Trials@uspto.gov
`571-272-7822
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` Paper 9
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` Entered: October 1, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ZIILABS INC., LTD.,
`Patent Owner.
`_______________
`
`Case IPR2015-00931
`Patent 5,835,096
`____________
`
`
`
`Before GLENN J. PERRY, TREVOR M. JEFFERSON, and MICHAEL J.
`FITZPATRICK Administrative Patent Judges.
`
`
`JEFFERSON, Administrative Patent Judge.
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`
`
`SCHEDULING ORDER
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`571-272-7822
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`
`
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`
`
` Paper 9
`
`
`
` Entered: October 1, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ZIILABS INC., LTD.,
`Patent Owner.
`_______________
`
`Case IPR2015-00931
`Patent 5,835,096
`____________
`
`
`
`Before GLENN J. PERRY, TREVOR M. JEFFERSON, and MICHAEL J.
`FITZPATRICK Administrative Patent Judges.
`
`
`JEFFERSON, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`Case IPR2015-00931
`Patent 5,835,096
`
`
`I. GENERAL INSTRUCTIONS
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`This order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6). A
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`notice of the stipulation, specifically identifying the changed due dates, must
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`be filed promptly. The parties may not stipulate to an extension of DUE
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`DATES 6 and 7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony (see Section II below).
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`The parties are reminded that the Testimony Guidelines appended to
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`the Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772 (Aug.
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`14, 2012) (Appendix D), apply to this proceeding. The Board may impose
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`an appropriate sanction for failure to adhere to the Testimony Guidelines.
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`37 C.F.R. § 42.12. For example, reasonable expenses and attorneys’ fees
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`incurred by any party may be levied on a person who impedes, delays, or
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`frustrates the fair examination of a witness.
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`1. Initial Conference Call
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`The parties are directed to contact the Board within a month of this
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`order if there is a need to hold an initial conference call to discuss proposed
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`changes to this Scheduling Order or proposed motions. See Office Patent
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`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012)
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`(guidance in preparing for an initial conference call).
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`
`
`2
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`Case IPR2015-00931
`Patent 5,835,096
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`2. Protective Order
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`A protective order does not exist in this proceeding unless the parties
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`file one and the Board approves it. If either party files a motion to seal
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`before entry of a protective order, a jointly proposed protective order should
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`be presented as an exhibit to the motion. We encourage the parties to adopt
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`the Board’s default protective order if they conclude that a protective order
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`is necessary. See Default Protective Order, Practice Guide, App. B. If the
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`parties choose to propose a protective order deviating from the default
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`protective order, they must submit the proposed protective order jointly
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`along with a marked-up comparison of the proposed and default protective
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`orders showing the differences.
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`The Board has a strong interest in the public availability of
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`proceedings. We advise the parties that redactions to documents filed in this
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`proceeding should be limited strictly to isolated passages consisting entirely
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`of confidential information, and that the underlying argument or evidence
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`must be clearly discernible from the redacted versions. We also advise the
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`parties that information subject to a protective order will become public if
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`referred to in a final written decision in this proceeding, and that a motion to
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`expunge the information will not necessarily prevail over the public interest
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`in maintaining a complete and understandable file history. See Practice
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`Guide, at 48,761.
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`3. Motions to Amend
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`Patent Owner may file a motion to amend without prior authorization
`
`from the Board. Nevertheless, the Patent Owner must confer with the Board
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`before filing such a motion. 37 C.F.R. § 42.221(a). We direct the parties to
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`the Board’s website for representative decisions relating to Motions to Amend
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`
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`3
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`Case IPR2015-00931
`Patent 5,835,096
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`among other topics. The parties may access these representative decisions at:
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`http://www.uspto.gov/ip/boards/bpai/representative_orders_and_opinions.jsp.
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`4. Discovery Disputes
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`The Panel encourages the parties to resolve disputes relating to
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`discovery on their own. To the extent that a dispute arises between the
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`parties relating to discovery, the parties shall meet and confer to resolve such
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`a dispute before contacting the Board. If attempts to resolve the dispute fail,
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`a party may request a conference call with the Board and the other party in
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`order to seek authorization to move for relief.
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`In any request for a conference call with the Board to resolve a
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`discovery dispute, the requesting party shall: (a) certify that it has conferred
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`with the other party in an effort to resolve the dispute; (b) identify with
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`specificity the issues for which agreement has not been reached; (c) identify
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`the precise relief to be sought; and (d) propose specific dates and times at
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`which both parties are available for the conference call.
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`II. DUE DATES
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`1. DUE DATE 1
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`The patent owner may file—
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`a.
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`b.
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`A response to the petition (37 C.F.R. § 42.220), and
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`A motion to amend the patent (37 C.F.R. § 42.221).
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`The patent owner must file any such response or motion to amend by DUE
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`DATE 1. If the patent owner elects not to file anything, the patent owner
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`must arrange a conference call with the parties and the Board. The patent
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`owner is cautioned that any arguments for patentability not raised in the
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`response will be deemed waived.
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`4
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`Case IPR2015-00931
`Patent 5,835,096
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`2. DUE DATE 2
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`The petitioner must file any reply to the patent owner’s response and
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`opposition to the motion to amend by DUE DATE 2.
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`3. DUE DATE 3
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`The patent owner must file any reply to the petitioner’s opposition to
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`the patent owner’s motion to amend by DUE DATE 3.
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`4. DUE DATE 4
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`a.
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`Each party must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see section A.7, above) by
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`DUE DATE 4.
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`b.
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`Each party must file any motion to exclude evidence (37 C.F.R.
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`5. DUE DATE 5
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`a.
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`Each party must file any response to a motion for an
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`observation on cross-examination testimony by DUE DATE 5.
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`b.
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`Each party must file any opposition to a motion to exclude
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`evidence by DUE DATE 5.
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`6. DUE DATE 6
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`Each party must file any reply to a motion to exclude evidence by
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`DUE DATE 6.
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`7. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`5
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`Case IPR2015-00931
`Patent 5,835,096
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`DUE DATE APPENDIX
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`DUE DATE 1 ......................................................................... January 6, 2016
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`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`DUE DATE 2 ............................................................................. April 6, 2016
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`Petitioner’s reply to patent owner’s response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3 .............................................................................. May 6, 2016
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`Patent owner’s reply to petitioner’s opposition to motion to amend
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`DUE DATE 4 ............................................................................ May 27, 2016
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`Motion for observation regarding cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5 .............................................................................. June 6, 2016
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 ............................................................................ June 13, 2016
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ............................................................................ June 28, 2016
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`Oral argument (if requested)
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`6
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`Case IPR2015-00931
`Patent 5,835,096
`
`PETITIONER:
`
`Jeffrey Kushan
`IPRNotices@sidley.com
`
`Thomas Tarnay
`ttarnay@sidley.com
`
`Michael Hatcher
`mhatcher@sidley.com
`
`PATENT OWNER:
`
`Andy Chan
`chana@pepperlaw.com
`
`George Haight
`height@pepperlaw.com
`
`Andrew Schultz
`Schultz@pepperlaw.com
`
`Russ Swerdon
`Russ_swerdon@creativelabs.com
`
`Desmund Gean
`Desmund_gean@creativelabs.com
`
`
`
`
`7
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