Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`Paper No. 9
`Entered: August 30, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BOYDSTUN EQUIPMENT MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`COTTRELL, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-00962
`Patent 7,585,140 B1
`_______________
`
`
`
`Before TIMOTHY J. GOODSON, JAMES A. WORTH, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`
`MAYBERRY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`Tel: 571-272-7822
`
`
`
`
`Paper No. 9
`Entered: August 30, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`BOYDSTUN EQUIPMENT MANUFACTURING, LLC,
`Petitioner,
`
`v.
`
`COTTRELL, INC.,
`Patent Owner.
`_______________
`
`Case IPR2017-00962
`Patent 7,585,140 B1
`_______________
`
`
`
`Before TIMOTHY J. GOODSON, JAMES A. WORTH, and
`JAMES J. MAYBERRY, Administrative Patent Judges.
`
`
`MAYBERRY, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`A. GENERAL INSTRUCTIONS
`1. Requests for an Initial Conference Call
`Unless at least one of the parties requests otherwise, we will not
`conduct an initial conference call as described in the Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012). The
`parties must request an initial conference call if either party is aware of
`any conflicts or concerns with DUE DATES 6 or 7 set forth in the
`Appendix of this Scheduling Order. Any request for an initial conference
`call must be made no later than 25 days after the institution of trial.
`2. Standing Procedure for Requests for Conference Calls
`If the parties request a conference call, including an initial conference
`call, the parties must follow these procedures:
`a. Prior to requesting a conference call, the parties must confer 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.
`c. The request must include a list of proposed issues and/or
`motions to be discussed during the call.
`
`2
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`
`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.
`3. Protective Order
`A protective order does not exist in this proceeding unless the parties
`file one and the Board approves it. If either party files a motion to seal
`before entry of a protective order, a jointly proposed protective order should
`be presented as an exhibit to the motion. We encourage the parties to adopt
`the Board’s default protective order if they conclude that a protective order
`is necessary. See Default Protective Order, Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, App. B (Aug. 14, 2012). If the parties choose
`to propose a protective order deviating from the default protective order,
`they must submit the proposed protective order jointly along with a marked-
`up comparison of the proposed and default protective orders showing the
`differences; and the parties must explain why the proposed deviations from
`the default protective order are necessary.
`The Board has a strong interest in the public availability of the
`proceedings. We advise the parties that redactions to documents filed in this
`proceeding should be limited to isolated passages consisting entirely of
`confidential information, and that the thrust of the underlying argument or
`
`3
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`evidence must be clearly discernible from the redacted versions. We also
`advise the parties that information subject to a protective order will become
`public if identified in a final written decision in this proceeding, and that a
`motion to expunge the information will not necessarily prevail over the
`public interest in maintaining a complete and understandable file history.
`See Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,761.
`4. Motions 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 panel and opposing counsel at least one
`week before DUE DATE 1 in order to satisfy the conferral requirement. We
`direct the parties to the Board’s website for representative decisions relating to
`Motions to Amend, among other topics. The parties may access these
`representative decisions at:
`http://www.uspto.gov/ip/boards/bpai/representative_orders_and_opinions.jsp.
`5. Discovery Disputes
`The panel encourages parties to resolve disputes relating to discovery
`on their own and in accordance with the precepts set forth in 37 C.F.R.
`§ 42.1(b). To the extent that a dispute arises between the parties relating to
`discovery, the parties shall meet and confer to resolve such a dispute before
`contacting the Board. If attempts to resolve the dispute fail, a party may
`request a conference call with the Board and the other party in order to seek
`authorization to move for relief.
`
`
`4
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`
`6. Depositions
`The parties are advised 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.
`Whenever a party submits a deposition transcript as an exhibit in this
`proceeding, the submitting party shall file the full transcript of the deposition
`rather than excerpts of only those portions being cited. After a deposition
`transcript has been submitted as an exhibit, all parties who subsequently cite
`to portions of the transcript shall cite to the first-filed exhibit rather than
`submitting another copy of the same transcript.
`7. Cross-Examination
`Except as the parties might otherwise agree, for each due date—
`a. Cross-examination begins after any supplemental evidence is
`due. 37 C.F.R. § 42.53(d)(2).
`b. 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.
`8. 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,
`
`5
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`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.
`
`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. Due to scheduling constraints, such as hearing room
`availability, the parties must request a conference call with the panel if
`there are any conflicts that arise with DUE DATE 7 as soon as
`practicable, which will be modified only upon a showing of good cause.
`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.
`1. 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).
`
`6
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`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.
`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
`A.7, above) 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.
`5. DUE DATE 5
`a. Each party must file any reply to a petitioner 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
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`
`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`8
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ................................................................... November 22, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ...................................................................... February 14, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .......................................................................... March 14, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .............................................................................. April 4, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ April 18, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................ April 25, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................... May 9, 2018
`Oral argument (if requested)
`
`
`
`
`9
`
`
`
`IPR2017-00962
`Patent 7,585,140 B1
`
`For PETITIONER:
`
`Stephen J. Joncus
`JONCUS LAW LLC
`steve@joncus.net
`
`David Madden
`MERSENNE LAW
`dhm@mersenne.com
`
`
`For PATENT OWNER:
`
`Daniel A. Crowe
`George Brell
`BRYAN CAVE LLP
`dacrowe@bryancave.com
`George.Brell@bryancave.com
`
`
`
`10
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
