Our sua sponte action is warranted, given the exceedingly advanced stage of this proceeding; namely, all trial-phase briefs have been filed and final oral arguments are set to commence in a matter of weeks.
In addition, any prejudice to Petitioner, resulting from allowing the unauthorized submission of Exhibit 2013 with Patent Owner’s Sur-reply, is mitigated by the routine discovery ordered, and the supplemental briefing authorized, in the next two sections of our analysis.
In the event that ProQuest declines to voluntarily produce Ms. Stewart, the parties, under 37 C.F.R. § 42.52(a), shall cooperate to jointly seek a federal district court subpoena to compel her appearance for the deposition.
The third Garmin factor weighs heavily against granting the additional discovery requested, however, because Petitioner has not addressed, much less demonstrated sufficiently, its inability to generate equivalent information by other means.
We are not persuaded that Petitioner demonstrates adequately, on this record, any reasonable basis for thrusting on these non-parties any burden beyond that necessary to comply with routine discovery as authorized according to the parameters and time table set forth above.