`571-272-7822
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` Paper 11
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`Entered: August 20, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE INC.,
`Petitioner,
`
`v.
`
`BETTER FOOD CHOICES LLC,
`Patent Owner.
`____________
`
`Case CBM2015-00071
`Patent 5,841,115
`
`
`
`
`Before MICHAEL P. TIERNEY, GLENN J. PERRY, and MINN CHUNG,
`Administrative Patent Judges.
`
`
`CHUNG, Administrative Patent Judge.
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`SCHEDULING ORDER
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`CBM2015-00071
`Patent 5,841,115
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`A. INITIAL CONFERENCE CALL
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`No initial conference call is scheduled for this case. The parties are
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`encouraged to contact the Board to request a call if any issues arise during
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`trial. The parties’ attention is directed to the following matters.
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`1. Motion to Amend
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`Patent Owner is reminded that it must confer with the Board before
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`filing a Motion to Amend. 37 C.F.R. § 42.121(a). Patent Owner should
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`contact the Board to request a conference in sufficient time to ensure that the
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`conference is conducted at least one week before DUE DATE 1.
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`Patent Owner and Petitioner are directed to the revised rules
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`governing Motions to Amend. 37 C.F.R. §§ 42.24(a)(1), 42.24(c),
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`42.121(b).
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`2. Confidential Information
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`The parties must file confidential information using the appropriate
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`availability indicator in PRPS (e.g., “Board and Parties Only”), regardless of
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`whose confidential information it is. It is the responsibility of the party
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`whose confidential information is at issue, not necessarily the proffering
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`party, to file the motion to seal.
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`A protective order does not exist in a case until one is filed in the case
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`and is approved by the Board. If a motion to seal is filed by either party, the
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`proposed protective order should be presented as an exhibit to the motion.
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`The parties are urged to operate under the Board’s default protective order,
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`should that become necessary. See Default Protective Order, Office Patent
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`Trial Practice Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012).
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`CBM2015-00071
`Patent 5,841,115
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`If the parties choose to propose a protective order deviating from the
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`default protective order, they should submit the proposed protective order
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`jointly. A marked-up comparison of the proposed and default protective
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`orders should be presented as an additional exhibit to the motion to seal, so
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`that differences are highlighted. The parties should contact the Board if they
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`cannot agree on the terms of the proposed protective order.
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`a. Redactions
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`Redactions should be limited strictly to isolated passages consisting of
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`confidential information. The thrust of the underlying argument or evidence
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`must be discernable from the redacted version.
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`b. Confidential Information in Final Written Decisions
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`Information subject to a protective order will become public if
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`identified in a final written decision in this proceeding. A motion to
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`expunge the information will not necessarily prevail over the public interest
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`in maintaining a complete and understandable file history. See Office Patent
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`Trial Practice Guide, 77 Fed. Reg. at 48,761.
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`B. DUE DATES
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`This order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6). A
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`notice of the stipulation, specifically identifying the changed due dates, must
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`be promptly filed. The parties may not stipulate to an extension of DUE
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`DATES 6 and 7.
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`CBM2015-00071
`Patent 5,841,115
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`Regardless of whether the parties stipulate to a change of DUE DATE
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`4, requests for oral argument must be filed no later than the date set forth in
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`this order for DUE DATE 4, for Board planning purposes.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct cross-
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`examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending on the
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`evidence and cross-examination testimony (see section C, below).
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`The parties are reminded that the Testimony Guidelines appended to
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`the Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772 (Appendix D),
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`apply to this proceeding. The Board may impose an appropriate sanction for
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`failure to adhere to the Testimony Guidelines. 37 C.F.R. § 42.12. For
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`example, reasonable expenses and attorneys’ fees incurred by any party may
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`be levied on a person who impedes, delays, or frustrates the fair examination
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`of a witness.
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`1. DUE DATE 1
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`The patent owner may file—
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`a.
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`b.
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`A response to the petition (37 C.F.R. § 42.120), and
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`A motion to amend the patent (37 C.F.R. § 42.121).
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`The patent owner must file any such response or motion to amend by DUE
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`DATE 1. If the patent owner elects not to file anything, the patent owner
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`must arrange a conference call with the parties and the Board. The patent
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`owner is cautioned that any arguments for patentability not raised in the
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`response will be deemed waived.
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`CBM2015-00071
`Patent 5,841,115
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`2. DUE DATE 2
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`The petitioner must file any reply to the patent owner’s response and
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`opposition to the motion to amend by DUE DATE 2.
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`3. DUE DATE 3
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`The patent owner must file any reply to the petitioner’s opposition to
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`patent owner’s motion to amend by DUE DATE 3.
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`4. DUE DATE 4
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`a.
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`Each party must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see section D, below) by
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`DUE DATE 4.
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`b.
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`Each party must file any motion to exclude evidence (37 C.F.R.
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`5. DUE DATE 5
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`a.
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`Each party must file any response to an observation on cross-
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`examination testimony by DUE DATE 5.
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`b.
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`Each party must file any opposition to a motion to exclude
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`evidence by DUE DATE 5.
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`6. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`7. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`CBM2015-00071
`Patent 5,841,115
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`C. CROSS-EXAMINATION
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`Except as the parties might otherwise agree, for each due date—
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`1.
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`Cross-examination begins after any supplemental evidence is
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`due. 37 C.F.R. § 42.53(d)(2).
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`2.
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`Cross-examination ends no later than a week before the filing
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`date for any paper in which the cross-examination testimony is expected to
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`be used. Id.
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`D. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
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`A motion for observation on cross-examination provides the parties
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`with a mechanism to draw the Board’s attention to relevant cross-
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`examination testimony of a reply witness because no further substantive
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`paper is permitted after the reply. See Office Patent Trial Practice Guide, 77
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`Fed. Reg. at 48,768. The observation must be a concise statement of the
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`relevance of precisely identified testimony to a precisely identified argument
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`or portion of an exhibit. Each observation should not exceed a single, short
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`paragraph. The opposing party may respond to the observation. Any
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`response must be equally concise and specific.
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`CBM2015-00071
`Patent 5,841,115
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`DUE DATE APPENDIX
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`DUE DATE 1 .................................................................. November 20, 2015
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`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`DUE DATE 2 ..................................................................... February 22, 2016
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`Petitioner’s reply to patent owner’s response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3 ......................................................................... March 21, 2016
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`Patent owner’s reply to petitioner’s opposition to motion to amend
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`DUE DATE 4 ........................................................................... April 11, 2016
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`Motion for observation regarding cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5 ........................................................................... April 25, 2016
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 .............................................................................. May 2, 2016
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ............................................................................ May 19, 2016
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`Oral argument (if requested)
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`8
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`CBM2015-00071
`Patent 5,841,115
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`PETITIONER:
`
`Ryan McBrayer
`rmcbrayer@perkinscoie.com
`
`Bing Ai
`Ai-ptab@perkinscoie.com
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`
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`PATENT OWNER:
`
`Robert Huntsman
`bobh@hunstmanlg.com