`Tel: 571-272-7822
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`Paper No. 7
`Entered: April 16, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`FACEBOOK, INC.,
`Petitioner,
`v.
`EVERYMD.COM LLC,
`Patent Owner.
`
`Case IPR2018-00050
`Patent 8,504,631 B2
`
`
`Before KRISTEN L. DROESCH, MICHAEL R. ZECHER, and
`MICHAEL J. FITZPATRICK, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`SCHEDULING ORDER
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`IPR2018-00050
`Patent 8,504,631 B2
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`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).1 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.
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`1. INITIAL CONFERENCE CALL
`The parties are directed to contact the Board within ten (10) business
`days of the entry date of the Decision on Institution if there is a need to
`discuss proposed changes to this Scheduling Order or proposed motions.
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`1 The parties may not change DUE DATE 4 with respect to the requirement
`for requesting oral argument, without prior authorization from the panel.
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`IPR2018-00050
`Patent 8,504,631 B2
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`See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66
`(Aug. 14, 2012) (setting forth guidance in preparing for the initial
`conference call).
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`2. 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).
`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.
`
`3. 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.
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`4. 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.
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`5. DUE DATE 4
`a.
`Each party must file any 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.
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`IPR2018-00050
`Patent 8,504,631 B2
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`6. DUE DATE 5
`a.
`Each party must file any response to any observations 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.
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`7. DUE DATE 6
`Each party must file any reply to any opposition to a motion to
`exclude evidence by DUE DATE 6.
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`8. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
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`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.
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`C. 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). No new evidence of any kind may be
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`IPR2018-00050
`Patent 8,504,631 B2
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`introduced with an observation, without prior authorization from the panel.
`An 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.
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`D. MOTION TO AMEND
`Although the filing of a Motion to Amend is authorized under our
`rules, Patent Owner must confer with us before filing any 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 ten (10) business days before DUE
`DATE 1.
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`IPR2018-00050
`Patent 8,504,631 B2
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`DUE DATE APPENDIX
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`INITIAL CONFERENCE CALL ...................................................... Optional
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`DUE DATE 1 .............................................................................. July 16, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
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`DUE DATE 2 ....................................................................... October 15, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
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`DUE DATE 3 ................................................................... November 15, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
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`DUE DATE 4 ...................................................................... December 6, 2018
`Observations regarding cross-examination of reply witness
`Motions to exclude evidence
`Requests for oral argument2
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`DUE DATE 5 .................................................................... December 20, 2018
`Responses to observations
`Oppositions to motions to exclude evidence
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`DUE DATE 6 .................................................................... December 27, 2018
`Replies to oppositions to motions to exclude
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`2 Although the parties may stipulate to a different date for DUE DATE 4
`regarding the “Observations regarding cross-examination of reply witness”
`and “Motions to exclude evidence,” the parties may not stipulate to a
`different date for the filing of “Requests for oral argument.”
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`IPR2018-00050
`Patent 8,504,631 B2
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`DUE DATE 7 ........................................................................ January 10, 2019
`Oral argument (if requested)
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`IPR2018-00050
`Patent 8,504,631 B2
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`For PETITIONER:
`Heidi L. Keefe
`Andrew C. Mace
`COOLEY LLP
`zFBEveryMD@cooley.com
`hkeefe@cooley.com
`amace@cooley.com
`
`
`
`For PATENT OWNER:
`
`Frank Michael Weyer
`TECHCOASTLAW
`fweyer@techcoastlaw.com
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