`
`
`
`Trials@uspto.gov
`Tel: 571-272-7822
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`
`
`Paper 8
`Entered: February 22, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`GROWLERWERKS, INC.,
`Petitioner,
`
`v.
`
`DRINK TANKS CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2017-00262
`Patent 9,156,670 B2
`____________
`
`Before PHILLIP J. KAUFFMAN, BEVERLY M. BUNTING, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`MELVIN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`Case IPR2017-00262
`Patent 9,156,670 B2
`
`
`A. GENERAL INSTRUCTIONS
`1. INITIAL CONFERENCE CALL
`Unless a party requests otherwise, we will not conduct an initial
`conference call as described in the Office Patent Trial Practice Guide,
`77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012). In lieu of such a call, we
`instruct the parties as follows:
`(a) If a party wishes to request an initial conference call, that party
`shall request the call no later than 30 days after the institution of
`trial;
`(b) A request for a conference call shall include: (a) a list of
`proposed motions, if any, to be discussed during the call and (b) a
`list of dates and times when the parties are available for the call;
`and
`(c) The parties shall be prepared to discuss during the initial
`conference call their concerns, if any, relating to the schedule in
`this proceeding as set forth below.
`Absent good cause shown, we will not conduct an initial conference call
`later than 30 days after the institution of a trial.
`
`2. PROTECTIVE ORDER
`A protective order does not exist in this proceeding unless the parties
`file 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 (Aug. 14, 2012). If the parties choose
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`to propose a 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 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.
`
`3. 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). If Patent Owner
`intends to file a motion to amend, Patent Owner should arrange for a
`conference call with the panel and opposing counsel at least one week before
`DUE DATE 1 in order to satisfy the conferral requirement. 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: http://go.usa.gov/x9ARw.
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`4. CONFERENCE CALLS
`Prior to requesting a conference call, the parties shall attempt in good
`faith effort to resolve the issue. The email requesting a conference shall
`certify that such an effort was made.
`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 shall 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. 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 a good-faith
`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.
`
`5. DEPOSITIONS
`The parties are advised that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide apply to this proceeding. See 77 Fed. Reg.
`48,756, 48,772 (Appendix D) (Aug. 14, 2012), http://go.usa.gov/x9ARh.
`The Board may impose an appropriate sanction for failure to adhere to the
`Testimony Guidelines. 37 C.F.R. § 42.12. For example, reasonable
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`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.
`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.
`
`6. MOTION TO EXCLUDE
`The parties shall not to use a Motion to Exclude for any purpose other
`than to raise admissibility issues under the Federal Rules of Evidence. See
`37 C.F.R. §§ 42.61–64. If an issue arises with regard to a paper being out of
`proper scope under 37 C.F.R. § 42.23(a), the parties shall contact the Board
`in a timely manner to raise the matter. See, e.g., IPR2014-00148, Paper 41.
`
`7. SUPPLEMENTAL EVIDENCE AND SUPPLEMENTAL INFORMATION
`It is important to distinguish supplemental evidence (see 37 C.F.R. §
`42.64(b)(2)) from supplemental information (see 37 C.F.R. § 42.123). The
`rules do not contemplate more than one cycle of objection to evidence and
`subsequent supplemental evidence to cure the objection.
`
`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. 48,756, 48,768 (Aug. 14, 2012). The observation must be a
`concise statement of the relevance of precisely identified testimony to a
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`precisely identified argument or portion of an exhibit. Each observation
`should not exceed a single, short paragraph; circumventing the length
`requirement by use of footnote is inappropriate. Regardless of length,
`observations should not be argumentative. The opposing party may respond
`to the observation. Any response must be equally concise and specific.
`
`9. CLAIM CONSTRUCTION
`As stated in the Decision to Institute, claim construction in the
`Decision are preliminary. The parties may further develop argument and
`evidence during the proceeding.
`
`B. SCHEDULE AND 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.1).
`
`1. CROSS EXAMINATION
`Except as the parties might otherwise agree, for each due date, cross-
`examination:
`(a) begins after any supplemental evidence is due; and
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`(b) ends no later than a week before the filing date for any paper in
`which the cross-examination testimony is expected to be used.
`37 C.F.R. § 42.53(d)(2).
`
`2. DUE DATE 1
`By DUE DATE 1, the patent owner must file:
`(a) any response to the petition (37 C.F.R. § 42.120), and
`(b) any motion to amend the patent (37 C.F.R. § 42.121).
`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
`By DUE DATE 2, the petitioner must file:
`(a) any reply to the patent owner’s response and
`(b) any opposition to a motion to amend.
`
`4. DUE DATE 3
`By DUE DATE 3, the patent owner must file any reply to the
`petitioner’s opposition to patent owner’s motion to amend.
`
`5. DUE DATE 4
`By DUE DATE 4, each party must file:
`(a) any motion for an observation on the cross-examination
`testimony of a reply witness (see section A.3);
`(b) any motion to exclude evidence (37 C.F.R § 42.64(c)); and
`(c) any request for oral argument (37 C.F.R. § 42.70(a)).
`
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`6. DUE DATE 5
`By DUE DATE 5, each party must file:
`(a) any response to an observation on cross-examination testimony;
`and
`(b) any opposition to a motion to exclude evidence by DUE
`DATE 5.
`
`7. DUE DATE 6
`By DUE DATE 6, each party must file any reply for a motion to
`exclude evidence.
`
`8. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`The panel is available to hear oral argument, if requested, at the
`USPTO main office in Alexandria, Virginia, or the Midwest Regional
`Office, in Detroit, Michigan. If the parties have a preference with regard to
`the above-identified locations, the parties are directed each to state the
`preference in the party’s request for oral argument, including whether the
`parties agree to a stated preference. The Board will set and identify the
`location in the order setting oral argument.1
`
`
`
`1 The Board considers the parties preference as well as the availability of
`hearing room resources and the panel’s needs in setting the hearing location.
`
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`Case IPR2017-00262
`Patent 9,156,670 B2
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`
`DUE DATE APPENDIX
`
`DUE DATE 1 ............................................................................. May 10, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. July 26, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... August 28, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ................................................................... September 18, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ......................................................................... October 2, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ....................................................................... October 10, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ....................................................................... October 30, 2017
`Oral argument (if requested)
`
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`Case IPR2017-00262
`Patent 9,156,670 B2
`
`
`
`PETITIONER:
`
`Kevin S. Ross Marger Johnson
` 888 SW 5th Avenue,
`Suite 1050 Portland,
`OR 97204
`Kevin.Ross@techlaw.com
`
`Sean D. O’Brien Marger Johnson
`888 SW 5th Avenue,
`Suite 1050
`Portland, OR 97204
`seanobrien@techlaw.com
`
`PATENT OWNER:
`
`Craig R. Smith Lando & Anastasi LLP
`Riverfront Office Park One Main Street
`11th Floor
`Cambridge, MA 02142
`csmith@lalaw.com
`
`Eric P. Carnevale
`Riverfront Office Park One Main Street
`11th Floor
`Cambridge, MA 02142
`ecarnevale@lalaw.com
`
`
`10
`
`
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