Trials@uspto.gov
`571-272-7822
`
`Paper 16
`Entered: August 10, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`JUNIPER NETWORKS, INC.,
`Petitioner,
`
`v.
`
`IMPLICIT, LLC,
`Patent Owner.
`
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
` IPR2020-00590 (Patent 10,027,780 B2)
` IPR2020-00591 (Patent 10,033,839 B2)
` IPR2020-00592 (Patent 10,225,378 B2)1
`
`
`
`
`
`
`
`
`
`
`Before THOMAS L. GIANNETTI, BARBARA A. PARVIS,
`SHEILA F. McSHANE, and NABEEL U. KHAN,
`Administrative Patent Judges2.
`
`PARVIS, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each of the listed cases. Given the similarities of
`issues, we issue one Order to be docketed in each case. The parties are not
`authorized to use this caption style.
`2 This is not an expanded panel of the Board. It is a listing of all Judges on
`the panels of the above-referenced proceedings.
`
`
`571-272-7822
`
`Paper 16
`Entered: August 10, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`JUNIPER NETWORKS, INC.,
`Petitioner,
`
`v.
`
`IMPLICIT, LLC,
`Patent Owner.
`
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
` IPR2020-00590 (Patent 10,027,780 B2)
` IPR2020-00591 (Patent 10,033,839 B2)
` IPR2020-00592 (Patent 10,225,378 B2)1
`
`
`
`
`
`
`
`
`
`
`Before THOMAS L. GIANNETTI, BARBARA A. PARVIS,
`SHEILA F. McSHANE, and NABEEL U. KHAN,
`Administrative Patent Judges2.
`
`PARVIS, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`1 This Order applies to each of the listed cases. Given the similarities of
`issues, we issue one Order to be docketed in each case. The parties are not
`authorized to use this caption style.
`2 This is not an expanded panel of the Board. It is a listing of all Judges on
`the panels of the above-referenced proceedings.
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`
`A. GENERAL INSTRUCTIONS
`
`1.
`
`Initial and Additional Conference Calls
`
`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 that have not been authorized in this Order or other
`
`prior Order or Notice. See Consolidated Trial Practice Guide (“Consolidated
`
`Practice Guide”)3 at 9–10, 65 (guidance in preparing for a conference call);
`
`see also 84 Fed. Reg. 64,280 (Nov. 21, 2019). A request for an initial
`
`conference call shall include a list of proposed motions, if any, to be
`
`discussed during the call.
`
`The parties may request additional conference calls as needed. Any
`
`email requesting a conference call with the Board should: (a) copy all
`
`parties, (b) indicate generally the relief being requested or the subject matter
`
`of the conference call, (c) include multiple times when all parties are
`
`available, (d) state whether the opposing party opposes any relief requested,
`
`and (e) if opposed, either certify that the parties have met and conferred
`
`telephonically or in person to attempt to reach agreement, or explain why
`
`such meet and confer did not occur. The email may not contain substantive
`
`argument and, unless otherwise authorized, may not include attachments.
`
`See Consolidated Practice Guide at 9–10.
`
`
`3 Available at https://www.uspto.gov/TrialPracticeGuideConsolidated.
`
`2
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`
`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. It is the responsibility of the party whose confidential information is
`
`at issue, not necessarily the proffering party, to file the motion to seal.4 The
`
`Board encourages the parties to adopt the Board’s default protective order if
`
`they conclude that a protective order is necessary. See Consolidated Practice
`
`Guide at 107–122 (App. B, Protective Order Guidelines and Default
`
`Protective Order). 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 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 may become public if
`
`identified in a final written decision in this proceeding, and that a motion to
`
`
`4 If the entity whose confidential information is at issue is not a party to the
`proceeding, please contact the Board.
`
`3
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`expunge the information will not necessarily prevail over the public interest
`
`in maintaining a complete and understandable file history. See Consolidated
`
`Practice Guide at 21–22.
`
`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 must 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.
`
`4.
`
`Testimony
`
`The parties are reminded that the Testimony Guidelines appended to
`
`the Consolidated Practice Guide at 127–130 (App. D, Testimony Guidelines)
`
`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.
`
`5.
`
`Cross-Examination
`
`Except as the parties might otherwise agree, for each due date:
`
`Cross-examination ordinarily takes place after any supplemental evidence is
`
`due. 37 C.F.R. § 42.53(d)(2).
`
`4
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`
`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.
`
`Unless the Board notifies the parties otherwise, oral argument, if
`
`requested, will be held at the USPTO headquarters in Alexandria.
`
`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 different dates for DUE
`
`DATES 1, 5, and 6, as well as the portion of DUE DATE 2 related to
`
`Petitioner’s reply (earlier or later, but no later than DUE DATE 3 for Patent
`
`Owner’s sur-reply) and the portion of DUE DATE 3 related to Patent
`
`5
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`Owner’s sur-reply (earlier or later, but no later than DUE DATE 7). A
`
`notice of the stipulation, specifically identifying the changed due dates, must
`
`be promptly filed. The parties may not stipulate an extension of DUE
`
`DATES 4, 7, and 8.
`
`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 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
`
`arguments not raised in the response may be deemed waived.
`
`2.
`
`DUE DATE 2
`
`Petitioner may file a reply to the Patent Owner’s response.
`
`3.
`
`DUE DATE 3
`
`Patent Owner may file a sur-reply to Petitioner’s reply.
`
`4.
`
`DUE DATE 4
`
`Either party may file a request for oral argument (may not be extended
`
`by stipulation).
`
`6
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`
`5.
`
`DUE DATE 5
`
`Either party may file a motion to exclude evidence (37 C.F.R.
`
`§ 42.64(c)).
`
`6.
`
`DUE DATE 6
`
`Either party may file an opposition to a motion to exclude evidence.
`
`Either party may request that the Board hold a pre-hearing conference.
`
`7.
`
`DUE DATE 7
`
`Either party may file a reply to an opposition to a motion to exclude
`
`evidence.
`
`8.
`
`DUE DATE 8
`
`The oral argument (if requested by either party) shall be held on this
`
`date. Approximately one month prior to the argument, the Board will issue
`
`an order setting the start time of the hearing and the procedures that will
`
`govern the parties’ arguments.
`
`7
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1 .................................................................... November 2, 2020
`
`Patent Owner’s response to the petition
`
`DUE DATE 2 ....................................................................... January 25, 2021
`
`Petitioner’s reply to Patent Owner’s response to petition
`
`DUE DATE 3 ........................................................................... March 8, 2021
`
`Patent Owner’s sur-reply to reply
`
`DUE DATE 4 ......................................................................... March 29, 2021
`
`Request for oral argument (may not be extended by stipulation)
`
`DUE DATE 5 ........................................................................... April 19, 2021
`
`Motion to exclude evidence
`
`DUE DATE 6 ........................................................................... April 26, 2021
`
`Opposition to motion to exclude
`
`Request for prehearing conference
`
`DUE DATE 7 .............................................................................. May 3, 2021
`
`Reply to opposition to motion to exclude
`
`DUE DATE 8 ............................................................................ May 17, 2021
`
`Oral argument (if requested)
`
`
`
`8
`
`
`
`IPR2020-00585 (Patent 8,694,683 B2)
`IPR2020-00586 (Patent 9,270,790 B2)
`IPR2020-00587 (Patent 9,591,104 B2)
`IPR2020-00590 (Patent 10,027,780 B2)
`IPR2020-00591 (Patent 10,033,839 B2)
`IPR2020-00592 (Patent 10,225,378 B2)
`
`For PETITIONER:
`
`Jonathan Lindsay
`David McPhie
`IRELL & MANELLA LLP
`jlindsay@irell.com
`dmcphie@irell.com
`
`
`For PATENT OWNER:
`
`Christian Hurt
`DAVIS FIRM, PC
`churt@davisfirm.com
`
`9
`
`
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