`
` Paper 8
`Trials@uspto.gov
`571-272-7822 Entered: June 22, 2018
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`RPX CORPORATION,
`Petitioner
`
`v.
`
`SPYCURITY LLC,
`Patent Owner.
`____________
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`____________
`
`
`
`Before JONI Y. CHANG, TREVOR M. JEFFERSON,
`and AARON W. MOORE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`
`
`
`
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`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).
`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. See
`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.
`1.
`INITIAL CONFERENCE CALL
`No initial conference call is scheduled for this proceeding. The
`parties are directed to contact the Board within a month of this Order 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
`
`
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`DUE DATE 1
`2.
`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.
`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.
`
`
`
`3
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`Each party must file any opposition to a motion to exclude
`b.
`evidence by DUE DATE 5.
`7.
`DUE DATE 6
`Each party must file any reply to a motion to exclude evidence by
`DUE DATE 6.
`8.
`DUE DATE 7
`The oral argument (if requested by either party) is scheduled 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 (see 37 C.F.R. § 42.53(d)(2)); and
`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 (see 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. at 48,767–68. 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.
`
`
`
`4
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`D. MOTION TO AMEND
`Patent Owner may file a motion to amend without prior authorization
`from the Board. However, Patent Owner 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 Board and opposing counsel at least 10
`business days before DUE DATE 1 in order to satisfy the requirement for a
`conference. We direct the parties to the Board’s website for representative
`decisions relating to Motions to Amend among other topics.
`
`
`
`
`
`5
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`DUE DATE APPENDIX
`
`
`DUE DATE 1 .................................................................. September 21, 2018
`Patent Owner’s Response to the Petition
`Patent Owner’s Motion to Amend the Patent
`DUE DATE 2 ................................................................... December 21, 2018
`Petitioner’s Reply to Patent Owner’s Response to Petition
`Petitioner’s Opposition to Motion to Amend
`DUE DATE 3 ....................................................................... January 22, 2019
`Patent Owner’s Reply to Petitioner’s Motion to Amend Opposition
`DUE DATE 4 ..................................................................... February 11, 2019
`Patent Owner Motion for Observation Regarding Cross-Examination
`of Reply Witness
`Motion to Exclude Evidence
`Request for Oral Argument
`DUE DATE 5 ..................................................................... February 25, 2019
`Petitioner Response to Observation
`Opposition to Motion to Exclude
`DUE DATE 6 ........................................................................... March 4, 2019
`Reply to Opposition to Motion to Exclude
`DUE DATE 7 ......................................................................... March 19, 2019
`Oral Argument (if requested)
`
`
`
`
`
`6
`
`
`
`Case IPR2018-00305
`Patent 8,489,868 B2
`
`FOR PETITIONER:
`
`Andrew M. Mason
`Deakin T. Lauer
`John M. Lunsford
`KLARQUIST SPARKMAN, LLP
`andrew.mason@klarquist.com
`deakin.lauer@klarquist.com
`
`FOR PATENT OWNER:
`
`Isaac Rabicoff (Reg. No. 74,147)
`Kenneth Matuszewski (Reg. No. 74,791)
`RABICOFF LAW LLC
`isaac@rabilaw.com
`kenneth@rabilaw.com
`
`
`
`
`
`
`
`
`7
`
`
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