Trials@uspto.gov
`Tel: 571.272.7822
`
`Paper 14
`Date Entered: November 30, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP.,
`and QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioner,
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`
`Case IPR2015-01277 (Patent 8,309,943)
`Case IPR2015-01279 (Patent 7,786,455)
`Cases IPR2015-01300, -01303, -01377 (Patent 7,435,982)
`Case IPR2015-01362 (Patent 8,969,841)
`Case IPR2015-01368 (Patent 8,525,138)
`Case IPR2015-01375 (Patent 9,048,000)1
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be docketed in each case. The parties, however, are
`not authorized to use this caption for any subsequent papers.
`
`
`Tel: 571.272.7822
`
`Paper 14
`Date Entered: November 30, 2015
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ASML NETHERLANDS B.V., EXCELITAS TECHNOLOGIES CORP.,
`and QIOPTIQ PHOTONICS GMBH & CO. KG,
`Petitioner,
`
`v.
`
`ENERGETIQ TECHNOLOGY, INC.,
`Patent Owner.
`
`Case IPR2015-01277 (Patent 8,309,943)
`Case IPR2015-01279 (Patent 7,786,455)
`Cases IPR2015-01300, -01303, -01377 (Patent 7,435,982)
`Case IPR2015-01362 (Patent 8,969,841)
`Case IPR2015-01368 (Patent 8,525,138)
`Case IPR2015-01375 (Patent 9,048,000)1
`
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JONI Y. CHANG, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`PARVIS, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each of the listed cases. We exercise our discretion
`to issue one Order to be docketed in each case. The parties, however, are
`not authorized to use this caption for any subsequent papers.
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`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 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).
`If requested, a consolidated oral hearing for IPR2015-01277,
`IPR2015-01279, IPR2015-01300, IPR2015-01303, IPR2015-01362,
`IPR2015-01368, IPR2015-01375, and IPR2015-01377 (“the related IPRs”)
`will be held on DUE DATE 7. Any representation made by counsel at the
`consolidated hearing will be applicable to and useable in all proceedings
`which have underlying basis for the representation.
`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.
`
`2
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`1. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within a month of this
`decision if either party disagrees with holding a consolidated hearing for the
`related IPRs or there is a need to discuss proposed changes to this
`Scheduling Order or proposed motions. See Office Patent Trial Practice
`Guide, 77 Fed. Reg. at 48,765–66 (guidance in preparing for the initial
`conference call).
`
`a. Confidential Information
`The parties must file confidential information using the appropriate
`availability indicator in PRPS (e.g., “Board and Parties Only”), 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, unless the party whose confidential
`information is at issue is not a party to this proceeding.
`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 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
`that difference can be understood readily. The parties should contact the
`Board if they cannot agree on the terms of the proposed protective order.
`
`3
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`b.
`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.
`
`Confidential Information in Final Written Decisions
`c.
`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.
`
`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 for patentability 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.
`
`4
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`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.
`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.
`
`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.
`
`5
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`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. at 48,767–68. 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. We strongly encourage the parties to arrange for a conference call
`with us no less than ten (10) business days prior to DUE DATE 1.
`
`
`
`
`
`
`6
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL .............................................. Upon Request
`
`DUE DATE 1 ........................................................................... March 1, 2016
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. June 1, 2016
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................... July 1, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................. July 22, 2016
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .......................................................................... August 5, 2016
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................ August 12, 2016
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................ August 30, 2016
`Oral argument (if requested)
`
`
`7
`
`
`
`IPR2015-01277, IPR2015-01279, IPR2015-01300, IPR2015-01303,
`IPR2015-01362, IPR2015-01368, IPR2015-01375, and IPR2015-01377
`
`PETITIONER:
`
`Donald R. Steinberg
`David L. Cavanaugh
`Michael H. Smith
`Wilmer Cutler Pickering Hale & Dorr LLP
`Don.Steinberg@wilmerhale.com
`David.Cavanaugh@wilmerhale.com
`MichaelH.Smith@wilmerhale.com
`
`
`
`PATENT OWNER:
`
`Steven M. Bauer
`Joseph A. Capraro Jr.
`Proskauer Rose LLP
`PTABMattersBoston@proskauer.com
`JCapraro@proskauer.com
`
`
`
`
`
`
`
`8
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