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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`— —x
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`SAP AMERICA,
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`INC., ET AL,
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`Petitioner,
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`—against-
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`Patent of VERSATA DEVELOPMENT GROUP,
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`INC.,
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`Patent Owner.
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`Case CBM2012-00001
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`Patent 6,553,350
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`May 7, 2013
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`10:35 a.m.
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`T E L E C O N F E R E N C E
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`H E A R I N G
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`B E F O R E:
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`MICHAEL TIERNEY,
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`Administrative Patent Judge
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`SALLY MEDLEY,
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`Administrative Patent Judge
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`mquIIDWNH
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`RAMA ELLURU,
`Administrative Patent Judge
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`
`VERSATAEXHHHTZHm
`SAPV'VERQUH
`CASE CBM2012—00001
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`212-267-6868
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`www.veritext.com
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`516-608-2400
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`VERITEXT REPORTING COMPANY
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`Page 2
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`A P P E A R A N C E S:
` FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
` Attorneys for Petitioner
` 11955 Freedom Drive
` Reston, Virginia 20190
` BY: ERIKA ARNER, ESQ.
` MICHAEL V. YOUNG, SR., ESQ.
` JOSEPH E. PALYS, ESQ.
` ROPES & GRAY
` Attorneys for Petitioner
` One Metro Center
` Washington, DC 20005
` BY: J. STEVEN BAUGHMAN, ESQ.
` ROTHWELL FIGG ERNST & MANBECK, P.C.
` Attorneys for Patent Owner
` 607 14th Street, NW
` Washington, DC 20005
` BY: MARTIN M. ZOLTICK, ESQ.
` BRIAN S. ROSENBLOOM, ESQ.
` * * *
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` Proceeding
` HON. TIERNEY: The Judges have
` arrived on the call. Are the parties
` here? I am going to start with
` Petitioner.
` MS. ARNER: Yes, Judge, from
` Petitioner you have me, Erika Arner,
` Joe Palys and Michael Young from
` Finnegan, as well as backup counsel,
` Steve Baughman from Ropes & Gray.
` HON. TIERNEY: Do we have the
` Patent Owner present here?
` MR. ZOLTICK: Yes, Your Honor,
` good morning. Marty Zoltick and Brian
` Rosenbloom from Rothwell, Figg on
` behalf of Patent Owner.
` HON. TIERNEY: And as I started
` dialing in and I got on the call,
` there was mention that someone else
` might be calling in for Patent Owner?
` MR. ZOLTICK: Well, Dr. Linck
` may be dialing in as well.
` HON TIERNEY: Do we need to wait
` for her?
` MR. ZOLTICK: No.
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` Proceeding
` HON. TIERNEY: Okay. Also, just
` so we know, is there a court reporter
` on today's call?
` THE COURT REPORTER: Yes, Lisa
` Sansone from Veritext.
` HON. TIERNEY: That wasn't clear
` from the e-mail we received. Okay, so
` we do have a court reporter.
` MR. ZOLTICK: Yes, my paralegal
` was instructed to send an e-mail. I
` apologize if he didn't do that.
` HON. TIERNEY: He might and it
` just hasn't reached us. We don't need
` this on the record.
` (At this time, a discussion was
` held off the record.)
` HON. TIERNEY: Court reporter,
` are you ready?
` THE COURT REPORTER: Yes, I am
` ready.
` HON. TIERNEY: Do you have the
` list of people that are attending the
` call or do we need to go over that
` again?
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` Proceeding
` THE COURT REPORTER: No. I took
` that down on the record in the
` beginning.
` HON. TIERNEY: Great.
` Mr. Zoltick, if I may begin
` then.
` Court Reporter, is it acceptable
` to start now?
` THE COURT REPORTER: Yes.
` HON. TIERNEY: Thank you.
` Mr. Zoltick, you requested this
` conference call. If you could please
` explain the purpose of the call?
` MR. ZOLTICK: Yes, Your Honor.
` The purpose of the call is to address
` Petitioner SAP has just filed a
` request for ex parte reexamination of
` the 350 patent, the patent involved in
` this proceeding. That was on April
` 25th that the petitioner filed this
` request. It involves the same patent,
` the 350 patent. It involves the same
` claims, claims 17, 26 to 29. It
` involves the same alleged prior art
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` Proceeding
` that is the R3 documentation and the
` same 102 issue that SAP had agreed to
` withdraw as a ground for challenging
` patentability in this case and that
` the Board based on that representation
` from SAP agreed to expedite the
` schedule. The purpose of the call is
` to address that request for reexam.
` HON. TIERNEY: Okay. Well,
` thank you for alerting us to it. Are
` you making any requests regarding this
` or you just wanted to notify us that
` they filed this?
` MR. ZOLTICK: I mean I have a
` couple of facts that I wanted to go
` through and then in terms of a
` request, ultimately the request is
` that the quid proquo for expediting
` the proceeding was SAP's agreement to
` drop the 102 challenge. Now SAP has
` raised it and it appears intends to
` pursue it and in view of that
` agreement, we think that the Board
` should take away what it provided in
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` Proceeding
` exchange, that is that the Board
` should not expedite its decision in
` the proceeding and should delay the
` judgement until the 102 issue has been
` resolved. That is one option.
` The other option is if SAP wants
` judgement in this proceeding to be
` expedited based on this agreement then
` it should withdraw the request for
` reexam or in accordance with at least
` the way we read it 35 USC 325(d) and
` 37 CFR 42.222(a), the board or the
` director can reject the request for ex
` parte reexam or I guess alternatively
` the board or director could stay or
` terminate the reexam if it is -- if
` their request is granted. That is the
` relief.
` In terms of the facts, I mean
` I'm sure the Board is well aware of
` the facts but just to recap a few, as
` I mentioned, this was the same 102
` issue that was raised in the petition
` that SAP filed during the month from
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` Proceeding
` when the petition was filed until the
` institution decision. There were
` numerous conference calls with the
` board, e-mails, conference calls
` between the parties, papers filed by
` the parties, orders issued by the
` Board specifically addressing the 102
` challenge and the issues relating to
` it. There were documents and
` testimony relied on by SAP to support
` the 102 challenge. We had to deal
` with the scope of the request of
` discovery on the 102 issue, the
` documents and testimony from the
` infringement suit on the R3
` documentation which is the alleged
` prior art they are relying on and so
` on.
` In addition to all of that,
` Versata, you know, we prepared and had
` to provide a detailed analysis on the
` 102 challenge in our preliminary
` response, then, of course, the Board
` had to evaluate all of that briefing
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` Proceeding
` and the voluminous testimony and the
` claim charts and documentation and so
` on regarding the 102 challenge in
` providing the institution decision
` which the Board did. You know and
` then after all of the resources of
` Versata and the Board and all of the
` hundreds of hours of work by counsel
` and technical experts and so on
` addressing that issue, SAP requested
` that the proceeding be expedited which
` the Board had initially rejected
` because of the 102 issue and prejudice
` to Versata, increased cost, delay and
` so on. However, the Board, of course,
` made an offer to SAP that it would
` expedite the proceeding if SAP would
` drop the 102 challenge.
` So as I mentioned in the
` beginning, the quid proquo for
` expediting a proceeding was SAP's
` agreement to drop the 102 issue, and
` SAP decided to make that deal with the
` Board so that the case would proceed
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` Proceeding
` to judgement on an expedited schedule.
` I think you are going to hear
` from SAP about estoppel and that they
` are allegedly not estopped from
` bringing this request, but this issue
` is not about estoppel. It's about SAP
` making a deal with the Board and
` breaking it and now trying to bring
` back the 102 challenge that it agreed
` to drop.
` And I also think it's worth
` noting that when SAP made the deal
` with the Board and agreed to drop the
` 102 challenge, it never mentioned
` that, you know, by the way, we are
` still going to bring the same 102
` challenge in the office, it's just we
` are going to wait until after you
` agree to expedite the proceeding and
` the briefing and the hearing is
` completed and we'll slip it in before
` the final written decision comes out.
` So we think SAP had this planned
` and they made a strategic decision not
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` Proceeding
` to disclose it and that they shouldn't
` be awarded for making and breaking the
` deal that they made and not revealing
` what they actually intended to do with
` it.
` HON. TIERNEY: Ms. Arner?
` MS. ARNER: Yes, your Honor.
` HON. TIERNEY: Do you have
` anything to say regarding this matter?
` MS. ARNER: Yes, I do. Thank
` you. Well, first of all, SAP has not
` violated any terms of the agreement
` with the Board, and it certainly had
` no ulterior motive when it struck the
` deal with the Board that resulted in
` expediting this proceeding. As we
` discussed at the time and the Board
` noted in its order expediting it, the
` request by the Board was that SAP
` withdraw the instituted grounds of 102
` from this trial. And I'm sure we all
` remember we were asked that, we asked
` for a bit of time to consult with our
` client and then in a phone conference
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` Proceeding
` agreed to withdraw the 102 grounds
` from this trial so that it would
` proceed only on the 101 ground and
` enable the expedited schedule that SAP
` requested and the Board ordered.
` Nowhere in the record in fact did SAP
` agree to waive the right to raise 102
` forever in any forum, that wasn't even
` on the table really. And SAP does not
` deny that it filed the ex parte
` reexam. We could have filed it
` anonymously through a third party but
` we did not. We are not trying to hide
` anything from the Board or from
` Versata. Co-counsel in this case
` filed it and served it on Patent
` Owner's counsel.
` And as far as the ability to
` file an ex parte reexam, it's
` available to any member of the public
` and SAP was well within its rights to
` file it. And as far as the timing or
` ulterior motive, SAP filed it a few
` weeks ago after Versata had gone to
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` Proceeding
` the Eastern District of Virginia and
` filed the lawsuit challenging the very
` fact of this proceeding and the
` reexam, although SAP's involvement in
` it is now complete, it is an ex parte
` reexam. SAP has no further ability to
` participate unless the Patent Owner
` files its response in the reexam, and
` SAP does not anticipate participating
` at all, it's not planning to
` participate at all, but it does
` provide some measure of protection for
` SAP should Versata's challenge in the
` Eastern District of Virginia to the
` very existence of this entire
` proceeding and the only basis that is
` left in this proceeding move forward.
` HON. TIERNEY: Thank you, Ms.
` Arner. Can you just refresh my
` recollection, have you filed your
` statement in a 42.A regarding related
` matters?
` MS. ARNER: No, sir, we are
` still within the 21 days that is
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` Proceeding
` required. We have until May 16th to
` do so.
` HON. TIERNEY: Will you be
` filing one shortly?
` MS. ARNER: Absolutely.
` HON. TIERNEY: Thank you.
` Mr. Zoltick, do you have any
` further comments today?
` MR. ZOLTICK: Well, again, I
` think I have made the point and
` explained what relief we think is
` appropriate at this point. I could
` address the estoppel issue if that is
` something the Board would like to hear
` some discussion of.
` HON. TIERNEY: Not at this time,
` that's okay. Do you have anything
` further though besides the estoppel
` issue that you wanted to cover?
` MR. ZOLTICK: Not at this point
` in time.
` HON. TIERNEY: Okay. At this
` time, the Board will take the matter
` under advisement. We would request a
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`Page 15
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` Proceeding
` copy of the court reporter's
` transcript be filed as an exhibit in
` due course and again, we will take the
` matter under advisement and will be
` getting back to the parties.
` MR. ZOLTICK: Thank you.
` HON. TIERNEY: I am assuming
` there was nothing else you had to
` cover. Before we conclude, I just
` want to double-check. Hearing nothing
` from the parties, we are now done.
` Thank you for the call.
` MS. ARNER: Thank you.
` MR. ZOLTICK: Thank you.
` [Time noted: 10:43 a.m.]
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` CERTIFICATION
`
` I, Lisa Sansone, a Notary Public for
`and within the State of New York, do
`hereby certify:
` That the within transcript is a true
`and accurate record of my stenographic
`notes.
` I further certify that I am not
`related to any of the parties to this
`action by blood or marriage, and that I am
`in no way interested in the outcome of
`this matter.
` IN WITNESS WHEREOF, I have hereunto
`set my hand this day of , 2013.
`
` _____________________
` LISA SANSONE
` * *
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`212-267-6868
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`[& - discussed]
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`&
`& 2:3,8,12 3:10
`1
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`101 12:4
`102 6:3,21 7:5,23
`8:8,12,14,23 9:4,14
`9:19,23 10:10,15,17
`11:21 12:2,8
`10:35 1:17
`10:43 15:16
`11955 2:4
`14th 2:13
`16th 14:2
`17 5:24
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`2
`20005 2:9,13
`2013 1:17 16:16
`20190 2:5
`21 13:25
`25th 5:21
`26 5:24
`29 5:24
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`3
`
`325 7:12
`35 7:12
`350 5:19,23
`37 7:13
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`4
`42.222 7:13
`42.a 13:22
`6
`6,553,350 1:15
`607 2:13
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`7
`
`7 1:17
`
`a
`a.m. 1:17 15:16
`ability 12:19 13:7
`absolutely 14:6
`acceptable 5:8
`
`accurate 16:8
`action 16:12
`addition 8:20
`address 5:16 6:9
`14:14
`addressing 8:8 9:11
`administrative 1:23
`1:24,25
`advisement 14:25
`15:5
`ago 12:25
`agree 10:20 12:8
`agreed 6:3,7 10:10
`10:14 12:2
`agreement 6:20,24
`7:9 9:23 11:13
`al 1:5
`alerting 6:11
`alleged 5:25 8:17
`allegedly 10:5
`alternatively 7:15
`america 1:5
`analysis 8:22
`anonymously 12:13
`anticipate 13:10
`apologize 4:12
`appeal 1:3
`appears 6:22
`appropriate 14:13
`april 5:20
`arner 2:5 3:6,7 11:7
`11:8,11 13:20,24
`14:6 15:14
`arrived 3:3
`art 5:25 8:18
`asked 11:23,23
`assuming 15:8
`attending 4:23
`attorneys 2:4,8,12
`available 12:21
`awarded 11:3
`aware 7:21
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`b
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`b 1:21
`back 10:10 15:6
`backup 3:9
`based 6:6 7:9
`basis 13:17
`baughman 2:10
`3:10
`beginning 5:4 9:21
`behalf 3:16
`bit 11:24
`blood 16:12
`board 1:3 6:6,24 7:2
`7:13,16,21 8:5,8,24
`9:6,8,13,16,25 10:8
`10:14 11:14,16,18
`11:20 12:6,15 14:15
`14:24
`breaking 10:9 11:3
`brian 2:14 3:14
`briefing 8:25 10:21
`bring 10:9,17
`bringing 10:6
`c
`c 1:19,19 2:2
`call 3:3,18 4:4,24
`5:13,14,16 6:8
`15:13
`calling 3:20
`calls 8:4,5
`case 1:14 6:5 9:25
`12:16
`cbm2012-00001
`1:14
`center 2:9
`certainly 11:14
`certification 16:2
`certify 16:6,10
`cfr 7:13
`challenge 6:21 8:9
`8:12,23 9:4,19
`10:10,15,18 13:14
`challenging 6:4 13:3
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`charts 9:3
`check 15:11
`claim 9:3
`claims 5:24,24
`clear 4:7
`client 11:25
`comes 10:23
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`15:4
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`d
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`d 7:12
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`10:13 11:4,16
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`10:23,25
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`discussed 11:18
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`[discussion - notes]
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`discussion 4:16
`14:16
`district 13:2,15
`documentation 6:2
`8:17 9:3
`documents 8:10,15
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`dr 3:21
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`10:11,14
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`e
`e 1:19,19,19,19,19
`1:20,21,21 2:2,2,6
`4:8,11 8:5
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`ernst 2:12
`esq 2:5,6,6,10,14,14
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`14:14,19
`et 1:5
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`12:20 13:6
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`9:18 10:20
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`10:2 12:5
`expediting 6:19 9:22
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`explained 14:12
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`f
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`f 1:19,21
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`g
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`h
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`h 1:20
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`4:7,13,18,22 5:5,11
`6:10 11:7,9 13:19
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`9:11,14,23 10:6
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`j 2:10
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`know 4:3 8:21 9:6
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`m
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`m 2:14
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`n
`n 1:19,19,20 2:2
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`new 16:5
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`noted 11:19 15:16
`notes 16:9
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`[notify - think]
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`notify 6:13
`noting 10:13
`numerous 8:4
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`o
`o 1:19,21
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`r 1:19,20,21 2:2
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`thank 5:11 6:11
`11:11 13:19 14:7
`15:7,13,14,15
`think 6:24 10:3,12
`10:24 14:11,12
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`[third - zoltick]
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`Page 4
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`whereof 16:15
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`x 1:4,16
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`y
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`third 12:13
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`true 16:7
`trying 10:9 12:14
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`ulterior 11:15 12:24
`ultimately 6:18
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`usc 7:12
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`v
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`v 2:6
`veritext 4:6
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`wait 3:23 10:19
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`wanted 6:13,16
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`washington 2:9,13
`way 7:12 10:16
`16:13
`weeks 12:25
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