Trials@uspto.gov Paper 14
`571.272.7822 Entered: March 12, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`LOWE’S, COMPANIES, INC.,
`LOWE’S HOME CENTERS, LLC AND L G SOURCING, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORPORATION,
`Patent Owner
`____________
`
`Case IPR2017-02011
`Patent 8,530,250 B2
`____________
`
`
`Before BRIAN J. McNAMARA, STACEY G. WHITE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`571.272.7822 Entered: March 12, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`
`LOWE’S, COMPANIES, INC.,
`LOWE’S HOME CENTERS, LLC AND L G SOURCING, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORPORATION,
`Patent Owner
`____________
`
`Case IPR2017-02011
`Patent 8,530,250 B2
`____________
`
`
`Before BRIAN J. McNAMARA, STACEY G. WHITE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`DOUGAL, Administrative Patent Judge.
`
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`A. 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 filed
`promptly. 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).
`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.
`
`2
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`
`INITIAL CONFERENCE CALL
`1.
`The parties are directed to contact the Board within a month
`of this decision 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).
`Patent Owner is reminded that it must confer with the Board
`before filing a Motion to Amend. 37 C.F.R. § 42.121(a). Patent
`Owner should contact the Board to request such a conference, if
`necessary, at least two weeks before DUE DATE 1.
`
`2. DUE DATE 1
`Patent Owner may file—
`a.
`A response to the Petition (37 C.F.R. § 42.120),
`and
`A motion to amend the patent (37 C.F.R.
`b.
`§ 42.121).
`Patent Owner must file any such response or motion to
`amend by DUE DATE 1. If Patent Owner elects not to file
`anything, Patent Owner must arrange a conference call with the
`parties and the Board. Patent Owner is cautioned that any
`arguments for patentability not raised in the response will be
`deemed waived.
`
`3
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`
`3. DUE DATE 2
`Petitioner must file any reply to Patent Owner’s response
`and opposition to the motion to amend by DUE DATE 2.
`
`4. DUE DATE 3
`Patent Owner must file any reply to Petitioner’s opposition
`to Patent Owner’s motion to amend by DUE DATE 3.
`
`5. 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.
`
`6. DUE DATE 5
`a.
`Each party must file any response to an
`observation on cross-examination testimony by DUE
`DATE 5.
`Each party must file any opposition to a motion to
`b.
`exclude evidence by DUE DATE 5.
`
`7. DUE DATE 6
`Each party must file any reply for a motion to exclude
`evidence by DUE DATE 6.
`
`4
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`
`8. 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—
`Cross-examination begins after any supplemental
`1.
`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. 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 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.
`
`5
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`D. PROTECTIVE ORDER
`
`No protective order has been entered in this proceeding. The
`parties are reminded of the requirement for a protective order
`when filing a motion to seal. 37 C.F.R. § 42.54. If the parties
`have agreed to a proposed protective order, including the Default
`Standing Protective Order, 77 Fed. Reg. 48,756, App. B (Aug 14,
`2012), they should file a signed copy of the proposed protective
`order with the motion to seal. If the parties choose to propose a
`protective order other than, or departing from, the Default
`Standing Protective Order, they must submit a joint, proposed
`protective order, accompanied by a red-lined version based on the
`Default Standing Protective Order.
`
`6
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ........................ UPON REQUEST
`
`DUE DATE 1 ............................................................... June 11, 2018
`Patent Owner’s response to the petition
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2 ..................................................... September 10, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .......................................................... October 10, 2018
`Patent Owner’s reply to petitioner’s opposition to motion to
`amend
`
`DUE DATE 4 .......................................................... October 30, 2018
`Motion for observation regarding cross-examination of reply
`witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ...................................................... November 13, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ...................................................... November 20, 2018
`Reply to opposition to motion to exclude
`
`7
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`DUE DATE 7 ......................................................... December 4, 2018
`Oral argument (if requested)
`
`
`
`
`
`
`8
`
`
`
`IPR2017-02011
`Patent 8,530,250 B2
`
`
`PETITIONER: (via electronic transmission)
`Scott D. Stimpson
`Tod Melgar
`SILLS CUMMIS & GROSS P.C.
`sstimpson@sillscummis.com
`tmelgar@sillscummis.com
`
`
`PATENT OWNER: (via electronic transmission)
`Martin M. Zoltick
`Michael H. Jones
`Mark T. Rawls
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`mzoltick@rfem.com
`mjones@rfem.com
`mrawls@rfem.com
`
`
`
`
`9
`
`
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