Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 9
`Entered: January 17, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICRON TECHNOLOGY, INC.,
`Petitioner,
`
`v.
`
`LONE STAR SILICON INNOVATIONS, LLC,
`Patent Owner.
`
`
`Case IPR2017-01630
`Patent 5,872,038
`
`
`
`Before JENNIFER M. CHAGNON, JOHN F. HORVATH, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`Paper 9
`Entered: January 17, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICRON TECHNOLOGY, INC.,
`Petitioner,
`
`v.
`
`LONE STAR SILICON INNOVATIONS, LLC,
`Patent Owner.
`
`
`Case IPR2017-01630
`Patent 5,872,038
`
`
`
`Before JENNIFER M. CHAGNON, JOHN F. HORVATH, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`
`
`
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`A. DUE DATES
`This Order sets forth 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).
`The parties may not stipulate to an extension of DUE DATES 6 and 7, and
`with respect to DUE DATE 4, may not stipulate to an extension of the date
`set forth in this Order for requesting oral argument.
`If the parties stipulate to different due dates, notice of the stipulation
`specifically identifying the changed due dates must be promptly filed. 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.
`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 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).
`
`2
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`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 by DUE DATE 4.
`b.
`Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) by DUE DATE 4.
`c.
`Each party must file 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.
`b.
`Each party must file any opposition to a motion to exclude
`evidence by DUE DATE 5.
`
`3
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`7. DUE DATE 7
`Oral argument (if requested by either party) is set for DUE DATE 7.
`
`B. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within one month of this
`Order if there is a need to discuss proposed changes to this 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).
`
`C. PROTECTIVE ORDER
`A protective order does not exist in this proceeding, and will not exist
`until a party files a motion to seal that includes a proposed protective order
`that is approved by the Board. See 37 C.F.R. 42.54(a). The motion to seal
`must include a certification that the moving party has in good faith conferred
`or attempted to confer with other affected parties in an effort to resolve any
`dispute. Id. A party filing confidential information must use the appropriate
`availability indicator in PTAB E2E, regardless of who owns the confidential
`information. The owner of the confidential information, not necessarily the
`party filing the information, must file the motion to seal and bears the
`burden of showing the information for which protection is sought is
`confidential information.
`
`
`4
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`
`We encourage the parties to adopt the Board’s default protective order
`if they conclude that a protective order is necessary in this proceeding. See
`Default Protective Order, Office Patent Trial Practice Guide, 77 Fed. Reg. at
`48,769–71, App. B. If the parties file a proposed protective order that
`deviates from the default protective order, they must submit the proposed
`protective order jointly, together with a marked-up copy showing the
`differences between the default and proposed protective orders.
`The Board has a strong interest in the public availability of
`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
`evidence must be clearly discernible from redacted documents. 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.
`
`D. 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.
`
`5
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`E. 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
`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.
`
`F. MOTION TO AMEND
`Although the filing of a Motion to Amend is authorized under our
`Rules, the patent owner must confer with the Board before filing any Motion
`to Amend. See 37 C.F.R. § 42.121(a). A conference call to satisfy the
`requirement of 37 C.F.R. § 42.121(a) must be scheduled no less than ten
`(10) business days prior to DUE DATE 1.
`
`
`
`
`
`
`6
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL .............................................. Upon Request
`
`DUE DATE 1 ............................................................................ April 17, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 .............................................................................. July 17, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ......................................................................... August 17, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ..................................................................... September 7, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ................................................................... September 21, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ................................................................... September 28, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ....................................................................... October 12, 2018
`Oral argument (if requested)
`
`
`7
`
`
`
`IPR2017-01630
`Patent 5,872,038
`
`PETITIONER:
`Jeremy Jason Lang
`Robert Stephen Magee
`Brian Chang
`WEIL, GOTSHAL & MANGES LLP
`jason.lang@weil.com
`robert.magee@weil.com
`brian.chang@weil.com
`
`PATENT OWNER:
`Timothy P. Maloney
`David A. Gosse
`Nicholas T. Peters
`FITCH, EVEN, TABIN & FLANNERY LLP
`tim@fitcheven.com
`dgosse@fitcheven.com
`ntpete@fitcheven.com
`
`
`8
`
`
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