Paper 8
`Trials@uspto.gov
`Tel: 571.272.7822 Entered: August 14, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`K/S HIMPP,
`Petitioner,
`
`v.
`
`III HOLDINGS 7, LLC
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-00929
`Patent 7,929,722 B2
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JASON J. CHUNG, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`Trials@uspto.gov
`Tel: 571.272.7822 Entered: August 14, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`K/S HIMPP,
`Petitioner,
`
`v.
`
`III HOLDINGS 7, LLC
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2017-00929
`Patent 7,929,722 B2
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, JASON J. CHUNG, and
`KIMBERLY McGRAW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`IPR2017-00929
`Patent 7,929,722 B2
`
`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. See 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
`No initial conference call is scheduled for this proceeding. The
`parties are directed to contact the Board within a month of this Order 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,
`
`2
`
`
`
`
`
`
`
`
`
`IPR2017-00929
`Patent 7,929,722 B2
`
`48,765–66 (Aug. 14, 2012) (guidance in preparing for the 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
`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.
`
`3
`
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`
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`
`IPR2017-00929
`Patent 7,929,722 B2
`
`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.
`
`7. DUE DATE 6
`Each party must file any reply for 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. See 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. See 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. at 48,767–68. The observation must be a
`
`4
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`IPR2017-00929
`Patent 7,929,722 B2
`
`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. MOTION TO AMEND
`Patent Owner may file a motion to amend without prior authorization
`from the Board. Nevertheless, Patent Owner must confer with the Board
`before filing such a motion. See 37 C.F.R. § 42.121(a). Patent Owner
`should arrange for a conference call with the Board and opposing counsel at
`least 10 business days before DUE DATE 1 in order to satisfy the
`requirement for a conference. We direct the parties to the Board’s website
`for representative decisions relating to Motions to Amend among other
`topics.
`
`5
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`IPR2017-00929
`Patent 7,929,722 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ...................................................................... November 1, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ....................................................................... January 31, 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 20, 2018
`Patent Owner Motion for observation regarding cross-examination of
`reply witness Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................. April 3, 2018
`Petitioner Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ........................................................................... April 10, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .............................................................................. May 1, 2018
`Oral argument (if requested)
`
`6
`
`
`
`
`
`IPR2017-00929
`Patent 7,929,722 B2
`
`FOR PETITIONER:
`Donald R. Steinberg
`Don.Steinberg@wilmerhale.com
`
`Yung-Hoon Ha
`Yung-Hoon.Ha@wilmerhale.com
`
`Haixia Lin
`Haixia.Lin@wilmerhale.com
`
`Christopher R. O’Brien
`Christopher.O’Brien@wilmerhale.com
`
`Vera A. Shmidt
`Vera.Shmidt@wilmerhale.com
`
`FOR PATENT OWNER:
`Henry A. Petri, Jr.
`hpetri@polsinelli.com
`
`James P. Murphy
`jpmurphy@polsinelli.com
`
`Margaux A. Savee
`msavee@polsinelli.com
`
`Tim R. Seeley
`tims@intven.com
`
`Russ Rigby
`rrigby@intven.com
`
`
`
`
`7
`
`
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