Trials@uspto.gov
`571-272-7822
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`Paper 13
`Date: October 31, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`C&D ZODIAC, INC.,
`Petitioner,
`
`v.
`
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`____________
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`571-272-7822
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`Paper 13
`Date: October 31, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`C&D ZODIAC, INC.,
`Petitioner,
`
`v.
`
`B/E AEROSPACE, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`____________
`
`
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`SCOTT A. DANIELS, Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`A. GENERAL INSTRUCTIONS
`
`1. Requests for an Initial Conference Call
`Unless a party 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). To request an initial
`conference call, a party shall do so no later than 21 days after the institution
`of trial. A request for a conference call shall include: (a) a list of proposed
`motions, if any, and topics to be discussed during the call and (b) a list of
`dates and times when the parties are available for the call. 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.
`
`2. Protective Order
`A protective order does not exist in this proceeding unless and until
`the parties file a proposed protective order and the Board approves it. We
`encourage 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 48,771 (Appendix B). If
`the parties propose a protective order deviating from the default protective
`order, they must submit the proposed protective order along with a marked-
`up comparison of the proposed and default protective orders showing the
`differences.
`
`2
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`3. Motions to Amend
`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. See 37 C.F.R. § 42.121(a). Patent Owner should
`arrange for a conference call with the panel and opposing counsel at least one
`week before DUE DATE 1 in order to satisfy the conferral requirement.
`
`4. Discovery Disputes
`If 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
`during which both parties are available for the conference call.
`
`5. Depositions
`The Testimony Guidelines appended to the Office Patent Trial
`Practice Guide, 77 Fed. Reg. at 48,772–71 (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,
`
`3
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`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
`and not mere excerpts of specific portions being cited.
`
`6. 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.
`
`7. Observations on Cross-Examination
`A party may file one paper containing observations on cross-
`examination of one or more reply witnesses when no further substantive
`paper is permitted after the reply. See Office Patent Trial Practice Guide,
`77 Fed. Reg. at 48,768. Each 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, and the entire paper must comply with the page limit requirement
`for motions as set forth in 37 C.F.R. § 42.24(a)(1)(v). The opposing party
`may file a responsive paper containing equally concise and specific
`
`4
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`responses to the observations, which paper must comply with the same page
`limit requirement.
`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 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.
`1. 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. The patent owner is cautioned that any patentability arguments
`that are relevant to a ground on which trial has been instituted and which are
`not raised in a response will be deemed waived.
`
`5
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`2. 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.
`3. 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.
`4. DUE DATE 4
`a.
`Each party must file any observations on the cross-examination
`testimony of a reply witness 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.
`5. DUE DATE 5
`a.
`Each party must file any responses to an opposing party’s
`observations 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.
`6. DUE DATE 6
`Each party must file any reply to an opposition to a motion to exclude
`evidence by DUE DATE 6.
`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE
`DATE 7.
`
`6
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`DUE DATE APPENDIX
`
`DUE DATE 1 ........................................................................ January 31, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ............................................................................... May 1, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ............................................................................... June 1, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ............................................................................. June 22, 2018
`Observations on cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ................................................................................ July 6, 2018
`Response to observations
`Opposition to motion to exclude
`
`DUE DATE 6 .............................................................................. July 13, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 .............................................................................. July 26, 2018
`Oral argument (if requested)
`
`
`
`7
`
`
`
`Case IPR2017-01275 (Patent 9,073,641)
`Case IPR2017-01276 (Patent 9,440,742)
`Case PGR2017-00019 (Patent D764,031)
`
`
`
`PETITIONER:
`John Alemanni
`Dean Russell
`David Reed
`Andrew Rinehart
`Michael Morlock
`jalemanni@kilpatricktownsend.com
`drussell@kilpatricktownsend.com
`dreed@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
`mmorlock@kilpatricktownsend.com
`
`PATENT OWNER:
`
`Michael R. Fleming
`Benjamin Haber
`IRELL & MANELLA LLP
`mfleming@irell.com
`bhaber@irell.com
`
`
`
`
`
`
`
`8
`
`
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