Trials@uspto.gov
`Tel: 571.272.7822
`
`
`
`
`Paper 9
`Entered: July 17, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`HUAWEI DEVICE CO., LTD., LG ELECTRONICS, INC., and
`ZTE (USA) INC.,
`Petitioner,
`v.
`PAPST LICENSING GMBH & CO. KG,
`Patent Owner.
`____________
`
`Case IPR2017-00713
`Patent 6,895,449 B2
`____________
`
`
`
`
`
`
`
`
`Before JONI Y. CHANG, JENNIFER S. BISK, and JAMES B. ARPIN,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`Tel: 571.272.7822
`
`
`
`
`Paper 9
`Entered: July 17, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`HUAWEI DEVICE CO., LTD., LG ELECTRONICS, INC., and
`ZTE (USA) INC.,
`Petitioner,
`v.
`PAPST LICENSING GMBH & CO. KG,
`Patent Owner.
`____________
`
`Case IPR2017-00713
`Patent 6,895,449 B2
`____________
`
`
`
`
`
`
`
`
`Before JONI Y. CHANG, JENNIFER S. BISK, and JAMES B. ARPIN,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`
`As a preliminary matter, no initial conference call is scheduled for the
`instant proceeding. The parties are directed to contact the Board within a month of
`this Order 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).
`
`A. DUE DATES
`
`This order sets due dates for the parties to take action after institution of the
`instant 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.
`Although parties may stipulate to a different DUE DATE 4 for filing observations
`and motions to exclude evidence, parties may not stipulate to an extension for
`requesting an oral argument. The parties also 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).
`If requested, an oral hearing for the instant proceeding will be held on DUE
`DATE 7.
`The parties are reminded that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772 (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
`
`2
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`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. 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.
`
`2. 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. DUE DATE 31
`
`The patent owner must file any reply to the petitioner’s opposition to patent
`owner’s motion to amend by DUE DATE 3.
`
`4. DUE DATE 4
`
`Each party must file any any observation on the cross-examination
`a.
`testimony of a reply witness by DUE DATE 4 (see Section C, below).
`b.
`Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) by DUE DATE 4 (see Section D, below).
`
`
`1 Please be 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.
`
`3
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`
`Each party must file any request for oral argument (37 C.F.R.
`c.
`§ 42.70(a)) by DUE DATE 4 (see above).
`
`5. DUE DATE 5
`
`Each party must file any response to an observation on
`a.
`cross-examination testimony by DUE DATE 5 (see Section C, below).
`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.
`
`7. 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. at 48,767–68. The observation
`must be a concise statement of the relevance of precisely identified testimony to a
`
`4
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`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. MOTION TO EXCLUDE EVIDENCE
`
`A motion to exclude evidence should not include arguments alleging that a
`reply exceeds the scope of a proper reply. Parties are advised that the Panel will
`not authorize motions to exclude replies (or portions thereof) alleged to contain
`arguments that are outside the scope of a proper reply under 37 C.F.R. § 42.23(b).
`The Panel will determine whether a party’s reply is outside the scope of a proper
`reply when the Panel reviews all of the parties’ briefs and prepares a final written
`decision.
`
`E. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under the trial
`
`Rules, Patent Owner must confer with the Board, preferreably no less than ten
`business days prior to DUE DATE 1, before filing any Motion to Amend.
`
`
`
`5
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................. Upon Request
`
`DUE DATE 1 .................................................................. September 12, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ..................................................................... December 1, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ................................................................... December 18, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ......................................................................... January 8, 2018
`Patent owner’s observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument (no extension of time is permitted for filing this
`request, see Section A above )
`
`DUE DATE 5 ....................................................................... January 22, 2018
`Petitioner’s response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ....................................................................... January 29, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ..................................................................... February 13, 2018
`Oral argument (if requested)
`
`
`
`
`6
`
`
`
`IPR2017-00713
`Patent 6,895,449 B2
`
`For PETITIONER:
`
`Scott Miller
`Darren Franklin
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
`smiller@sheppardmullin.com
`dfranklin@sheppardmullin.com
`
`For PATENT OWNER:
`
`Nicholas T. Peters
`Paul Henkelmann
`FITCH, EVEN, TABIN & FLANNERY LLP
`ntpete@fitcheven.com
`phenkelmann@fitcheven.com
`
`7
`
`
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