Paper 7
`Trials@uspto.gov
`571-272-7822
` Date Entered: February 3, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HONEYWELL INTERNATIONAL, INC.,
`Petitioner,
`
`v.
`
`ALLURE ENERGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01605
`Patent 8,498,749 B2
`____________
`
`
`Before BART A. GERSTENBLITH, KEVIN W. CHERRY, and
`SCOTT C. MOORE, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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 4 and 6 (earlier or later, but no later than DUE DATE 7).
`
`A notice of the stipulation, specifically identifying the changed due dates,
`
`
`
`
`Trials@uspto.gov
`571-272-7822
` Date Entered: February 3, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HONEYWELL INTERNATIONAL, INC.,
`Petitioner,
`
`v.
`
`ALLURE ENERGY, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-01605
`Patent 8,498,749 B2
`____________
`
`
`Before BART A. GERSTENBLITH, KEVIN W. CHERRY, and
`SCOTT C. MOORE, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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 4 and 6 (earlier or later, but no later than DUE DATE 7).
`
`A notice of the stipulation, specifically identifying the changed due dates,
`
`
`
`
`
`IPR2016-01605
`Patent 8,498,749 B2
`
`
`must be promptly filed. The parties may not stipulate to an extension of
`
`
`
`DUE DATES 5, 7, and 8.
`
`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 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 sanctions for failure to
`
`adhere to the Testimony Guidelines. See 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
`
`Either party may request an initial conference call. To request a
`
`conference call, the parties should submit a list of dates and times when they
`
`are available for a call within two weeks of this Order. If an initial
`
`conference call is requested, the parties should be prepared to discuss any
`
`proposed changes to this Scheduling Order and any motions the parties
`
`anticipate filing during the trial. The parties are directed to the Office Patent
`
`Trial Practice Guide, 77 Fed. Reg. at 48,765–66 for guidance in preparing
`
`for an initial conference call.
`
`Patent Owner is reminded that it must confer with the Board before
`
`filing a motion to amend. 37 C.F.R. § 42.121(a). If Patent Owner plans to
`
`2
`
`
`
`IPR2016-01605
`Patent 8,498,749 B2
`
`
`file a motion to amend, Patent Owner should contact the Board to request a
`
`
`
`conference at least two weeks before DUE DATE 1.
`
`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 a response, 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
`
`an 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 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)) by DUE DATE 4.
`
`3
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`
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`IPR2016-01605
`Patent 8,498,749 B2
`
`6. DUE DATE 5
`
`
`
`
`
`Each party must file any request for oral argument (37 C.F.R.
`
`§ 42.70(a)) by DUE DATE 5.
`
`7. DUE DATE 6
`
`a.
`
`Each party must file any response to an observation on cross-
`
`examination testimony by DUE DATE 6.
`
`b.
`
`Each party must file any opposition to a motion to exclude
`
`evidence by DUE DATE 6.
`
`8. DUE DATE 7
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 7.
`
`9. DUE DATE 8
`
`The oral argument (if requested by either party) is set for DUE
`
`DATE 8.
`
`B. CROSS-EXAMINATION
`
`Except as the parties might otherwise agree, for each due date—
`
`1.
`
`Cross-examination begins after any supplemental evidence is
`
`due. See 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.
`
`4
`
`
`
`IPR2016-01605
`Patent 8,498,749 B2
`
`
`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.
`
`
`
`5
`
`
`
`IPR2016-01605
`Patent 8,498,749 B2
`
`
`
`DUE DATE APPENDIX
`
`
`
`INITIAL CONFERENCE CALL ..................................... UPON REQUEST
`
`DUE DATE 1 ............................................................................... May 8, 2017
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... August 8, 2017
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ..................................................................... September 8, 2017
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ................................................................... September 29, 2017
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`DUE DATE 5 ................................................................... September 29, 2017
`
`Request for oral argument
`
`DUE DATE 6 ....................................................................... October 13, 2017
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 7 ....................................................................... October 20, 2017
`
`Reply to opposition to motion to exclude
`
`DUE DATE 8 .................................................................. November 14, 2017
`
`Oral argument (if requested)
`
`6
`
`
`
`
`
`
`
`IPR2016-01605
`Patent 8,498,749 B2
`
`For Petitioner:
`
`
`Bruce J. Rose
`S. Benjamin Pleune
`Christopher TL Douglas
`Alston & Bird LLP
`bruce.rose@alston.com
`ben.pleune@alston.com
`christopher.douglas@alston.com
`
`
`
`For Patent Owner:
`
`
`John Artz
`Bryan Schomer
`Dickinson Wright, PLLC
`jsartz@dickinsonwright.com
`bschomer@dickinsonwright.com
`
`
`
`7
`
`
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