Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper No. 11
`Entered: August 23, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`PARTHENON UNIFIED MEMORY ARCHITECTURE,
`Patent Owner.
`
`Case IPR2016-00923 (Patent 5,812,789)
`Case IPR2016-00924 (Patent 5,960,464)1
`
`
`Before MICHAEL R. ZECHER, JAMES B. ARPIN, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`1 This Scheduling Order sets due dates that are identical in both cases. We
`exercise our discretion to issue one Scheduling Order to be filed in each
`case. The parties are not authorized to use this style heading for any
`subsequent papers.
`
`
`Tel: 571-272-7822
`
`Paper No. 11
`Entered: August 23, 2016
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`PARTHENON UNIFIED MEMORY ARCHITECTURE,
`Patent Owner.
`
`Case IPR2016-00923 (Patent 5,812,789)
`Case IPR2016-00924 (Patent 5,960,464)1
`
`
`Before MICHAEL R. ZECHER, JAMES B. ARPIN, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`1 This Scheduling Order sets due dates that are identical in both cases. We
`exercise our discretion to issue one Scheduling Order to be filed in each
`case. The parties are not authorized to use this style heading for any
`subsequent papers.
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`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).2 A
`notice of the stipulation, specifically identifying the changed due dates, must
`be filed promptly. 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 ten business days
`of the date of this decision if there is a need to discuss proposed changes to
`this Scheduling Order or proposed motions. See Office Patent Trial Practice
`
`
`2 The parties may not change DUE DATE 4 with respect to the requirement
`for requesting oral argument, without express authorization from the panel.
`
`2
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) (setting forth
`guidance in preparing for the initial conference 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.
`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
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`6. DUE DATE 5
`a.
`Each party must file any response to any motion for
`observations 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 to any opposition to 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
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`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
`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.
`37 C.F.R. § 42.121(a). Patent Owner should contact the Board to request
`such a conference, if necessary, at least ten business days before DUE
`DATE 1.
`
`
`
`
`5
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ..................................................... Optional
`
`DUE DATE 1 ...................................................................... December 9, 2016
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ...................................................................... February 24, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .......................................................................... March 24, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ April 14, 2017
`Motions for observations regarding cross-examination of reply
`witness
`Motions to exclude evidence
`Requests for oral argument3
`
`DUE DATE 5 ............................................................................ April 28, 2017
`Responses to motions for observations
`Oppositions to motions to exclude evidence
`
`
`3 Although the parties may stipulate to a different date for DUE DATE 4
`regarding the “Motion for observations regarding cross-examination of reply
`witness” and “Motions to exclude evidence,” the parties may not stipulate to
`a different date for the filing of “Requests for oral argument.”
`
`6
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`DUE DATE 6 ............................................................................... May 5, 2017
`Replies to oppositions to motions to exclude
`
`DUE DATE 7 ............................................................................. May 18, 2017
`Oral argument (if requested)
`
`
`7
`
`
`
`IPR2016-00923 (Patent 5,812,789)
`IPR2016-00924 (Patent 5,960,464)
`
`For PETITIONER:
`Andrew S. Ehmke
`David W. O’Brien
`HAYNES AND BOONE, LLP
`andy.ehmke.ipr@haynesboone.com
`david.obrien.ipr@haynesboones.com
`
`
`For PATENT OWNER:
`
`Massod Anjom
`Scott Clark
`AHMAD, ZAVITSANOS, ANAIPAKOS, ALAVI & MENSING P.C.
`manjom@azalaw.com
`sclark@azalaw.com
`
`
`8
`
`
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