`Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 24
`Entered: November 24, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`DONG GUAN LEAFY WINDOWARE CO. LTD.,
`Petitioner,
`
`v.
`
`ANLI SPRING CO., LTD. and
`HSIEN-TE HUANG,
`Patent Owner.
`____________
`
`PGR2020-00001
`Patent 10,174,547 B2
`
`____________
`
`
`
`Before GEORGE R. HOSKINS, MICHAEL L. WOODS, and
`SCOTT C. MOORE, Administrative Patent Judges.
`
`HOSKINS, Administrative Patent Judge.
`
`
`
`REVISED SCHEDULING ORDER
`37 C.F.R. § 42.5
`
`
`
`
`
`PGR2020-00001
`Patent 10,174,547 B2
`
`
`When we instituted trial in this proceeding on April 20, 2020, we
`entered a Scheduling Order (Paper 8) setting forth various filing deadlines
`and containing various provisions for governing the trial. Now, at this time,
`we conclude the Scheduling Order needs to be amended to account for a
`revised motion to amend filed by Patent Owner, and to discuss procedures
`relating to any potential oral argument hearing. Except for the changed
`described below, the original Scheduling Order remains in effect.
`
`A.6. GENERAL INSTRUCTIONS — Motion to Amend
`
`Introduction
`a)
`On November 20, 2020, Patent Owner filed a revised motion to
`amend (Paper 23, “revised MTA”) in accordance with our Scheduling Order
`and the March 15, 2019, Federal Register notice regarding a pilot program
`relating to motion to amend practice at the Office. See Notice Regarding a
`New Pilot Program Concerning Motion to Amend Practice and Procedures
`in Trial Proceedings under the America Invents Act before the Patent Trial
`and Appeal Board, 84 Fed. Reg. 9,497 (Mar. 15, 2019) (“MTA Pilot”). In
`accordance with the MTA Pilot, we revise our original Scheduling Order to
`set subsequent due dates based on the date Patent Owner filed its revised
`MTA. See MTA Pilot, Appendix 1B (Revised MTA Timeline).
`In particular, this Revised Scheduling Order adds DUE DATES
`RMTA1 and RMTA2 and modifies and supercedes DUE DATE 4 and
`subsequent due dates as presented in our original Scheduling Order. Further,
`this Revised Scheduling Order supplements the instructions provided in our
`original Scheduling Order, including those discussing the content of the
`briefing related to the revised MTA. To the extent our original Scheduling
`
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`PGR2020-00001
`Patent 10,174,547 B2
`
`Order provides instructions that are not addressed in this Revised Scheduling
`Order, the original instructions remain in effect.
`
`Evidence and Depositions
`b)
`Generally speaking, new evidence (including declarations) may be
`submitted with every paper related to the revised MTA, except sur-replies.
`Specifically, both Petitioner’s opposition to the revised MTA and Patent
`Owner’s reply to that opposition may be accompanied by new evidence that
`responds to issues raised in the preliminary guidance (if provided) or in the
`corresponding revised MTA or opposition. Petitioner’s sur-reply may not be
`accompanied by new evidence other than deposition transcripts of the
`cross-examination of any reply witness.
`Once likely declarants are known, the parties should confer as to dates
`for scheduling all depositions related to the revised MTA after the relevant
`papers will be filed. The Board expects parties to make their declarants
`available for such depositions promptly, and to make their attorneys
`available to take and defend such depositions; any unavailability will not be
`a reason to adjust the schedule for briefing on a revised MTA absent
`extraordinary circumstances.
`If Petitioner submits a declaration with its opposition to the revised
`MTA, or Patent Owner submits a declaration with its reply to that
`opposition, the party should typically make such declarant available for
`deposition within 1 week after filing that declaration. As needed, the parties
`may wish to agree to shortened periods for making objections and serving
`supplemental evidence prior to a deposition. See 37 C.F.R. §§ 42.53(d)(2),
`42.64(a) and (b). In the absence of such an agreement, the parties shall
`schedule such depositions in advance of a due date for serving supplemental
`
`3
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`PGR2020-00001
`Patent 10,174,547 B2
`
`evidence. If, after receiving supplemental evidence, a party believes in good
`faith that the supplemental evidence requires further cross-examination of a
`declarant, the party should contact the Board for a conference call. Again, it
`is incumbent upon the parties to work cooperatively to schedule depositions
`of their declarants. Thus, the Board strongly encourages the parties to meet
`and confer as soon as practicable (including before anticipated declarations
`are submitted, if possible) to coordinate schedules.
`Because Patent Owner’s reply and Petitioner’s sur-reply as to the
`revised MTA are due near or after motions to exclude are due, the parties
`might not have an opportunity to object to evidence submitted with the reply
`or sur-reply and file a motion to exclude such evidence before the oral
`hearing. See 37 C.F.R. § 42.64. Thus, if needed, a party may seek
`authorization to file a motion to exclude reply or sur-reply evidence prior to
`the oral hearing or may make an oral motion to exclude and argue such a
`motion at the oral hearing.
`
`A.7. GENERAL INSTRUCTIONS — Oral Argument
`Our original scheduling order stated: “Unless the Board notifies the
`parties otherwise, oral argument, if requested, will be held at the Denver,
`Colorado, USPTO Regional Office.” Paper 8, 6. However, at the present
`time, the Board is conducting all of its AIA trial hearings via
`videoconference, due to the state of affairs relating to COVID-19. In the
`event either party requests oral argument, we encourage the parties to meet
`and confer with each other to discuss whether they would prefer an
`in-person hearing (which the Board may not be able to accommodate), or a
`video conference hearing (which at this time, is the only hearing method the
`
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`PGR2020-00001
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`Board is implementing), and inform the Board of the results in the request
`for oral argument.
`
`B. DUE DATES
`This Order sets due dates for the parties to take action by DUE DATE
`RMTA1 and after. The parties may stipulate to different dates for DUE
`DATES RMTA1, RMTA2, 5, and 6 (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 to an
`extension of DUE DATES 4, 7, and 8.
`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 (§ 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 RMTA1
`Petitioner may file an opposition to Patent Owner’s revised MTA.
`Petitioner’s opposition to the revised MTA may only respond to issues
`raised in the revised MTA or the preliminary guidance (Paper 21).
`2. DUE DATE 4
`Either party may file a request for oral argument (may not be extended
`by stipulation).
`3. DUE DATE RMTA2
`Patent Owner may file a reply to Petitioner’s opposition to the revised
`MTA. Patent Owner’s reply to the opposition may only respond to issues
`raised in the opposition.
`
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`Patent 10,174,547 B2
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`4. DUE DATE 5
`Either party may file a motion to exclude evidence (37 C.F.R.
`§ 42.64(c)).
`5. 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.
`6. DUE DATE 7
`Either party may file a reply to an opposition to a motion to exclude
`evidence.
`Petitioner may file a sur-reply to Patent Owner’s reply to the
`opposition to the revised MTA. Petitioner’s sur-reply may only respond to
`issues raised in the reply to the opposition.
`7. DUE DATE 8
`The oral argument (if requested by either party) shall be held on this
`
`date.
`
`6
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`PGR2020-00001
`Patent 10,174,547 B2
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`REVISED DUE DATE APPENDIX
`DUE DATE RMTA1 .............................................................. January 8, 2021
`Petitioner’s opposition to Patent Owner’s revised motion to amend
`DUE DATE 4 ......................................................................... January 15, 2021
`Request for oral argument (may not be extended by stipulation)
`DUE DATE RMTA2 ............................................................ January 29, 2021
`Patent Owner’s reply to opposition to revised motion to amend
`DUE DATE 5 ...................................................................... February 5, 20201
`Motion to exclude evidence
`DUE DATE 6 ...................................................................... February 12, 2021
`Opposition to motion to exclude
`Request for pre-hearing conference
`DUE DATE 7 ...................................................................... February 19, 2021
`Reply to opposition to motion to exclude
`Petitioner’s sur-reply to reply to opposition to revised motion to
`amend
`DUE DATE 8 .................................... March 1, 2021 (1:00 pm Eastern Time)
`Oral argument (if requested)
`
`7
`
`
`
`PGR2020-00001
`Patent 10,174,547 B2
`
`PETITIONER:
`
`Hao Tan
`Shen Wang
`ARCH & LAKE LLP
`haotan@archlakelaw.com
`shenwang@archlakelaw.com
`
`
`PATENT OWNER:
`
`Mainak A. Mehta
`Robert H. Sloss (pro hac vice)
`Michael C. Jones
`PROCOPIO, CORY, HARGREAVES & SAVITCH LLP
`miku.mehta@procopio.com
`robert.sloss@ procopio.com
`michael.jones@procopio.com
`
`8
`
`
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