`Tel: 571.272.7822
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`Paper No. 11
`Entered: October 10, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`UNIFIED PATENTS INC.,
`Petitioner,
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`v.
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`KAMATANI CLOUD, LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01370
`Patent 6,873,940 B1
`____________
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`
`
`Before DAVID C. MCKONE, BARBARA A. PARVIS, and
`MELISSA A. HAAPALA, Administrative Patent Judges.
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`PARVIS, Administrative Patent Judge.
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`SCHEDULING ORDER
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`IPR2017-01370
`Patent 6,873,940 B1
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`A. DUE DATES
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`This order sets due dates for the parties to take action after institution
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`of the proceeding. The parties may stipulate to different dates for DUE
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`DATES 1 through 5 (earlier or later, but no later than DUE DATE 6). A
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`notice of the stipulation, specifically identifying the changed due dates, must
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`be promptly filed. The parties may not stipulate to an extension of DUE
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`DATES 6 and 7.
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`In stipulating to different times, the parties should consider the effect
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`of the stipulation on times to object to evidence (37 C.F.R. § 42.64(b)(1)), to
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`supplement evidence (37 C.F.R. § 42.64(b)(2)), to conduct
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`cross-examination (37 C.F.R. § 42.53(d)(2)), and to draft papers depending
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`on the evidence and cross-examination testimony (see section B, below).
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`The parties are reminded that the Testimony Guidelines appended to
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`the Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,772
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`(Aug. 14, 2012) (Appendix D) apply to this proceeding. The Board may
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`impose an appropriate sanction for failure to adhere to the Testimony
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`Guidelines. 37 C.F.R. § 42.12. For example, reasonable expenses and
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`attorneys’ fees incurred by any party may be levied on a person who
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`impedes, delays, or frustrates the fair examination of a witness.
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`1. INITIAL CONFERENCE CALL
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`No initial conference call is scheduled for this proceeding. The
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`parties are directed to contact the Board within a month of this Order if there
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`is a need to discuss proposed changes to this Scheduling Order or proposed
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`motions. See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
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`IPR2017-01370
`Patent 6,873,940 B1
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`48,765–66 (Aug. 14, 2012) (guidance in preparing for the initial conference
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`call).
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`2. DUE DATE 1
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`The patent owner may file—
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`a.
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`b.
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`A response to the petition (37 C.F.R. § 42.120), and
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`A motion to amend the patent (37 C.F.R. § 42.121).
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`The patent owner must file any such response or motion to amend by
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`DUE DATE 1. If the patent owner elects not to file anything, the patent
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`owner must arrange a conference call with the parties and the Board. The
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`patent owner is cautioned that any arguments for patentability not raised in
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`the response will be deemed waived.
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`3. DUE DATE 2
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`The petitioner must file any reply to the patent owner’s response and
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`opposition to the motion to amend by DUE DATE 2.
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`4. DUE DATE 3
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`The patent owner must file any reply to the petitioner’s opposition to
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`patent owner’s motion to amend by DUE DATE 3.
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`5. DUE DATE 4
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`a.
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`Each party must file any motion for an observation on the
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`cross-examination testimony of a reply witness (see section C, below) by
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`DUE DATE 4.
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`b.
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`Each party must file any motion to exclude evidence (37 C.F.R
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`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
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`DUE DATE 4.
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`IPR2017-01370
`Patent 6,873,940 B1
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`6. DUE DATE 5
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`a.
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`Each party must file any response to an observation on cross-
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`examination testimony by DUE DATE 5.
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`b.
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`Each party must file any opposition to a motion to exclude
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`evidence by DUE DATE 5.
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`7. DUE DATE 6
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`Each party must file any reply for a motion to exclude evidence by
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`DUE DATE 6.
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`8. DUE DATE 7
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`The oral argument (if requested by either party) is set for DUE
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`DATE 7.
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`B. CROSS-EXAMINATION
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`Except as the parties might otherwise agree, for each due date—
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`1.
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`Cross-examination begins after any supplemental evidence is
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`due. 37 C.F.R. § 42.53(d)(2).
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`2.
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`Cross-examination ends no later than a week before the filing
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`date for any paper in which the cross-examination testimony is expected to
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`be used. Id.
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`C. MOTION FOR OBSERVATION ON CROSS-EXAMINATION
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`A motion for observation on cross-examination provides the parties
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`with a mechanism to draw the Board’s attention to relevant
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`cross-examination testimony of a reply witness because no further
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`substantive paper is permitted after the reply. See Office Patent Trial
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`Practice Guide, 77 Fed. Reg. at 48,767–68. The observation must be a
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`IPR2017-01370
`Patent 6,873,940 B1
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`concise statement of the relevance of precisely identified testimony to a
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`precisely identified argument or portion of an exhibit. Each observation
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`should not exceed a single, short paragraph. The opposing party may
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`respond to the observation. Any response must be equally concise and
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`specific.
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`D. MOTION TO AMEND
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`Patent Owner may file a motion to amend without prior authorization
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`from the Board. Nevertheless, Patent Owner must confer with the Board
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`before filing such a motion. See 37 C.F.R. § 42.121(a). Patent Owner
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`should arrange for a conference call with the Board and opposing counsel at
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`least 10 business days before DUE DATE 1 in order to satisfy the
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`requirement for a conference. Both parties should be prepared to discuss the
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`impact of Aqua Products, Inc. v. Matal, 2015-1177 (Fed. Cir. Oct. 4, 2017),
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`on our motion to amend procedures.
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`IPR2017-01370
`Patent 6,873,940 B1
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`DUE DATE APPENDIX
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`DUE DATE 1 ....................................................................... January 11, 2018
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`Patent owner’s response to the petition
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`Patent owner’s motion to amend the patent
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`DUE DATE 2 ........................................................................... April 11, 2018
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`Petitioner’s reply to patent owner’s response to petition
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`Petitioner’s opposition to motion to amend
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`DUE DATE 3 ............................................................................ May 11, 2018
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`Patent owner’s reply to petitioner’s opposition to motion to amend
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`DUE DATE 4 .............................................................................. June 1, 2018
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`Motion for observation regarding cross-examination of reply witness
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`Motion to exclude evidence
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`Request for oral argument
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`DUE DATE 5 ............................................................................ June 15, 2018
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`Response to observation
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`Opposition to motion to exclude
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`DUE DATE 6 ............................................................................ June 22, 2018
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`Reply to opposition to motion to exclude
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`DUE DATE 7 ............................................................................ June 27, 2018
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`Oral argument (if requested)
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`IPR2017-01370
`Patent 6,873,940 B1
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`PETITIONER:
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`Roshan Mansinghani
`Jonathan Stroud
`UNIFIED PATENTS INC.
`roshan@unifiedpatents.com
`jonathan@unifiedpatents.com
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`PATENT OWNER:
`
`Michael Shanahan
`GENERAL PATENT CORPORATION
`mshanahan@generalpatent.com
`
`Dmitry Kheyfits
`KHEYFITS P.C.
`dkheyfits@kheyfits.com
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`7
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