Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 19
`Date Entered: September 8, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL, INC.; EMC CORPORATION; HEWLETT-PACKARD ENTERPRISE
`CO.; HP RACKSPACE US, INC., and TERADATA OPERATIONS, INC.,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00176 (Patent 7,161,506 C2)1
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`____________
`
`Before JASON J. CHUNG and SCOTT C. MOORE, Administrative Patent
`Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`ORDER
`Consolidation and Coordination; Conduct of Proceedings
`37 C.F.R. §§ 42.5, 42.122
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion to issue
`one Decision to be docketed in each case. The Parties, however, are not authorized
`to use this caption for any subsequent papers.
`
`
`571-272-7822
`
`
`Paper No. 19
`Date Entered: September 8, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DELL, INC.; EMC CORPORATION; HEWLETT-PACKARD ENTERPRISE
`CO.; HP RACKSPACE US, INC., and TERADATA OPERATIONS, INC.,
`Petitioners,
`
`v.
`
`REALTIME DATA LLC,
`Patent Owner.
`____________
`
`Case IPR2017-00176 (Patent 7,161,506 C2)1
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`____________
`
`Before JASON J. CHUNG and SCOTT C. MOORE, Administrative Patent
`Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`ORDER
`Consolidation and Coordination; Conduct of Proceedings
`37 C.F.R. §§ 42.5, 42.122
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion to issue
`one Decision to be docketed in each case. The Parties, however, are not authorized
`to use this caption for any subsequent papers.
`
`
`
`Case IPR2017-00176 (Patent 7,161,506 C2)
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`
`Petitioners Dell Inc., EMC Corporation, Hewlett-Packard Enterprise Co.,
`and HP Enterprise Services, LLC (collectively, the “Dell Petitioners”) filed the
`petitions in cases IPR2017-00176 and IPR2017-00179 on November 13 and 14,
`2016, respectively. Petitioner Teradata Operations, Inc. (“Teradata”) filed the
`petitions in cases IPR2017-00806 and IPR2017-00808 on January 30, 2017.
`IPR2017-00176 and IPR2017-00806 involve the same patent (U.S. Patent
`7,161,506 C2) and similar issues. Cases IPR2017-00179 and
`IPR2017-00808 also involve the same patent (U.S. Patent 9,054,728 B2) and
`similar issues. The Patent Owner in all four of these cases is Realtime Data, LLC
`(“Realtime”).
`On August 18, 2017, the Panel convened a teleconference to discuss
`consolidating and/or coordinating the above-captioned actions. The teleconference
`was attended by Judges Lee, Chung, and Moore, as well as counsel for the Dell
`Petitioners, Teradata, and Realtime. The Dell Petitioners, Teradata, and Realtime
`subsequently submitted a Joint Notice regarding Consolidation and Request for
`Guidance from the Board (“Joint Notice”) outlining their respective positions on
`consolidation/coordination. IPR2017-00176 Paper 26.2 In the Joint Notice, the
`Parties reached agreements on many issues, and also agreed to a schedule that
`would apply in all four cases. Id. at 1–2, Ex. A. The Parties, however, did not
`reach agreements regarding the depositions of experts whose testimony is relied
`upon in the Patent Owner Responses and Replies, or the conduct of the oral
`hearing (if requested).
`
`
`2 The Parties filed substantively identical petitions in the other three above-
`captioned actions. For the sake of simplicity, this Order cites to the version of the
`Joint Notice that was filed in IPR2017-00176.
`2
`
`
`
`
`
`Case IPR2017-00176 (Patent 7,161,506 C2)
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`
`Regarding depositions, the Dell Petitioners propose that each expert witness
`whose testimony is relied on in the Patent Owner Responses or Replies be deposed
`only once across the four proceedings. IPR2017-00176 Paper 26, 4. Patent Owner
`agrees that each expert should only be deposed once across the four proceedings.
`Id. Teradata states that it will “endeavor to schedule and administrate the
`deposition of any expert Patent Owner relies on such that only a single deposition
`is necessary” across the four actions, but also indicates that it is “premature to
`require Teradata to be limited to a single deposition” because Patent Owner has not
`yet filed its Patent Owner Response. Id. at 3–4. Thus, Teradata requests the option
`to conduct “one deposition of Patent Owner’s expert for each coordinated pair of
`proceedings . . . to the extent necessary.” Id. at 4.
`Regarding the oral hearing, Teradata agrees that IPR2017-00806 and
`IPR2017-00808 should be considered in a single hearing, but submits that it is
`premature to schedule all four cases for a single, consolidated hearing. IPR2017-
`00176 Paper 26, 4–5. The Dell Petitioners express no opinion regarding the
`appropriate number of oral hearings, but request that they have a total of at least 45
`minutes of argument time. Id. at 5. Patent Owner proposes a single oral hearing
`across all four proceedings. Id.
`Having considered the positions of all Parties, the Panel agrees that the
`Parties’ agreements regarding consolidation (see IPR2017-00176 Paper 26, 1–2)
`and the case schedule are appropriate. Accordingly, the Parties are ordered to
`proceed as follows:
`1.
`The Parties shall proceed according to the schedule entered in the two
`earlier-filed inter partes reviews, except that Due Date 1 shall be
`September 20, 2017, in all four proceedings. The Board will issue
`
`
`
`3
`
`
`
`Case IPR2017-00176 (Patent 7,161,506 C2)
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`
`2.
`
`3.
`
`scheduling orders in IPR2017-00806 and IPR2017-00808 in
`accordance with the Parties’ stipulated schedule.
`Beginning with the Patent Owner Response, the Parties will file joint
`papers in the pairs of proceedings for each respective challenged
`patent—i.e., Patent Owner will file one common Patent Owner
`Response related to U.S. Patent 7,161,506 C2 in IPR2017-00176 and
`IPR2017-00806 (and Petitioners will file one common Reply), and
`Patent Owner will file one common Patent Owner Response related to
`U.S. Patent 9,054,728 B2 in IPR2017-00179 and IPR2017-00808
`(and Petitioners will file one common Reply). The Parties shall
`identify on the caption page of each common filing the proceedings to
`which that common filing relates, and shall file separate copies of
`each common filing in each of the relevant proceedings (i.e., copies of
`the common Patent Owner Response regarding U.S. Patent 7,161,506
`C2 will be filed in both IPR2017-00176 and IPR2017-00806). The
`parties also shall file copies of all exhibits in each relevant
`proceeding, and shall ensure that exhibit numbers are consistent (e.g.,
`exhibits to the common Patent Owner Response in IPR2017-00176
`and IPR2017-00806 shall be filed in both proceedings, and each
`exhibit shall have the same exhibit number in both proceedings).
`The deposition of Dr. Creusere taken by Patent Owner on August 4,
`2017, will be treated as having been taken in all four proceedings, and
`Patent Owner will not seek an additional deposition of Dr. Creusere as
`to the opinions expressed in his initial declaration in IPR2017-00806
`and IPR2017-00808.
`
`
`
`4
`
`
`
`Case IPR2017-00176 (Patent 7,161,506 C2)
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`
`4.
`
`The Parties do not currently seek extra words of briefing, additional
`time at oral argument, or additional time for questioning at any future
`deposition as a result of this consolidation, but reserve the right to do
`so if such need becomes apparent.
`Regarding the disputed issues, the Panel appreciates the parties’ willingness
`to attempt to schedule a single deposition of each expert across all four
`proceedings, but also recognizes the uncertainty that Teradata cites. Accordingly,
`after the Patent Owner Responses are filed, the parties are ordered to meet and
`confer in a good faith attempt to schedule one deposition of each relevant expert
`across all four proceedings. The Parties are ordered to meet and confer again for
`the same purpose after the Replies are filed. If, after meeting and conferring, any
`Party believes it would be unduly prejudiced by conducting depositions in this
`manner, that Party shall promptly request a conference call with the Panel.
`The Parties’ disputes regarding the oral hearing are premature. The Parties
`shall set forth their positions regarding the conduct of the oral hearing at the time
`they file formal requests for oral argument.
`Accordingly, it is:
`ORDERED that that IPR2017-00176, IPR2017-00179, IPR2017-00806 and
`IPR2017-00808 shall proceed in the manner set forth above.
`
`
`
`
`
`
`
`
`5
`
`
`
`Case IPR2017-00176 (Patent 7,161,506 C2)
`Case IPR2017-00179 (Patent 9,054,728 B2)
`Case IPR2017-00806 (Patent 7,161,506 C2)
`Case IPR2017-00808 (Patent 9,054,728 B2)
`
`PETITIONERS
`
`Andrew R. Sommer
`Thomas M. Dunham
`Garth A. Winn
`WINSTON & STRAWN LLP
`asommer@winston.com
`tdunham@winston.com
`garth.winn@klarquist.com
`
`Eliot D. Williams
`Jamie R. Lynn
`Andrew Wilson
`Michelle J. Eber
`BAKER BOTTS L.L.P.
`eliot.williams@bakerbotts.com
`jamie.lynn@bakerbotts.com
`andrew.wilson@bakerbotts.com
`michelle.eber@bakerbotts.com
`
`PATENT OWNER
`
`William P. Rothwell
`Kayvan B. Noroozi
`NOROOZI PC
`william@noroozipc.com
`kayvan@noroozipc.com
`
`Jason D. Eisenberg
`Donald J. Featherstone
`Gaurav Asthana
`Robert Sterne
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`jasone-PTAB@skgf.com
`donf-PTAB@skgf.com
`gasthana-ptab@skgf.com
`rsterne@skgf.com
`
`
`
`6
`
`
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