`571.272.7822
`
`
`Paper 11
`Entered: August 18, 2017
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`AMAZON.COM, INC. and AMAZON WEB SERVICES, INC.,
`Petitioner,
`
`v.
`
`BROADCOM CORPORATION,
`Patent Owner.
`____________
`
`Cases
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)1
`____________
`
`SCHEDULING ORDER
`
`
`
`Before JAMES B. ARPIN, BARBARA A. PARVIS, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`GALLIGAN, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`1 This Scheduling Order sets due dates that are identical in both cases. We
`exercise our discretion to issue one Scheduling Order to be filed in each
`case. The parties may not use this style heading unless authorized.
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`A. DUE DATES
`This order sets due dates for the parties to take action after institution
`of the proceedings. 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 these proceedings. 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.
`
`INITIAL CONFERENCE CALL
`1.
`The parties are directed to contact the Board within a month of the
`issuance of the decisions instituting review 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). Patent Owner is
`
`2
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`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 such a conference, if necessary, at least ten (10) business days before
`DUE DATE 1.
`
`DUE DATE 1
`2.
`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).
`Patent Owner must file any such response or motion to amend in each
`proceeding by DUE DATE 1. If Patent Owner elects not to file anything in
`either proceeding, Patent Owner must arrange a conference call with the
`parties and the Board. Patent Owner is cautioned that any arguments for
`patentability not raised in the response to the particular proceeding will be
`deemed waived.
`
`DUE DATE 2
`3.
`Petitioner must file any reply to Patent Owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`
`DUE DATE 32
`4.
`Patent Owner must file any reply to Petitioner’s opposition to Patent
`Owner’s motion to amend by DUE DATE 3.
`
`
`2 Please be advised that, if no Motion to Amend is filed in either of these
`proceedings, Due Date 3 is moot, and the panel may advance Due Dates 4–7
`sua sponte.
`
`
`3
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`
`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.
`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.
`
`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.
`
`DUE DATE 6
`7.
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`DUE DATE 7
`8.
`The oral argument in either or both proceedings (if requested by either
`party) is set for DUE DATE 7.
`The panel is available to hear oral argument, if requested, at the
`USPTO main office in Alexandria, Virginia, at the Texas Regional Office in
`Dallas, Texas, or at the Rocky Mountain Regional Office in Denver,
`Colorado. If the parties have a preference with regard to the above-
`identified locations, the parties are directed to state the preference as soon as
`possible but in no event later than in the parties’ requests for oral argument,
`including whether the parties agree to a stated preference. The Board will
`
`4
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`set and identify the location in the order setting oral argument. Although the
`panel shall consider the parties’ hearing location preference, the Board may
`not be able to honor the parties’ preference due, for example, to the
`availability of hearing room resources.
`
`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.
`
`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.
`
`5
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ..................................................... Optional
`
`DUE DATE 1 .................................................................... November 7, 2017
`Patent Owner’s response to the petition
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2 ....................................................................... January 29, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ..................................................................... February 28, 2018
`Patent Owner’s reply to Petitioner’s opposition to motion to amend
`
`DUE DATE 4 ......................................................................... March 21, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................. April 4, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................... April 11, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ........................................................................... April 25, 2018
`Oral argument (if requested)
`
`
`
`
`
`
`6
`
`
`
`IPR2017-00811 (Patent 7,296,295 B2)
`IPR2017-00814 (Patent 8,147,332 B2)
`
`
`PETITIONER:
`Joseph F. Edell
`Richard Z. Zhang
`David M. Saunders
`FISCH SIGLER LLP
`Joe.edell.ipr@fischllp.com
`Richard.zhang.ipr@fischllp.com
`David.Saunders.IPR@fischllp.com
`
`PATENT OWNER:
`
`Jason S. Angell
`Jing H. Cherng
`FREITAS ANGELL & WEINBERG LLP
`jangell@fawlaw.com
`gcherng@fawlaw.com
`
`
`
`
`
`
`7
`
`