Trials@uspto.gov Paper 15
`Tel: 571-272-7822
`Entered: September 13, 2013
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`_______________
`
`Case IPR2013-00150
`Patent 7,093,086
`_______________
`
`
`
`Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`
`
`WARD, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`Entered: September 13, 2013
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`_______________
`
`Case IPR2013-00150
`Patent 7,093,086
`_______________
`
`
`
`Before THOMAS L. GIANNETTI, SCOTT E. KAMHOLZ, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`
`
`WARD, Administrative Patent Judge.
`
`ORDER
`Conduct of the Proceeding
`37 C.F.R. § 42.5
`
`
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`On September 9, 2013, the following individuals participated in the initial
`
`conference call in this trial proceeding:
`
`(1) Lori Gordon, Michael Lee, Byron Pickard, counsel for Petitioner Veeam
`
`Software Corporation;
`
`(2) Joseph Richetti and Lawrence Kurland, counsel for Patent Owner
`
`Symantec Corporation; and
`
`(3) Thomas Giannetti, Scott Kamholz, and Trenton Ward, Administrative
`
`Patent Judges.
`
`The purpose of the call was to discuss any proposed changes to the
`
`Scheduling Order and the motions that the parties intend to file.
`
`
`
`Scheduling Order
`
`Counsel for the respective parties indicated that they have no concerns with
`
`the Scheduling Order (Paper 11) entered on August 7, 2013.
`
`
`
`Motions
`
`Patent Owner filed a list of proposed motions (Paper 13) on September 5,
`
`2013. First, the Patent Owner stated that it may file a motion to amend. The
`
`Patent Owner should note the guidance regarding motions to amend provided in
`
`the Board’s Trial Practice Guide and recent decisions, including Case IPR2012-
`
`00005, Paper 27, dated June 3, 2013, and Case IPR2012-00027, Paper 26, dated
`
`June 11, 2013 (“Idle Free”). In particular, Patent Owner should note that, “in the
`
`absence of special circumstance, a challenged claim can be replaced by only one
`
`claim, and a motion to amend should, for each proposed substitute claim,
`
`specifically identify the challenged claim which it is intended to replace.” Idle
`
`Free at 5. A motion to amend claims also must clearly identify the written
`
` 2
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`description support for the proposed substitute claims. 37 C.F.R. § 42.121(b).
`
`Patent Owner is reminded to confer with the Board before filing a motion to
`
`amend.
`
`Second, Patent Owner included in its list of proposed motions a motion to
`
`exclude evidence pursuant to 37 C.F.R. § 42.64(c) based on the grounds set forth
`
`in evidentiary objections Patent Owner has reportedly served on Petitioner
`
`pursuant to 37 C.F.R. § 42.64(b)(1). Authorization for such a motion has already
`
`been given in the Scheduling Order. The Board, however, encourages the parties
`
`not to delay in attempting to resolve these issues, to confer on this matter promptly,
`
`and to reach an agreement with respect to the issues raised in Patent Owner’s
`
`objections. In the event that an agreement is not reached, the parties are
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`encouraged to request a conference call with the Board to discuss the specific
`
`evidentiary issues in dispute.
`
`Third, Patent Owner included in its list of proposed motions a motion for
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`observations on cross-examination pursuant to 37 C.F.R. § 42.20(a) if warranted
`
`based on testimony. The Board directed Patent Owner to confer with the Board if
`
`and when the Patent Owner believes such a motion is warranted.
`
`Petitioner filed a list of proposed motions (Paper 14) on September 5, 2013.
`
`First, Petitioner listed a motion to submit supplemental information. Counsel for
`
`Petitioner states that Petitioner served supplemental evidence on Patent Owner in
`
`response to Patent Owner’s objections. Counsel for Petitioner inquired as to
`
`whether Petitioner should file this supplemental evidence with the Board. The
`
`Board directed the Petitioner not to file this supplemental evidence, as the relevant
`
`materials would most likely be included as exhibits to an opposition, should Patent
`
`Owner file a motion to exclude. The Board encouraged the parties not to delay in
`
`attempting to resolve these evidentiary issues, to confer on this matter promptly,
`
` 3
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`and to reach an agreement with respect to Patent Owner’s objections.
`
`Second, Petitioner listed a motion seeking leave to serve additional
`
`supplemental evidence in response to objections reportedly served by the Patent
`
`Owner on August 21, 2013. After discussion, this request was denied as
`
`premature.
`
`
`
`Protective Order
`
`The parties indicated that they do not expect to rely upon confidential
`
`information; thus, counsel for the parties indicated that they do not believe that a
`
`protective order will be required in this proceeding.
`
`
`
`Settlement
`
`Counsel for the parties indicated that they have spoken, but had not reached
`
`any accord on settlement.
`
`
`
`Accordingly, it is
`
`ORDERED that Patent Owner must request a conference call with the
`
`Board before filing a motion to amend.
`
` 4
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`
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`
`
`
`
`
`
`
`
`IPR2013-00150
`Patent 7,093,086
`
`
`
`For PETITIONER:
`
`Lori A. Gordon
`Michael Q. Lee
`Byron L. Pickard
`STERNE, KESSLER, GOLDSTEIN
`& FOX PLLC
`lgordon-PTAB@skgf.com
`mlee-PTAB@skgf.com
`bpickard-ptab@skgf.com
`
`
`
`For PATENT OWNER:
`
`Joseph J. Richetti
`Lawrence G. Kurland
`BRYAN CAVE LLP
`joe.richetti@bryancave.com
`lgkurland@bryancave.com
`
`
`
` 5
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