Trials@uspto.gov
`571-272-7822
`
`Paper 19
`Entered: March 8, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner,
`
`v.
`
`POZEN INC. and HORIZON PHARMA USA, INC.,
`Patent Owners.
`____________
`
`Case IPR2017-01995
`Patent 9,220,698 B2
`____________
`
`
`
`Before TONI R. SCHEINER, MICHELLE N. ANKENBRAND, and
`DEBRA L. DENNETT, Administrative Patent Judges.
`
`DENNETT, Administrative Patent Judge.
`
`__________________
`
`
`
`SCHEDULING ORDER
`37 C.F.R. 42.5(a)
`
`
`571-272-7822
`
`Paper 19
`Entered: March 8, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`
`MYLAN PHARMACEUTICALS INC.,
`Petitioner,
`
`v.
`
`POZEN INC. and HORIZON PHARMA USA, INC.,
`Patent Owners.
`____________
`
`Case IPR2017-01995
`Patent 9,220,698 B2
`____________
`
`
`
`Before TONI R. SCHEINER, MICHELLE N. ANKENBRAND, and
`DEBRA L. DENNETT, Administrative Patent Judges.
`
`DENNETT, Administrative Patent Judge.
`
`__________________
`
`
`
`SCHEDULING ORDER
`37 C.F.R. 42.5(a)
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`
`A. INITIAL CONFERENCE CALL
`
`The parties are directed to contact the Board via e-mail at
`
`Trials@ustpo.gov within a month of this Order if there is a need to discuss
`
`proposed changes to 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 the initial conference call).
`
`B. 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 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. 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 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
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`1. 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.
`
`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 3
`
`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
`
`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.
`
`
`
`
`3
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`5. 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.
`
`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.
`
`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 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
`
`
`
`
`4
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`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.
`
`E. INTERLOCUTORY DISPUTES
`
`
`
`To the extent that a dispute arises between the parties during the trial,
`
`the parties shall meet and confer to resolve such 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, the requesting party shall: (a) certify that it has conferred with the
`
`other party in an effort to resolve the dispute; (b) identify with specificity the
`
`issues 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 the conference call.
`
`
`
`
`
`
`
`
`5
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................. Upon Request
`
`DUE DATE 1 ............................................................................ May 30, 2018
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................ August 20, 2018
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ................................................................... September 20, 2018
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... October 11, 2018
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 ........................................................................ October 25, 2018
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .................................................................... November 1, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .................................................................. November 15, 2018
`Oral argument (if requested)
`
`
`
`
`6
`
`
`
`IPR2017-01995
`Patent 9,220,698 B2
`
`PETITIONER:
`
`
`Brandon M. White
`Emily Greb
`PERKINS COIE LLP
`bmwhite@perkinscoie.com
`egreb@perkinscoie.com
`
`
`PATENT OWNERS:
`
`Thomas A. Blinka, Ph.D.
`COOLEY LLP
`TBlinka@cooley.com
`
`Margaret J. Sampson, Ph.D.
`BAKER BOTTS LLP
`Margaret.Sampson@bakerbotts.com
`
`
`
`
`
`
`
`
`
`
`7
`
`
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