UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ~~~~~~~~~~~~~~~~~~~~
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`Page 1
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` LIBERTY MUTUAL
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` INSURANCE CO.,
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` Petitioner,
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` vs. Case Nos. CBM2012-00002
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` PROGRESSIVE CASUALTY CBM2012-00003
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` INSURANCE CO., CBM2012-00004
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` Patent Owner. CBM2013-00009
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` ~~~~~~~~~~~~~~~~~~~~
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` Conference Call before
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` JUDGE JAMESON LEE
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` JUDGE JONI Y. CHANG
`
` JUDGE MICHAEL R. ZECHER
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` February 19, 2014
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` 2:32 p.m.
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` Taken at:
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` Jones Day
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` North Point
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` 901 Lakeside Avenue
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` Cleveland, Ohio
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` Buster Beck, RPR
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions Midwest
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` ~~~~~~~~~~~~~~~~~~~~
`
`Page 1
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` LIBERTY MUTUAL
`
` INSURANCE CO.,
`
` Petitioner,
`
` vs. Case Nos. CBM2012-00002
`
` PROGRESSIVE CASUALTY CBM2012-00003
`
` INSURANCE CO., CBM2012-00004
`
` Patent Owner. CBM2013-00009
`
` ~~~~~~~~~~~~~~~~~~~~
`
` Conference Call before
`
` JUDGE JAMESON LEE
`
` JUDGE JONI Y. CHANG
`
` JUDGE MICHAEL R. ZECHER
`
` February 19, 2014
`
` 2:32 p.m.
`
` Taken at:
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` Jones Day
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` North Point
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` 901 Lakeside Avenue
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` Cleveland, Ohio
`
` Buster Beck, RPR
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`A P P E A R A N C E S :
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`Page 2
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` O n b e h a l f o f t h e P e t i t i o n e r :
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` ( v i a t e l e p h o n e )
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` R o p e s & G r a y L L P , b y
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` J . S T E V E N B A U G H M A N , E S Q .
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` J A M E S R . M Y E R S , E S Q .
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` 7 0 0 1 2 t h S t r e e t N o r t h w e s t
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` O n e M e t r o C e n t e r
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` W a s h i n g t o n , D C 2 0 0 0 5
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` ( 2 0 2 ) 5 0 8 - 4 6 0 6
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` S t e v e n . B a u g h m a n @ r o p e s g r a y . c o m
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` J a m e s . M y e r s @ r o p e s g r a y . c o m
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` O n b e h a l f o f t h e P a t e n t O w n e r :
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` J o n e s D a y , b y
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` J A M E S L . W A M S L E Y , I I I , E S Q .
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` J O H N V . B I E R N A C K I , E S Q .
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` C A L V I N P . G R I F F I T H , E S Q .
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` N o r t h P o i n t , 9 0 1 L a k e s i d e A v e n u e
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` C l e v e l a n d , O H 4 4 1 1 4
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` ( 2 1 6 ) 5 8 6 - 3 9 3 9
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` j l w a m s l e y i i i @ j o n e s d a y . c o m
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` j v b i e r n a c k i @ j o n e s d a y . c o m
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` c p g r i f f i t h @ j o n e s d a y . c o m
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` MR. WAMSLEY: This is Jim Wamsley
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`for patent owner Progressive, and we appreciate
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`the Board's accommodating request on such short
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`notice for this call, which hopefully won't
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`last too long.
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` But in connection with request for
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`re-hearing, which Progressive is considering
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`filing, we requested this conference call in
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`order to ask that the Board indicate the
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`specific times at which, and/or the specific
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`sequence in which, its final decisions were
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`posted to the PRPS website in the following CBM
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`cases: CBM 2012-00002, CBM 2012-00004, CBM
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`2012-00003 and 2013-00009.
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` We believe that this information
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`should be public information. We're not trying
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`to pry, certainly, into the internal operations
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`or procedures of the Board. And our
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`understanding is that the decisions were posted
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`at slightly different times, and that, in
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`particular, the final decision in 2012-00002
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`was posted before the decision in 2012-00004 on
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`January 23. And, in addition, the final
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`decision in 2012-00003 was posted before the
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`final decision in 2013-00009 on February 11th.
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`Page 4
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` Now, the Board's decisions
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`themselves do not bear a timestamp; however, we
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`received PRPS system notifications by e-mail of
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`these decisions in a sequence that confirms the
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`sequences that I outlined just a minute ago.
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` And, in addition, last week, when
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`the decisions came down in case numbers
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`2012-00003 and 2013-00009, I telephoned the
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`Board's paralegal, Ms. Vignone, I believe, who
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`indicated that the decisions would have been
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`posted at different times because a person can
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`only post one at a time.
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` In addition, we have examined the
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`metadata on the PRPS website, and it's
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`consistent with our analysis and conclusion
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`about the sequence and timing, and confirms
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`that the decisions in 2012-00002 preceded the
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`decision in 2012-00004; and also, the decision
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`in 2012-00003 preceded the one in 2013-00009.
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` So, in a nutshell, we are simply
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`asking that the Board confirm and provide us
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`with the, what we think, should be public
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`information regarding the timing at which these
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`decisions were posted to the website.
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` JUDGE LEE: I understand.
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` Anything else?
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` MR. WAMSLEY: Not at this time, no,
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`Your Honor.
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` JUDGE LEE: Okay. Let me put you
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`on mute for just a second.
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` (Discussion had off the record.)
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` JUDGE LEE: We're back.
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` Let's turn it over to Mr. Baughman
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`from Liberty.
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` We'd like to hear whatever you'd
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`like to say on the subject.
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` MR. BAUGHMAN: Thanks, Your Honor.
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` Respectfully, we don't think
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`there's a basis for the request the patent
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`owner is making here. I know Mr. Wamsley said
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`first he wasn't trying to pry into the internal
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`operations and procedures at the Patent Trial
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`and Appeal Board, but he's now talking about
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`calling paralegals at the Board to ask about
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`timing; I don't believe we were contacted about
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`that call. He's examining metadata. He
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`certainly does appear to be asking for
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`discovery of how the Board does what it does.
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` Respectfully, we submit that the
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`record is quite clear what the Board has done
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`here. We have final written decisions in all
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`four of the matters; Mr. Wamsley has identified
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`each of them as a judgment under Rule 42.2.
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`And the Board has stated explicitly in each of
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`those four decisions that the pairs of CBMs
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`that Mr. Wamsley has referred to were entered
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`concurrently. So we have the Board stating
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`precisely what the timing of the decisions was.
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` And, respectfully, the time that
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`they may have been posted to a website or that
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`an e-mail notice may have been generated and
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`sent to the parties is not the pertinent timing
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`here; it's the question of when the Board
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`issued or entered its final judgments that is
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`pertinent on timing, not website posting. And
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`I think that's clear from looking at the
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`statute and the timing provisions in sections
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`such as 35 U.S.C. 326(a)(11).
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` The Board addressed, in several
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`prior calls with the parties, the issue about
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`the need to argue over timing was one that the
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`Board deemed unnecessary to address because it
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`had scheduled and agreed to coordinate these
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`proceedings so that the final written decisions
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`in the pairs of CBMs would be issued at the
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`Page 7
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`same time.
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` So looking at, for example, the
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`February 22nd provision, that's paper 16 in CBM
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`2012-00002, the parties had talked about the
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`potential unintended effects of proceedings
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`finishing at different times. The Board noted
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`that, during the discussion, it became apparent
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`most of the items of concern were not of issue,
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`and noted that the Board had told the parties
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`it expected to enter judgment in both cases on
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`the same day.
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` The -- during the December 2nd
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`telephone conference in these cases, the patent
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`owner indicated it wouldn't take the position
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`that each of the CBMs in these pairs that
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`issued concurrently would block or knock out
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`the other. I assume they're not changing their
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`position on that. I know the Board indicated
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`it wasn't necessary to put that in the order.
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`But the statement had been made and there were
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`witnesses. So I assume we are --
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` JUDGE LEE: Can I interrupt you for
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`a second?
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` MR. BAUGHMAN: Yes, Your Honor.
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` JUDGE LEE: I believe I recall the
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` 1 conference call you're mentioning, where you
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` 2 say they had agreed not to make this type of
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` 3 argument; but, if my recollection is correct,
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` 4 that representation only went to the
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` 5 hypothetical scenario where we issued four
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` 6 decisions on the same day that they wouldn't
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`b
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` 7 argue that each one had stopped the other.
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` 8 So it results in essentially no
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` 9 decision being effected. It's a four-way
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`10 preclusion thing. If I recall correctly, that
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`11 was what they said they would not contend. I
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`12 don't think that -- I don't know if we have a
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`13 transcript of that conference call, but I don't
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`14 recall that they had ever represented anything
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`15 more than that.
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`16 MR. BAUGHMAN: Thank you, Your
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`17 Honor.
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`18 I want to just clarify, I think
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`19 it's two at a time, because there are two
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`20 different patents at issue here. So I think
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`21 that the representation was, that if pairs of
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`22 CBMs were decided concurrently, if they were
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`23 issued concurrently, they wouldn't take the
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`24 position that those essentially knock each
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`25 other out. I'm not exactly sure what argument
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`patent owner is going to try to make here about
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`these pairs. But the Board has said that's
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`what happened here, these were issued
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`concurrently.
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` And I guess the other point I'd
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`like to put before the Board is, that this is
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`all cast as the central issue for a potential
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`motion for re-hearing. That's the request sent
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`to the Board on February 18th. But a
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`re-hearing is about reconsidering. It's a
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`reconsideration under Rule 42.2. Rule 4271
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`says it's an opportunity to argue that the
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`Board misapprehended or overlooked something
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`previously addressed to the Board in a motion
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`opposition to reply. That's not what they're
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`asking about here.
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` They are asking, as I understand
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`it, to know when an administrative act of
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`putting something in an e-mail or in a website
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`occurred, not when the Board entered its final
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`judgments in these cases. That, I assume, was
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`the attempt to undue 18 months of effort based
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`on that internal working of the Board.
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` JUDGE LEE: Okay. Is there
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`anything else from your side, Mr. Baughman?
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` MR. BAUGHMAN: No. Thank you, Your
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`Honor.
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` JUDGE LEE: And before the Panel
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`takes some time to consider this, we'll ask if
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`Mr. Wamsley has anything to add.
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` MR. WAMSLEY: Thank you. I'll be
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`brief, Your Honor.
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` A few points stand out. One is,
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`most of Mr. Baughman's argument goes to the
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`merits of the re-hearing request. That's not
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`what we're here to talk about, I think. I
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`would submit that the issue is simply a
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`question of whether the Board will disclose the
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`timing information that we've requested. It's
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`a separate issue whether that forms properly
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`the basis for a valid re-hearing request, and I
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`don't think the Board need decide that.
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`Certainly, I would say that the Board should
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`not decide that without having had the papers
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`before it.
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` Secondly, my memory -- I was
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`present at that call that Your Honor was
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`referring to back in December of 2013, and my
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`memory is the same as Your Honor's. And
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`furthermore, we would disagree with the notion
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`Page 11
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`that we're trying to pry into the Board's -- or
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`get discovery of the Board's procedures. The
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`e-mail which transmits the final decisions
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`invites counsel to contact the Board at the
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`particular phone number its given, and I was
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`directed to Ms. Vignone once I called that
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`number, and it was entirely a procedural
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`question, there was no substance to it.
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` But she did confirm, as I said
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`earlier, that since one person uploads one
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`decision at a time, that they were uploaded and
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`posted to the PRPS website at separate times.
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`So I think that, unless Your Honor has further
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`questions, we'd ask for your consideration of
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`our remarks, and I appreciate your
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`consideration.
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` JUDGE LEE: Great. We are going to
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`need some time to consider this, so it will
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`probably take five to 10 minutes. So how about
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`we all call back in 10 minutes, at 2:55, so you
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`don't have to wait on line.
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` MR. WAMSLEY: That would be great.
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`Thank you very much, Your Honor.
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` JUDGE LEE: Thank you.
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` (Discussion had off the record.)
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`Page 12
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` JUDGE LEE: Thank you for waiting
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`for the Panel.
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` Mr. Wamsley, will you be able to
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`send a file or copy of the transcript?
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` MR. WAMSLEY: Yes, Your Honor.
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` JUDGE LEE: Thank you.
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` The Panel has considered the
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`request. There are two pairs of cases, four in
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`total. The first pair is CBM 2012-00002 and
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`CBM 2012-00004. The second pair is CBM
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`2012-00003 and 2013-00009. So in each of these
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`two pairs of CBMs, the two decisions
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`cross-reference each other as concurrently
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`entered. The Board or the Panel considers them
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`as concurrently entered regardless of the time
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`of upload in PRPS. And that is also true for
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`the other pair -- for both pairs, that is the
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`case.
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` The Board considers the two final
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`decisions to be concurrently entered, not
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`withstanding any difference in upload time as
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`far as PRPS is concerned. That is all the
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`Panel needs to say on the issue.
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` If Progressive is not satisfied
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`with this result or this -- this level of
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`Page 13
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`detail of this information we just mentioned,
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`we really can't help you with anything more
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`because as far as the Panel is concerned, the
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`pairs -- each of the pairs have two decisions
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`that were concurrently entered. That's the
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`Board's response to Progressive's request
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`today.
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` And also, if it is necessary for
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`Progressive to contact any other part of the
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`Board, we feel that the call or the contact
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`should not be at the party because at this
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`point it is no longer an administerial task.
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`If you were to call any other staff of the
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`office in this connection, it should be a joint
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`call with the opposing counsel.
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` MR. WAMSLEY: Understood, Your
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`Honor.
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` JUDGE LEE: And we appreciate you
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`filing a copy of the transcript when you can.
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` MR. WAMSLEY: We will do that.
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` JUDGE LEE: Is there anything else
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`from either side?
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` Okay. If not, then we are
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`adjourned. Thank you very much.
`
` (The conference call concluded at 2:58 p.m.)
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`www.veritext.com
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`888-391-3376
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`Veritext Legal Solutions Midwest
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`REPORTER'S CERTIFICATE
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`I, Buster Beck, do hereby certify
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`that as such Reporter I took down in Stenotypy
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`all of the proceedings had in the foregoing
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`transcript;
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`that
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`I have transcribed my said
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`Stenotype notes into typewritten form as
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`appears in the foregoing transcript;
`A
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`that said
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`transcript is the complete form of
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`the
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`proceedings had in said cause and constitutes a
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`true and correct transcript therein.
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`
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` H71/grw
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`/’
`Bwéter Beck, Notary Public
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`within and for the State of Ohio
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`My commission expires February 22,
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`2015.
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`U‘!
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