Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper No. 7
`Entered: February 14, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`Case IPR2016-01512
`Patent RE40,264 E
`
`
`Before MICHAEL R. ZECHER, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper No. 7
`Entered: February 14, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`DANIEL L. FLAMM,
`Patent Owner.
`
`Case IPR2016-01512
`Patent RE40,264 E
`
`
`Before MICHAEL R. ZECHER, CHRISTOPHER L. CRUMBLEY, and
`JO-ANNE M. KOKOSKI, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`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).1 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
`
`
`1 The parties may not change DUE DATE 4 with respect to the requirement
`for requesting oral argument, without express authorization from the panel.
`
`2
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`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.
`
`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.
`
`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 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
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`6. DUE DATE 5
`
`a.
`
`Each party must file any response to any 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. OBSERVATIONS ON CROSS-EXAMINATION
`
`Observations on cross-examination provide 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 concise
`
`4
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`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
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ...................................................... Optional
`
`DUE DATE 1 ............................................................................... May 1, 2017
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. July 17, 2017
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... August 17, 2017
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ..................................................................... September 7, 2017
`
`Observations regarding cross-examination of reply witness
`
`Motions to exclude evidence
`
`Requests for oral argument2
`
`DUE DATE 5 ................................................................... September 21, 2017
`
`Responses to observations
`
`Oppositions to motions to exclude evidence
`
`DUE DATE 6 ................................................................... September 28, 2017
`
`Replies to oppositions to motions to exclude
`
`
`2 Although the parties may stipulate to a different date for DUE DATE 4
`regarding the “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
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`DUE DATE 7 ....................................................................... October 12, 2017
`
`Oral argument (if requested)
`
`
`
`7
`
`
`
`IPR2016-01512
`Patent RE40,264 E
`
`For PETITIONER:
`
`Naveen Modi
`Joseph E. Palys
`Chetan R. Bansal
`PAUL HASTINGS LLP
`naveenmodi@paulhastings.com
`josephpalys@paulhastings.com
`chetanbansal@paulhastings.com
`PH-Samsung-Flamm-IPR@paulhastings.com
`
`
`
`For PATENT OWNER:
`
`Christopher Frerking
`chris@ntknet.com
`
`
`8
`
`
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