Paper 7
`Entered: September 2, 2016
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ELECTRONIC ARTS INC.,
`Petitioner,
`
`v.
`
`WHITE KNUCKLE GAMING, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00634
`Patent 8,540,575 B2
`____________
`
`
`
`Before MICHAEL W. KIM, CARL M. DEFRANCO, and
`CHRISTA A. ZADO, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`This Order sets a schedule for trial, including due dates for the parties
`
`to take action upon institution of the trial. See Appendix. The trial will be
`
`administered in a just, speedy and inexpensive manner such that pendency
`
`before the Board is no more than one year after institution. 37 C.F.R.
`
`§§ 42.1(b) and 42.100(c).
`
`
`
`
`Entered: September 2, 2016
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ELECTRONIC ARTS INC.,
`Petitioner,
`
`v.
`
`WHITE KNUCKLE GAMING, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00634
`Patent 8,540,575 B2
`____________
`
`
`
`Before MICHAEL W. KIM, CARL M. DEFRANCO, and
`CHRISTA A. ZADO, Administrative Patent Judges.
`
`DEFRANCO, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`This Order sets a schedule for trial, including due dates for the parties
`
`to take action upon institution of the trial. See Appendix. The trial will be
`
`administered in a just, speedy and inexpensive manner such that pendency
`
`before the Board is no more than one year after institution. 37 C.F.R.
`
`§§ 42.1(b) and 42.100(c).
`
`
`
`
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`A. INITIAL CONFERENCE
`
`
`
`An initial conference call will be scheduled only upon request by
`
`either party within thirty (30) days after entry of this Order. To request a
`
`conference call, the parties should consult with each other and submit a list
`
`of proposed dates and times for the call. If an initial conference call is
`
`scheduled, 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 call, and should be prepared to discuss any proposed changes to the
`
`schedule and any motions the parties anticipate filing during the trial.
`
`
`
`
`
`B. MEET AND CONFER REQUIREMENT
`
`The parties are encouraged to engage in meaningful discussions
`
`before seeking authorization under 37 C.F.R. § 42.20(b) to file a motion for
`
`relief with the Board. At a minimum, before requesting authorization, the
`
`parties shall confer with each other in a good-faith effort to resolve the issue
`
`for which relief is to be sought. Only if the parties cannot resolve the issue
`
`on their own may a party request a conference call with the Board in order to
`
`seek authorization to move for relief. In any request for a conference call
`
`with the Board, the requesting party shall: (1) certify that it has in good-
`
`faith conferred (or attempted to confer) with the other parties in an effort to
`
`resolve the issue; (2) identify with specificity the issue for which agreement
`
`has not been reached; (3) state the precise relief to be sought; and (4)
`
`propose specific dates and times at which both parties are available for the
`
`conference call.
`
`2
`
`
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`C. DUE DATES
`
`
`
`The Appendix specifies due dates for the parties to take action in this
`
`trial. 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 any
`
`stipulation, specifically identifying the changed due dates, must be filed
`
`promptly with the Board. The parties may not stipulate to an extension of
`
`DUE DATES 6 and 7.
`
`
`
`In stipulating to different dates, 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 D, below).
`
`
`
`1.
`
`
`
`
`
`
`
`
`
`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 and
`
`fully briefed 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
`
`
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`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 E, 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.
`
`
`
`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.
`
`DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`
`
`6.
`
`
`
`DUE DATE 6.
`
`
`
`7.
`
`
`
`
`
`DUE DATE 7
`
`Oral argument (if requested by either party) is set for DUE DATE 7.
`
`
`
`4
`
`
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`D. 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.
`
`
`
`The parties are reminded that the Testimony Guidelines appended to
`
`the Trial Practice Guide, 77 Fed.Reg. at 48,772 (App. D), apply to this
`
`proceeding. Pursuant to 37 C.F.R. § 42.12, the Board may impose an
`
`appropriate sanction on any party who fails to adhere to the Testimony
`
`Guidelines, including reasonable expenses and attorney fees incurred by a
`
`party affected by another party’s misconduct.
`
`
`
`
`
`E. 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 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
`
`
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`
`
`APPENDIX
`
`INITIAL CONFERENCE CALL……….…..…..…..…..…..... Upon Request
`
`DUE DATE 1………………………………………...…... December 2, 2016
`
`
`
`
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`DUE DATE 2…………………………………...…………..…March 3, 2017
`
`
`
`
`
`Petitioner’s reply to patent owner’s response to the petition
`
`
`
`Petitioner’s opposition to motion to amend
`
`
`
`DUE DATE 3………………………………….......……....…March 31, 2017
`
`
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4………………………………….….……….…. April 14, 2017
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`
`
`
`
`DUE DATE 5………………………………….....………….. April 28, 2017
`
`
`
`
`
`Response to observation
`
`Opposition to motion to exclude
`
`
`
`DUE DATE 6………………………………………….………. May 5, 2017
`
`
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7………………………………………..……...…May 17, 2017
`
`Oral argument (if requested)
`
`
`
`6
`
`
`
`
`
`
`
`7
`
`IPR2016-00634
`Patent 8,540,575 B2
`
`
`
`FOR PETITIONER:
`
`
`
`Patrick D. McPherson
`Christopher J. Tyson
`DUANE MORRIS LLP
`pdmcpherson@duanemorris.com
`cjtyson@duanemorris.com
`
`
`
`FOR PATENT OWNER:
`
`
`
`Andrew S. Hansen
`HANSENIP, LLC
`andrew@hansenip.org
`
`
`
`David A. Jones
`david@whiteknucklegaming.org
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