Trials@uspto.gov
`571.272.7822
`
`
`Paper No. 14
`
` Filed: July 6, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SKECHERS U.S.A., INC.,
`Petitioner,
`
`v.
`
`NIKE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00620
`Patent D723,783 S
`
`Case IPR2017-00621
`Patent D723,781 S
`____________
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`WARD, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`571.272.7822
`
`
`Paper No. 14
`
` Filed: July 6, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SKECHERS U.S.A., INC.,
`Petitioner,
`
`v.
`
`NIKE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00620
`Patent D723,783 S
`
`Case IPR2017-00621
`Patent D723,781 S
`____________
`
`
`Before KEN B. BARRETT, SCOTT A. DANIELS, and
`TRENTON A. WARD, Administrative Patent Judges.
`
`WARD, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`
`
`
`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 filed promptly. The parties may not stipulate to an extension of DUE
`DATES 6 and 7. Nor does stipulating to a different DUE DATE 4 modify
`the deadline, set in this Order, for requesting an oral argument.
`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
`
`Either party may request an initial conference call within 30 days of
`this Scheduling Order. To request a conference call, the requesting party
`should submit a list of dates and times when the parties are available for a
`call. If an initial conference call is requested, the parties should be prepared
`
`2
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`
`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. at 48,765–66, for guidance
`in preparing for an initial conference call.
`
`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 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.
`
`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
`
`Each party must file any motion for an observation on the
`a.
`cross-examination testimony of a reply witness (see section C, below)
`by DUE DATE 4.
`
`3
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`
`
`Each party must file any motion to exclude evidence
`b.
`(37 C.F.R § 42.64(c)) and any request for oral argument (37 C.F.R.
`§ 42.70(a)) by DUE DATE 4.
`
`6. DUE DATE 5
`
`Each party must file any response to an observation on
`a.
`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 in support of a motion to exclude
`evidence by DUE DATE 6.
`
`8. 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
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`
`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
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`DUE DATE APPENDIX
`
`
`
`INITIAL CONFERENCE CALL ..................................... UPON REQUEST
`
`DUE DATE 1 ...................................................................... October 12, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ....................................................................... January 18, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ..................................................................... February 15, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................... March 8, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ......................................................................... March 22, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ......................................................................... March 29, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................... April 12, 2018
`Oral argument (if requested)
`
`6
`
`
`
`IPR2017-00620; Patent D723,783 S
`IPR2017-00621; Patent D723,781 S
`
`
`For PETITIONER:
`Samuel K. Lu
`Michael R. Fleming
`IRELL & MANELLA LLP
`slu@irell.com
`mfleming@irell.com
`
`For PATENT OWNER:
`
`Christopher J. Renk
`Erik S. Maurer
`BANNER & WITCOFF, LTD
`crenk@bannerwitcoff.com
`emaurer@bannerwitcoff.com
`
`
`
`
`
`
`
`
`
`
`
`7
`
`
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