Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 8
`Entered: May 21, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FITBIT, INC.
`Petitioner,
`
`v.
`
`SMART WEARABLE TECHNOLOGIES INC.,
`Patent Owner.
`_______________
`
`Case IPR2018-00252
`Patent 6,997,882 B1
`_______________
`
`Before PATRICK R. SCANLON, ZHENYU YANG, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`
`YANG, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`Tel: 571-272-7822
`
`Paper 8
`Entered: May 21, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`FITBIT, INC.
`Petitioner,
`
`v.
`
`SMART WEARABLE TECHNOLOGIES INC.,
`Patent Owner.
`_______________
`
`Case IPR2018-00252
`Patent 6,997,882 B1
`_______________
`
`Before PATRICK R. SCANLON, ZHENYU YANG, and
`TIMOTHY J. GOODSON, Administrative Patent Judges.
`
`
`YANG, Administrative Patent Judge.
`
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5(a)
`
`
`
`IPR2018-00252
`Patent 6,997,882 B1
`
`
`
`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 promptly filed. 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).
`
`1. INITIAL CONFERENCE CALL
`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).
`
`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
`
`2
`
`
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`IPR2018-00252
`Patent 6,997,882 B1
`
`
`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.
`
`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.
`
`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.
`b.
`Each party must file any opposition to a motion to 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.
`
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`IPR2018-00252
`Patent 6,997,882 B1
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`8. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`B. MOTIONS TO SEAL, PROTECTIVE ORDERS, AND
`CONFIDENTAIL INFORMATION
`A protective order does not exist in this proceeding unless the parties
`file one and the Board approves it. Papers and exhibits filed with the Board
`are public unless designated as confidential when filed. 37 C.F.R. § 42.14.
`Papers and exhibits may be filed as confidential if filed with a motion to
`seal. Id. Those papers and exhibits will remain under seal provisionally
`until the Board renders its decision on the motion. Id.
`A motion to seal must include a proposed protective order, or must
`refer to a protective order already approved in the proceeding. 37 C.F.R.
`§ 42.54(a). We encourage the parties to adopt the Board’s default protective
`order if they conclude that a protective order is necessary. See Default
`Protective Order, Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
`App. B (Aug. 14, 2012). If the parties choose to propose a protective order
`deviating from the default protective order, they must submit the proposed
`protective order jointly along with a marked-up comparison of the proposed
`and default protective orders showing the differences.
`The Board has a strong interest in the public availability of the
`proceedings. We advise the parties that redactions to documents filed in this
`proceeding should be limited to isolated passages consisting entirely of
`confidential information, and that the thrust of the underlying argument or
`evidence must be clearly discernible from the redacted versions. We also
`advise the parties that information subject to a protective order will become
`
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`IPR2018-00252
`Patent 6,997,882 B1
`
`
`public if identified in a final written decision in this proceeding, and that 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.
`
`C. MOTIONS TO AMEND
`Patent Owner may file a motion to amend without prior authorization
`from the Board. Patent Owner, however, must confer with the Board before
`filing such a motion. See 37 C.F.R. § 42.121(a). Patent Owner should
`arrange for a conference call with the panel and opposing counsel at least
`one week before DUE DATE 1 in order to satisfy the conferral requirement.
`We direct the parties to the Board’s website for representative decisions
`relating to Motions to Amend among other topics. The parties may access
`these representative decisions at:
`https://www.uspto.gov/patents-application-process/appealing-patent-
`decisions/decisions-and-opinions/representative-orders
`We also direct the parties to the Guidance on Motions to Amend in view of
`Aqua Products. The parties may access the Memorandum at:
`https://www.uspto.gov/sites/default/files/documents/guidance_on_motions_t
`o_amend_11_2017.pdf
`
`D. DEPOSITIONS
`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
`
`5
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`IPR2018-00252
`Patent 6,997,882 B1
`
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`incurred by any party may be levied on a person who impedes, delays, or
`frustrates the fair examination of a witness.
`
`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.
`
`F. 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.
`
`G. DISCOVERY DISPUTES
`The panel encourages 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 dispute before
`
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`IPR2018-00252
`Patent 6,997,882 B1
`
`
`contacting the Board. If attempts to resolve the dispute fail, a 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: (a) certify that it has conferred
`with the other party in an effort to resolve the dispute; (b) identify with
`specificity the issues for which agreement has not been reached; (c) identify
`the precise relief to be sought; and (d) propose specific dates and times at
`which both parties are available for the conference call.
`
`H. COMMUNICATIONS WITH THE BOARD
`Except as otherwise provided in the Rules, Board authorization is
`required before filing a motion. 37 C.F.R. § 42.20(b). A party seeking to
`file a non-preauthorized motion should request a conference to obtain
`authorization to file the motion. Parties may request a conference with us by
`contacting the Board staff by e-mail at Trials@uspto.gov or by telephone at
`571-272-7822. An email requesting a conference call should copy the other
`party, indicate generally the relief being requested or the subject matter of
`the conference call, state whether the opposing party opposes the request,
`and include multiple times when all parties are available. The email may not
`contain substantive argument. The parties also are reminded that they
`should discuss and attempt to resolve issues with each other first before
`requesting conference calls with the Board.
`
`
`
`
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`IPR2018-00252
`Patent 6,997,882 B1
`
`
`DUE DATE APPENDIX
`
`INITIAL CONFERENCE CALL ............................................... Upon request
`DUE DATE 1 .......................................................................... August 6, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ...................................................................... October 18, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 .................................................................... November 8, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .................................................................. November 29, 2018
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ................................................................... December 13, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ................................................................... December 20, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ....................................................................... January 11, 2019
`Oral argument (if requested)
`
`
`8
`
`
`
`IPR2018-00252
`Patent 6,997,882 B1
`
`PETITIONER:
`
`Harper Batts
`Jeremy Taylor
`Baker Botts L.L.P.
`harper.batts@bakerbotts.com
`jeremy.taylor@bakerbotts.com
`
`
`PATENT OWNER:
`
`Richard A. Wojcio, Jr.
`Friedman, Suder & Cooke
`wojcio@fsclaw.com
`
`
`
`
`9
`
`
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