Trials@uspto.gov Paper 8
`Tel: 571-272-7822 Entered: March 20, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01738
`Patent 8,880,862 B2
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, J. JOHN LEE, and
`JASON J. CHUNG, Administrative Patent Judges.
`_______________
`
`
`
`BRADEN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`Tel: 571-272-7822 Entered: March 20, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE, INC.,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01738
`Patent 8,880,862 B2
`____________
`
`
`
`Before GEORGIANNA W. BRADEN, J. JOHN LEE, and
`JASON J. CHUNG, Administrative Patent Judges.
`_______________
`
`
`
`BRADEN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`IPR2016-01738
`Patent 8,880,862 B2
`
`A. GENERAL INSTRUCTIONS
`1. Initial Conference Call
`The parties are directed to contact the Board within fifteen (15)
`business days of the date of this decision if there is a need to discuss
`proposed changes to this Scheduling Order (i.e., regarding DUE DATES 6
`and 7) or any proposed motions, not authorized already by our Rules or by
`this Scheduling Order, which the parties anticipate filing during the trial.
`See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66
`(Aug. 14, 2012) (setting forth guidance in preparing for the initial
`conference call). To request a conference call, the requesting party should
`submit a list of dates and times when both parties are available for a call.
`2.
`ADR Statement
`The parties are encouraged to discuss promptly alternative means for
`resolving their disputes regarding the subject matter of this proceeding. To
`advance the opportunities for early disposition, petitioner is encouraged to
`notify the Board, by the due date identified in the Appendix to this Order,
`that the parties have conferred regarding alternative dispute resolution and
`whether the parties have reached any agreements.
`3.
`Protective Order
`A protective order is not entered in this proceeding unless the parties
`propose one and the Board approves it. If either party files a motion to seal
`before entry of a protective order, a jointly proposed protective order should
`be presented as an exhibit to the motion. We encourage the parties to adopt
`the Board’s default protective order if they conclude that a protective order
`is necessary. See Default Protective Order, Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, App. B. If the parties choose to propose a
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`IPR2016-01738
`Patent 8,880,862 B2
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`protective order deviating from the default protective order, they must
`submit the proposed protective order jointly along with a marked-up
`comparison of the proposed and default protective orders showing the
`differences.
`The Board has a strong interest in the public availability of the
`proceedings. We advise the parties that redactions to documents filed in this
`proceeding should be limited strictly to isolated passages consisting entirely
`of confidential information, and that the thrust of the underlying argument or
`evidence must be clearly discernible to the public from the redacted
`versions. We also advise the parties that information subject to a protective
`order will become public if identified in a final written decision in this
`proceeding, and that 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; 37 C.F.R. § 42.56.
`Notwithstanding the default filing times for an opposition and a reply
`reflected in 37 C.F.R. § 42.25(a):
`(1) an opposition, if any, to a motion to seal is due seven days after
`service of the motion; and
`(2) a reply, if any, to an opposition to a motion to seal is due seven
`days after service of the opposition.
`4. 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
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`IPR2016-01738
`Patent 8,880,862 B2
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`10 business days before DUE DATE 1 in order to satisfy the requirement for a
`conference. We direct the parties to the Board’s website for representative
`decisions relating to Motions to Amend among other topics. The parties may
`access these representative decisions at: https://www.uspto.gov/patents-
`application-process/appealing-patent-decisions/decisions-and-
`opinions/representative-orders.
`5. Discovery Disputes
`The panel encourages the 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 shall meet and confer to resolve such a
`dispute before contacting the Board. If attempts to resolve the dispute fail,
`either party may request a conference call with the Board and the other party
`in order to seek authorization to move for relief.
`In any request for a conference call with the Board to resolve a
`discovery 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.
`6. Depositions
`The parties are advised that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772, App. D, apply to
`this proceeding. The Board may impose an appropriate sanction or
`sanctions for failure to adhere to the Testimony Guidelines. 37 C.F.R.
`§ 42.12. For example, reasonable expenses and attorneys’ fees incurred by
`
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`IPR2016-01738
`Patent 8,880,862 B2
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`any party may be levied on a person who impedes, delays, or frustrates the
`fair examination of a witness.
`Whenever a party submits a deposition transcript as an exhibit in this
`proceeding, the submitting party shall file the full transcript of the deposition
`rather than excerpts of only those portions being cited. After a deposition
`transcript has been submitted as an exhibit, all parties who subsequently cite
`to portions of the transcript shall cite to the first-filed exhibit rather than
`submitting another copy of the same transcript.
`7. 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.
`8. 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. No observation should 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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`IPR2016-01738
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`B. 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. Stipulating to a different DUE DATE 4 does not modify
`the deadline, set in this Order, for requesting an oral argument. The parties
`may not stipulate to an extension of DUE DATES 6 and 7, and, if either
`party anticipates the need to alter DUE DATE 7, the parties must schedule a
`conference call with the panel immediately upon identifying any conflict or
`potential conflict with DUE DATE 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.
`1. DUE DATE 1
`Patent Owner may file—
`a.
`A response to the Petition (37 C.F.R. § 42.120), and
`b.
`A motion to amend the patent (37 C.F.R. § 42.121).
`Patent Owner must file any such response or motion to amend by DUE
`DATE 1. If Patent Owner elects not to file anything, Patent Owner must
`arrange a conference call with the parties and the Board. Patent Owner is
`cautioned that any arguments for patentability not raised in the response will
`be deemed waived.
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`IPR2016-01738
`Patent 8,880,862 B2
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`2. DUE DATE 2
`Petitioner must file any reply to Patent Owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`3. DUE DATE 31
`Patent Owner must file any reply to 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 A.7, above) 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 reply to a Petitioner 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.
`
`
`1 The parties are advised that if no Motion to Amend is filed in this proceeding,
`DUE DATE 3 is moot, and the panel may advance DUE DATES 4–7 sua
`sponte.
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`IPR2016-01738
`Patent 8,880,862 B2
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`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
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`IPR2016-01738
`Patent 8,880,862 B2
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`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ...................................... UPON REQUEST
`
`ADR STATEMENT DUE ............................ 15 business days after institution
`
`DUE DATE 1 ............................................................................. June 14, 2017
`Patent Owner’s response to the Petition
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2 ......................................................................... August 30, 2017
`Petitioner’s reply to Patent Owner’s response to the Petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ................................................................... September 29, 2017
`Patent Owner’s reply to Petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... October 20, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ..................................................................... November 3, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ..................................................................... November 9, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... November 30, 2017
`Oral argument (if requested)
`
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`IPR2016-01738
`Patent 8,880,862 B2
`
`PETITIONER:
`
`Walter Renner
`Jeremy Monaldo
`Andrew Patrick
`Katherine Lutton
`FISH & RICHARDSON P.C.
`axf-ptab@fr.com
`jjm@fr.com
`patrick@fr.com
`lutton@fr.com
`
`PATENT OWNER:
`
`Joseph Edell
`Richard Zhang
`FISCH SIGLER LLP
`joe.edell.ipr@fischllp.com
`richard.zhang.ipr@fischllp.com
`
`
`
`
`10
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