Trials@uspto.gov
`571-272-7822
`
`
` Paper No. 9
`Entered: September 8, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COOK MEDICAL LLC,
`Petitioner,
`
`v.
`
`STONE BASKET INNOVATIONS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00713
`Patent 6,551,327 B1
`____________
`
`
`
`
`
`Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`PAULRAJ, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`571-272-7822
`
`
` Paper No. 9
`Entered: September 8, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COOK MEDICAL LLC,
`Petitioner,
`
`v.
`
`STONE BASKET INNOVATIONS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00713
`Patent 6,551,327 B1
`____________
`
`
`
`
`
`Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
`CHRISTOPHER G. PAULRAJ, Administrative Patent Judges.
`
`PAULRAJ, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`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) (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 a month of this
`decision to schedule an initial conference call if there is a need to discuss
`proposed changes to this Scheduling Order or proposed motions. See Office
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012)
`(guidance in preparing for the initial conference call).
`
`
`
`2
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`2. ADR STATEMENT
`
`The parties are encouraged to discuss promptly alternative means for
`resolving their disputes regarding the subject matter of this proceeding. To
`advance the opportunities for early disposition, petitioner shall notify the
`Board, by the due date identified in the Appendix to this Order, whether the
`parties have conferred regarding alternative dispute resolution and whether
`the parties have reached any agreements.
`
`3. 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
`owner is cautioned that any arguments for patentability not raised, or any
`evidence not referred to, including declarant testimony, in the response will
`be deemed waived.
`
`4. 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.
`
`5. 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
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`6. 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 (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
`7. 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.
`
`8. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`9. 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.
`
`
`
`4
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`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. 48,756, 48,768 (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 opposing party may
`respond to the observation. Any response must be equally concise and
`specific.
`D. STANDING PROCEDURE ON REQUESTS FOR CONFERENCE
`CALLS
`
`
`
`If any party requests a conference call in this proceeding, the parties
`must follow these procedures:
`a. Prior to requesting a conference call, the parties must confer in
`good faith in an effort to resolve any issue to be discussed with
`the Board, or be prepared to explain to the Board why such a
`conference was not possible.
`b. Parties may request a conference call by contacting the Board at
`the email address or telephone number listed above the caption
`of this Order. Requests via email are expected and preferred;
`requests via telephone should be reserved for time-critical
`circumstances. Requests by email must copy opposing counsel.
`Requests by telephone should include opposing counsel as
`practicable.
`
`
`
`5
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`
`c. The request must include a list of proposed issues and/or
`motions to be discussed during the call.
`d. The request may include a brief background discussion of the
`issue(s) and/or motion(s) to be discussed, but must not include
`arguments.
`e. The request must certify that the parties conferred in
`accordance with 2.a., and must indicate the result of the
`conference (e.g., whether the non-requesting party opposes or
`does not oppose the request).
`f. The request must include a list of dates and times when both
`parties are available for the call.
`
`
`
`
`
`
`
`6
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ........................................................... TBD
`
`ADR STATEMENT DUE ................................................ November 16, 2016
`
`DUE DATE 1 ..................................................................... December 7, 2016
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ...................................................................... February 28, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... March 28, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................... April 18, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 .............................................................................. May 2, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. May 9, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ May 22, 2017
`Oral argument (if requested)
`
`
`
`7
`
`
`
`IPR2016-00713
`Patent 6,551,327 B1
`
`PETITIONER:
`Melissa A. Anyetei, manyetei@mayerbrown.com
`Chandra Critchelow, ccritchelow@mayerbrown.com
`Mayer Brown LLP
`
`PATENT OWNER:
`Albert B. Deaver, Jr., Esq., adeaver@smd-iplaw.com
`Jeffrey A. Andrews, Esq., jandrews@smd-iplaw.com
`Bruce J. Cannon, Esq., bcannon@smd-iplaw.com
`SUTTON MCAUGHAN DEVER PPLC
`
`
`
`
`8
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