Paper No. _____
`Filed: September 12, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`TRULIA, INC.
`Petitioner
`
`v.
`
`ZILLOW, INC.
`Patent Owner
`
`_____________________________
`
`CBM2013-000561
`Patent No. 7,970,674
`_____________________________
`
`SUPPLEMENTAL INFORMATION TO JOINT MOTION TO MODIFY
`SCHEDULE PURSUANT TO 37 C.F.R. § 326
`
`1 Case CBM2014-00115 has been joined with this proceeding
`
`
`Filed: September 12, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`TRULIA, INC.
`Petitioner
`
`v.
`
`ZILLOW, INC.
`Patent Owner
`
`_____________________________
`
`CBM2013-000561
`Patent No. 7,970,674
`_____________________________
`
`SUPPLEMENTAL INFORMATION TO JOINT MOTION TO MODIFY
`SCHEDULE PURSUANT TO 37 C.F.R. § 326
`
`1 Case CBM2014-00115 has been joined with this proceeding
`
`
`
`Case No. CBM2013-00056
`U.S. Patent No. 7,970,674
`
`I.
`
`Introduction
`
`On August 18, 2014, Petitioner (“Trulia”) and Patent Owner (“Zillow”)
`
`(collectively “Parties”) filed a Joint Motion to Modify the Schedule Pursuant to 37
`
`C.F.R. § 326. On August 27, 2014 the Board issued an Order (Paper 33) deferring a
`
`decision on the motion and requesting further information pursuant to certain
`
`inquiries. On September 5, 2014, the Board electronically authorized a one week
`
`extension for response to the Order, thereby extending the time for response from
`September 5, 2014 to September 12, 2014.
`
`Information in response to the inquiries set forth in the Board’s Order is jointly
`
`provided by the Parties hereby and set forth in further detail below.
`
`II.
`
`Discussion
`
`If FTC does not extend the initial waiting period beyond September 3,
`“1.
`2014, what extension or adjustment of due dates, if any, do the parties require, and
`why?” Paper 33, p. 2.
`
`The FTC has extended the initial waiting period by issuing an additional request
`
`for information, commonly referred to as a “second request.” Ex. 1022, p. 2.
`
`To what extent are the parties bound by the merger agreement, in the
`“2.
`sense that neither is free to cancel it, before or after FTC approval?” Paper 33, p. 2.
`
`Both parties expect consummation of the merger. Neither is free to cancel the
`
`merger agreement unilaterally except in certain exceptional circumstances. Neither
`
`party expects said exceptional circumstances to materialize.
`
`Page 2 of 6
`
`
`
`Case No. CBM2013-00056
`U.S. Patent No. 7,970,674
`
`Are the parties free to change the terms of the merger agreement while
`“3.
`the agreement is pending review by the FTC, and if so, how would that modification
`
`affect the period of FTC review?” Paper 33, p. 2.
`
`The parties may agree to amend the merger agreement while the merger is
`
`pending FTC review. It is unlikely that any amendment to the merger agreement
`
`would impact the FTC review period.
`
`“4.
`
`If the merger transaction is consummated, how would that affect this
`
`proceeding, e.g., will there be a joint motion to terminate proceeding without
`reaching the merits, or some other resolution?” Paper 33, p. 2.
`
`If the merger is completed, the parties would file a joint motion to terminate the
`
`proceeding.
`
`“5. Why are the parties unable to settle this proceeding now, by agreeing to
`
`terms of settlement which take into full consideration of the likelihood of FTC
`approval of the merger agreement, with any uncertainty reflected in the specific terms
`of settlement?” Paper 33, p. 3.
`
`Absent the merger of interests, Parties have not identified a basis for settlement
`
`on the merits. Under the current circumstances, Parties would contemplate
`
`termination of the proceeding without prejudice. Whether termination can be
`
`accomplished without prejudice to either party, however, is partially outside the
`
`control of the parties. For example, should the parties agree to terminate the
`
`Page 3 of 6
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`
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`Case No. CBM2013-00056
`U.S. Patent No. 7,970,674
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`proceeding but later find themselves in a position choosing to reinstitute their dispute,
`
`such a reinstitution may still fall within the discretion of the Board under 35 U.S.C. §
`
`325(d). Furthermore, under the scenario of later reinstituting the dispute, a
`
`subsequently filed proceeding may further require case-management modifications by
`
`the Board.
`
`“6. What is the basis for the statement in the motion that this proceeding ‘is
`likely to terminate’?” Paper 33, p. 3.
`
`The parties are optimistic that their respective shareholders will approve the
`
`merger and that the FTC will clear the transaction.
`
`“7. What is the worst case scenario in terms of the time it would take for the
`FTC to decide on whether to approve the merger agreement?” Paper 33, p. 3.
`
`The parties are optimistic that the FTC will clear the transaction and expect the
`
`transaction to close in 2015. See also Ex. 1022, p. 6. The FTC could take up to 12
`
`months to review the transaction. In addition, the FTC could challenge the transaction
`
`in court by suing the parties to enjoin the merger, which would lead to additional
`
`delay.
`
`Page 4 of 6
`
`
`
`Case No. CBM2013-00056
`U.S. Patent No. 7,970,674
`
`III. Conclusion
`
`Parties respectfully request that the Board grant the Joint Motion to Modify the
`
`Schedule.
`
`Dated: September 12, 2014
`
`Respectfully submitted,
`
`/Michael T. Rosato/
`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue
`Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2529
`Fax: 206-883-2699
`Email: mrosato@wsgr.com
`Email: jschmidt@wsgr.com
`
`Page 5 of 6
`
`
`
`Case No. CBM2013-00056
`U.S. Patent No. 7,970,674
`
`CERTIFICATE OF SERVICE
`
`This is to certify that I caused to be served a true and correct copy of the
`
`foregoing SUPPLEMENTAL INFORMATION TO JOINT MOTION TO MODIFY
`
`SCHEDULE PURSUANT TO 37 C.F.R. § 326 on this 12th day of September, 2014,
`
`on the Patent Owner at the correspondence address of the Patent Owner as follows:
`
`Steven D. Lawrenz, Lead Counsel
`Ramsey M. Al-Salam, Back-up Counsel
`PERKINS COIE, LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101
`Tel.: 206-359-6373
`Fax: 206-359-7373
`Email: slawrenz@perkinscoie.com
`Email: ralsalam@perkinscoie.com
`
`Dated: September 12, 2014
`
`Respectfully submitted,
`
`/Michael T. Rosato/
`Michael T. Rosato
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue
`Suite 5100
`Seattle, WA 98104-7036
`Tel.: 206-883-2529
`Fax: 206-883-2699
`Email: mrosato@wsgr.com
`Email: jschmidt@wsgr.com
`
`Page 6 of 6
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