`571-272-7822
`
`
`
`
`Paper 14
`Entered: October 30, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`FUJITSU NETWORK COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CAPELLA PHOTONICS, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00726
`Patent RE42,368 E
`____________
`
`
`Before JOSIAH C. COCKS, KALYAN K. DESHPANDE, and
`JAMES A. TARTAL, Administrative Patent Judges.
`
`TARTAL, Administrative Patent Judge.
`
`
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`
`I.
`Introduction
`On October 28, 2015, Petitioner, Fujitsu Network Communications,
`Inc., informed the Board that its expert declarant in the case was deceased.
`Petitioner requested a conference call to discuss how to proceed given that
`cross-examination of Petitioner’s declarant did not occur prior to his death.
`On October 29, 2015, a conference call on this matter took place between
`Judges Cocks, Deshpande and Tartal, and respective counsel for the parties.
`A reporter was on the teleconference and the transcript will be entered in
`the record.
`
`II. Analysis
`Our rules provide for submission of supplemental information only in
`certain circumstances once trial has been instituted. When, as here, the
`request to submit such information comes more than a month after trial has
`commenced, the rules require the following:
`Late submission of supplemental information. A party seeking
`to submit supplemental information more than one month after
`the date the trial is instituted, must request authorization to file
`a motion to submit the information. The motion to submit
`supplemental information must show why the supplemental
`information reasonably could not have been obtained earlier,
`and that consideration of the supplemental information would
`be in the interests-of-justice.
`
`37 C.F.R. § 123 (b).
`Petitioner stated during the teleconference that it had identified an
`additional declarant and requested leave to file a new declaration. Petitioner
`proposed that the new declaration it sought to submit would be substantially
`identical to the original declaration by the deceased declarant, following the
`
`2
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`same paragraph numbering and indicating with brackets where any material
`from the prior declaration was omitted. Patent Owner, Capella Photonics,
`Inc., expressed various concerns to avoid unfair prejudice, including that it
`have the opportunity to cross-examine the new declarant and modify the
`schedule. If its request to submit supplemental information is granted,
`Petitioner agreed that the new declarant promptly would be made available
`for deposition.
`In light of the foregoing, we authorized Petitioner to file a motion to
`submit supplemental information, including as an attachment the declaration
`Petitioner seeks to submit. Although a deadline for submission of the
`motion is provided, Petitioner is encouraged to file the motion as soon as
`practicable and need not wait until the end of the period provided. Patent
`Owner was also authorized to file an opposition to the motion, if it so
`chooses, due one week after Petitioner’s motion is filed. The parties are also
`to confer to modify the scheduling order and may stipulate to different dates
`for Due Dates 1 through 5.
`
`III. Order
`
`It is
`ORDERED that Petitioner may file a motion to submit supplemental
`information on, or before, November 12, 2015, consisting of no more than
`five pages, attaching thereto the supplemental information sought to be
`submitted;
`FURTHER ORDERED that Patent Owner may file an opposition to
`the motion, consisting of no more than five pages, due one week after
`Petitioner’s motion is filed; and,
`
`3
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`
`FURTHER ORDERED that both parties shall confer to modify the
`scheduling order, and, by November 19, 2015, either file a stipulated
`modification to the scheduling order (other than Due Dates 6 and 7), or, if
`agreement cannot be reached, contact the Board to request a teleconference,
`including counsel’s availability for a teleconference and the proposed
`schedule modifications of each party.
`
`
`
`4
`
`
`
`
`
`
`
`IPR2015-00726
`Patent RE42,368 E
`
`For PETITIONER:
`
`Christopher E. Chalsen
`Lawrence T. Kass
`Nathaniel T. Browand
`Suraj K. Balusu
`MILBANK, TWEED, HADLEY & MCCLOY LLP
`cchalsen@milbank.com
`lkass@milbank.com
`nbrowand@milbank.com
`sbalusu@milbank.com
`
`For PATENT OWNER:
`
`Jason D. Eisenberg
`Robert Greene Sterne
`Jon E. Wright
`Jonathan Tuminaro
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`jasone-PTAB@skgf.com
`rsterne-PTAB@skgf.com
`jwright-PTAB@skgf.com
`jtuminar-PTAB@skgf.com
`
`5
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