Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 9
`Entered: March 12, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, LLC
`Patent Owner.
`____________
`
`Case IPR2017-02012
`Patent 6,434,212
`____________
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`37 C.F.R. § 42.5(a)
`
`
`Tel: 571-272-7822
`
`Paper 9
`Entered: March 12, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`FITBIT, INC.,
`Petitioner,
`
`v.
`
`BLACKBIRD TECH, LLC d/b/a BLACKBIRD TECHNOLOGIES, LLC
`Patent Owner.
`____________
`
`Case IPR2017-02012
`Patent 6,434,212
`____________
`
`
`Before DEBRA K. STEPHENS, THOMAS L. GIANNETTI, and
`CHRISTA P. ZADO, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`37 C.F.R. § 42.5(a)
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`
`The Appendix to this Order sets due dates for the parties to take action
`after institution of these proceedings. 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 addition, even if the parties stipulate
`to an extension of DUE DATE 4, any request for oral hearing must still be
`filed on or before the date set forth in this Order, to provide sufficient time
`for the Board to accommodate the hearing.
`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 D, 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.
`
`A. 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 this Order or
`proposed motions. See Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`2
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`48,756, 48,765–66 (Aug. 14, 2012) (guidance in preparing for the initial
`conference call).
`
`B. PROTECTIVE ORDER
`1. Confidential Information
`The parties must file confidential information using the appropriate
`availability indicator in PTAB E2E, regardless of whose confidential
`information it is. It is the responsibility of the party whose confidential
`information is at issue, not necessarily the proffering party, to file the motion
`to seal.
`A protective order does not exist in a case until one is filed in the case
`and is approved by the Board. If a motion to seal is filed by either party, the
`proposed protective order should be presented as an exhibit to the motion.
`The motion to seal must include a certification that the moving party has in
`good faith conferred or attempted to confer with other affected parties in an
`effort to resolve any dispute. See 37 C.F.R. 42.54(a).
`The parties are urged to operate under the Board’s default protective
`order, should that become necessary. See Default Protective Order, Office
`Patent Trial Practice Guide, 77 Fed. Reg. at 48,769–71, App. B.
`If the parties choose to propose a protective order deviating from the
`default protective order, they should submit the proposed protective order
`jointly. A marked-up comparison of the proposed and default protective
`orders should be presented as an additional exhibit to the motion to seal, so
`
`3
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`that differences can be understood readily. The parties should contact the
`Board if they cannot agree on the terms of the proposed protective order.
`2. Redactions
`Redactions should be limited strictly to isolated passages consisting
`entirely of confidential information. The thrust of the underlying argument
`or evidence must be clearly discernable from the redacted version.
`3. Confidential Information in Final Written Decisions
`Information subject to a protective order will become public if
`identified in a final written decision in this proceeding. A motion to
`expunge the information will not prevail necessarily over the public interest
`in maintaining a complete and understandable file history. See Office Patent
`Trial Practice Guide, 77 Fed. Reg. at 48,761.
`
`C. DUE DATES
`
`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.
`
`4
`
`
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`IPR2017-02012
`Patent 6,434,212
`
`
`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 observations on the cross-examination
`testimony of a reply witness (see section E, below) by DUE DATE 4.
`b.
`Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) by DUE DATE 4.
`c. Each party must file any request for oral argument (37 C.F.R.
`§ 42.70(a)) by DUE DATE 4. As noted above, DUE DATE 4 is not
`extendible with respect to any request for oral argument.
`
`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.
`
`D. CROSS-EXAMINATION
`Except as the parties might otherwise agree, for each due date—
`
`5
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`
`Cross-examination begins after any supplemental evidence is
`1.
`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.
`
`E. OBSERVATIONS ON CROSS-EXAMINATION
`Observations on cross-examination provide 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 48,768 (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.
`
`F. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under our
`Rules, the patent owner must confer with the Board before filing any Motion
`to Amend. See 37 C.F.R. § 42.121(a). A conference call to satisfy the
`requirement of 37 C.F.R. § 42.121(a) must be scheduled no less than ten
`(10) business days prior to DUE DATE 1.
`
`
`6
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`G. COMMUNICATIONS WITH THE BOARD
`Except as otherwise provided in the Rules, Board authorization is
`required before filing a motion. 37 C.F.R. § 42.20(b). A party seeking to file
`a non-preauthorized motion should request a conference to obtain
`authorization to file the motion. Parties may request a conference with us by
`contacting the Board staff by e-mail at Trials@uspto.gov or by telephone at
`571-272-7822.
`Regarding discovery disputes, the parties are encouraged to resolve
`such issues on their own and in accordance with the precepts set forth in 37
`C.F.R. § 42.1(b). To the extent that a dispute arises between the parties
`relating to discovery, the parties should meet and confer to resolve such a
`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 to
`discuss the issue and, if necessary, seek authorization to file a motion in that
`regard. An email requesting a conference call shall: (a) copy the other party,
`(b) indicate generally the subject matter of the conference call and relief
`requested, (c) state whether the opposing party opposes the request, and (d)
`include multiple times when all parties are available for a conference. The
`email shall not contain substantive argument.
`
`
`
`
`
`
`7
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................... OPTIONAL
`
`DUE DATE 1 ............................................................................ April 12, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................ June 12, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .................................................................. September 12, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... October 12, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .................................................................... November 2, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .................................................................. November 16, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... December 12, 2018
`Oral argument (if requested)
`
`8
`
`
`
`IPR2017-02012
`Patent 6,434,212
`
`PETITIONER:
`
`
`Harper Batts
`Baker Botts L.L.P.
`Email: harper.batts@bakerbotts.com
`
`John Gaustad
`Baker Botts L.L.P.
`Email: john.gaustad@bakerbotts.com
`
`
`
`
`PATENT OWNER:
`
`
`
`Walter D. Davis, Jr.
`Davidson Berquist Jackson & Gowdey, LLP
`Email: wdavis@dbjg.com
`
`Wayne M. Helge
`Davidson Berquist Jackson & Gowdey, LLP
`Email: whelge@dbjg.com
`
`Aldo Noto
`Davidson Berquist Jackson & Gowdey, LLP
`Email: anoto@dbjg.com
`
`
`
`
`
`
`9
`
`
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