Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 9
`Entered: September 11, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`
`Case IPR2015-00812
`Patent 8,850,009 B2
`
`
`
`
`
`
`
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`BISK, 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 notice of the
`
`
`Tel: 571-272-7822
`
`Paper 9
`Entered: September 11, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`
`Case IPR2015-00812
`Patent 8,850,009 B2
`
`
`
`
`
`
`
`
`
`Before KARL D. EASTHOM, JENNIFER S. BISK, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`BISK, 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 notice of the
`
`
`
`IPR2015-00812
`Patent 8,850,009 B2
`
`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 contact the Board within a month of this order if
`
`there is a need to discuss proposed changes to this Scheduling Order or proposed
`
`motions. See Office Patent Trial Practice Guide, 77 Fed. Reg.48,756, 48,765–66
`
`(Aug. 14, 2012) (guidance in preparing for an initial conference call).
`
`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
`
`
`
`IPR2015-00812
`Patent 8,850,009 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
`
`
`
`IPR2015-00812
`Patent 8,850,009 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. 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
`
`
`
`IPR2015-00812
`Patent 8,850,009 B2
`
`D. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under our Rules,
`
`Patent Owner must confer with us before filing any Motion to Amend. We
`
`strongly encourage the parties to arrange for a conference call with us no less than
`
`ten (10) business days prior to DUE DATE 1.
`
`5
`
`
`
`IPR2015-00812
`Patent 8,850,009 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ...................................... UPON REQUEST
`
`DUE DATE 1 ................................................................... December 11, 2015
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ......................................................................... March 11, 2016
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................... April 11, 2016
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................... May 2, 2016
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ............................................................................ May 16, 2016
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................ May 23, 2016
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .............................................................................. June 8, 2016
`
`Oral argument (if requested)
`
`6
`
`
`
`IPR2015-00812
`Patent 8,850,009 B2
`
`PETITIONER:
`Jeffrey P. Kushan
`Scott Border
`Thomas A. Broughan, III
`SIDLEY AUSTIN LLP
`jkushan@sidley.com
`sborder@sidley.com
`tbroughan@sidley.com
`iprnotices@sidley.com
`
`
`
`PATENT OWNER:
`Joseph E. Palys
`Naveen Modi
`PAUL HASTINGS LLP
`josephpalys@paulhastings.com
`naveenmodi@paulhastings.com
`
`Jason Stach
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, L.L.P.
`jason.stach@finnegan.com
`
`
`
`
`
`
`
`7
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