Trials@uspto.gov
`571-272-7822
`
`Paper 6
`
`
` Entered: March 15, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLUIDIGM, CORP.,
`Petitioner,
`
`v.
`
`THE BOARD OF TRUSTEES OF
`THE LELAND STANFORD JUNIOR UNIV.,
`Patent Owner.
`____________
`
`Case IPR2017-00013 (Patent 7,563,584 B2)
`Case IPR2017-00014 (Patent 7,695,926 B2) 1
`____________
`
`Before ERICA A. FRANKLIN, GEORGIANNA W. BRADEN, and
`ZHENYU YANG, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
` 1
`
`
`
` This Order addresses a schedule that applies in each of the above-
`referenced cases. We, therefore, issue a single Order for entry in each case.
`
`
`571-272-7822
`
`Paper 6
`
`
` Entered: March 15, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FLUIDIGM, CORP.,
`Petitioner,
`
`v.
`
`THE BOARD OF TRUSTEES OF
`THE LELAND STANFORD JUNIOR UNIV.,
`Patent Owner.
`____________
`
`Case IPR2017-00013 (Patent 7,563,584 B2)
`Case IPR2017-00014 (Patent 7,695,926 B2) 1
`____________
`
`Before ERICA A. FRANKLIN, GEORGIANNA W. BRADEN, and
`ZHENYU YANG, Administrative Patent Judges.
`
`FRANKLIN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
` 1
`
`
`
` This Order addresses a schedule that applies in each of the above-
`referenced cases. We, therefore, issue a single Order for entry in each case.
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 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.
`
`1. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within a month of this
`decision if there is a need to discuss proposed changes to this Scheduling
`Order or proposed motions. See Office Patent Trial Practice Guide, 77 Fed.
`Reg. 48,756, 48,765–66 (Aug. 14, 2012) (guidance in preparing for the
`initial conference call).
`
`2
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`2. DUE DATE 1
`The 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).
`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
`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)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
`3
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`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.
`
`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 observations must be a concise
`
`4
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`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.
`
`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. COMMUNICATIONS WITH THE BOARD
`
`Except as otherwise provided in the Rules, Board authorization is
`required before filing a motion. 37 C.F.R. § 42.20(b). A party seeking to file
`a non-preauthorized motion should request a conference to obtain
`authorization to file the motion. Parties may request a conference with us by
`contacting the Board staff by e-mail at Trials@uspto.gov or by telephone at
`571-272-7822.
`
`5
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`
`Regarding discovery disputes, the parties are encouraged to resolve
`such issues 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 to
`discuss the issue and, if necessary, seek authorization to file a motion in that
`regard. An email requesting a conference call shall: (a) copy the other party,
`(b) indicate generally the subject matter of the conference call and relief
`requested, (c) state whether the opposing party opposes the request, and (d)
`include multiple times when all parties are available for a conference. The
`email shall not contain substantive argument.
`
`6
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ............................................................................ May 30, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .......................................................................... August 3, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .............................................................................. Sep. 5, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ Sep. 25, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................. Oct. 10, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................. Oct. 16, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................. Oct. 30, 2017
`Oral argument (if requested)
`
`7
`
`
`
`
`
`
`
`IPR2017-00013 (Patent 7,563,584 B2)
`IPR2017-00014 (Patent 7,695,926 B2)
`
`PETITIONER:
`
`James Murphy
`Margaux Savee
`POLSINELLI PC
`jpmurphy@polsinelli.com
`msavee@polsinelli.com
`
`PATENT OWNER:
`
`Bret Field
`Carol L. Francis
`BOZICEVIC, FIELD & FRANCIS LLP
`field@bozpat.com
`francis@bozpat.com
`
`8
`
`
`
`
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