Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 12
`Entered: January 20, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ZTE (USA) INC.,
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA, INC.,
` Petitioner,
`
`v.
`
`EVOLVED WIRELESS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01342
`Patent 8,218,481 B2
`____________
`
`
`Before WILLIAM V. SAINDON, PETER P. CHEN, and TERRENCE W.
`McMILLIN, Administrative Patent Judges
`
`
`
`McMILLIN, Administrative Patent Judge
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`Tel: 571-272-7822
`
`Paper 12
`Entered: January 20, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ZTE (USA) INC.,
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA, INC.,
` Petitioner,
`
`v.
`
`EVOLVED WIRELESS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01342
`Patent 8,218,481 B2
`____________
`
`
`Before WILLIAM V. SAINDON, PETER P. CHEN, and TERRENCE W.
`McMILLIN, Administrative Patent Judges
`
`
`
`McMILLIN, Administrative Patent Judge
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`
`A. DUE DATES
`
`The Appendix to 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), except that the parties may not modify the deadline for requesting
`
`oral argument. 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 C, 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
`
`2
`
`
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`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.
`
`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. 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 D, 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.
`
`6. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`3
`
`
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`
`7. DUE DATE 7
`
`The oral argument (if requested by either party) is set for DUE
`
`DATE 7.
`
`Unless the Board notifies the parties otherwise, oral argument, if
`
`requested, will be held at the USPTO Regional Office in San Jose,
`
`California.
`
`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. OBSERVATIONS ON CROSS-EXAMINATION
`
`Observations 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 observations must be concise
`
`statements 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
`
`observations. Any response must be equally concise and specific.
`
`4
`
`
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`D. PROTECTIVE ORDER
`
`
`
`A protective order does not exist in a proceeding until one is approved
`
`and entered by the Board. 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 Standing
`
`Default Protective Order, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012, 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
`
`deviating from, the default Standing Protective Order, they must submit a
`
`joint, proposed protective order. A marked-up comparison or red-lined
`
`version of the default protective order in Appendix B to the Board’s Office
`
`Patent Trial Practice Guide should be presented with the motion to seal so
`
`that differences can be understood readily.
`
`E. CONFERENCE CALLS
`
` The panel encourages parties to resolve disputes relating to discovery
`
`on their own and in accordance with the precepts set forth in 37 C.F.R.
`
`§ 42.1(b). To the extent that a dispute arises between the parties relating to
`
`discovery, the parties should meet and confer to resolve such a dispute
`
`before contacting the Board. If attempts to resolve the dispute fail, a party
`
`may request a conference call with the Board and the other party in order to
`
`seek authorization to move for relief.
`
`
`
`
`
`5
`
`
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ...................................................................... March 23, 2017
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... May 4, 2017
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... May 11, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ......................................................................... May 15, 2017
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ......................................................................... May 30, 2017
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................... June 7, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ......................................................................... June 20, 2017
`Oral argument (if requested)
`
`
`6
`
`
`
`7
`
`IPR2016-01342
`Patent 8,218,481 B2
`
`PETITIONER:
`
`Charles McMahon
`Hersh Mehta
`James Glass
`John McKee
`Kevin Johnson
`Todd Briggs
`QUINNE EMANUEL
`cmcmahon@mwe.com
`hmethta@mwe.com
`jimglass@quinnemauel.com
`johnmckee@quinnemanuel.com
`kevinjohnson@quinnemanuel.com
`toddbriggs@quinnemanuel.com
`
`
`
`PATENT OWNER:
`
`Cyrus Morton
`Ryan Schultz
`ROBINS KAPLAN LLP
`cmorton@robinskaplan.com
`rschultz@robinskaplan.com
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