Trials@uspto.gov
`571-272-7822
`
`Paper 9
`Entered: February 6, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KVK-TECH, INC.
`FLAT LINE CAPITAL, LLC,
`Petitioner,
`
`v.
`
`SILVERGATE PHARMACEUTICALS, INC.,
`Patent Owner.
`____________
`
`Case PGR2017-00039
`Patent 9,463,183
`___________
`
`
`Before GRACE KARAFFA OBERMANN, RAMA G. ELLURU,
`and MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`
`
`OBERMANN, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
`571-272-7822
`
`Paper 9
`Entered: February 6, 2018
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KVK-TECH, INC.
`FLAT LINE CAPITAL, LLC,
`Petitioner,
`
`v.
`
`SILVERGATE PHARMACEUTICALS, INC.,
`Patent Owner.
`____________
`
`Case PGR2017-00039
`Patent 9,463,183
`___________
`
`
`Before GRACE KARAFFA OBERMANN, RAMA G. ELLURU,
`and MICHELLE N. ANKENBRAND, Administrative Patent Judges.
`
`
`
`OBERMANN, Administrative Patent Judge.
`
`
`SCHEDULING ORDER
`
`
`
`
`
`
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`PGR2017-00039
`Patent 9,463,183
`
`
`The Appendix to this Order sets due dates for the parties to take action after
`institution of these proceedings. 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 addition, even if the parties stipulate to an extension of DUE DATE 4,
`any request for oral hearing must still be filed on or before the date set forth in this
`Order, to provide sufficient time for the Board to accommodate the hearing.
`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 D, below).
`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.
`
`A. 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 Order or proposed motions. See
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`PGR2017-00039
`Patent 9,463,183
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,765–66 (Aug. 14,
`2012) (guidance in preparing for the initial conference call).
`
`B. PROTECTIVE ORDER
`1. Confidential Information
`The parties must file confidential information using the appropriate
`availability indicator in PTAB E2E, regardless of whose confidential information it
`is. It is the responsibility of the party whose confidential information is at issue,
`not necessarily the proffering party, to file the motion to seal.
`A protective order does not exist in a case until one is filed in the case and is
`approved by the Board. If a motion to seal is filed by either party, the proposed
`protective order should be presented as an exhibit to the motion. The motion to
`seal must include a certification that the moving party has in good faith conferred
`or attempted to confer with other affected parties in an effort to resolve any
`dispute. See 37 C.F.R. 42.54(a).
`The parties are urged to operate under the Board’s default protective order,
`should that become 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 should submit the proposed protective order jointly. A
`marked-up comparison of the proposed and default protective orders should be
`presented as an additional exhibit to the motion to seal, so that differences can be
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`PGR2017-00039
`Patent 9,463,183
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`understood readily. The parties should contact the Board if they cannot agree on
`the terms of the proposed protective order.
`2. Redactions
`Redactions should be limited strictly to isolated passages consisting entirely
`of confidential information. The thrust of the underlying argument or evidence
`must be clearly discernable from the redacted version.
`3. Confidential Information in Final Written Decisions
`Information subject to a protective order will become public if identified in a
`final written decision in this proceeding. A motion to expunge the information will
`not prevail necessarily over the public interest in maintaining a complete and
`understandable file history. See Office Patent Trial Practice Guide, 77 Fed. Reg. at
`48,761.
`
`C. DUE DATES
`
`1. 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. 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.
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`PGR2017-00039
`Patent 9,463,183
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`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 (see section E, below) by DUE DATE 4.
`b.
`Each party must file any motion to exclude evidence (37 C.F.R
`§ 42.64(c)) by DUE DATE 4.
`c. Each party must file any request for oral argument (37 C.F.R.
`§ 42.70(a)) by DUE DATE 4. As noted above, DUE DATE 4 is not extendible
`with respect to any request for oral argument.
`
`5. 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.
`
`6. DUE DATE 6
`Each party must file any reply for a motion to exclude evidence by DUE
`DATE 6.
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`PGR2017-00039
`Patent 9,463,183
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`7. DUE DATE 7
`The oral argument (if requested by either party) is set for DUE DATE 7.
`
`D. 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.
`
`E. 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. at 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.
`
`F. MOTION TO AMEND
`
`Although the filing of a Motion to Amend is authorized under our Rules, the
`patent owner must confer with the Board before filing any Motion to Amend. See
`37 C.F.R. § 42.221(a). A conference call to satisfy the requirement of 37 C.F.R.
`§ 42.221(a) must be scheduled no less than ten (10) business days prior to DUE
`DATE 1.
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`PGR2017-00039
`Patent 9,463,183
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`G. COMMUNICATIONS WITH THE BOARD
`Except as otherwise provided in the Rules, Board authorization is required
`before filing a motion. 37 C.F.R. § 42.20(b). A party seeking to file a non-
`preauthorized motion should request a conference to obtain authorization to file the
`motion. Parties may request a conference with us by contacting the Board staff by
`e-mail at Trials@uspto.gov or by telephone at 571-272-7822.
`Regarding discovery disputes, the parties are encouraged to resolve such
`issues on their own and in accordance with the precepts set forth in 37 C.F.R.
`§ 42.1(b). To the extent that a dispute arises between the parties relating to
`discovery, the parties should 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 to discuss the issue and, if
`necessary, seek authorization to file a motion in that regard. An email requesting a
`conference call shall: (a) copy the other party, (b) indicate generally the subject
`matter of the conference call and relief requested, (c) state whether the opposing
`party opposes the request, and (d) include multiple times when all parties are
`available for a conference. The email shall not contain substantive argument.
`
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`PGR2017-00039
`Patent 9,463,183
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`DUE DATE APPENDIX
`DUE DATE 1 ............................................................................... May 7, 2018
`Patent owner’s response to the petition
`Patent owner’s motion to amend the patent
`
`DUE DATE 2 ........................................................................... August 6, 2018
`Petitioner’s reply to patent owner’s response to petition
`Petitioner’s opposition to motion to amend
`
`DUE DATE 3 ..................................................................... September 5, 2018
`Patent owner’s reply to petitioner’s opposition to motion to amend
`
`DUE DATE 4 ................................................................... September 26, 2018
`Observations regarding cross-examination of reply witness
`Motion to exclude evidence
`Request for oral argument
`
`DUE DATE 5 ........................................................................ October 10, 2018
`Response to observations
`Opposition to motion to exclude
`
`DUE DATE 6 ...................................................................... October 17, 2018
`Reply to opposition to motion to exclude
`
`DUE DATE 7 ...................................................................... October 31, 2018
`Oral argument (if requested).
`
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`PGR2017-00039
`Patent 9,463,183
`
`PETITIONER:
`Zachary Silbersher
`Gaston Kroub
`Kroub, Silbersher & Kolmykov PLLC
`zsilbersher@kskiplaw.com
`gkroub@kskiplaw.com
`
`
`PATENT OWNER:
`Jeffrey Guise
`Richard Torczon
`Wendy Devine
`Clark Lin
`Wilson Sonsini Goodrich & Rosati PC
`jguise@wsgr.com
`rtorczon@wsgr.com
`wdevine@wsgr.com
`clin@wsgr.com
`
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