Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 11
`Entered: January 13, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and JUSTIN
`BUSCH, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`Paper 11
`Entered: January 13, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`UNDER ARMOUR, INC.,
`Petitioner,
`
`v.
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`Case IPR2015-01528
`Patent 8,721,502 B2
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and JUSTIN
`BUSCH, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`IPR2015-01528
`Patent 8,721,502 B2
`
`
`INITIAL CONFERENCE CALL
`A.
`No initial conference call is scheduled for this case. The parties are
`encouraged to contact the Board to request a call if any issues arise during
`trial. The parties are directed to the following matters:
`1. Motion to Amend
`Patent Owner is reminded that it must confer with the Board before
`filing a Motion to Amend. 37 C.F.R. § 42.121(a). Patent Owner should
`contact the Board to request a conference in sufficient time to ensure that the
`conference is conducted at least two weeks before DUE DATE 1. Patent
`Owner and Petitioner are directed to the rules governing Motions to Amend,
`with particular regard to applicable page limits. 37 C.F.R. §§ 42.24(a)(1),
`42.24(b)(3), 42.24(c)(3), 42.121(b).
`2.
`Confidential Information
`The parties must file confidential information using the appropriate
`availability indicator in PRPS (e.g., “Board and Parties Only”), regardless of
`whose confidential information it is. It is the responsibility of the party
`whose confidential information is at issue, not necessarily the proffering
`party, to file the motion to seal.
`A protective order does not take effect until a protective order is filed
`in the case and approved by the Board. If a motion to seal is filed by either
`party, the proposed protective order should be presented as an exhibit to the
`motion. The parties are urged to operate under the Board’s default
`protective order. See Default Protective Order, Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012). If the parties propose
`a protective order deviating from the default protective order, they should
`submit the proposed order jointly. A marked-up comparison of the proposed
`
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`IPR2015-01528
`Patent 8,721,502 B2
`
`and default protective orders should be presented as an additional exhibit to
`the motion to seal, so that differences are highlighted. The parties should
`contact the Board if they cannot agree on the terms of the proposed
`protective order.
`
`a.
`Redactions
`Redactions should be limited strictly to isolated passages consisting of
`confidential information. The thrust of the underlying argument or evidence
`must be discernable from the redacted version.
`b.
`Confidential Information in Final Written Decision
`Information subject to a protective order will become public if
`identified in a final written decision in this proceeding. A motion to
`expunge the information will not necessarily prevail over the public interest
`in maintaining a complete and understandable file history. See Office Patent
`Trial Practices Guide, 77 Fed. Reg. at 48, 761.
`
`B. 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).
`
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`IPR2015-01528
`Patent 8,721,502 B2
`
`
`The parties are reminded that the Testimony Guidelines appended to
`the Office Trial Practice Guide, 77 Fed.Reg. at 48,772 (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.
`DUE DATE 1
`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 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. Each party must file any motion for an observation on the cross-
`examination testimony of a witness (see section C, below) by DUE DATE 4.
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`IPR2015-01528
`Patent 8,721,502 B2
`
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`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.
`DUE DATE 5
`5.
`a. Each party must file any reply 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.
`DUE DATE 6
`6.
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`DUE DATE 7
`7.
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`CROSS-EXAMINATION
`C.
`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.
`D. 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 witness, since no further substantive paper is
`permitted after the reply. See Office Trial Practice Guide, 77 Fed. Reg. at
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`IPR2015-01528
`Patent 8,721,502 B2
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`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 parties may respond to the observation. Any response must be equally
`concise and specific.
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`IPR2015-01528
`Patent 8,721,502 B2
`
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`DUE DATE APPENDIX
`
`
`
`
`DUE DATE 1……………….………………………….……April 15, 2016
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`
`DUE DATE 2………………………………………….……....July 15, 2016
`
`Petitioner’s reply to patent owner response to petition
`
`
`Petitioner’s opposition to motion to amend
`
`
`DUE DATE 3…….…………………………………………August 15, 2016
`
`Patent owner’s reply to petitioner opposition to motion to amend
`
`DUE DATE 4……………………………...……………...September 6, 2016
`
`Motion for observation regarding cross-examination of a witness
`
`Motion to exclude evidence
`
`Request for oral argument
`
`
`DUE DATE 5…….……..…………………..……..……September 19, 2016
`
`Response to observation
`
`Opposition to motion to exclude
`
`DUE DATE 6…….……………………………..……..September 26, 2016
`
`Reply to opposition to motion to exclude
`
`
`DUE DATE 7….……………..………………………. October 13, 2016
`
`Oral argument (if requested)
`
`
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`IPR2015-01528
`Patent 8,721,502 B2
`
`Petitioner:
`
`Brian E. Ferguson
`Anish Desai
`WEIL GOTSHAL & MANGES LLP
`brian.ferguson@weil.com
`anish.desai@weil.com
`
`Patent Owner:
`
`Mitchell Stockwell
`Wab Kadaba
`KILPATRICK TOWNSEND & STOCKTON LLP
`mstockwell@kilpatricktownsend.com
`wkadaba@kilpatricktownsend.com
`
`
`
` 8
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