`Tel: 571-272-7822 Entered: September 8, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TERADATA OPERATIONS, INC.,
`Petitioner,
`
`v.
`
`REALTIME DATA LLC d/b/a IXO,
`Patent Owner.
`____________
`
`Case IPR2017-00806 (Patent 7,161,506 C2)1
`Case IPR2017-00808 (Patent 9,054,728 B2)
`____________
`
`
`
`Before JASON J. CHUNG and SCOTT C. MOORE,
`Administrative Patent Judges.
`_______________
`
`
`
`CHUNG, Administrative Patent Judge.
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`
`
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`SCHEDULING ORDER
`37 C.F.R. § 42.5
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`1 This Scheduling Order applies to each of the listed cases. We exercise our
`discretion to issue one Scheduling Order to be docketed in each case. The
`parties, however, are not authorized to use this caption for any subsequent
`papers.
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`
`
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
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`A. GENERAL INSTRUCTIONS
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`1.
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`Protective Order
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`A protective order is not entered in this proceeding unless the parties
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`propose one and the Board approves it. If either party files a motion to seal
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`before entry of a protective order, a jointly proposed protective order should
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`be presented as an exhibit to the motion. We encourage the parties to adopt
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`the Board’s default protective order if they conclude that a protective order
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`is necessary. See Default Protective Order, Office Patent Trial Practice
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`Guide, 77 Fed. Reg. 48,756, App. B. If the parties choose to propose a
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`protective order deviating from the default protective order, they must
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`submit the proposed protective order jointly along with a marked-up
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`comparison of the proposed and default protective orders showing the
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`differences.
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`The Board has a strong interest in the public availability of the
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`proceedings. We advise the parties that redactions to documents filed in this
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`proceeding should be limited strictly to isolated passages consisting entirely
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`of confidential information, and that the thrust of the underlying argument or
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`evidence must be clearly discernible to the public from the redacted
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`versions. We also advise the parties that information subject to a protective
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`order will become public if identified in a final written decision in this
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`proceeding, and that a motion to expunge the information will not
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`necessarily prevail over the public interest in maintaining a complete and
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`understandable file history. See Office Patent Trial Practice Guide, 77
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`Fed. Reg. at 48,761; 37 C.F.R. § 42.56.
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`Notwithstanding the default filing times for an opposition and a reply
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`reflected in 37 C.F.R. § 42.25(a):
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`
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
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`(1) an opposition, if any, to a motion to seal is due seven days after
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`service of the motion; and
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`(2) a reply, if any, to an opposition to a motion to seal is due seven
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`days after service of the opposition.
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`2. Motion to Amend
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`Patent Owner may file a motion to amend without prior authorization
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`from the Board. Nevertheless, Patent Owner must confer with the Board
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`before filing such a motion. See 37 C.F.R. § 42.121(a). Patent Owner should
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`arrange for a conference call with the panel and opposing counsel at least
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`10 business days before DUE DATE 1 in order to satisfy the requirement for a
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`conference. We direct the parties to the Board’s website for representative
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`decisions relating to Motions to Amend among other topics. The parties may
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`access these representative decisions at:
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`http://www.uspto.gov/ip/boards/bpai/representative_orders_and_opinions.jsp.
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`3. Discovery Disputes
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`The panel encourages the parties to resolve disputes relating to
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`discovery on their own and in accordance with the precepts set forth in
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`37 C.F.R. § 42.1(b). To the extent that a dispute arises between the parties
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`relating to discovery, the parties shall meet and confer to resolve such a
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`dispute before contacting the Board. If attempts to resolve the dispute fail,
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`either party may request a conference call with the Board and the other party
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`in order to seek authorization to move for relief.
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`In any request for a conference call with the Board to resolve a
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`discovery dispute, the requesting party shall: (a) certify that it has conferred
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`with the other party in an effort to resolve the dispute; (b) identify with
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`specificity the issues for which agreement has not been reached; (c) identify
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
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`the precise relief to be sought; and (d) propose specific dates and times at
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`which both parties are available for the conference call.
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`4. Depositions
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`The parties are advised that the Testimony Guidelines appended to the
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`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772, App. D, apply to
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`this proceeding. The Board may impose an appropriate sanction or
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`sanctions for failure to adhere to the Testimony Guidelines. 37 C.F.R.
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`§ 42.12. For example, reasonable expenses and attorneys’ fees incurred by
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`any party may be levied on a person who impedes, delays, or frustrates the
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`fair examination of a witness.
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`Whenever a party submits a deposition transcript as an exhibit in this
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`proceeding, the submitting party shall file the full transcript of the deposition
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`rather than excerpts of only those portions being cited. After a deposition
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`transcript has been submitted as an exhibit, all parties who subsequently cite
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`to portions of the transcript shall cite to the first-filed exhibit rather than
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`submitting another copy of the same transcript.
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`5. Cross-Examination
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`Except as the parties might otherwise agree, for each due date—
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`1.
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`Cross-examination begins after any supplemental evidence is
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`due. 37 C.F.R. § 42.53(d)(2).
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`2.
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`Cross-examination ends no later than a week before the filing
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`date for any paper in which the cross-examination testimony is expected to
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`be used. Id.
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`6. Motion for Observation on Cross-Examination
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`A motion for observation on cross-examination provides the parties
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`with a mechanism to draw the Board’s attention to relevant
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`
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
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`cross-examination testimony of a reply witness because no further
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`substantive paper is permitted after the reply. See Office Patent Trial
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`Practice Guide, 77 Fed. Reg. at 48,768. The observation must be a concise
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`statement of the relevance of precisely identified testimony to a precisely
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`identified argument or portion of an exhibit. No observation should exceed
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`a single, short paragraph. The opposing party may respond to the
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`observation. Any response must be equally concise and specific.
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`B. DUE DATES
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`This Order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6). A
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`notice of the stipulation, specifically identifying the changed due dates, must
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`be promptly filed. Stipulating to a different DUE DATE 4 does not modify
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`the deadline, set in this Order, for requesting an oral argument. The parties
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`may not stipulate to an extension of DUE DATES 6 and 7, and, if either
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`party anticipates the need to alter DUE DATE 7, the parties must schedule a
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`conference call with the panel immediately upon identifying any conflict or
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`potential conflict with DUE DATE 7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony.
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`
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
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`1. DUE DATE 1
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`Patent Owner may file—
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`a.
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`b.
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`A response to the Petition (37 C.F.R. § 42.120), and
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`A motion to amend the patent (37 C.F.R. § 42.121).
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`Patent Owner must file any such response or motion to amend by DUE
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`DATE 1. If Patent Owner elects not to file anything, Patent Owner must
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`arrange a conference call with the parties and the Board. Patent Owner is
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`cautioned that any arguments for patentability not raised in the response will
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`be deemed waived.
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`2. DUE DATE 2
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`Petitioner must file any reply to Patent Owner’s response and
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`opposition to the motion to amend by DUE DATE 2.
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`3. DUE DATE 32
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`Patent Owner must file any reply to Petitioner’s opposition to Patent
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`Owner’s motion to amend by DUE DATE 3.
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`4. DUE DATE 4
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`a.
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`Each party must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see section A.7, above) by
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`DUE DATE 4.
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`b.
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`Each party must file any motion to exclude evidence (37 C.F.R
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`2 The parties are 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.
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`
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
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`5. DUE DATE 5
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`a.
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`Each party must file any reply to a Petitioner observation on
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`cross-examination testimony by DUE DATE 5.
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`b.
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`Each party must file any opposition to a motion to exclude
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`evidence by DUE DATE 5.
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`6. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`7. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
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`DUE DATE APPENDIX
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`INITIAL CONFERENCE CALL ...................................... UPON REQUEST
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`DUE DATE 1 ................................................................... September 20, 2017
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`Patent Owner’s response to the Petition
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`Patent Owner’s motion to amend the patent
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`DUE DATE 2 ................................................................... November 30, 2017
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`Petitioner’s reply to Patent Owner’s response to the Petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3 .......................................................................... January 2, 2018
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`Patent Owner’s reply to Petitioner’s opposition to motion to amend
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`DUE DATE 4 ........................................................................ January 22, 2018
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`Motion for observation regarding cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5 ........................................................................ February 5, 2018
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 ...................................................................... February 12, 2018
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ...................................................................... February 26, 2018
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`Oral argument (if requested)
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`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`PETITIONER:
`
`Eliot Williams
`eliot.williams@bakerbotts.com
`
`Jamie Lynn
`jamie.lynn@bakerbotts.com
`
`Andrew Wilson
`andrew.wilson@bakerbotts.com
`
`Michelle Eber
`michelle.eber@bakerbotts.com
`
`
`PATENT OWNER:
`
`William Rothwell
`william@noroozipc.com
`
`Kayvan B. Noroozi
`kayvan@noroozipc.com
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