Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper No. 52
`Filed: July 11, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`1964 EARS, LLC,
`Petitioner,
`
`v.
`
`JERRY HARVEY AUDIO HOLDING, LLC,
`Patent Owner.
`
`
`Case IPR2017-01092
`Patent 9,197,960 B2
`
`
`
`Before BRIAN J. McNAMARA, RAMA ELLURU, and
`JOHN F. HORVATH, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`REVISED EXTENDED SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper No. 52
`Filed: July 11, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`1964 EARS, LLC,
`Petitioner,
`
`v.
`
`JERRY HARVEY AUDIO HOLDING, LLC,
`Patent Owner.
`
`
`Case IPR2017-01092
`Patent 9,197,960 B2
`
`
`
`Before BRIAN J. McNAMARA, RAMA ELLURU, and
`JOHN F. HORVATH, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`REVISED EXTENDED SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`
`
`
`A. DUE DATES
`This order sets due dates for the parties to take action during the
`supplemental briefing period of the previously non-instituted ground in this
`proceeding.1 The due dates set forth in this Order cannot be changed
`without prior authorization from the Board.
`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. DUE DATE 7
`The patent owner may file—
`a.
`A supplemental response to the petition (37 C.F.R. § 42.120),
`limited to the merits of the previously non-instituted ground, and to 5000
`words.
`b. A supplemental motion to amend the patent (37 C.F.R.
`§ 42.121), limited to 3 pages and claim 12
`
`1 Claim 12 as obvious over Saggio and von Dombrowski; and, claim 12 as
`obvious over Harvey ’806 and von Dombrowski. See Paper 51 (determining
`that Petitioner has not shown, by a preponderance of evidence, that claim 8
`of the ’960 patent is unpatentable as anticipated by Harvey ’806; claims 6, 7,
`and 9–18 of the ’960 patent are unpatentable as obvious over Saggio &
`Dahlquist; and, claim 9 of the ’960 patent is unpatentable as anticipated by
`Dombrowski).
`
`2
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`
`The patent owner must file any such supplemental response or
`supplemental motion to amend by DUE DATE 7. The patent owner is
`cautioned that any arguments for patentability not raised in the supplemental
`response will be deemed waived.
`
`2. DUE DATE 8
`The petitioner must file any reply to the patent owner’s supplemental
`response, limited to 5000 words, and any opposition to the supplemental
`motion to amend, limited to 3 pages, by DUE DATE 8.
`
`3. DUE DATE 9
`The patent owner must file any reply to the petitioner’s opposition to
`the supplemental motion to amend, limited to 2 pages, by DUE DATE 9.
`
`4. DUE DATE 10
`
`The petitioner must file any sur-reply to the patent owner’s reply to
`
`the opposition to the supplemental motion to amend, limited to 2 pages, by
`DUE DATE 10.
`
`5. DUE DATE 11
`a.
`Each party must file any motion for an observation on the
`cross-examination testimony of a supplemental reply witness (see section B,
`below) by DUE DATE 11.
`b.
`Each party must file any motion to exclude evidence in
`connection with the previously non-instituted ground (37 C.F.R § 42.64(c))
`and any request for oral argument (37 C.F.R. § 42.70(a)) by DUE DATE 11.
`
`3
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`6. DUE DATE 12
`a.
`Each party must file any response to an observation on cross-
`examination testimony of a supplemental reply witness by DUE DATE 12.
`b.
`Each party must file any opposition to a motion to exclude
`evidence in connection with the previously non-instituted ground by DUE
`DATE 12.
`
`7. DUE DATE 13
`Each party must file any reply for a motion to exclude evidence in
`connection with the previously non-instituted ground by DUE DATE 13.
`
`8. DUE DATE 14
`Oral argument (if requested by either party) is set for DUE DATE 14.
`
`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 48,756. The observation must be a concise statement of the
`
`4
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`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 EXCLUDE
`
`A Motion to Exclude should only be used to address admissibility
`issues under the Federal Rules of Evidence. If a party contends the scope of
`any paper is beyond its proper scope (e.g., a reply that raises issues not
`raised in an opposition, or a sur-reply that raises issues not raised in a reply),
`the party shall initiate a conference call with the Board within 5 business
`days of the date the paper was filed.
`
`
`
`
`
`5
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`E: DUE DATE APPENDIX
`
`DUE DATE 7 ........................................................................... August 8, 2018
`Patent owner’s supplemental response, limited to 5000 words and to
`the previously non-instituted grounds
`Patent owner’s supplemental motion to amend, limited to 3 pages and
`claim 12
`
`DUE DATE 8 ..................................................................... September 5, 2018
`Petitioner’s reply to patent owner’s supplemental response to petition,
`limited to 2000 words
`Petitioner’s opposition to supplemental motion to amend, limited to 3
`pages
`
`DUE DATE 9 ................................................................... September 26, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend,
`limited to 2 pages
`
`DUE DATE 10 ..................................................................... October 17, 2018
`Petitioner’s sur-reply to patent owner’s reply to opposition to
`supplemental motion to amend, limited to 2 pages
`
`DUE DATE 11 ..................................................................... October 31, 2018
`Motion for observation regarding cross-examination of supplemental
`reply witness
`Motion to exclude evidence pertaining to previously non-instituted
`ground
`Request for oral argument
`
`6
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`DUE DATE 12 ................................................................. November 14, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 13 ................................................................. November 21, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 14 .................................................................. December 17, 2018
`Oral argument (if requested)
`
`
`7
`
`
`
`IPR2017-01092
`Patent 9,197,960 B2
`
`For PETITIONER:
`
`Hillary A. Brooks
`Delfina S. Homen
`BROOKS QUINN, LLC
`hillary@brooksquinn.com
`delfina@brooksquinn.com
`
`
`
`For PATENT OWNER:
`
`Daniel B. Ravicher
`David J. Garrod
`RAVICHER LAW FIRM PLLC
`dan@ravicher.com
`dave@ravicher.com
`
`
`8
`
`
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