throbber

`Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 14
`Entered: January 23, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`DTN, LLC,
`Petitioner,
`
`v.
`
`FARMS TECHNOLOGY, LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01412
`Patent 7,991,685 B2
`
`____________
`
`
`
`Before SCOTT C. WEIDENFELLER, Vice Chief Administrative Patent
`Judge, GEORGE R. HOSKINS, and FRANCES L. IPPOLITO,
`Administrative Patent Judges.
`
`HOSKINS, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`A. GENERAL INSTRUCTIONS
`1. Requests for an Initial Conference Call
`Unless at least one of the parties requests otherwise, we will not
`conduct an initial conference call as described in the Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14, 2012). In lieu of
`such a call, we instruct the parties as follows:
`a. If a party wishes to request an initial conference call, that party
`shall request the call within one month from this Order;
`b. A request for a conference call shall include: (a) a list of proposed
`motions, if any, to be discussed during the call and (b) a list of
`dates and times when the parties are available for the call; and
`c. The parties shall be prepared to discuss during the initial
`conference call their concerns, if any, relating to the schedule in
`this proceeding as set forth below.
`Absent good cause shown, we will not conduct an initial conference call
`later than one month after the institution of a trial.
`2. Protective Order
`No protective order shall apply to this proceeding until the Board
`enters one. If either party files a motion to seal before entry of a protective
`order, a jointly proposed protective order shall be filed as an exhibit with the
`motion. The Board encourages 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. at
`48,769–71 (App. B). 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
`
`2
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`and default protective orders showing the differences between the two and
`explain why good cause exists to deviate from the default protective order.
`The Board has a strong interest in the public availability of trial
`proceedings. Redactions to documents filed in this proceeding should be
`limited to the minimum amount necessary to protect confidential
`information, and 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 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.
`3. Discovery Disputes
`The Board encourages parties to resolve disputes relating to discovery
`on their own. 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 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.
`
`3
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`
`4. Testimony
`The parties are advised that the Testimony Guidelines appended to the
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,772–73 (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 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.
`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.
`5. Cross-Examination
`Except as the parties might otherwise agree, for each due date—
`a. Cross-examination ordinarily takes place after any supplemental
`evidence is due. 37 C.F.R. § 42.53(d)(2).
`b. Cross-examination ordinarily 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.
`6. Oral Argument
`Requests for oral argument must comply with 37 C.F.R. § 42.70(a).
`To permit the Board sufficient time to schedule the oral argument, the
`parties may not stipulate to an extension of the request for oral argument
`beyond the date set forth in the Due Date Appendix.
`
`4
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`
`Unless the Board notifies the parties otherwise, oral argument, if
`requested, will be held at the USPTO headquarters in Alexandria, Virginia.
`Seating in the Board’s hearing rooms may be limited, and will be
`available on a first-come, first-served basis. If either party anticipates that
`more than five (5) individuals will attend the argument on its behalf, the
`party should notify the Board as soon as possible, and no later than the
`request for oral argument. Parties should note that the earlier a request for
`accommodation is made, the more likely the Board will be able to
`accommodate additional individuals.
`
`B. 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 filed promptly. The parties may not stipulate to an extension of DUE
`DATES 6 and 7, or to the requests for oral argument.
`In stipulating 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 (§ 42.64(b)(2)), to conduct cross-examination
`(§ 42.53(d)(2)), and to draft papers depending on the evidence and cross-
`examination testimony.
`1. DUE DATE 1
`Patent Owner may file—
`a. A response to the petition (37 C.F.R. § 42.120). If Patent Owner
`elects not to file a response, Patent Owner must arrange a conference call
`with the parties and the Board. Patent Owner is cautioned that any
`
`5
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`arguments for patentability not raised in the response may be deemed
`waived.
`b. A motion to amend the patent (37 C.F.R. § 42.121). Patent Owner
`may file a motion to amend without prior authorization from the Board.
`Nevertheless, Patent Owner must confer with the Board before filing such a
`motion. 37 C.F.R § 42.121(a). To satisfy this requirement, Patent Owner
`should request a conference call with the Board no later than two weeks
`prior to DUE DATE 1. The parties are directed to the Board’s Guidance on
`Motions to Amend in view of Aqua Products (https://www.uspto.gov/sites/
`default/files/documents/guidance_on_motions_to_amend_11_2017.pdf), and
`Western Digital Corp. v. SPEX Techs., Inc., Case IPR2018-00082 (PTAB
`April 25, 2018) (Paper 13) (providing information and guidance on motions
`to amend).
`2. DUE DATE 2
`Petitioner may file a reply to the Patent Owner’s response.
`Petitioner may file an opposition to the motion to amend.
`3. DUE DATE 3
`Patent Owner may file a sur-reply to Petitioner’s reply.
`Patent Owner may file a reply to the opposition to the motion to
`amend.
`4. DUE DATE 4
`Petitioner may file a sur-reply to Patent Owner’s reply to the
`opposition to the motion to amend.
`Either party may file a motion to exclude evidence (37 C.F.R.
`§ 42.64(c)).
`
`6
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`
`5. DUE DATE 5
`Either party may file an opposition to a motion to exclude evidence.
`6. DUE DATE 6
`Either party may file a reply to an opposition to a motion to exclude
`evidence.
`Either party may request that the Board hold a pre-hearing conference.
`7. DUE DATE 7
`The oral argument (if requested by either party) shall be held on this
`
`date.
`
`7
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ................................................................. April 19, 2019
`Patent Owner’s response to the petition
`Patent Owner’s motion to amend the patent
`
`DUE DATE 2 ................................................................... July 12, 2019
`Petitioner’s reply to Patent Owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................... August 16, 2019
`Patent Owner’s sur-reply to reply
`Patent Owner’s reply to opposition to motion to amend
`
`DUE DATE 4 ............................................................September 6, 2019
`Petitioner’s sur-reply to reply to opposition to motion to amend
`Motion to exclude evidence
`Request for oral argument (the parties may not stipulate an extension
`of the due date for this request)
`
`DUE DATE 5 .......................................................... September 20, 2019
`Opposition to motion to exclude
`
`DUE DATE 6 .......................................................... September 27, 2019
`Reply to opposition to motion to exclude
`Request for Prehearing Conference
`
`DUE DATE 7 ........................... October 15, 2019 (1:30 pm Eastern Time)
`Oral argument (if requested)
`
`8
`
`

`

`IPR2018-01412
`Patent 7,991,685 B2
`
`PETITIONER:
`
`David Cabello
`James Hall
`Stephen Zinda
`BLANK ROME LLP
`DCabello@BlankRome.com
`JHall@BlankRome.com
`SZinda@BlankRome.com
`
`
`PATENT OWNER:
`
`Joshua P. Larsen
`Yoojin Jung
`Todd G. Vare
`Deborah Pollack-Milgate
`BARNES & THORNBURG LLP
`Joshua.Larsen@btlaw.com
`Kate.Jung@btlaw.com
`Todd.Vare@btlaw.com
`Deborah.PollackMilgate@btlaw.com
`
`9
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

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.

throbber

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.

Become a Member

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

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket