Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 19
`Entered: September 17, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LEVONO (UNITED STATES) INC., LENOVO HOLDING COMPANY,
`INC., LENOVO GROUP LTD., GOOGLE, INC., AND BARNES &
`NOBLE INC.,
`Petitioner,
`
`v.
`
`PERSONAL AUDIO LLC,
`Patent Owner.
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`
`
`
`
`
`
`
`
`
`
`
`Before MITCHELL G. WEATHERLY, DAVID C. McKONE, and
`BRIAN P. MURPHY, Administrative Patent Judges.
`
`WEATHERLY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`Tel: 571-272-7822
`
`Paper 19
`Entered: September 17, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LEVONO (UNITED STATES) INC., LENOVO HOLDING COMPANY,
`INC., LENOVO GROUP LTD., GOOGLE, INC., AND BARNES &
`NOBLE INC.,
`Petitioner,
`
`v.
`
`PERSONAL AUDIO LLC,
`Patent Owner.
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`
`
`
`
`
`
`
`
`
`
`
`Before MITCHELL G. WEATHERLY, DAVID C. McKONE, and
`BRIAN P. MURPHY, Administrative Patent Judges.
`
`WEATHERLY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`
`I. 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. See 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.
`
`A. INITIAL CONFERENCE CALL
` No initial conference call is scheduled. If either party desires an
`initial conference call, the party should send an email request to
`Trials@uspto.gov and a call will be scheduled. The parties are directed to
`contact the Board within a month of this decision if there is a need to discuss
`proposed changes to this Scheduling Order or proposed motions. See Office
`
`2
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`Patent Trial Practice Guide, 77 Fed. Reg. at 48,765–66 (guidance in
`preparing for the initial conference call).
`
`B. 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.
`
`C. 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.
`
`D. 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.
`
`E. DUE DATE 4
`1.
`Each party must file any motion for an observation on the
`cross-examination testimony of a reply witness (see section III, below) by
`DUE DATE 4.
`2.
`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
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`
`F. DUE DATE 5
`1.
`Each party must file any reply to an observation on cross-
`examination testimony by DUE DATE 5.
`2.
`Each party must file any opposition to a motion to exclude
`evidence by DUE DATE 5.
`
`G. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`H. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`II. CROSS-EXAMINATION
`Except as the parties might otherwise agree, for each due date—
`1.
`Cross-examination begins after any supplemental evidence is
`due. See 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. See id.
`
`III. 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
`
`4
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`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.
`IV. 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
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................ upon request
`
`DUE DATE 1 ................................................................... December 16, 2015
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ......................................................................... March 16, 2016
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................... April 18, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .............................................................................. May 9, 2016
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ May 23, 2016
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. June 1, 2016
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ June 16, 2016
`Oral argument (if requested)
`
`6
`
`
`
`Case IPR2015-00846
`Patent 7,509,178 B2
`
`PETITIONER:
`
`
`
`Daniel M. De Vos
`Matthew N. Nicholson
`NICHOLSON DE VOS WEBSTER & ELLIOTT LLP
`dan@nicholsondevos.com
`matt@nicholsondevos.com
`
`PATENT OWNER:
`
`Minghui Yang
`Greg Donahue
`DINOVO PRICE ELLWANGER & HARDY LLP
`myang@dpelaw.com
`gdonahue@dpelaw.com
`
`7
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