Trials@uspto.gov
`571–272–7822
`
`
`
`
`Paper No. 8
`Entered: March 19, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`NFL ENTERPRISES LLC,
`Petitioner,
`
`v.
`
`OPENTV, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02092
`Patent 6,233,736 B1
`____________
`
`
`
`Before JAMESON LEE, SALLY C. MEDLEY, and
`MICHAEL R. ZECHER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`571–272–7822
`
`
`
`
`Paper No. 8
`Entered: March 19, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`NFL ENTERPRISES LLC,
`Petitioner,
`
`v.
`
`OPENTV, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-02092
`Patent 6,233,736 B1
`____________
`
`
`
`Before JAMESON LEE, SALLY C. MEDLEY, and
`MICHAEL R. ZECHER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`
`A. GENERAL INSTRUCTIONS
`
`1. Initial Conference Call
`Unless at least one of the parties requests otherwise, we will not
`conduct an initial conference call as described in the Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012). The
`parties are directed to contact the Board within 30 days of this Scheduling
`Order if there is a need to discuss proposed changes to the schedule or any
`proposed motions. See 77 Fed. Reg. at 48,765–66.
`
`2. Conference Calls with the Board
`In any request for a conference call with the Board to resolve a
`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. Prior to contacting the Board,
`however, we encourage the parties to resolve any disputes arising in the
`proceeding on their own and in accordance with the precepts set forth in
`37 C.F.R. § 42.1(b).
`
`3. Confidential Information
`The parties must file confidential information using the appropriate
`availability indicator in PTAB E2E (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.
`
`2
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`
`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 (Appendix 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 the difference
`can be understood readily. The parties should contact the Board if they
`cannot agree on the terms of the proposed protective order.
`Redactions should be limited strictly to isolated passages consisting
`entirely of confidential information. The thrust of the underlying argument
`or evidence must be clearly discernible from the redacted version.
`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.
`
`4. Motion to Amend
`
`Because the involved patent is expired, there is no occasion for Patent
`Owner to file a Motion to Amend.
`
`5. Depositions
`The parties are reminded that the Testimony Guidelines appended to
`the Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772 (Appendix D),
`
`3
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`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.
`
`6. 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.
`
`7. 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. No new evidence of any kind may be introduced with an
`observation. 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.
`
`
`
`
`4
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`
`
`
`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.
`If the parties stipulate to different due dates, notice of the stipulation
`specifically identifying the changed due dates must be filed promptly. 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).
`
`1. DUE DATE 11
`The patent owner may file—
`a.
`A response to the petition (37 C.F.R. § 42.120).
`The patent owner must file any such response 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.
`
`
`1 Because the involved patent is expired, there is no occasion for Patent
`Owner to file a Motion to Amend.
`
`5
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`
`
`
`2. DUE DATE 2
`The petitioner must file any reply to the patent owner’s response by
`DUE DATE 2.
`
`3. DUE DATE 3
`Not applicable.
`
`4. DUE DATE 4
`a.
`Each party must file any observations 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.
`
`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
`Oral argument (if requested by either party) is set for DUE DATE 7.
`
`
`
`
`6
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ...................................... UPON REQUEST
`
`DUE DATE 1 ............................................................................... June 5, 2018
`Patent owner’s response to the petition
`
`DUE DATE 2 ......................................................................... August 28, 2018
`Petitioner’s reply to patent owner’s response to petition
`
`DUE DATE 3 ............................................................................................. N/A
`Not applicable.
`
`DUE DATE 4 ................................................................... September 25, 2018
`Observations regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ....................................................................... October 16, 2018
`Response to observations
`Opposition to motion to exclude
`
`DUE DATE 6 ....................................................................... October 30, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ................................................................... November 14, 2018
`Oral argument (if requested)
`
`
`7
`
`
`
`IPR2017-02092
`Patent 6,233,736 B1
`
`For PETITIONER:
`VINSON & ELKINS LLP
`Stephen C. Stout
`sstout@velaw.com2
`
`For PATENT OWNER:
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Joshua L. Goldberg
`Erika H. Arner
`Daniel C. Tucker
`Cory Bell
`joshua.goldberg@finnegan.com
`erika.arner@finnegan.com
`daniel.tucker@finnegan.com
`cory.bell@finnegan.com
`
`
`2 Petitioner indicates that pro hac vice motions for back-up counsel Hilary L.
`Preston and Rachael P. McClure are to be filed. Pet. 2. No pro hac vice
`motions have been filed, and, thus, neither back-up counsel has been
`admitted to act in this proceeding. Petitioner is reminded that it must
`designate a back-up counsel who can conduct business on behalf of lead
`counsel. 37 C.F.R. § 42.10(a).
`
`8
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
