Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`
`
` Paper No. 25
`
` Entered: November 1, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL INC.; RIVERBED TECHNOLOGY, INC.;
`HEWLETT-PACKARD ENTERPRISE CO.;
`HP ENTERPRISE SERVICES, LLC; TERADATA OPERATIONS, INC.;
`ECHOSTAR CORPORATION; and
`HUGHES NETWORK SYSTEMS, LLC,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00972
`Patent 7,415,530 C1
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, J. JOHN LEE, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
`
`
` Paper No. 25
`
` Entered: November 1, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL INC.; RIVERBED TECHNOLOGY, INC.;
`HEWLETT-PACKARD ENTERPRISE CO.;
`HP ENTERPRISE SERVICES, LLC; TERADATA OPERATIONS, INC.;
`ECHOSTAR CORPORATION; and
`HUGHES NETWORK SYSTEMS, LLC,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00972
`Patent 7,415,530 C1
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, J. JOHN LEE, and
`JASON J. CHUNG, Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`A. GENERAL INSTRUCTIONS
`
`1. Initial Conference Call
`
`The parties are directed to contact the Board within ten (10) business
`
`days of the date of this decision if there is a need to discuss proposed
`
`changes to this Scheduling Order (i.e., regarding DUE DATES 6 and 7) or
`
`any proposed motions, not authorized already by our Rules or by this
`
`Scheduling Order, which the parties anticipate filing during the trial. See
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66
`
`(Aug. 14, 2012) (setting forth guidance in preparing for the initial
`
`conference call).
`
`2. Protective Order
`
`A protective order is not entered in this proceeding unless the parties
`
`propose one and the Board approves it. If either party files a motion to seal
`
`before entry of a protective order, a jointly proposed protective order should
`
`be presented as an exhibit to the motion. We encourage the parties to adopt
`
`the Board’s default protective order if they conclude that a protective order
`
`is necessary. See Default Protective Order, Office Patent Trial Practice
`
`Guide, 77 Fed. Reg. 48,756, App. B. If the parties choose to propose a
`
`protective order deviating from the default protective order, they must
`
`submit the proposed protective order jointly along with a marked-up
`
`comparison of the proposed and default protective orders showing the
`
`differences.
`
`The Board has a strong interest in the public availability of the
`
`proceedings. We advise the parties that redactions to documents filed in this
`
`proceeding should be limited strictly to isolated passages consisting entirely
`
`of confidential information, and that the thrust of the underlying argument or
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`evidence must be clearly discernible to the public from the redacted
`
`versions. We also advise the parties that information subject to a protective
`
`order will become public if identified in a final written decision in this
`
`proceeding, and that a motion to expunge the information will not
`
`necessarily prevail over the public interest in maintaining a complete and
`
`understandable file history. See Office Patent Trial Practice Guide,
`
`77 Fed. Reg. at 48,761; 37 C.F.R. § 42.56.
`
`Notwithstanding the default filing times for an opposition and a reply
`
`reflected in 37 C.F.R. § 42.25(a):
`
`(1) an opposition, if any, to a motion to seal is due seven days after
`
`service of the motion; and
`
`(2) a reply, if any, to an opposition to a motion to seal is due seven
`
`days after service of the opposition.
`
`3. Motion to Amend
`
`Patent Owner may file a motion to amend without prior authorization
`
`from the Board. Nevertheless, Patent Owner must confer with the Board
`
`before filing such a motion. See 37 C.F.R. § 42.121(a). Patent Owner should
`
`arrange for a conference call with the panel and opposing counsel at least
`
`10 business days before DUE DATE 1 in order to satisfy the requirement for a
`
`conference. We direct the parties to the Board’s website for representative
`
`decisions relating to Motions to Amend among other topics. The parties may
`
`access these representative decisions at:
`
`http://www.uspto.gov/ip/boards/bpai/representative_orders_and_opinions.jsp.
`
`4. Discovery Disputes
`
`The panel encourages the parties to resolve disputes relating to
`
`discovery on their own and in accordance with the precepts set forth in
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`37 C.F.R. § 42.1(b). To the extent that a dispute arises between the parties
`
`relating to discovery, the parties shall meet and confer to resolve such a
`
`dispute before contacting the Board. If attempts to resolve the dispute fail,
`
`either party may request a conference call with the Board and the other party
`
`in order to seek authorization to move for relief.
`
`In any request for a conference call with the Board to resolve a
`
`discovery dispute, the requesting party shall: (a) certify that it has conferred
`
`with the other party in an effort to resolve the dispute; (b) identify with
`
`specificity the issues for which agreement has not been reached; (c) identify
`
`the precise relief to be sought; and (d) propose specific dates and times at
`
`which both parties are available for the conference call.
`
`5. Depositions
`
`The parties are advised that the Testimony Guidelines appended to the
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772, App. D, apply to
`
`this proceeding. The Board may impose an appropriate sanction or
`
`sanctions 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.
`
`Whenever a party submits a deposition transcript as an exhibit in this
`
`proceeding, the submitting party shall file the full transcript of the deposition
`
`rather than excerpts of only those portions being cited. After a deposition
`
`transcript has been submitted as an exhibit, all parties who subsequently cite
`
`to portions of the transcript shall cite to the first-filed exhibit rather than
`
`submitting another copy of the same transcript.
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`
`6. 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.
`
`7. 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. No observation should exceed
`
`a single, short paragraph. The opposing party may respond to the
`
`observation. Any response must be equally concise and specific.
`
`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).1 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
`
`
`1 The parties may not change DUE DATE 4 with respect to the requirement
`for requesting oral argument, without the express permission of the panel.
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`DATES 6 and 7, and, if either party anticipates the need to alter DUE
`
`DATE 7, the parties must schedule a conference call with the panel
`
`immediately upon identifying any conflict or potential conflict with DUE
`
`DATE 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.
`
`1. DUE DATE 1
`
`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).
`
`Patent Owner must file any such response or motion to amend by DUE
`
`DATE 1. If Patent Owner elects not to file anything, Patent Owner must
`
`arrange a conference call with the parties and the Board. Patent Owner is
`
`cautioned that any arguments for patentability not raised in the response will
`
`be deemed waived.
`
`2. DUE DATE 2
`
`Petitioner must file any reply to Patent Owner’s response and
`
`opposition to the motion to amend by DUE DATE 2.
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`
`3. DUE DATE 32
`
`Patent Owner must file any reply to 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 A.7, above) 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 reply to a Petitioner 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.
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`6. DUE DATE 6
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`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.
`
`
`2 The parties are advised that if no Motion to Amend is filed in this proceeding,
`DUE DATE 3 is moot, and the panel may advance DUE DATES 4–7 sua
`sponte.
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ...................................................... Optional
`
`DUE DATE 1 ........................................................................ January 18, 2017
`
`Patent Owner’s response to the Petition
`
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. April 5, 2017
`
`Petitioner’s reply to Patent Owner’s response to the Petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................. May 10, 2017
`
`Patent Owner’s reply to Petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................. May 24, 2017
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`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ............................................................................... June 7, 2017
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................. June 14, 2017
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .............................................................................. July 13, 2017
`
`Oral argument (if requested)
`
`
`
`IPR2016-00972
`Patent 7,415,530 C1
`
`PETITIONERS:
`
`Andrew R. Sommer
`Thomas M. Dunham
`WINSTON & STRAWN LLP
`asommer@winston.com
`tdunham@winston.com
`
`David M. O’Dell
`Kyle Howard
`Greg Webb
`HAYNES AND BOONE, LLP
`David.odell.ipr@haynesboone.com
`kyle.howard.ipr@haynesboone.com
`greg.webb.ipr@haynesboone.com
`
`Jamie R. Lynn
`BAKER BOTTS, L.L.P.
`jamie.lynn@bakerbotts.com
`
`John D. Vandenberg
`Garth A. Winn
`KLARQUIST SPARKMAN, LLP
`john.vandenberg@klarquist.com
`garth.winn@klarquist.com
`
`Adam R. Shartzer
`FISH & RICHARDSON PC
`shartzer@fr.com
`
`PATENT OWNER:
`
`Jason Eisenberg
`Donald Featherstone
`Joseph Mutschelknaus
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C
`jasone-ptab@skgf.com
`donf-ptab@skgf.com
`jmutsche-ptab@skgf.com
`
`
`
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