Trials@uspto.gov Paper 17
`571-272-7822
` Date Entered: February 21, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TELEBRANDS CORP.,
`Petitioner,
`
`v.
`
`TINNUS ENTERPRISES, LLC,
`Patent Owner.
`____________
`
`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)1
`____________
`
`Before MICHAEL W. KIM, FRANCES L. IPPOLITO, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order addresses issues that are the same in each case. Therefore, we
`exercise our discretion to issue one Order to be filed in each case. The
`parties are not authorized to use this style heading for any subsequent
`papers.
`
`
`
`
`571-272-7822
` Date Entered: February 21, 2017
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TELEBRANDS CORP.,
`Petitioner,
`
`v.
`
`TINNUS ENTERPRISES, LLC,
`Patent Owner.
`____________
`
`Case PGR2016-00030 (Patent 9,242,749 B2)
`Case PGR2016-00031 (Patent 9,315,282 B2)1
`____________
`
`Before MICHAEL W. KIM, FRANCES L. IPPOLITO, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`CHERRY, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`1 This Order addresses issues that are the same in each case. Therefore, we
`exercise our discretion to issue one Order to be filed in each case. The
`parties are not authorized to use this style heading for any subsequent
`papers.
`
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 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) for all
`of the deadlines, except for the deadline for requests for oral argument. 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 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 sanctions 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
`
`The parties are directed to the Office Patent Trial Practice Guide,
`77 Fed. Reg. at 48,765–66, for guidance in preparing for the initial
`conference call, and should be prepared to discuss any proposed changes to
`
`2
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 B2)
`
`
`this Scheduling Order and any motions the parties anticipate filing during
`the trial.
`
`
`
`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
`owner is cautioned that any arguments for patentability not raised in the
`response will be deemed waived. If the patent owner intends to file a motion
`to amend, the patent owner must arrange a conference call with the parties
`and the Board two weeks prior to DUE DATE 1.
`
`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
`
`Each party must file any motion for an observation on the
`a.
`cross-examination testimony of a reply witness (see section C, below) by
`DUE DATE 4.
`
`3
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 B2)
`
`
`Each party must file any motion to exclude evidence (37 C.F.R
`b.
`§ 42.64(c)) and any request for oral argument (37 C.F.R. § 42.70(a)) by
`DUE DATE 4.
`
`
`
`6. DUE DATE 5
`
`Each party must file any response to an observation on cross-
`a.
`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 to an opposition to a motion to exclude
`evidence by DUE DATE 6.
`
`8. DUE DATE 7
`
`The oral argument (if requested by either party) is set 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).
`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.
`
`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-
`4
`
`
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 B2)
`
`
`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.
`
`D. CHANGE TO DEFAULT FILING TIMES
`
`Notwithstanding the default filing times for an opposition and a reply
`reflected in 37 C.F.R. § 42.25(a):
`(1) an opposition, if any, to a motion to seal is due seven days after
`service of the motion; and
`(2) a reply, if any, to an opposition to a motion to seal is due
`seven days after service of the opposition.
`
`
`5
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 B2)
`
`
`DUE DATE APPENDIX
`
`
`
`INITIAL CONFERENCE CALL ..................................... UPON REQUEST
`
`DUE DATE 1 ............................................................................. May 22, 2017
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................ August 22, 2017
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ................................................................... September 22, 2017
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ....................................................................... October 13, 2017
`Motion for observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ....................................................................... October 27, 2017
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ..................................................................... November 3, 2017
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .................................................................. November 16, 2017
`Oral argument (if requested)
`
`6
`
`
`
`
`
`
`PGR2016-00030 (Patent 9,242,749 B2)
`PGR2016-00031 (Patent 9,315,282 B2)
`
`
`For Petitioner:
`Robert T. Maldonado
`Tonia A. Sayour
`Cooper & Dunham LLP
`rmaldonado@cooperdunham.com
`tsayour@cooperdunham.com
`
`Eric J. Maurer
`Boies, Schiller & Flexner LLP
`emauerer@bsfllp.com
`
`For Patent Owner:
`Thomas M. Croft
`Dunlap Bennett & Ludwig, PLLC
`tcroft@dbllawyers.com
`
`
`
`7
`
`
`
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