throbber
U N I T E D S T A T E S P A T E N T A N D T R A D E M A R K O F F I C E
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` B E F O R E T H E P A T E N T T R I A L A N D A P P E A L S B O A R D
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` ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
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`Page 1
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`L I B E R T Y M U T U A L I N S U R A N C E C O . ,
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` P e t i t i o n e r ,
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` v s . C a s e s : C B M 2 0 1 3 - 0 0 0 0 9
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` C B M 2 0 1 2 - 0 0 0 0 3
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` P a t e n t 8 , 1 4 0 , 3 5 8
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`P R O G R E S S I V E C A S U A L T Y I N S U R A N C E C O . ,
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` P a t e n t O w n e r .
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` ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
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` T e l e p h o n i c H e a r i n g
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` M A R C H 2 5 , 2 0 1 4
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` 4 : 3 0 p . m .
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` T a k e n a t :
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` J o n e s D a y
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` 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 i o
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` T o d d L . P e r s s o n , N o t a r y P u b l i c
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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 ( v i a
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` t e l e c o n f e r e n c 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 . W .
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` S u i t e 9 0 0
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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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` 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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` C A L V I N 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
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` 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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`A P P E A R A N C E S , C o n t i n u e d :
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`Page 3
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`A D M I N I S T R A T I V E P A T E N T T R I A L A N D A P P E A L S B O A R D
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`( V i a T e l e c o n f e r e n c e ) :
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` J a m e s o n L e e
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` J o n i Y . C h a n g
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` M i c h a e l R . Z e c h e r
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`Page 4
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` JUDGE LEE: Okay. Is the Patent
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`Owner on the line?
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` MR. WAMSLEY: Yes, Your Honor. For
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`Patent Owner, James Wamsley and Calvin
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`Griffith.
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` JUDGE LEE: Thank you. And is the
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`Petitioner on the line?
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` MR. BAUGHMAN: Yes, Your Honor.
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`For Petitioner, Steve Baughman and Jim Myers.
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` JUDGE LEE: Thank you. Do we have
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`the court reporter on the line as well?
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` MR. WAMSLEY: Yes, Your Honor. The
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`court reporter is here in the conference room
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`with Mr. Griffith and me.
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` JUDGE LEE: Thank you. Will you be
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`able to submit a copy?
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` MR. WAMSLEY: Absolutely, yes.
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` JUDGE LEE: Thank you. So the
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`Patent Owner asked for the call. We'll let Mr.
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`Wamsley or Mr. Griffith start.
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` MR. WAMSLEY: Very well. Thank you
`
`very much, Your Honor, for taking the call
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`today, time out of your busy schedule.
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` The reason for our request for the
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`call is we would like to request the Board's
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`Page 5
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`permission to file a motion to strike directed
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`at the papers that Liberty Mutual filed in Case
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`CBM2012-00003 and CBM2013-00009 on March 13,
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`2014. The reason for this is because we
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`believe that Liberty has abused the Board's
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`rehearing request procedures. They have titled
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`their papers "requests for rehearing," but in
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`reality they do not ask or request that any
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`decision of the Board be reheard at all. They
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`do not seek reconsideration of any decision of
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`the Board. In fact, they state at page 4 of
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`their papers that they make the requests solely
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`to preserve the status quo.
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` This Board's rule, Section 42.71,
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`relating to rehearing requests, specifies that
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`those requests may be filed in those instances
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`where a party is dissatisfied with the decision
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`of the Board, and that the request must
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`specifically identify the matters that the
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`party believes that the Board misapprehended or
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`overlooked in issuing a decision. We feel that
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`neither of these things were done by Liberty.
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`They do not indicate they're dissatisfied with
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`any decision of the Board. Indeed, they ask at
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`page 2 of their papers that their own request
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`Page 6
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`be denied if our requests are denied.
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` We think that's really an abuse of
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`the Board's rehearing request procedures, and
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`it's for that reason we'd like to seek
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`permission to file a motion to strike those
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`requests.
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` The balance of their papers
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`constitutes really an opposition to
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`Progressive's rehearing requests in
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`CBM2013-00009, and that, too, is not allowed
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`under the Board's procedures in the Trial
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`Practice Guide, section Roman Numeral II-P. It
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`provides that no opposition may be filed
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`without the Board's prior approval. And for
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`that reason, we would also seek to file a
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`motion to strike.
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` And in the alternative, if the
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`Board believes a motion to strike is not
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`proper, we would ask for the right to file an
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`opposition to their papers. That's all for the
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`Patent Owner at this time, Your Honor.
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` JUDGE LEE: Well, we understand
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`that the circumstances here are a little bit
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`unusual, in part because of Progressive's own
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`request for a rehearing. If we adopt a similar
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`Page 7
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`standard of looking at these papers, do you
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`think that Progressive's own rehearing request
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`actually satisfied the requirements for a
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`request for rehearing?
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` MR. WAMSLEY: We do, Your Honor.
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`And we explained that in the requests
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`themselves. We believe, first of all,
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`obviously, we are dissatisfied with the
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`decision of the Board in --
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` JUDGE LEE: I don't mean for you to
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`have to defend yourself here. I just want to
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`say that isn't it all a matter of degree;
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`perhaps your paper is a little more justified
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`than theirs, but when you compare even your own
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`paper with what is typically a rehearing
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`request, don't you at least see a big, big gap?
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`Essentially, what you're complaining of has all
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`happened after the Board's decision.
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` MR. WAMSLEY: With deference, Your
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`Honor, I don't agree with that. We think that
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`we are seeking rehearing of the Board's final
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`decision as a result of the application of the
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`statute to it. And we don't believe that it's
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`a matter of degree for a paper such as
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`Liberty's in which they admittedly seek no --
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`Page 8
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`do not seek to rehear any particular decision
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`of the Board, but rather prospectively want
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`some sort of relief, including the denial of
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`the very request they filed, contingent on what
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`the Board does in response to our request. We
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`don't believe that that in any way, shape or
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`form can qualify as a valid rehearing request.
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`And that's the reason why we're seeking the
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`relief we are today.
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` JUDGE LEE: Thank you. We
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`appreciate that explanation. You certainly
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`don't have to defend your own paper here, but
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`we just wanted to know your view, which is that
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`you think your own paper is sufficient and
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`proper, but theirs is not.
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` The next question I have for you
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`is; what about the -- is there any precedent
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`for a motion to strike? Why is that not simply
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`a file management tool of the Board, of the
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`Panel, and also a tool of the Panel to impose
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`certain sanctions, if you will, that's entirely
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`within the discretion of the Board? Why is
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`that something that can even be requested by a
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`party to have something expunged?
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` MR. WAMSLEY: Well, Your Honor, I
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`Page 9
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`believe that the practice of motions to strike
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`is well-established in most administrative
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`tribunals and courts, that the Board certainly
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`has the power to strike. And I think your
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`comments seem to suggest that you had the power
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`to strike papers that do not comply with your
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`rules, for example, in the exercise of your
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`discretion. For that reason, it strikes me
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`that a party has the right to request that
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`relief from the Board. And, obviously, it's
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`within the Board's authority to decide whether
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`or not it's appropriate in any given instance.
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`But we think that it is a customary power that
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`the Board would be able to exercise, and
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`therefore, that a party could request its
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`exercise.
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` JUDGE LEE: I understand. We're
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`just suggesting that it may just be something
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`the Board at its own discretion would exercise,
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`but perhaps not something a party could have
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`the Board do or not do. Why wouldn't it be
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`sufficient for you simply to just ask to reply,
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`to respond to their paper?
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` MR. WAMSLEY: Well, that was the
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`alternative that I requested at the end of my
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`p r e s e n t a t i o n , Y o u r H o n o r . I f t h a t i s t h e
`
`B o a r d ' s p r e f e r e n c e t o r e c e i v e a p a p e r t h a t i s ,
`
`i n f a c t , a n o p p o s i t i o n , t h a t w o u l d b e t h e
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`a l t e r n a t i v e r e l i e f w e w o u l d s e e k . A n d w e
`
`t h o u g h t t h e m o t i o n t o s t r i k e w a s m o r e f i t t i n g
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`g i v e n t h e c i r c u m s t a n c e s . B u t , o b v i o u s l y ,
`
`t h a t ' s f o r t h e B o a r d t o d e c i d e .
`
` J U D G E L E E : B u t y o u w o u l d b e
`
`s a t i s f i e d i f y o u g e t a n o p p o r t u n i t y t o r e s p o n d
`
`t o t h e i r p a p e r t h e n ?
`
` M R . W A M S L E Y : C o r r e c t .
`
` J U D G E L E E : O k a y . L e t m e p u t y o u
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`o n m u t e w h i l e I c o n f e r w i t h m y c o l l e a g u e s .
`
` M R . B A U G H M A N : Y o u r H o n o r , t h i s i s
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`S t e v e B a u g h m a n f o r P e t i t i o n e r . W o u l d w e h a v e
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`a n o p p o r t u n i t y t o r e s p o n d ?
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` J U D G E L E E : Y e s , y o u w i l l .
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` M R . B A U G H M A N : T h a n k s , Y o u r H o n o r .
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`A s Y o u r H o n o r n o t e d , t h e s e a r e u n u s u a l
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`c i r c u m s t a n c e s , a n d w e i n d i c a t e d t o t h e P a t e n t
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`O w n e r t h a t w e w o u l d r a i s e c o n c e r n s a b o u t - -
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` J U D G E L E E : I ' m s o r r y ,
`
`M r . B a u g h m a n . I w a n t e d t o c o n f e r b e f o r e w e
`
`h e a r f r o m y o u .
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` M R . B A U G H M A N : I u n d e r s t a n d . I
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`Page 11
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`apologize, Your Honor.
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` JUDGE LEE: Okay. I'll put you on
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`mute.
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` (Discussion off the record.)
`
` JUDGE LEE: Hello. The judges are
`
`back. Do I have lawyers for the parties?
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` MR. WAMSLEY: Yes, Your Honor.
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` MR. BAUGHMAN: Yes, Your Honor.
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` JUDGE LEE: All right. I
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`apologize, Mr. Baughman. We didn't mean to cut
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`you off. We do want to give you an opportunity
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`to speak. So go ahead.
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` MR. BAUGHMAN: Thanks, Your Honor.
`
`I wanted to just address a few points that were
`
`made by counsel for Patent Owner. First, our
`
`paper does indeed seek rehearing relief. Our
`
`motion is for a contingent relief if the Board
`
`decides to rehear CBM2013-00009, which argues
`
`the Board's ability to enter decisions
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`concurrently depends on the timing a paralegal
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`uploads the documents to PRPS. We request
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`that the Board reconsider the form in which it
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`rendered its final written decisions in both
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`that matter and CBM2012-00003, and enter them
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`either as a final written decision in the
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`Page 12
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`consolidated action, or in a combined final
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`written decision covering both of the two
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`actions. This would preserve the concurrent
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`issuance, the status quo intended by the Board.
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` We did point out that relief that
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`we sought, the basis for seeking it in our
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`papers, and as part of our rehearing request we
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`also asked that the Board resolve these motions
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`together to avoid any de-linking that might be
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`argued to change the time the final written
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`decision is issued with respect to one another.
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` This is respectfully not an attempt
`
`to reply to the 16-page brief that Progressive
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`submitted, and we did discuss with Progressive
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`our view that that paper was improper, and that
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`we would raise that in this call if they sought
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`the relief that they have sought today. We are
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`not asking the Board to consider our papers and
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`ruling on Progressive's motion. If we had
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`opposed that motion, we would have discussed
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`why we believe that paper is improper, as
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`resting on something that occurred after the
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`final written decisions, that is the upload
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`time to PRPS.
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` We would have pointed out that
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`Page 13
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`their paper appears to seek rehearing of the
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`Board's February 20th decision, Paper 69, about
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`the PRPS posting, and the time for that kind
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`of rehearing has passed under Rule 4271 D-1.
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`That would have been due March 6th. And we
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`strongly disagree with the substance of their
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`paper, from their reliance on the Federal Rules
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`of Civil Procedure and precedent that does not
`
`apply to the Board, and their misreading of the
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`statute. We did not present that material in
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`our paper. We simply presented the factual
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`predicate for our request for contingent
`
`relief, asking the Board to reconsider the form
`
`in which it issued the two final written
`
`decisions in these two matters, if it decided
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`that rehearing was justified in CBM2013-00009.
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` Our request here, Your Honor, is
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`that if Progressive is granted further briefing
`
`on our motion, we simply be accorded the same
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`on their motion. And we're happy to address
`
`any questions the Board may have.
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` JUDGE LEE: All right. Give us a
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`few minutes, please.
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` (Discussion off the record.)
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` JUDGE LEE: Good afternoon. The
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`Page 14
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`judges are back. Do I have the lawyers for the
`
`parties, please?
`
` MR. WAMSLEY: Progressive is here,
`
`Your Honor, yes.
`
` MR. BAUGHMAN: Petitioner is here,
`
`Your Honor, yes.
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` JUDGE LEE: All right. The Panel
`
`has conferred. It seems like both parties are
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`now asking for an opportunity to respond to the
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`other party's rehearing requests. We are going
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`to authorize only three pages in that regard.
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`So Progressive gets to file a three-page
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`response to each of Liberty's rehearing
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`requests in the two cases, 2012-00003 and
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`2013-00009. And Liberty gets to file a
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`three-page response to Progressive's rehearing
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`request in 2013-00009. I think that takes care
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`of all the requests today.
`
` MR. WAMSLEY: Your Honor, this is
`
`Jim Wamsley for Progressive. Thank you for
`
`your decision. Can you clarify the timing for
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`us to make that filing?
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` JUDGE LEE: Since you're only
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`authorized three pages, how long do you need?
`
` MR. WAMSLEY: We could file it by
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`Page 15
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`the end of the week.
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` JUDGE LEE: That will be fine with
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`us. And, Liberty, can you do that?
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` MR. BAUGHMAN: Yes, Your Honor.
`
` JUDGE LEE: And we are cognizant of
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`our own power to manage the record in the
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`cases, so we really don't need the parties to
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`call us or tell us whether we should strike a
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`paper or expunge a paper. If you want an
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`opportunity to respond, just make a request in
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`that regard. But as far as what we would do in
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`managing our own records, I think we would
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`appreciate it if that were to be left just for
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`the Board's own exercise of discretion.
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` So today Progressive said that it
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`would be satisfied with just an opportunity to
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`respond, and we've authorized that.
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` MR. WAMSLEY: Thank you, Your
`
`Honor.
`
` JUDGE LEE: Okay. Thank you. We
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`are adjourned. Thank you.
`
` MR. BAUGHMAN: Thanks, Your Honor.
`
` (The hearing was adjourned at 5:08 p.m.)
`
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`“
`
`REPORTER'S CERTIFICATE
`
`I, Todd L. Persson,
`
`do hereby
`
`U'I
`
`certify that as such Reporter I
`
`toon
`
`Stenotypy all of the proceedings had in the
`
`foregoing transcript;
`
`that I have transcribed
`
`my said Stenotype notes into typewritten form
`
`as appears in the foregoing transcript;
`,7,
`
`that
`
`said transcript is the complete form of the
`
`proceedings had in said cause and constitutes a
`
`true and correct transcript therein.
`
`
`
`77H Paw
`
`Todd L. Persson, Notary Public
`
`within and for the State of Ohio
`
`My commission expires August 1,
`
`2017.
`
`1o
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`18.
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`

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