Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper No. 11
`Entered: December 2, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`ACUITY BRANDS LIGHTING, INC.,
`
`Petitioner,
`
`v.
`
`LYNK LABS, INC.,
`
`Patent Owner.
`
`____________
`
`
`
`Case IPR2016-01133
`Patent 8,841,855 B2
`
`
`Before BRYAN F. MOORE, JENNIFER MEYER CHAGNON, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`MAYBERRY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`Tel: 571-272-7822
`
`Paper No. 11
`Entered: December 2, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`
`ACUITY BRANDS LIGHTING, INC.,
`
`Petitioner,
`
`v.
`
`LYNK LABS, INC.,
`
`Patent Owner.
`
`____________
`
`
`
`Case IPR2016-01133
`Patent 8,841,855 B2
`
`
`Before BRYAN F. MOORE, JENNIFER MEYER CHAGNON, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`MAYBERRY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`
`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). 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.
`
`2
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`1. INITIAL CONFERENCE CALL
`
`An initial conference call is not scheduled in this case. A party may
`
`request an initial conference call within 25 days after the institution of trial.
`
`A party requesting an initial conference call shall: (a) identify the proposed
`
`motions, if any, to be discussed during the call; and (b) propose two or more
`
`dates and times when both parties are available for the call. When an initial
`
`conference call is scheduled in response to a request, the parties are directed
`
`to the Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,765–66, for
`
`guidance in preparing for the initial conference call and should be prepared
`
`to discuss any proposed changes to the schedule in this proceeding.
`
`2. 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
`
`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.
`
`3
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`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.
`
`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.
`
`4
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`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. 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.
`
`D. 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 one
`
`week before DUE DATE 1 in order to satisfy the conferral requirement. We
`
`direct the parties to the Board’s website for decisions relating to Motions to
`
`Amend among other topics, including MasterImage 3D, Inc. v. RealD Inc.,
`
`5
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`IPR2015-00040, Paper 42, July 15, 2015 (precedential) and Idle Free Systems,
`
`Inc. v. Bergstrom, Inc., IPR2012-00027, Paper 26, June 11, 2013
`
`(informative).
`
`E. PROTECTIVE ORDER
`
`
`
`No protective order has been entered in this proceeding. The parties
`
`are reminded of the requirement for a protective order when filing a motion
`
`to seal. 37 C.F.R. § 42.54. If the parties have agreed to a proposed
`
`protective order, including the Default Standing Protective Order, 77 Fed.
`
`Reg. at 48,771 (Appendix B), they should file a signed copy of the proposed
`
`protective order with the motion to seal. If the parties choose to propose a
`
`protective order other than, or departing from, the Default Standing
`
`Protective Order, they must submit a joint, proposed protective order,
`
`accompanied by a red-lined version based on the Default Standing
`
`Protective Order.
`
`
`
`
`
`6
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ........................................................................... March 1, 2017
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................. May 24, 2017
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................ June 21, 2017
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................. July 12, 2017
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 .............................................................................. July 26, 2017
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .......................................................................... August 2, 2017
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................ August 10, 2017
`
`Oral argument (if requested)
`
`
`
`7
`
`
`
`IPR2016-01133
`Patent 8,841,855 B2
`
`For PETITIONER:
`
`Reginald J. Hill
`Benjamin J. Bradford
`Michael G. Babbitt
`Lisa M. Schoedel
`JENNER & BLOCK LLP
`rhill@jenner.com
`bbradford@jenner.com
`mbabbitt@jenner.com
`lschoedel@jenner.com
`
`
`
`For PATENT OWNER:
`
`David M. O’Dell
`David M. McCombs
`Howard E. Levin
`HAYNES AND BOONE, LLP
`david.odell.ipr@haynesboone.com
`david.mccombs.ipr@haynesboone.com
`howard.levin.ipr@haynesboone.com
`
`
`
`8
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