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`
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`Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 8
`Entered: July 24, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`ANDREA ELECTRONICS INC.,
`Patent Owner.
`
`
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (6,049,607)
`Case IPR2016-00732 (6,377,637 B1) 1
`
`
`
`
`
`
`
`Before STEPHEN C. SIU, MICHAEL R. ZECHER, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`SIU, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`1 This Scheduling Order applies to each case. The parties are not authorized
`to use this heading style.
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`A. DUE DATES
`This order sets due dates for the parties to take action after institution
`of these proceedings. The parties may stipulate to different dates for DUE
`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6) for any
`of these proceedings.2 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.
`
`
`2 The parties may not change DUE DATE 4 with respect to the requirement
`for requesting oral argument, without the express permission of the panel.
`
`2
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`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, with respect to any of these proceedings. 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. 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, but only after first conferring
`with the Board (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.
`
`3
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`4. DUE DATE 33
`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.
`
`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.
`
`
`3 In a proceeding lacking a Motion to Amend, Due Date 3 would be moot, and
`the panel may advance Due Dates 4–7 for that proceeding.
`
`4
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`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. OBSERVATION ON CROSS-EXAMINATION
`An 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
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ...................................................................... .October 24, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................ January 24, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ...................................................................... February 26, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .......................................................................... March 19, 2018
`Observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .............................................................................. April 2, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. April 9, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ April 25, 2018
`Oral argument (if requested)
`
`
`6
`
`
`
`
`Cases IPR2017-00626 and IPR2017-00627 (6,363,345 B1)
`Case IPR2017-00628 (Patent 6,049,607)
`Case IPR2017-00732 (Patent 6,377,637 B1)
`
`PETITIONER:
`
`Jeffrey Kushan
`Steven Baik
`Thomas Broughan
`SIDLEY AUSTIN LLP
`jkushan@sidley.com
`sbaik@sidley.com
`tbroughan@sidley.com
`
`
`PATENT OWNER:
`
`William D. Belanger
`Andrew Schultz
`Griffin Mesmer
`PEPPER HAMILTON LLP
`belangerw@pepperlaw.com
`schultza@pepperlaw.com
`mesmerg@pepperlaw.com
`
`
`7
`
`
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