Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper 10
`Entered: July 3, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EMC CORPORATION,
`Petitioner,
`
`v.
`
`ACTIVIDENTITY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00338
`Patent 9,098,685 B2
`____________
`
`
`Before JAMES B. ARPIN, LYNNE E. PETTIGREW, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper 10
`Entered: July 3, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EMC CORPORATION,
`Petitioner,
`
`v.
`
`ACTIVIDENTITY, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00338
`Patent 9,098,685 B2
`____________
`
`
`Before JAMES B. ARPIN, LYNNE E. PETTIGREW, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`TROCK, Administrative Patent Judge.
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`IPR2017-00338
`Patent 9,098,685 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 dates, 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 initial conference call in this case is mandatory. Petitioner, Patent
`Owner, and Intellectual Ventures I, LLC (“IV”) are require to attend
`telephonically through authorized representative. The participants should be
`prepared to discuss the representation of Patent Owner in this case, the
`authorization of IV to participate on behalf of Patent Owner, any proposed
`
`2
`
`
`
`
`
`
`
`IPR2017-00338
`Patent 9,098,685 B2
`
`changes to this Scheduling Order, any motions the parties anticipate filing
`during the trial, and the need for, location, and scheduling of a hearing in
`this proceeding. The parties are directed to the Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) for guidance in
`preparing for an initial conference call.
`
`
`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 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.
`
`3
`
`
`
`
`
`
`
`IPR2017-00338
`Patent 9,098,685 B2
`
`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.
`
`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 tentatively set for
`
`DUE DATE 7. Requests for audio‐visual equipment are to be made 5 days
`
`in advance of the hearing date. The request is to be sent to
`trials@uspto.gov. If the request is not received timely, the equipment may
`not be available on the day of the hearing. Additional information regarding
`hearings may be found at https://www.uspto.gov/patents-application-
`process/appealing-patent-decisions/hearings-ptab.
`
`4
`
`
`
`
`
`
`
`IPR2017-00338
`Patent 9,098,685 B2
`
`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. 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
`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
`
`
`
`IPR2017-00338
`Patent 9,098,685 B2
`
`DUE DATE APPENDIX
`
`
`
`
`
`INITIAL CONFERENCE CALL …… July 17, 2017, 1:00 PM Eastern Time
`
`DUE DATE 1 ........................................................................ October 3, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .......................................................................... January 3, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................ February 5, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ..................................................................... February 26, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ......................................................................... March 12, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ......................................................................... March 19, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................. April 3, 2018
`Oral argument (if requested).
`
`
`
`
`
`6
`
`
`
`
`
`IPR2017-00338
`Patent 9,098,685 B2
`
`
`
`
`
`
`PETITIONER:
`
`Peter M. Dichiara
`Arthur Shum
`WILMER CUTLER PICKERING HALE and DORR LLP
`peter.dichiara@wilmerhale.com
`arthur.shum@wilmerhale.com
`
`
`
`PATENT OWNER:
`
`Lori A. Gordon
`Byron L. Pickard
`Lestin L. Kenton
`STERNE, KESSLER, GOLDSTEIN & FOX PLLC
`lgordon-PTAB@skgf.com
`bpickard-PTAB@skgf.com
`Ikenton-PTAB@skgf.com
`
`James R. Hietala
`Tim R. Seeley
`INTELLECTUAL VENTURES
`jhietala@intven.com
`tim@intven.com
`
`7
`
`
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