Paper 10
`Entered: March 17, 2016
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`LONGITUDE FLASH MEMORY SYSTEMS S.A.R.L.,
`Patent Owner.
`____________
`
`Case IPR2015-01909 (Patent 7,120,729 B2)
`Case IPR2015-01911 (Patent 7,181,611 B2)1
`____________
`
`
`
`Before JUSTIN T. ARBES, GREGG I. ANDERSON,
`JO-ANNE M. KOKOSKI, and MICHELLE N. WORMMEESTER,
`Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`1 This Scheduling Order applies to both cases. The parties are not
`authorized to use this style heading for any subsequent papers.
`
`
`Entered: March 17, 2016
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`LONGITUDE FLASH MEMORY SYSTEMS S.A.R.L.,
`Patent Owner.
`____________
`
`Case IPR2015-01909 (Patent 7,120,729 B2)
`Case IPR2015-01911 (Patent 7,181,611 B2)1
`____________
`
`
`
`Before JUSTIN T. ARBES, GREGG I. ANDERSON,
`JO-ANNE M. KOKOSKI, and MICHELLE N. WORMMEESTER,
`Administrative Patent Judges.
`
`ARBES, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`1 This Scheduling Order applies to both cases. The parties are not
`authorized to use this style heading for any subsequent papers.
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 B2)
`
`A. DUE DATES
`
`This order sets due dates for the parties to take action after institution
`
`of the proceedings. 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 these proceedings. 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
`
`Order if there is a need to discuss proposed changes to the 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 an initial
`
`conference call). To request an initial conference call, the parties should
`
`
`
`2
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 B2)
`
`submit to Trials@uspto.gov a list of dates and times when they are available
`
`for a call.
`
`
`
`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.
`
`
`
`3
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 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.
`
`
`
`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.
`
`
`
`
`
`4
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 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. 48,756, 48,768 (Aug. 14, 2012). 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
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 B2)
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL…………………………UPON REQUEST
`
`DUE DATE 1…………….……………………………………...June 1, 2016
`
`
`
`
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2……………………………………………….August 15, 2016
`
`
`
`
`
`Petitioner’s reply to patent owner’s response to petition
`
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`DUE DATE 3……………………………………………September 15, 2016
`
`
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4………………………………………………..October 6, 2016
`
`Motion for observation regarding cross-examination of reply witness
`
`
`
`
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`DUE DATE 5………………………………………………October 20, 2016
`
`
`
`
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6………………………………………………October 27, 2016
`
`
`
`Reply to opposition to motion to exclude
`
`
`
`DUE DATE 7……………………………………………..November 9, 2016
`
`Oral argument (if requested)
`
`
`
`
`
`6
`
`
`
`IPR2015-01909 (Patent 7,120,729 B2)
`IPR2015-01911 (Patent 7,181,611 B2)
`
`PETITIONER:
`
`Brent Yamashita
`Edward Sikorski
`DLA PIPER LLP
`Apple-Longitude-IPR@dlapiper.com
`ed.sikorski@dlapiper.com
`
`
`
`PATENT OWNER:
`
`Walter D. Davis, Jr.
`Wayne M. Helge
`James T. Wilson
`DAVIDSON BERQUIST JACKSON & GOWDEY L.L.P.
`wdavis@davidsonberquist.com
`whelge@dbjg.com
`
`7
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