DUE DATE APPENDIX
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`INITIAL CONFERENCE CALL ............................................. Upon Request
`
`DUE DATE 1 ............................................................................... July 8, 2015
`
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .................................................................. September 23, 2015
`
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ...................................................................... October 23, 2015
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .................................................................. November 13, 2015
`
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .................................................................. November 27, 2015
`
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ..................................................................... December 4, 2015
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... December 17, 2015
`
`Oral argument (if requested)
`
`
`
`
`
`7
`
`

`
`IPR2015-00122 (Patent 8,523,063)
`IPR2015-00124 (Patent 8,540,152)
`IPR2015-00133 (Patent 8,297,502)
`
`PETITIONERS:
`
`IPR2015-00123 (Patent 8,523,063)
`
`IPR2015-00125 (Patent 8,540,152)
`
` IPR2015-00137 (Patent 8,297,502)
`
`8
`
`Robert Fischer
`askeladdenipr@fchs.com
`
`Frank DeLucia
`askeladdenipr@fchs.com
`
`Stephen Yam
`askeladdenipr@fchs.com
`
`Justin Oliver
`joliver@fchs.com
`
`
`
`PATENT OWNER:
`
`Brian Buchheit
`bbuchheit@gmail.com

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