Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 18
`Entered: August 28, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`FACEBOOK, INC., INSTAGRAM LLC,
`Petitioner,
`
`v.
`
`TLI COMMUNICATIONS, LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-00778
`Patent 6,038,295
`_______________
`
`
`
`Before JAMESON LEE, BART A. GERSTENBLITH, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`Tel: 571-272-7822
`
`Paper 18
`Entered: August 28, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`FACEBOOK, INC., INSTAGRAM LLC,
`Petitioner,
`
`v.
`
`TLI COMMUNICATIONS, LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-00778
`Patent 6,038,295
`_______________
`
`
`
`Before JAMESON LEE, BART A. GERSTENBLITH, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`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. at 48,765–66, for guidance in preparing for the initial
`
`conference call, and should be prepared to discuss any proposed changes to
`
`this Scheduling Order and any motions the parties anticipate filing during
`
`the trial.
`
`2
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`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).
`
`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.
`
`3
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`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.
`
`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. 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. at 48,768. The observation must be a concise statement of the
`
`4
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`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
`
`
`
`The parties are reminded that 37 C.F.R. § 42.24 was amended
`
`effective May 19, 2015, and that the page limits that pertain to motions to
`
`amend are as follows: any motion to amend is limited to 25 pages;
`
`Petitioner’s opposition to any motion to amend is limited to 25 pages; and
`
`Patent Owner’s reply to the opposition to any motion to amend is limited to
`
`12 pages. 37 C.F.R. § 42.24(a)–(c). The claim listing does not count
`
`towards the page limit for a motion to amend, and may be contained in an
`
`appendix. 37 C.F.R. § 42.24(a)(1).
`
`E. PETITIONER’S REPLY
`
`
`
`Pursuant to 37 C.F.R. § 42.24(c), Petitioner’s reply brief to patent
`
`owner response is limited to 25 pages.
`
`F. FORMAT AND FILING OF DOCUMENTS
`
`
`
`The parties are reminded that 37 C.F.R. § 42.6 was amended effective
`
`May 19, 2015, and now requires the use of 14-point, Times New Roman
`
`proportional font, with normal spacing. The parties should familiarize
`
`themselves with the requirements of 37 C.F.R. § 42.6. Any filing that does
`
`not comply with 37 C.F.R. § 42.6 may be expunged.
`
`
`
`
`
`
`
`5
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............... 9/18/15 at 2:00PM Eastern Time
`
`DUE DATE 1 .................................................................................... 10/29/15
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .................................................................................... 12/30/15
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................................ 2/1/16
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ...................................................................................... 2/22/16
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ........................................................................................ 3/7/16
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ...................................................................................... 3/14/16
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ...................................................................................... 3/17/16
`
`Oral argument (if requested)
`
`
`
`6
`
`
`
`IPR2015-00778
`Patent 6,038,295
`
`For PETITIONER:
`
`Heidi Keefe
`Andrew Mace
`hkeefe@cooley.comamace@cooley.com
`
`
`
`For PATENT OWNER:
`
`Tarek Fahmi
`tarek.fahmi@ascendalaw.com
`
`
`
`7
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