Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: October 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BAYER CROPSCIENCE LP,
`Petitioner,
`
`v.
`
`EXOSECT LIMITED,
`Patent Owner.
`
`Case PGR2017-00018
`Patent 9,380,739 B2
`
`Before CHRISTOPHER L. CRUMBLEY, CHRISTOPHER M. KAISER,
`and MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: October 11, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`BAYER CROPSCIENCE LP,
`Petitioner,
`
`v.
`
`EXOSECT LIMITED,
`Patent Owner.
`
`Case PGR2017-00018
`Patent 9,380,739 B2
`
`Before CHRISTOPHER L. CRUMBLEY, CHRISTOPHER M. KAISER,
`and MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`KAISER, Administrative Patent Judge.
`
`SCHEDULING ORDER
`
`
`
`
`
`
`
`
`
`
`
`PGR2017-00018
`Patent 9,380,739 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 filed promptly. 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). In
`addition, any request for oral argument should be filed by original DUE
`DATE 4 as set forth in the DUE DATE APPENDIX.
`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 incurred by any party may be levied on a person who
`impedes, delays, or frustrates the fair examination of a witness.
`
`
`
`
`2
`
`
`
`PGR2017-00018
`Patent 9,380,739 B2
`
`1. INITIAL CONFERENCE CALL
`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. DUE DATE 1
`The patent owner may file—
`a.
`A response to the petition (37 C.F.R. § 42.220), and
`b.
`A motion to amend the patent (37 C.F.R. § 42.221).
`The patent owner must file any such response or motion to amend by DUE
`DATE 1. The patent owner is reminded that it must confer with the Board
`before filing a motion to amend. 37 C.F.R. § 42.221(a). The patent owner
`should contact the Board to request the conference in sufficient time to
`ensure that the conference is conducted at least one week before 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.
`
`3
`
`
`
`PGR2017-00018
`Patent 9,380,739 B2
`
`5. DUE DATE 4
`a.
`Each party must file any observations 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.
`
`8. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`Unless the Board notifies the parties otherwise, oral argument, if
`requested, will be held at the USPTO headquarters in Alexandria, Virginia.
`The parties may request that the oral argument instead be held at the Denver,
`Colorado, USPTO Regional Office. The parties should meet and confer, and
`jointly propose the parties’ preference at the initial conference call or, if no
`initial conference, call is requested, in an email to the Board
`(Trials@uspto.gov) within one month of this Order. Note that the Board
`may not be able to honor the parties’ preference of hearing location due to
`
`4
`
`
`
`PGR2017-00018
`Patent 9,380,739 B2
`
`the availability of hearing room resources. The Board will consider the
`location request and notify the parties accordingly.
`
`B. 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.
`
`C. OBSERVATIONS ON CROSS-EXAMINATION
`Observations on cross-examination provide 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.
`
`
`
`5
`
`
`
`PGR2017-00018
`Patent 9,380,739 B2
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ....................................................................... January 12, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... April 12, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................ May 14, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 .............................................................................. June 4, 2018
`Observation regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ............................................................................ June 18, 2018
`Response to observation
`Opposition to motion to exclude
`
`DUE DATE 6 ............................................................................ June 25, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ............................................................................. July 12, 2018
`Oral argument (if requested)
`
`
`6
`
`
`
`PGR2017-00018
`Patent 9,380,739 B2
`
`
`
`PETITIONER:
`
`Susan E. Shaw McBee
`David L. Vanik
`Stephanie R. Amoroso
`MCBEE MOORE WOODWARD & VANIK IP, LLC
`ptab-pgr@mmwvlaw.com
`dvanik@mmwvlaw.com
`samoroso@mmwvlaw.com
`PTAB-PGR@mmwvlaw.com
`
`
`Andrew S. Baluch
`SMITH BALUCH LLP
`andrew@baluchlaw.com
`
`
`
`PATENT OWNER:
`
`Deborah A. Sterling
`Robert W. Esmond
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`dsterlin-PTAB@skgf.com
`resmond-PTAB@skgf.com
`
`
`7
`
`
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