Trials@uspto.gov
`571-272-7822
`
`
`
` Paper No. 16
`
` Entered: April 16, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`MONKEYMEDIA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00059
`Patent 9,247,226 B2
`____________
`
`
`Before MARC S. HOFF, LYNNE E. PETTIGREW, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`571-272-7822
`
`
`
` Paper No. 16
`
` Entered: April 16, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`UNIFIED PATENTS INC.,
`Petitioner,
`
`v.
`
`MONKEYMEDIA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00059
`Patent 9,247,226 B2
`____________
`
`
`Before MARC S. HOFF, LYNNE E. PETTIGREW, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`HOFF, Administrative Patent Judge.
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`
`This Order sets a schedule for trial, including due dates for the parties
`to take action upon institution of the trial. See Appendix. The trial will be
`administered in a just, speedy, and inexpensive manner such that pendency
`before the Board is no more than one year after institution. 37 C.F.R.
`§§ 42.1(b) and 42.100(c).
`
`
`
`A. INITIAL CONFERENCE
`An initial conference call will be scheduled only upon request by
`
`either party within thirty (30) days after entry of this Order. To request a
`conference call, the parties should consult with each other and submit a list
`of proposed dates and times for the call. If an initial conference call is
`scheduled, the parties are directed to the Office Patent Trial Practice Guide,
`77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012) (“Trial Practice Guide”),
`for guidance in preparing for the call, and should be prepared to discuss any
`proposed changes to the schedule and any motions the parties anticipate
`filing during the trial.
`
`
`
`B. MEET AND CONFER REQUIREMENT
`The parties are encouraged to engage in meaningful discussions
`
`before seeking authorization under 37 C.F.R. § 42.20(b) to file a motion for
`relief with the Board. At a minimum, before requesting authorization, the
`parties shall confer with each other in a good-faith effort to resolve the issue
`for which relief is to be sought. Only if the parties cannot resolve the issue
`on their own may a party request a conference call with the Board in order to
`seek authorization to move for relief. In any request for a conference call
`with the Board, the requesting party shall: (1) certify that it has in good-
`faith conferred (or attempted to confer) with the other parties in an effort to
`
`2
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`resolve the issue; (2) identify with specificity the issue for which agreement
`has not been reached; (3) state the precise relief to be sought; and (4)
`propose specific dates and times at which both parties are available for the
`conference call.
`
`
`C. CONFIDENTIAL INFORMATION
`The parties must file confidential information using the appropriate
`availability indicator in PTAB E2E (e.g., “Board and Parties Only”),
`regardless of whose confidential information it is. It is the responsibility of
`the party whose confidential information is at issue, not necessarily the
`proffering party, to file the motion to seal, unless the party whose
`confidential information is at issue is not a party to this proceeding.
`A protective order does not exist in a case until one is filed in the case
`and is approved by the Board. If a motion to seal is filed by either party, the
`proposed protective order should be presented as an exhibit to the motion.
`The parties are urged to operate under the Board’s default protective order,
`should that become necessary. See Default Protective Order, Trial Practice
`Guide, 77 Fed. Reg. at 48,769–71 (Appendix B). If the parties choose to
`propose a protective order deviating from the default protective order, they
`should submit the proposed protective order jointly. A marked-up
`comparison of the proposed and default protective orders should be
`presented as an additional exhibit to the motion to seal, so that the difference
`can be understood readily. The parties should contact the Board if they
`cannot agree on the terms of the proposed protective order.
`Redactions should be limited strictly to isolated passages consisting
`entirely of confidential information. The thrust of the underlying argument
`
`3
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`or evidence must be clearly discernible from the redacted version.
`Information subject to a protective order will become public if
`identified in a final written decision in this proceeding. A motion to
`expunge the information will not necessarily prevail over the public interest
`in maintaining a complete and understandable file history. See Trial
`Practice Guide, 77 Fed. Reg. at 48,761.
`
`
`D. DUE DATES
`The Appendix specifies due dates for the parties to take action in this
`
`trial. 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 any
`stipulation, specifically identifying the changed due dates, must be filed
`promptly with the Board. The parties may not stipulate to an extension of
`DUE DATES 6 and 7. Stipulating to a different DUE DATE 4 shall not
`modify the deadline for requesting an oral argument as set out in this Order.
`
`In stipulating to different dates, 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 E, below).
`Although the filing of a Motion to Amend is authorized under our
`Rules, the patent owner must confer with the Board at least ten (10) business
`days prior to DUE DATE 1 before filing any Motion to Amend.
`
`
`
`4
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`DUE DATE 1
`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
`and fully briefed in the response will be deemed waived.
`
`
`DUE DATE 2
`2.
`The petitioner must file any reply to the patent owner’s response and
`
`opposition to the motion to amend by DUE DATE 2.
`
`
`DUE DATE 3
`3.
`The patent owner must file any reply to the petitioner’s opposition to
`
`patent owner’s motion to amend by DUE DATE 3.
`
`
`DUE DATE 4
`4.
`a. Each party must file any observations on the cross-examination
`
`testimony of a reply witness (see section F, 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.
`
`
`DUE DATE 5
`5.
`a. Each party must file any responses to observations on cross-
`
`examination testimony by DUE DATE 5.
`
`5
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`b. Each party must file any opposition to a motion to exclude
`
`evidence by DUE DATE 5.
`
`
`
`
`DUE DATE 6
`6.
`Each party must file any reply for a motion to exclude evidence by
`
`DUE DATE 6.
`
`DUE DATE 7
`Oral argument (if requested by either party) is set for DUE DATE 7.
`
`
`7.
`
`
`
`E. 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.
`
`The parties are reminded that the Testimony Guidelines appended to
`the Trial Practice Guide, 77 Fed. Reg. at 48,772 (App. D), apply to this
`proceeding. Pursuant to 37 C.F.R. § 42.12, the Board may impose an
`appropriate sanction on any party who fails to adhere to the Testimony
`Guidelines, including reasonable expenses and attorney fees incurred by a
`party affected by another party’s misconduct.
`
`
`F. OBSERVATIONS ON CROSS-EXAMINATION
`Observations on cross-examination provide the parties with a
`
`mechanism to draw the Board’s attention to relevant cross-examination
`
`6
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`testimony of a reply witness, because no further substantive paper is
`permitted after the reply. See Trial Practice Guide, 77 Fed. Reg. at 48,768.
`Each 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.
`
`
`
`7
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`
`
`
`APPENDIX
`
`INITIAL CONFERENCE CALL……….…..…..…..…..…..... Upon Request
`DUE DATE 1………………………………………..………..... July 9, 2018
`
`Patent owner’s response to the petition
`
`Patent owner’s motion to amend the patent
`DUE DATE 2………………………………...………… September 28, 2018
`
`Petitioner’s reply to patent owner’s response to the petition
`
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3……………………………..……........…… October 29, 2018
`
`Patent owner’s reply to petitioner’s opposition to motion to amend
`DUE DATE 4……………………………………...…… November 13, 2018
`
`Observations regarding cross-examination of reply witness
`
`Motion to exclude evidence
`
`Request for oral argument
`DUE DATE 5…………………………………………...... December 4, 2018
`
`Response to observations
`
`
`Opposition to motion to exclude
`DUE DATE 6…………………………………….……... December 11, 2018
`
`Reply to opposition to motion to exclude
`DUE DATE 7……………………………………...……. December 18, 2018
`
`Oral argument (if requested)
`
`
`
`
`
`
`8
`
`
`
`IPR2018-00059
`Patent 9,247,226 B2
`
`PETITIONER:
`Stuart A. Nelson
`W. Karl Renner
`Ryan Chowdhury
`FISH & RICHARDSON P.C.
`snelson@fr.com
`axf-ptab@fr.com
`rchowdhury@fr.com
`
`Ashraf Fawzy
`Jonathan Stroud
`UNIFIED PATENTS, INC.
`afawzy@unifiedpatents.com
`jonathan@unifiedpatents.com
`
`
`PATENT OWNER:
`Jonathan D. Baker
`FARNEY DANIELS PC
`jbaker@farneydaniels.com
`
`9
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
