Trials@uspto.gov Paper 15
`571.272.7822 Entered: March 12, 2018
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`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 IPR2017-02014
`Patent 8,530,250 B2
`____________
`
`
`Before BRIAN J. McNAMARA, STACEY G. WHITE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`McNAMARA, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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
`
`
`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 IPR2017-02014
`Patent 8,530,250 B2
`____________
`
`
`Before BRIAN J. McNAMARA, STACEY G. WHITE, and
`BRENT M. DOUGAL, Administrative Patent Judges.
`
`McNAMARA, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`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
`
`
`
`IPR2017-02014
`Patent 8,530,250 B2
`
`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.
`
`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.
`
`DUE DATE 1
`2.
`Patent Owner may file—
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`2
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`IPR2017-02014
`Patent 8,530,250 B2
`
`
`A response to the Petition (37 C.F.R. § 42.120), and
`a.
`A motion to amend the patent (37 C.F.R. § 42.121).
`b.
`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.
`
`DUE DATE 2
`3.
`Petitioner must file any reply to Patent Owner’s response and
`opposition to the motion to amend by DUE DATE 2.
`
`DUE DATE 3
`4.
`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.
`
`3
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`IPR2017-02014
`Patent 8,530,250 B2
`
`
`Each party must file any opposition to a motion to
`b.
`exclude evidence by DUE DATE 5.
`
`DUE DATE 6
`7.
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`DUE DATE 7
`8.
`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—
`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. 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
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`4
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`IPR2017-02014
`Patent 8,530,250 B2
`
`respond to the observation. Any response must be equally concise and
`specific.
`
`PROTECTIVE ORDER
`D.
`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.
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`5
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`IPR2017-02014
`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
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`DUE DATE 6 ................................................................... November 20, 2018
`Reply to opposition to motion to exclude
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`DUE DATE 7 ...................................................................... December 4, 2018
`Oral argument (if requested)
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`6
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`IPR2017-02014
`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
` Brian A. Tollefson
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`mzoltick@rfem.com
`mjones@rfem.com
`mrawls@rfem.com
` btollefson@rfem.com
`litigationparalegals@rothwellfigg.com
`
`
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`
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`7
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