Trials@uspto.gov
`571-272-7822
`
`Paper 15
`Entered: May 31, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VF OUTDOOR, LLC,
`Petitioner,
`v.
`COCONA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00190
`Patent 8,945,287 B2
`____________
`
`
`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`KALAN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`571-272-7822
`
`Paper 15
`Entered: May 31, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`VF OUTDOOR, LLC,
`Petitioner,
`v.
`COCONA, INC.,
`Patent Owner.
`____________
`
`Case IPR2018-00190
`Patent 8,945,287 B2
`____________
`
`
`Before KRISTINA M. KALAN, CHRISTOPHER M. KAISER, and
`ELIZABETH M. ROESEL, Administrative Patent Judges.
`
`KALAN, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`A. GENERAL INSTRUCTIONS
`1. Initial Conference Call
`The parties are directed to contact the Board within fifteen (15)
`business days of the date of this Order is there is a need to discuss:
`(a) proposed changes to this Scheduling Order (i.e., regarding DUE DATES
`6 and 7); or (b) any proposed motions, not authorized already by our Rules
`or by this Scheduling Order, which the parties anticipate filing during the
`trial. 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). To request a conference call, the requesting party should
`submit a list of dates and times when both parties are available for a call.
`2. 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 motion to seal must include a certification that the moving party has in
`good faith conferred or attempted to confer with other affected parties in an
`effort to resolve any dispute. See 37 C.F.R. 42.54(a).
`The parties are urged to operate under the Board’s default protective
`order, should that become necessary. See Default Protective Order, Office
`
`
`
`2
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`Patent Trial Practice Guide, 77 Fed. Reg. at 48,769–71, App. 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 differences
`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
`or evidence must be clearly discernable 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 Office Patent
`Trial Practice Guide, 77 Fed. Reg. at 48,761.
`3. Motion to Amend
`Although the filing of a Motion to Amend is authorized under our
`Rules, the patent owner must confer with the Board before filing any Motion
`to Amend. See 37 C.F.R. § 42.121(a). A conference call to satisfy the
`requirement of 37 C.F.R. § 42.121(a) must be scheduled no less than
`ten (10) business days prior to DUE DATE 1.
`4. Discovery Disputes
`The panel encourages the 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
`
`
`
`3
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`dispute before contacting the Board. If attempts to resolve the dispute fail,
`either 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: (1) certify that it has conferred
`with the other party in an effort to resolve the dispute; (2) identify with
`specificity the issues for which agreement has not been reached; (3) identify
`the precise relief to be sought; and (d) propose specific dates and times at
`which both parties are available for the conference call.
`5. Depositions
`The parties are advised that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772, App. 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 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 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. 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).
`
`
`
`4
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`Cross-examination ends no later than a week before the filing
`2.
`date for any paper in which the cross-examination testimony is expected to
`be used. Id.
`7. 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. at 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.
`
`B. DUE DATES
`
`The Appendix to this Order sets due dates for the parties to take action
`after institution of these proceedings. 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. If the parties stipulate to an extension of
`DUE DATE 4, any request for oral hearing must still be filed on or before
`the date set forth in this Order, to provide sufficient time for the Board to
`accommodate the hearing. The parties may not stipulate to an extension of
`DUE DATES 6 and 7, and, if either party anticipates a need to alter DUE
`DATE 7, the parties must schedule a conference call with the panel
`
`
`
`5
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`IPR2018-00190
`Patent 8,945,287 B2
`
`immediately upon identifying any conflict or potential conflict with DUE
`DATE 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.
`
`1. 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.
`
`2. 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.
`
`3. 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.
`
`4. DUE DATE 4
`a.
`Each party must file any observations on the cross-examination
`testimony of a reply witness by DUE DATE 4.
`6
`
`
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`Each party must file any motion to exclude evidence (37 C.F.R
`b.
`§ 42.64(c)) by DUE DATE 4.
`c.
`Each party must file any request for oral argument (37 C.F.R.
`§ 42.70(a)) by DUE DATE 4. As noted above, DUE DATE 4 is not
`extendible with respect to any request for oral argument.
`
`5. DUE DATE 5
`a.
`Each party must file any response to an observation 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.
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by
`DUE DATE 6.
`
`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`
`
`
`
`
`7
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`DUE DATE APPENDIX
`DUE DATE 1 ......................................................................... August 31, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ................................................................... November 30, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .................................................................... December 28, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ........................................................................ January 24, 2019
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ......................................................................... February 8, 2019
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ...................................................................... February 15, 2019
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ...................................................................... February 28, 2019
`Oral argument (if requested).
`
`
`
`8
`
`
`
`IPR2018-00190
`Patent 8,945,287 B2
`
`FOR PETITIONER:
`Marianne Timm-Schreiber
`Kathleen Ott
`MERCHANT & GOULD P.C.
`mtimm-schreiber@merchantgould.com
`kott@merchantgould.com
`
`FOR PATENT OWNER:
`Jason Jackson
`KUTAK ROCK LLP
`jason.jackson@kutakrock.com
`
`
`
`
`
`
`
`9
`
`
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