`
`
`
`Trials@uspto.gov
`571-272-7822
`
` Paper 15
` Entered: November 19, 2013
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARIOSA DIAGNOSTICS, INC.
`Petitioner
`
`v.
`
`VERINATA HEALTH, INC.
`Patent Owner
`____________
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B21
`____________
`
`
`Before LORA M. GREEN, FRANCISCO C. PRATS, and
`RAMA G. ELLURU, Administrative Patent Judges.
`
`
`GREEN, Administrative Patent Judge.
`
`
`
`AMENDED SCHEDULING ORDER
`
`
`1 This amended scheduling order applies to both cases. We, therefore,
`exercise our discretion to issue a single scheduling order to be entered in
`each case. The parties, however, are not authorized to use this style heading.
`
`
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B2
`
`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 3 (earlier or later, but no later than DUE DATE 4). 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 4-7.
`
`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).
`
`The parties are reminded that the Testimony Guidelines appended to
`the Office Trial Practice Guide, 77 Fed.Reg. 48756, 48772 (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.
`
`1. 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
`
`
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B2
`
`owner is cautioned that any arguments for patentability not raised in the
`response will be deemed waived.
`
`2. 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.
`
`3. 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. DUE DATE 4
`a. The petitioner 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.
`
` 5. DUE DATE 5
`a. The patent owner must file any reply to a petitioner 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.
`
`
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B2
`
`7. 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.
`
`C. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
`A motion for observation on cross-examination provides the petitioner with
`a mechanism to draw the Board’s attention to relevant cross-examination
`testimony of a reply witness, since no further substantive paper is permitted
`after the reply. See Office Trial Practice Guide, 77 Fed. Reg. 48756, 48768
`(Aug. 14, 2012). 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 patent owner may respond to the observation. Any response
`must be equally concise and specific.
`
`DUE DATE APPENDIX
`
`DUE DATE 1……………………………………….…January 9, 2014
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`
`
`
`
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B2
`
`DUE DATE 2……………………………………….….March 25, 2014
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3……………………………………………..April 22, 2014
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4………………………………………………May 13, 2014
`
`Petitioner’s motion for observation regarding
`
`cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`
`DUE DATE 5……………………………………………….May 27, 2014
`
`Patent owner’s response to observation
`
`Opposition to motion to exclude
`
`
`DUE DATE 6…………………………………………………June 3, 2014
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7………………………………………………July 16, 2014
`
`Oral argument (if requested)
`
`
`
`
`
`
`
`
`Cases IPR2013-00276 and IPR2013-00277
`Patent 8,318,430 B2
`
`PETITIONER:
`Greg Gardella
`cpdocketgardella@oblon.com
`
`Kevin Laurence
`klaurence@oblon.com
`
`Scott McKeown
`cpdocketmckeown@oblon.com
`
`
`PATENT OWNER:
`
`Michael Rosato
`mrosato@wsgr.com
`
`Maya Skubatch
`mskubatch@wsgr.com
`
`
`
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