throbber
Trials@uspto.gov
`571-272-7822
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` Paper 15
`
`
`Date: September 22, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`PRAXAIR DISTRIBUTION, INC.,
`Petitioner,
`
`v.
`
`INO THERAPEUTICS LLC,
`Patent Owner.
`
`
`
`Case IPR2015-00884 (Patent 8,291,904 B2)
`Case IPR2015-00888 (Patent 8,776,794 B2)
`Case IPR2015-00889 (Patent 8,573,209 B2)
`Case IPR2015-00891 (Patent 8,573,210 B2)
`Case IPR2015-00893 (Patent 8,776,795 B2)1
`
`
`
`
`Before KEN B. BARRETT, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`FITZPATRICK, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`
`
`
`1 This Order employs a joint caption, as it is being entered in each of the five
`identified proceedings. The parties may not use a joint caption unless
`authorized.
`
`

`
`
`
`
`
`
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`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 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.
`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 Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772
`(Aug. 14, 2012) as 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. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within three weeks of
`this Scheduling Order if there is a need to discuss proposed changes to the
`schedule or proposed motions. See Office Patent Trial Practice Guide,
`
`2
`
`

`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`77 Fed. Reg. at 48,765–66 (guidance in preparing for the initial conference
`call).
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`
`
`
`
`
`
`2. 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 to file a motion to amend and/or to not
`file a response to the petition, 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 a response will be deemed waived.
`
`3. 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.
`
`4. 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.
`
`5. DUE DATE 4
`a.
`Each party must file any motion for an observation on the
`cross-examination testimony of a reply witness (see section C, below) by
`DUE DATE 4.
`
`3
`
`

`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`
`
`
`
`
`
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`Each party must file any motion to exclude evidence (37 C.F.R
`b.
`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
`6. 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.
`
`7. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`8. DUE DATE 7
`The oral argument (if requested by either party and granted) 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.
`
`4
`
`

`
`
`
`
`
`
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`C. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
`A motion for observation on cross-examination provides 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. 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.
`
`
`
`
`
`
`5
`
`

`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`
`
`
`
`
`
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL (if requested) ....................... Oct. 22, 2015
`
`DUE DATE 1 .............................................................................. Dec. 7, 2015
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................ Feb. 22, 2016
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... March 21, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................... April 11, 2016
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ........................................................................... April 25, 2016
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. May 2, 2016
`Reply to opposition to motion to exclude
`
`6
`
`

`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`DUE DATE 7 ............................................................................ May 16, 2016
`Oral argument (if requested and granted)
`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`
`
`
`
`
`
`7
`
`

`
`Patent 8,291,904 B2
`Patent 8,776,794 B2
`Patent 8,573,209 B2
`Patent 8,573,210 B2
`Patent 8,776,795 B2
`
`
`
`
`
`
`
`IPR2015-00884
`IPR2015-00888
`IPR2015-00889
`IPR2015-00891
`IPR2015-00893
`
`For PETITIONER:
`
`Sanjay K. Murthy
`Sara Kerrane
`Margaux Nair
`Maria Doukas
`K&L GATES LLP
`sanjay.murthy@klgates.com
`sara.kerrane@klgates.com
`margaux.nair@klgates.com
`maria.doukas@klgates.com
`
`For PATENT OWNER:
`
`Dominick A. Conde
`Edmund J. Haughey
`FITZPATRICK, CELLA, HARPER & SCINTO
`dconde@fchs.com
`ehaughey@fchs.com
`
`
`8

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