Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 8
`Entered: August 2, 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 IPR2018-00424
`Patent 7,881,902 B1
`
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`Paper 8
`Entered: August 2, 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 IPR2018-00424
`Patent 7,881,902 B1
`
`
`
`Before SALLY C. MEDLEY, JOHN F. HORVATH, and
`SEAN P. O’HANLON, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`A. DUE DATES
`
`This Order sets forth 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).
`
`The parties may not stipulate to an extension of DUE DATES 6 and 7, and
`
`with respect to DUE DATE 4, may not stipulate to an extension of the date
`
`set forth in this Order for requesting oral argument.
`
`If the parties stipulate to different due dates, notice of the stipulation
`
`specifically identifying the changed due dates must be promptly filed. 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.
`
`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. 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).
`
`2
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`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 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.
`
`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.
`
`3
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`6. DUE DATE 6
`
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`7. DUE DATE 7
`
`Oral argument (if requested by either party) is set for DUE DATE 7.
`
`B. INITIAL CONFERENCE CALL
`
`The parties are directed to contact the Board within one 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).
`
`
`
`C. PROTECTIVE ORDER
`
`A protective order does not exist in this proceeding, and will not exist
`
`until a party files a motion to seal that includes a proposed protective order
`
`that is approved by the Board. See 37 C.F.R. 42.54(a). 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. Id. A party filing confidential information must use the appropriate
`
`availability indicator in PTAB E2E, regardless of who owns the confidential
`
`information. The owner of the confidential information, not necessarily the
`
`party filing the information, must file the motion to seal and bears the
`
`burden of showing the information for which protection is sought is
`
`confidential information.
`
`
`
`4
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`
`We encourage the parties to adopt the Board’s default protective order
`
`if they conclude that a protective order is necessary in this proceeding. See
`
`Default Protective Order, Office Patent Trial Practice Guide, 77 Fed. Reg. at
`
`48,769–71, App. B. If the parties file a proposed protective order that
`
`deviates from the default protective order, they must submit the proposed
`
`protective order jointly, together with a marked-up copy showing the
`
`differences between the default and proposed protective orders.
`
`The Board has a strong interest in the public availability of
`
`proceedings. We advise the parties that redactions to documents filed in this
`
`proceeding should be limited to isolated passages consisting entirely of
`
`confidential information, and that the thrust of the underlying argument or
`
`evidence must be clearly discernible from redacted documents. We also
`
`advise the parties that information subject to a protective order will become
`
`public if identified in a final written decision in this proceeding, and that 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.
`
`D. 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.
`
`5
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`E. 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. at 48,756. 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
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL .............................................. Upon Request
`
`DUE DATE 1 ....................................................................... October 25, 2018
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................ January 17, 2019
`
`Petitioner’s reply to patent owner’s response to petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ........................................................................ February 8, 2019
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ March 1, 2019
`
`Motion for observation regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`DUE DATE 5 .......................................................................... March 15, 2019
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6 .......................................................................... March 22, 2019
`
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .............................................................................. April 2, 2019
`
`Oral argument (if requested)
`
`
`
`7
`
`
`
`IPR2018-00424
`Patent 7,881,902 B1
`
`PETITIONER:
`
`Andrew S. Ehmke
`Michael Parsons
`Dina Blikshteyn
`andy.ehmke.ipr@haynesboone.com
`michael.parsons.ipr@ haynesboone.com
`dina.blikshteyn.ipr@haynesboone.com
`
`
`PATENT OWNER:
`
`Ryan Loveless
`Sean D. Burdick
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`ryan@etheridgelaw.com
`sean.burdick@unilocusa.com
`brett@etheridgelaw.com
`jim@etheridgelaw.com
`jeff@etheridgelaw.com
`
`
`8
`
`
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