Trials@uspto.gov
`571-272-7822
`
`
`
`Paper No. 12
`Entered: September 28, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`OPENTV, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00980
`Patent 5,566,287
`____________
`
`
`Before JAMES B. ARPIN, DAVID C. MCKONE, and SCOTT C. MOORE,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`571-272-7822
`
`
`
`Paper No. 12
`Entered: September 28, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`OPENTV, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00980
`Patent 5,566,287
`____________
`
`
`Before JAMES B. ARPIN, DAVID C. MCKONE, and SCOTT C. MOORE,
`Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`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
`
` The parties are directed to contact the Board via e-mail at
`
`Trials@uspto.gov within a month of this decision if there is a no need to
`
`discuss proposed changes to this Scheduling Order or proposed motions. If
`
`2
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`no discussion is needed, the initial conference call will be cancelled. The
`
`parties are directed to the Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`48,756, 48,765–66 (Aug. 14, 2012), for guidance in preparing for the initial
`
`conference call, and should be prepared to discuss any proposed changes to
`
`this Scheduling Order (i.e., DUE DATES 6 and 7) and any motions that are
`
`not authorized already by our Rules or by this Scheduling Order, which the
`
`parties anticipate filing during the trial.
`
`B. 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 prior to
`
`DUE DATE 1. The patent owner is cautioned that any arguments for
`
`patentability not raised in the response are 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.
`
`3
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`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.
`
`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).
`
`4
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`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
`
`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
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ........... 2:00 PM ET on October 26, 2015
`
`DUE DATE 1 ................................................................... December 30, 2015
`
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ......................................................................... March 23, 2016
`
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................... April 26, 2016
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ May 17, 2016
`
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .............................................................................. June 1, 2016
`
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. June 7, 2016
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ June 21, 2016
`
`Oral argument (if requested)
`
`
`
`
`
`6
`
`
`
`IPR2015-00980
`Patent 5,566,287
`
`For PETITIONER:
`
`Mark E. Miller
`Ryan K. Yagura
`Anne E. Huffsmith
`Brian M. Cook
`Xin-Yi Zhou
`John Kevin Murray
`O’Melveny & Meyers LLP
`markmiller@omm.com
`ryagura@omm.com
`ahuffsmith@omm.com
`bcook@omm.com
`vxhou@omm.com
`kmurray2@omm.com
`
`
`
`For PATENT OWNER:
`
`Erika H. Arner
`Joshua L. Goldberg
`Alyssa Holtslander
`Daniel Tucker
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`alyssa.holtslander@finnegan.com
`daniel.tucker@finnegan.com
`
`
`
`
`
`
`7
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