Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 8
`Entered: June 22, 2015
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FRESH PRODUCTS, LLC,
`Petitioner,
`
`v.
`
`ED RAMIREZ,
`Patent Owner.
`
`Case IPR2015-00475
`Patent 8,856,977 B2
`
`
`
`Before PHILLIP J. KAUFFMAN, HYUN J. JUNG, and BARRY L.
`GROSSMAN, Administrative Patent Judges.
`
`GROSSMAN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`Tel: 571-272-7822
`
`Paper 8
`Entered: June 22, 2015
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FRESH PRODUCTS, LLC,
`Petitioner,
`
`v.
`
`ED RAMIREZ,
`Patent Owner.
`
`Case IPR2015-00475
`Patent 8,856,977 B2
`
`
`
`Before PHILLIP J. KAUFFMAN, HYUN J. JUNG, and BARRY L.
`GROSSMAN, Administrative Patent Judges.
`
`GROSSMAN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`IPR2015-00475
`Patent 8,856,977 B2
`
`
`NO INITIAL CONFERENCE CALL
`An initial conference call has not been scheduled. The parties are
`directed to contact the Board immediately to request a call if they have any
`questions or concerns about the schedule that the parties cannot resolve
`within the guidelines stated below. In lieu of an initial conference call, we
`remind the parties of the following matters and Board procedures.
`1. Motion to Amend Conference
`The Patent Owner must confer with the Board before filing a Motion
`to Amend. 37 C.F.R. § 42.121(a). Patent Owner should contact the Board
`to request the conference in sufficient time to ensure that the conference is
`conducted at least one week before DUE DATE 1.
`2. Confidential Information
`A protective order does not exist in this case until requested by a party
`and approved by the Board. If a motion to seal is filed by either party, the
`proposed protective order should be presented as an exhibit to the motion. If
`a protective order is requested, the parties are encouraged to use the Board’s
`default protective order. See Default Protective Order, Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012).
`3. Testimony Guidelines
`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.
`
`2
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`
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`IPR2015-00475
`Patent 8,856,977 B2
`
`
`
`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. 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
`
`3
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`IPR2015-00475
`Patent 8,856,977 B2
`
`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.
`
`2. 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.
`
`3. 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.
`
`4. 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.
`
`5. 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.
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`4
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`IPR2015-00475
`Patent 8,856,977 B2
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`7. 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. 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.
`
`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
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`5
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`IPR2015-00475
`Patent 8,856,977 B2
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`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).
`
`
`
`
`
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`6
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`IPR2015-00475
`Patent 8,856,977 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ............................................................................ Sep. 22, 2015
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................ Dec. 22, 2015
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................. Jan. 22, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ Feb. 12, 2016
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ Feb. 26, 2016
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................... March 4, 2016
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ......................................................................... March 17, 2016
`Oral argument (if requested)
`
`
`7
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`
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`IPR2015-00475
`Patent 8,856,977 B2
`
`PETITIONER:
`Edward Schlatter
`Knobbe, Martens, Olson, & Bear, LLP
`2eas@knobbe.com
`
`Kent Shum
`Knobbe, Martens, Olson, & Bear, LLP
`2kns@knobbe.com
`
`Joseph Jennings
`Knobbe, Martens, Olson, & Bear, LLP
`2JFJ@knobbe.com
`
`
`
`PATENT OWNER:
`
`Matthew Cutler
`Harness, Dickey & Pierce, PLC
`mcutler@hdp.com
`
`Bryan Wheelock
`Harness, Dickey & Pierce, PLC
`bwheelock@hdp.com
`
`Douglas Robinson
`Harness, Dickey & Pierce, PLC
`drobinson@hdp.com
`
`
`8
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