Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 12
`Entered: October 7, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`THE MANGROVE PARTNERS MASTER FUND, LTD.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`
`
`Case IPR2015-01047
`Patent 7,490,151
`
`
`
`
`
`
`
`
`
`
`
`Before MICHAEL P. TIERNEY, KARL D. EASTHOM, and STEPHEN C.
`SIU, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`Tel: 571-272-7822
`
`Paper 12
`Entered: October 7, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`THE MANGROVE PARTNERS MASTER FUND, LTD.,
`Petitioner,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`
`
`Case IPR2015-01047
`Patent 7,490,151
`
`
`
`
`
`
`
`
`
`
`
`Before MICHAEL P. TIERNEY, KARL D. EASTHOM, and STEPHEN C.
`SIU, Administrative Patent Judges.
`
`SIU, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`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 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 Patent Trial Practice Guide, 77 Fed.
`Reg. 48,756, 48,765–66 (Aug. 14, 2012) (guidance in preparing for the
`initial conference call).
`
`2
`
`
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`2. 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.
`
`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
`
`
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`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. 48,756, 48,768 (Aug. 14, 2012). The observation must be a
`
`4
`
`
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`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.
`
`D. MOTION TO AMEND
`
`Notwithstanding the page limits set forth in 37 C.F.R. § 42.24, we
`hereby expand those limits for the following papers: a motion to amend, if
`filed in this proceeding, as well as petitioner’s opposition to the motion to
`amend, each are limited to twenty-five (25) pages; patent owner’s reply to
`the opposition to the motion to amend is limited to twelve (12) pages; and
`the claim listing may be contained in an appendix to the motion to amend,
`and does not count toward the page limit of the motion. See 37 C.F.R.
`§ 42.5(b).
`E.
`PETITIONER’S REPLY
`
`Notwithstanding the page limit set forth in 37 C.F.R. § 42.24(c),
`petitioner’s reply brief to patent owner response is limited to twenty-five
`(25) pages. See 37 C.F.R. § 42.5(b).
`
`
`
`
`
`
`5
`
`
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ......................................................................... January 8, 2016
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................. April 8, 2016
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .............................................................................. May 9, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ May 27, 2016
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ June 13, 2016
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................ June 20, 2016
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ June 30, 2016
`Oral argument (if requested)
`
`
`6
`
`
`
`7
`
`Case Number IPR2015-01047
`Patent 7,490,151 B2
`
`PETITIONER:
`
`Abraham Kasdan
`James T. Bailey
`WIGGIN AND DANA LLP
`akasdan@wiggin.com
`jtb@jtbaileylaw.com
`
`
`
`PATENT OWNER:
`
`Joseph E. Palys
`Naveen Modi
`PAUL HASTINGS LLP
`josephpalys@paulhastings.com
`naveenmodi@paulhastings.com
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