Trials@uspto.gov
`571-272-7822
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` Paper 9
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` Entered: October 5, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONOS, INC.,
`Petitioner,
`v.
`D&M HOLDINGS INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01045
`Patent 7,987,294 B2
`____________
`
`
`
`Before JONI Y. CHANG, JENNIFER S. BISK, and
`JON M. JURGOVAN, Administrative Patent Judges.
`
`JURGOVAN, Administrative Patent Judge.
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper 9
`
`
`
` Entered: October 5, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SONOS, INC.,
`Petitioner,
`v.
`D&M HOLDINGS INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01045
`Patent 7,987,294 B2
`____________
`
`
`
`Before JONI Y. CHANG, JENNIFER S. BISK, and
`JON M. JURGOVAN, Administrative Patent Judges.
`
`JURGOVAN, Administrative Patent Judge.
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`
`As an initial matter, no initial conference call is scheduled for the instant
`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,
`48,765–66 (Aug. 14, 2012) (guidance in preparing for the initial conference call).
`
`A. DUE DATES
`This order sets due dates for the parties to take action after institution of the
`instant 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).
`If requested, an oral hearing for the instant proceeding will be held on DUE
`DATE 7.
`The parties are reminded that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772 (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.
`
`
`
`2
`
`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`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).
`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 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.
`
`5. DUE DATE 5
`a.
`Each party must file any response to an observation on cross-
`examination testimony by DUE DATE 5.
`
`
`
`3
`
`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`
`Each party must file any opposition to a motion to exclude evidence
`b.
`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. 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.
`
`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 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.
`
`
`
`4
`
`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`D. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under the trial
`Rules, Patent Owner must confer with the Board, preferreably no less than ten
`business days prior to DUE DATE 1, before filing any Motion to Amend.
`
`
`
`
`
`5
`
`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................. Upon Request
`
`DUE DATE 1 ......................................................................... January 5, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................. April 5, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .............................................................................. May 7, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................ May 29, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ June 11, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................ June 18, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................ June 28, 2018
`Oral argument (if requested)
`
`
`
`
`
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`
`
`6
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`
`
`IPR2017-01045
`Patent 7,987,294 B2
`
`For PETITIONER:
`George I. Lee
`Sean M. Sullivan
`Rory P. Shea
`John Dan Smith III
`lee@ls3ip.com
`sullivan@ls3ip.com
`shea@ls3ip.com
`smith@ls3ip.com
`
`For PATENT OWNER:
`Christopher J. Rourk
`Wasif H. Qureshi
`crourk@jw.com
`wqureshi@jw.com
`
`
`
`
`7
`
`
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