`Tel: 571-272-7822
`
`Paper 8
`Entered: January 23, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DENSO CORPORATION,
`Petitioner,
`
`v.
`
`COLLISION AVOIDANCE TECHNOLOGIES INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01709
`Patent 6,268,803 B1
`____________
`
`Before BARRY L. GROSSMAN, MATTHEW R. CLEMENTS, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`MELVIN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
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`A. GENERAL INSTRUCTIONS
`1. INITIAL CONFERENCE CALL
`Unless a party 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. In lieu of such a call,
`we instruct the parties as follows:
`(a) If a party wishes to request an initial conference call,
`that party shall request the call no later than 25 days
`after the institution of trial;
`(b) A request for a conference call shall include: (a) a list of
`proposed motions, if any, to be discussed during the call
`and (b) a list of dates and times when the parties are
`available for the call; and
`(c) The parties shall be prepared to discuss during the
`initial conference call their concerns, if any, relating to
`the schedule in this proceeding as set forth below.
`Absent good cause shown, we will not conduct an initial
`conference call later than 25 days after the institution of a trial.
`
`2. 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
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`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.
`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 strictly to
`isolated passages consisting entirely of confidential information,
`and that the thrust of the underlying argument or 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.
`
`3. MOTION 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.
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`§ 42.121(a). If Patent Owner intends to file a motion to amend,
`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://go.usa.gov/x9ARw.
`
`4. CONFERENCE CALLS
`Prior to requesting a conference call, the parties shall
`attempt in good faith effort to resolve the issue. The email
`requesting a conference shall certify that such an effort was made.
`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. In any request for a conference
`call with the Board to resolve a discovery dispute, the requesting
`party shall:
`(a) certify that it has conferred with the other party in a
`good-faith effort to resolve the dispute;
`(b) identify with specificity the issues for which agreement
`has not been reached;
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`(c) identify the precise relief to be sought; and
`(d) propose specific dates and times at which both parties
`are available for the conference call.
`The panel will not record conference calls or arrange for
`court reporters to be on such calls. If either party desires a
`transcript of a call, that party may provide a court reporter for the
`call without permission of the other party or the panel. In that
`case, the party must be sure to inform the other parties and the
`panel of the court reporter’s presence, either in advance of the call
`or at the very beginning of the call. In addition, during the
`conference call, that party should seek authorization to file the
`transcript (without any modification), as an exhibit.
`
`5. DEPOSITIONS
`The parties are advised that the Testimony Guidelines
`appended to the Office Patent Trial Practice Guide apply to this
`proceeding. See 77 Fed. Reg. 48,756, 48,772 (Appendix D) (Aug.
`14, 2012), http://go.usa.gov/x9ARh. 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
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`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.
`
`6. MOTION TO EXCLUDE
`The parties shall not use a Motion to Exclude for any
`purpose other than to raise admissibility issues under the Federal
`Rules of Evidence. See 37 C.F.R. §§ 42.61–64. If an issue arises
`with regard to a paper being out of proper scope under 37 C.F.R. §
`42.23(a), the parties shall contact the Board in a timely manner to
`raise the matter. See, e.g., IPR2014-00148, Paper 42.
`
`7. SUPPLEMENTAL EVIDENCE AND SUPPLEMENTAL INFORMATION
`It is important to distinguish supplemental evidence (see 37
`C.F.R. § 42.64(b)(2)) from supplemental information (see 37 C.F.R.
`§ 42.123). The rules do not contemplate more than one cycle of
`objection to evidence and subsequent supplemental evidence to
`cure the objection.
`
`8. OBSERVATIONS ON CROSS-EXAMINATION
`Observations on cross-examination provide 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. 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
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`portion of an exhibit. Each observation should not exceed a single,
`short paragraph; circumventing the length requirement by use of
`footnote is inappropriate. Regardless of length, observations
`should not be argumentative. The opposing party may respond to
`the observation. Any response must be equally concise and
`specific.
`
`9. CLAIM CONSTRUCTION
`As stated in the Decision to Institute, any claim construction
`in the Decision is preliminary. The parties may further develop
`argument and evidence during the proceeding.
`
`B. SCHEDULE AND 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.
`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.1).
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`1. CROSS EXAMINATION
`Except as the parties might otherwise agree, for each due
`date, cross-examination:
`(a) begins after any supplemental evidence is due; and
`(b) ends no later than a week before the filing date for any
`paper in which the cross-examination testimony is
`expected to be used. 37 C.F.R. § 42.53(d)(2).
`
`2. DUE DATE 1
`By DUE DATE 1, the patent owner must file:
`(a) any response to the petition (37 C.F.R. § 42.120), and
`(b) any motion to amend the patent (37 C.F.R. § 42.121).
`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.
`
`3. DUE DATE 2
`By DUE DATE 2, the petitioner must file:
`(a) any reply to the patent owner’s response and
`(b) any opposition to a motion to amend.
`
`4. DUE DATE 3
`By DUE DATE 3, the patent owner must file any reply to the
`petitioner’s opposition to patent owner’s motion to amend.
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`5. DUE DATE 4
`By DUE DATE 4, each party must file:
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`(a) any observations on the cross-examination testimony of
`a reply witness (see section A.8);
`(b) any motion to exclude evidence (37 C.F.R § 42.64(c)); and
`(c) any request for oral argument (37 C.F.R. § 42.70(a)).
`
`6. DUE DATE 5
`By DUE DATE 5, each party must file:
`(a) any response to an observation on cross-examination
`testimony; and
`(b) any opposition to a motion to exclude evidence.
`
`7. DUE DATE 6
`By DUE DATE 6, each party must file any reply for a motion
`to exclude evidence.
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`8. DUE DATE 7
`The oral argument (if requested by either party) is set for
`DUE DATE 7. Oral argument will be held at the USPTO main
`office in Alexandria, Virginia.
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`DUE DATE APPENDIX
`DUE DATE 1 ................................................................. April 6, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
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`DUE DATE 2 ............................................................... June 22, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ................................................................ July 13, 2018
`Patent owner’s reply to petitioner’s opposition to motion to
`amend
`
`DUE DATE 4 ................................................................ July 27, 2018
`Observations regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ........................................................... August 10, 2018
`Response to observations
`Opposition to motion to exclude
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`DUE DATE 6 ........................................................... August 17, 2018
`Reply to opposition to motion to exclude
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`DUE DATE 7 ............................................................ October 2, 2018
`Oral argument (if requested)
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`PETITIONER:
`
`Paul R. Steadman
`Matthew D. Satchwell
`DLA Piper LLP
`paul.steadman@dlapiper.com
`matthew.satchwell@dlapiper.com
`DENSO-CAT@dlapiper.com
`
`PATENT OWNER:
`
`Decker A. Cammack
`Richard L. Schwartz
`WHITAKER CHALK SWINDLE & SCHWARTZ PLLC
`dcammack@whitakerchalk.com
`rschwartz@whiakerchalk.com
`
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