Trials@uspto.gov
`571-272-7822
`
` Paper No. 10
` Entered: June 25, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00369
`Patent 6,128,290
`____________
`
`
`
`Before JAMESON LEE, MATTHEW R. CLEMENTS, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`BOUDREAU, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`571-272-7822
`
` Paper No. 10
` Entered: June 25, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00369
`Patent 6,128,290
`____________
`
`
`
`Before JAMESON LEE, MATTHEW R. CLEMENTS, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`BOUDREAU, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`IPR2015-00369
`Patent 6,128,290
`
`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) (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 the Office Patent Trial Practice Guide,
`
`77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012), for guidance in preparing
`
`for the initial conference call, and should be prepared to discuss any
`
`proposed changes to the Scheduling Order and any motions the parties
`
`anticipate filing during the trial.
`
`2
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`
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`IPR2015-00369
`Patent 6,128,290
`
`2. ADR STATEMENT
`
`
`
`The parties are encouraged to discuss promptly alternative means for
`
`resolving their disputes regarding the subject matter of this proceeding. To
`
`advance the opportunities for early disposition, petitioner is encouraged to
`
`notify the Board, by the due date identified in the Appendix to this Order,
`
`that the parties have conferred regarding alternative dispute resolution and
`
`whether the parties have reached any agreements.
`
`
`
`3. 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.
`
`
`
`4. 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.
`
`
`
`5. 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
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`IPR2015-00369
`Patent 6,128,290
`
`6. 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.
`
`
`
`7. 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.
`
`
`
`8. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`
`
`9. DUE DATE 7
`
`The oral argument (if requested by either party) is set for DUE
`
`DATE 7.
`
`
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`B. CROSS-EXAMINATION
`
`Except as the parties might otherwise agree, for each due date—
`
`1. Cross-examination begins after any supplemental evidence is due.
`
`4
`
`
`
`37 C.F.R. § 42.53(d)(2).
`
`
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`IPR2015-00369
`Patent 6,128,290
`
`
`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.
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`
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`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
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`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
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`opposing party may respond to the observation. Any response must be
`
`equally concise and specific.
`
`
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`D. MOTION TO AMEND
`
`Notwithstanding the page limits set forth in 37 C.F.R. § 42.24, we
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`hereby expand those limits for the following papers: a motion to amend, if
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`filed in this proceeding, as well as Petitioner’s opposition to the motion to
`
`amend, each are limited to twenty-five pages; patent owner’s reply to the
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`opposition to the motion to amend is limited to twelve (12) pages; and the
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`claim listing may be contained in an appendix to the motion to amend, and
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`does not count toward the page limit of the motion. See 37 C.F.R.
`
`5
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`
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`§ 42.5(b).
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`IPR2015-00369
`Patent 6,128,290
`
`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’s response is limited to twenty-five
`
`pages. See 37 C.F.R. § 42.5(b).
`
`6
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`IPR2015-00369
`Patent 6,128,290
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............. July 22, 2015, at 3:00 PM Eastern
`
`ADR STATEMENT DUE ........................................................... July 31, 2015
`
`DUE DATE 1 .................................................................. September 21, 2015
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ................................................................... December 21, 2015
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ....................................................................... January 19, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... February 9, 2016
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ..................................................................... February 23, 2016
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................... March 1, 2016
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ......................................................................... March 15, 2016
`Oral argument (if requested)
`
`7
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`8
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`IPR2015-00369
`Patent 6,128,290
`
`PETITIONER:
`
`David K.S. Cornwell
`davidc-PTAB@skgf.com
`
`
`
`Mark W. Rygiel
`mrygiel-PTAB@skgf.com
`
`
`
`PATENT OWNER:
`
`Andriy Lytvyn
`andriy.lytvyn@smithhopen.com
`
`Anton J. Hopen
`anton.hopen@smithhopen.com
`
`Nicholas Pfeifer
`nicholas.pfeifer@smithhopen.com
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