Trials@uspto.gov
`571.272.7822
`
`Paper No. 11
`
` Filed: March 8, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`____________
`
`Case IPR2017-01993
`Patent 9,414,199 B2
`____________
`
`
`
`Before MIRIAM L. QUINN, KERRY BEGLEY, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`BEGLEY, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`571.272.7822
`
`Paper No. 11
`
` Filed: March 8, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`UNILOC LUXEMBOURG S.A.,
`Patent Owner.
`____________
`
`Case IPR2017-01993
`Patent 9,414,199 B2
`____________
`
`
`
`Before MIRIAM L. QUINN, KERRY BEGLEY, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`BEGLEY, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`IPR2017-01993
`Patent 9,414,199 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 filed promptly. The parties may not stipulate to an extension of DUE
`
`DATES 6 and 7. Moreover, any stipulation to a different DUE DATE 4
`
`does not modify the deadline, set in this Order, for requesting an oral
`
`argument.
`
`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 C 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 parties are directed to contact the Board within a month of this
`
`Order if there is a need to discuss proposed changes to the dates set in this
`
`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 an initial
`
`
`
`2
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`conference call). To request a conference call, the requesting party should
`
`submit a list of dates and times when the parties are available for a call.
`
`2. ADR STATEMENT
`The parties are encouraged to discuss promptly alternative means for
`
`resolving their disputes regarding the subject matter of this proceeding. To
`
`advance the opportunities for early disposition, the petitioner is encouraged
`
`to notify the Board, by the due date identified in the Appendix to this Order,
`
`that the parties have conferred regarding alternative dispute resolution and
`
`whether the parties have reached any agreements.
`
`3. DUE DATE 1
`The patent owner may file—
`
`a.
`
`b.
`
`A response to the petition (37 C.F.R. § 42.120), and
`
`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.
`
`4. 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
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`5. 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 3.1
`
`6. DUE DATE 4
`a.
`Each party must file any motion for an observation on the
`
`cross-examination testimony of a reply witness (see section D 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.
`
`7. 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.
`
`8. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`9. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`
`DATE 7.
`
`The parties are advised that the panel may schedule oral argument, if
`
`requested, at the U.S. Patent and Trademark Office headquarters in
`
`Alexandria, VA; the Texas Regional Office in Dallas, TX; or the Silicon
`
`1 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.
`
`
`
`4
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`Valley Regional Office in San Jose, CA. The panel will issue an order
`
`regarding the location of the oral argument in advance of the argument date.
`
`B. DISPUTE RESOLUTION DURING TRIAL
`The panel encourages the parties to resolve disputes arising during the
`
`trial on their own. To the extent that a dispute arises between the parties, we
`
`order the parties to meet and confer to resolve their dispute before contacting
`
`the Board. If attempts to resolve the dispute fail, a party may request a
`
`conference call with the Board and the other party in order to seek
`
`authorization to move for relief.
`
`In any request for a conference call with the Board to resolve a
`
`dispute, the requesting party shall: (a) certify that it has conferred,
`
`meaningfully and in good faith, with the other party in an effort to resolve
`
`the dispute; (b) identify with specificity the issue(s) for which agreement has
`
`not been reached; (c) identify the precise relief to be sought; and (d) propose
`
`specific dates and times at which both parties are available for a conference
`
`call.
`
`C. 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.
`
`D. 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
`
`
`
`5
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`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.
`
`
`
`6
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ..................................... UPON REQUEST
`
`ADR STATEMENT DUE ........................................................... April 9, 2018
`
`DUE DATE 1 .............................................................................. June 5, 2018
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .................................................................... September 4, 2018
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................ October 2, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ...................................................................... October 23, 2018
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument (see Section A above)
`
`DUE DATE 5 .................................................................... November 6, 2018
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .................................................................. November 13, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ..................................................................... December 4, 2018
`Oral argument (if requested)
`
`
`
`7
`
`
`
`IPR2017-01993
`Patent 9,414,199 B2
`
`For PETITIONER:
`
`Xin-Yi Zhou
`Sina S. Aria
`Laura A. Bayne
`Luann L. Simmons
`O’MELVENY & MYERS LLP
`APPLEUNILOCIPR@OMM.COM
`
`For PATENT OWNER:
`
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`Ryan Loveless
`ETHERIDGE LAW GROUP
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`ryan@etheridgelaw.com
`
`Sean D. Burdick
`UNILOC USA, INC.
`sean.burdick@unilocusa.com
`
`
`
`
`8
`
`
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