Paper 7
`Trials@uspto.gov
`571-272-7822
`
`Entered: May 1, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NEST LABS, INC.,
`Petitioner,
`
`v.
`
`ALLURE ENERGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00181
`Patent 8,571,518 B2
`____________
`
`
`Before BART A. GERSTENBLITH, CHRISTOPHER L. CRUMBLEY, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`CHERRY, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`Entered: May 1, 2015
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`NEST LABS, INC.,
`Petitioner,
`
`v.
`
`ALLURE ENERGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00181
`Patent 8,571,518 B2
`____________
`
`
`Before BART A. GERSTENBLITH, CHRISTOPHER L. CRUMBLEY, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`
`CHERRY, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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
`
`
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`
`
`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 Testimony Guidelines appended to the Office Patent Trial
`
`Practice Guide, 77 Fed. Reg. 48,756, 48,772 (Aug. 14, 2012) (Appendix D),
`
`applies to this proceeding. The Board may impose sanctions 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
`
`The Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–
`
`66 (Aug. 14, 2012) contains guidance in preparing for the initial conference
`
`call. The parties should be prepared to discuss any proposed changes to this
`
`Scheduling Order and any motions the parties anticipate filing during the
`
`trial.
`
`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).
`
`2
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`
`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 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.
`
`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.
`
`3
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`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 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.
`
`4
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`D. 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).
`
`E.
`
`PETITIONER’S REPLY
`
`Notwithstanding the page limit set forth in 37 C.F.R. § 42.24(c),
`
`petitioner’s reply brief to patent owner response is limited to twenty-five
`
`(25) pages. See 37 C.F.R. § 42.5(b).
`
`5
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`
`
`DUE DATE APPENDIX
`
`
`
`INITIAL CONFERENCE CALL ................... May 20, 2015, at 1:00 PM ET
`
`DUE DATE 1 .............................................................................. July 10, 2015
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ................................................................... September 18, 2015
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ....................................................................... October 16, 2015
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ..................................................................... November 6, 2015
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ................................................................... November 20, 2015
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ..................................................................... December 2, 2015
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... December 16, 2015
`
`Oral argument (if requested)
`
`
`
`6
`
`
`
`
`
`
`
`
`IPR2015-00181
`Patent 8,571,518 B2
`
`For Petitioner:
`
`John Dragseth
`Stuart A. Nelson
`Fish & Richardson, P.C.
`dragseth@fr.com
`snelson@fr.com
`IPR36563-0011IP1@fr.com
`
`Kevin X. McGann
`White & Case LLP
`kmcgann@whitecase.com
`
`For Patent Owner:
`
`John Artz
`Bryan Schomer
`Dickinson Wright PLLC
`jsartz@dickinsonwright.com
`bschomer@dickinsonwright.com
`
`
`
`
`
`
`
`
`
`7
`
`
`
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