Trials@uspto.gov
`571-272-7822
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`Paper No. 7
`Entered: May 31, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ZIMMER BIOMET HOLDINGS, INC., ZIMMER INC., and
`BIOMET INC.,
`Petitioners,
`
`v.
`
`
`
`ADVANCED ORTHOPAEDIC SOLUTIONS, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00236
`Patent 8,702,707 B2
`____________
`
`
`
`Before LORA M. GREEN, SCOTT A. DANIELS, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`GREEN, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
`Paper No. 7
`Entered: May 31, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ZIMMER BIOMET HOLDINGS, INC., ZIMMER INC., and
`BIOMET INC.,
`Petitioners,
`
`v.
`
`
`
`ADVANCED ORTHOPAEDIC SOLUTIONS, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00236
`Patent 8,702,707 B2
`____________
`
`
`
`Before LORA M. GREEN, SCOTT A. DANIELS, and
`ROBERT A. POLLOCK, Administrative Patent Judges.
`
`GREEN, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`IPR2016-00236
`Patent 8,702,707 B2
`
`
`
`A. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within a month of this
`decision if there is a need to discuss proposed changes to this Scheduling
`Order or proposed motions. To request a conference call, the parties should
`submit a list of dates and times when they are available for a call. If an
`initial conference call is requested, the parties should be prepared to discuss
`any proposed changes to this Scheduling Order and any motions the parties
`anticipate filing during the trial. The parties are directed to the Office Patent
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012), for
`guidance in preparing for the initial conference call.
`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 (id. § 42.64(b)(2)), to conduct cross-examination (id.
`§ 42.53(d)(2)), and to draft papers depending on the evidence and cross-
`examination testimony (see section B, below). In addition, any request for
`oral argument should be filed by original DUE DATE 4 as set forth in DUE
`DATE APPENDIX.
`
`2
`
`
`
`IPR2016-00236
`Patent 8,702,707 B2
`
`
`
`The parties are reminded that the Testimony Guidelines appended to
`the Office Patent Trial Practice Guide, 77 Fed. Reg. at App. 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
`A motion to amend the patent (id. § 42.121).
`b.
`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.
`
`3
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`IPR2016-00236
`Patent 8,702,707 B2
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`
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`4. 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.
`b.
`Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) and any request for oral argument (id. § 42.70(a)) by DUE
`DATE 4.
`
`5. DUE DATE 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.
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`C. 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).
`
`4
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`
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`IPR2016-00236
`Patent 8,702,707 B2
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`
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`Cross-examination ends no later than a week before the filing
`2.
`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 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.
`
`E. PROTECTIVE ORDER
`
`No protective order has been entered in this proceeding. The parties
`are reminded of the requirement for a protective order when filing a motion
`to seal. 37 C.F.R. § 42.54. If the parties have agreed to a proposed
`protective order, including the Standing Default Protective Order, Office
`Patent Trial Practice Guide, 77 Fed. Reg. at App. B, they should file a signed
`copy of the proposed protective order with the motion to seal. If the parties
`choose to propose a protective order other than, or departing from, the
`default Standing Protective Order, they must submit a joint, proposed
`protective order, accompanied by a red-lined version based on the default
`
`5
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`
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`IPR2016-00236
`Patent 8,702,707 B2
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`
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`protective order in Appendix B to the Board’s Office Patent Trial Practice
`Guide.
`
`6
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`IPR2016-00236
`Patent 8,702,707 B2
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`
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`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................. Upon Request
`
`DUE DATE 1 ........................................................................ August 31, 2016
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ..................................................................... December 1, 2016
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... January 2, 2016
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... January 23, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ....................................................................... February 6, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ..................................................................... February 13, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ..................................................................... February 21, 2017
`Oral argument (if requested)
`
`
`
`
`7
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`
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`8
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`IPR2016-00236
`Patent 8,702,707 B2
`
`PETITIONER:
`Eric Hayes
`Xun (Michael) Liu
`eric.hayes@kirkland.com
`michael.liu@kirkland.com
`
`PATENT OWNER:
`Joseph Burgess
`jburgess@burgessiplaw.com
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