Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper No. 9
`Entered: March 9, 2018
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`ALEX IS THE BEST, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02055 (Patent 8,947,542 B2)
`Case IPR2017-02056 (Patent 8,134,600 B2)
`Case IPR2017-02059 (Patent 8,581,991 B2)1
`____________
`
`
`
`Before DANIEL N. FISHMAN, MINN CHUNG, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each referenced case. The parties are not authorized
`to use this heading style.
`
`
`Tel: 571-272-7822
`
`Paper No. 9
`Entered: March 9, 2018
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`GOOGLE LLC,
`Petitioner,
`
`v.
`
`ALEX IS THE BEST, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-02055 (Patent 8,947,542 B2)
`Case IPR2017-02056 (Patent 8,134,600 B2)
`Case IPR2017-02059 (Patent 8,581,991 B2)1
`____________
`
`
`
`Before DANIEL N. FISHMAN, MINN CHUNG, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`FISHMAN, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each referenced case. The parties are not authorized
`to use this heading style.
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`A. DUE DATES
`This order sets due dates for the parties to take action after institution
`of the proceedings. The parties may stipulate to different dates for DUE
`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6), with
`the exception that the parties may not change DUE DATE 4 with respect to
`the requirement for requesting oral argument without express authorization
`from the panel. 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. 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
`Either party may request an initial conference call within 30 days of
`this Scheduling Order. To request a conference call, the requesting party
`should submit a list of dates and times when the parties are available for a
`
`2
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`call. If an initial conference call is requested, the parties should be prepared
`to discuss any proposed changes to this Scheduling Order and any motions
`the parties anticipate filing during the trial. The parties are directed to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug.
`14, 2012) for guidance in preparing for an initial conference call.
`
`
`
`2. 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 not raised in the response will be
`deemed waived.
`
`
`
`3. 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. 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.
`
`
`
`5. DUE DATE 4
`
`a.
`Each party must file any motion for an observation on the
`cross-examination testimony of a reply witness (see section C, below) by
`DUE DATE 4.
`
`3
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`
`Each party must file any motion to exclude evidence (37
`b.
`
`C.F.R. § 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a))
`by DUE DATE 4.
`
`
`
`6. 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.
`
`
`
`7. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`
`
`8. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`B. 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.
`
`4
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`C. 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
`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.
`
`D. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under our
`Rules, Patent Owner must confer with us before filing any Motion to
`Amend. If Patent Owner elects to file a Motion to Amend, we strongly
`encourage the parties to arrange for a conference call with us no less than ten
`business days prior to DUE DATE 1.
`
`E. CONFIDENTIAL INFORMATION
`1.
`The parties must file confidential information using the
`appropriate availability indicator in PTABE2E (e.g., “Board and Parties
`Only”), regardless of whose confidential information it is. A party filing a
`document or thing to be sealed shall file a motion to seal concurrent with the
`filing of the document or thing to be sealed. See 37 C.F.R. § 42.14.
`However, the party that asserts that the document or thing is confidential
`
`5
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`bears the burden of proof to establish that it is entitled to the requested relief,
`i.e., sealing of the document or thing. See 37 C.F.R. § 42.20(c). Therefore,
`if the party that asserts confidentiality is not the party that filed the document
`or thing, the party that asserts confidentiality shall file its own motion to seal
`within seven days after the document or thing to be sealed was filed.
`If the entity whose confidential information is filed is not a party to
`this proceeding, i.e., the confidential information is that of a third party,
`then, the proffering party is responsible for (1) obtaining the fully-informed
`consent of the third party to use its information in this proceeding with the
`knowledge of the risks associated with the submission of the information to
`the Board, and (2) filing the motion to seal. The party that is responsible for
`filing the motion to seal has the burden of proof to establish that it is entitled
`to the requested relief, i.e., sealing of the documents. See 37 C.F.R.
`§ 42.20(c).
`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 parties are encouraged to agree to and file 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
`
`6
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`that difference(s) can be understood readily. The parties should contact the
`Board if they cannot agree on the terms of the proposed protective order.
`2.
`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 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 necessarily prevail over the
`public interest in maintaining a complete and understandable file history.
`See Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,761.
`
`F. DISCOVERY DISPUTES
`The panel encourages the parties to resolve disputes relating to
`discovery 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 shall meet and confer to resolve such a
`dispute before contacting the Board. If attempts to resolve the dispute fail,
`either 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 discovery
`dispute, 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.
`
`
`
`
`7
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ............................................................................... June 5, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ......................................................................... August 28, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .................................................................... September 28, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... October 19, 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 9, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... November 27, 2018
`Oral argument (if requested)
`
`8
`
`
`
`IPR2017-02055 (Patent 8,947,542 B2)
`IPR2017-02056 (Patent 8,134,600 B2)
`IPR2017-02059 (Patent 8,581,991 B2)
`
`PETITIONER:
`Joshua Larsen
`joshua.larsen@btlaw.com
`
`Steven Shipe
`steven.shipe@btlaw.com
`
`PATENT OWNER:
`
`C. ANDREW IM
`aim@imiplaw.com
`docket@imiplaw.com
`
`
`9
`
`
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