Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`Paper No. 8
`Filed: November 4, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`
`
`
`
`Case IPR2016-01006 (Patent 7,835,430 B2)
`Case IPR2016-01007 (Patent 8,432,956 B2)
`Case IPR2016-01008 (Patent 8,238,412 B2)
`Case IPR2016-01009 (Patent 8,238,412 B2)
`Case IPR2016-01020 (Patent 9,014,243 B2)
`Case IPR2016-01021 (Patent 8,718,158 B2)
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
`Paper No. 8
`Filed: November 4, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`
`
`
`
`Case IPR2016-01006 (Patent 7,835,430 B2)
`Case IPR2016-01007 (Patent 8,432,956 B2)
`Case IPR2016-01008 (Patent 8,238,412 B2)
`Case IPR2016-01009 (Patent 8,238,412 B2)
`Case IPR2016-01020 (Patent 9,014,243 B2)
`Case IPR2016-01021 (Patent 8,718,158 B2)
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`A. GENERAL INSTRUCTIONS
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`
`
`
`
`1. Initial Conference Call
`
`Unless at least one of the parties requests otherwise, we will not
`
`conduct an initial conference call as described in the Office Patent Trial
`
`Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012). The
`
`parties are directed to contact the Board within 30 days of this Scheduling
`
`Order if there is a need to discuss proposed changes to the schedule or any
`
`proposed motions. See 77 Fed. Reg. at 48,765–66.
`
`2. Conference Calls with the Board
`
`In any request for a conference call with the Board to resolve a
`
`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. Prior to contacting the Board,
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`however, we encourage the parties to resolve any disputes arising in the
`
`proceeding on their own and in accordance with the precepts set forth in
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`37 C.F.R. § 42.1(b).
`
`3. Confidential Information
`
`The parties must file confidential information using the appropriate
`
`availability indicator in PTAB E2E (e.g., “Board and Parties Only”),
`
`regardless of whose confidential information it is. It is the responsibility of
`
`the party whose confidential information is at issue, not necessarily the
`
`proffering party, to file the motion to seal, unless the party whose
`
`confidential information is at issue is not a party to this proceeding.
`
`2
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`
`
`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`
`
`
`
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`A protective order does not exist in a case until one is filed in the case
`
`and is approved by the Board. If a motion to seal is filed by either party, the
`
`proposed protective order should be presented as an exhibit to the motion.
`
`The parties are urged to operate under the Board’s default protective order,
`
`should that become necessary. See Default Protective Order, Office Patent
`
`Trial Practice Guide, 77 Fed. Reg. at 48,769–71 (Appendix B). If the parties
`
`choose to propose a protective order deviating from the default protective
`
`order, they should submit the proposed protective order jointly. A marked-
`
`up comparison of the proposed and default protective orders should be
`
`presented as an additional exhibit to the motion to seal, so that the difference
`
`can be understood readily. The parties should contact the Board if they
`
`cannot agree on the terms of the proposed protective order.
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`Redactions should be limited strictly to isolated passages consisting
`
`entirely of confidential information. The thrust of the underlying argument
`
`or evidence must be clearly discernible from the redacted version.
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`Information subject to a protective order will become public if
`
`identified in a final written decision in this proceeding. 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.
`
`4. 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, preferably at least ten (10) business days prior to DUE DATE 1.
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`3
`
`
`
`
`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`5. Depositions
`
`
`
`
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`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
`
`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.
`
`6. Cross-Examination
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`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.
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`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. 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.
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`4
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`
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`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`B. DUE DATES
`
`
`
`
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`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. 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. 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
`
`5
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`
`
`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`must arrange a conference call with the parties and the Board. The patent
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`
`
`
`
`owner is cautioned that any arguments for patentability not raised in the
`
`response will be deemed waived.
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`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.
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`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.
`
`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.
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`5. DUE DATE 5
`
`a.
`
`Each party must file any response to an observation on cross-
`
`examination testimony by DUE DATE 5.
`
`b.
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`Each party must file any opposition to a motion to exclude
`
`evidence by DUE DATE 5.
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`6
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`
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`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`6. DUE DATE 6
`
`
`
`
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`7. DUE DATE 7
`
`Oral argument (if requested by either party) is set for DUE DATE 7.
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`7
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`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`DUE DATE APPENDIX
`
`
`
`
`
`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`INITIAL CONFERENCE CALL ........................................... Upon Request
`
`DUE DATE 1 ..................................................................... February 9, 2017
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. May 9, 2017
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................. June 9, 2017
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................... June 30, 2017
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ............................................................................ July 14, 2017
`
`Response to observation
`
`Opposition to motion to exclude
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`DUE DATE 6 ............................................................................ July 21, 2017
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ......................................................................... August 3, 2017
`
`Oral argument (if requested)
`
`
`
`8
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`IPR2016-01009
`IPR2016-01020
`IPR2016-01021
`
`IPR2016-01006
`IPR2016-01007
`IPR2016-01008
`
`
`
`PETITIONER:
`
`
`David McCombs
`David.mccombs.ipr@haynesboone.com
`
`Theo Foster
`Ipr.theo.foster@haynesboone.com
`
`Gregory P. Huh
`Gregory.huh.ipr@haynesboone.com
`
`PATENT OWNER:
`
`Peter McAndrews
`pmcandrews@mcandrews-ip.com
`
`Thomas Wimbiscus
`twimbiscus@mcandrews-ip.com
`
`Scott McBride
`smcbride@mcandrews-ip.com
`
`Christopher Scharff
`cscharff@mcandrews-ip.com
`
`
`
`9
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`
`
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