Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 13
`Entered: December 8, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTERNATIONAL BUSINESS MACHINES CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01323
`Patent 6,314,409 B2
`
`
`
`Before KRISTEN L. DROESCH, BARBARA A. PARVIS, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`571-272-7822
`
`
`
`
`
`Paper 13
`Entered: December 8, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTERNATIONAL BUSINESS MACHINES CORPORATION,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01323
`Patent 6,314,409 B2
`
`
`
`Before KRISTEN L. DROESCH, BARBARA A. PARVIS, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`A. INITIAL CONFERENCE CALL
`
`
`
`An initial conference call will be scheduled upon the request of either
`
`party. To request a conference call, the parties should submit a list of dates
`
`and times when they are available for a call. If an initial conference call is
`
`requested, the parties should be prepared to discuss any proposed changes to
`
`this Scheduling Order and any motions the parties anticipate filing during
`
`the trial. 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.
`
`B. 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. at 48,772 (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
`
`2
`
`
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`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. 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. The patent
`
`owner is cautioned that any arguments for patentability not raised in the
`
`response will be deemed waived.
`
`2. 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.
`
`3. 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.
`
`4. 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.
`
`3
`
`
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`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.
`
`5. 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.
`
`6. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`7. 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.
`
`4
`
`
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`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. 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.
`
`5
`
`
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ......................................................................... March 10, 2016
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................ June 10, 2016
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................. July 11, 2016
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .......................................................................... August 1, 2016
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ........................................................................ August 15, 2016
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................ August 22, 2016
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .................................................................. September 12, 2016
`
`Oral argument (if requested)
`
`6
`
`
`
`
`
`
`
`IPR2015-01323
`Patent 6,314,409 B2
`
`PETITIONER:
`
`Kenneth R. Adamo
`Brent P. Ray
`Joel R. Merkin
`Eugene Goryunov
`KIRKLAND & ELLIS LLP
`kenneth.adamo@kirkland.com
`brent.ray@kirkland.com
`jmerkin@kirkland.com
`eugene.goryunov@kirkland.com
`
`
`
`PATENT OWNER:
`
`Lori A. Gordon
`Jonathan M. Strang
`Byron L. Pickard
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`lgordon-PTAB@skgf.com
`jstrang-PTAB@skgf.com
`bpickard-PTAB@skgf.com
`
`
`
`Donald J. Coulman
`Tim R. Seeley
`INTELLECTUAL VENTURES
`dcoulman@intven.com
`tim@intven.com
`
`7
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