Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` EBAY ENTERPRISES, Inc. and EBAY Inc.,
` Petitioner,
` v.
` LAWRENCE B. LOCKWOOD,
` Patent Owner.
` Case CBM2014-00025/CBM2014-00026
` Patent 7,010,508
` Before MICHAEL W. KIM, and BENJAMIN D. M. WOOD,
` Administrative Patent Judges.
` Tuesday,
` August 19, 2014
`Reported by: Christine Allen,
` Capital Reporting Company
`
`(866) 448 - DEPO
`www.CapitalReportingCompany.com © 2014
`
`Lockwood Exhibit 2023
`eBay v. Lockwood
`CBM2014-00026
`
`
`Lockwood, Lawrence B. 08-19-2014
`
`1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` EBAY ENTERPRISES, Inc. and EBAY Inc.,
` Petitioner,
` v.
` LAWRENCE B. LOCKWOOD,
` Patent Owner.
` Case CBM2014-00025/CBM2014-00026
` Patent 7,010,508
` Before MICHAEL W. KIM, and BENJAMIN D. M. WOOD,
` Administrative Patent Judges.
` Tuesday,
` August 19, 2014
`Reported by: Christine Allen,
` Capital Reporting Company
`
`(866) 448 - DEPO
`www.CapitalReportingCompany.com © 2014
`
`Lockwood Exhibit 2023
`eBay v. Lockwood
`CBM2014-00026
`
`
`
`2
`
`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 A P P E A R A N C E S
`2 FOR PETITIONER:
` Don Daybell
`3 James Maune
` Mark Wine
`4 of: ORRICK, HERRINGTON & SUTCLIFFE
` 2050 Main Street, Suite 1100
`5 Irvine, CA 92614-8255
` United States
`6 TEL: (949) 567-6700
`7 FOR PATENT OWNER:
` Donald Featherstone
`8 Byron Pickard
` Robert Sterne
`9 of: STERNE, KESSLER, GOLDSTEIN & FOX
` 1100 New York Avenue, NW
`10 Washington, DC 20005
` TEL: (202) 371-2600
`11
`12
`13
`14
`15
`16
`17
`18
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 P R O C E E D I N G S
`2 (1:33 p.m.)
`3 JUDGE KIM: Good afternoon. This is
`4 Judge Kim, on the line with me is Judge Wood, and
`5 this is a conference call regarding two cases CBM
`6 2014-00025 and 26.
`7 Can I please get a roll call? Who's
`8 online for Petitioner?
`9 MR. DAYBELL: Good morning Your Honor
`10 this is Don Daybell, lead counsel for Petitioner
`11 and with me I have Mark Wine and Jim Maune, both
`12 backup counsel for both cases.
`13 JUDGE KIM: Thank you. And for Patent
`14 Owner?
`15 MR. PICKARD: Good afternoon Your Honor,
`16 this is Byron Pickard. I'm backup counsel for
`17 Patent Owner and with me on the call is Rob Sterne
`18 and Don Featherstone.
`19 JUDGE KIM: Okay. I believe patent
`20 Owner asked for this call, so we'll hear from
`21 Patent Owner and then Petitioner and then Patent
`22 Owner in that order.
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 So Patent Owner you may go ahead.
`2 MR. PICKARD: First of all, thank you to
`3 the Board and opposing counsel for getting on this
`4 call on such short notice. I think as the Board
`5 is well aware, we have perhaps an unusual
`6 situation where we have testimonial evidence in
`7 the record that was voluntarily put in the record
`8 by the Petitioner as well as the Declarant Newton.
`9 And despite the Petitioner's efforts to expunge
`10 that evidence, the evidence remains and yet we
`11 feel deprived of the opportunity to cross examine
`12 Newton as to that testimony that she's offered.
`13 It is our view that we ought to be
`14 entitled to that and a failure to provide that
`15 opportunity would be an arbitrary, capricious
`16 exercise of the Board's authority, not to mention
`17 a violation of our due process rights in view of
`18 the valuable property right that's at stake in
`19 this proceeding.
`20 So we would like the opportunity to
`21 brief for the Board essentially a motion to
`22 reconsider its prior ruling that, I guess, barred
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 the deposition of Newton.
`2 JUDGE KIM: Okay. Is that it?
`3 MR. PICKARD: That is Your Honor.
`4 JUDGE KIM: Okay. Petitioner, you can
`5 go ahead.
`6 MR. DAYBELL: Thank you, Your Honor.
`7 While as Mr. Pickard notes this is in fact a
`8 motion to reconsider our motion for rehearing
`9 request, essentially, which is very untimely at
`10 this point. I mean, they had--the order was filed
`11 on July 23rd, so we're nearly a month after that
`12 order denying their motion to compel. And under
`13 the Board's rules they had 14 days to seek
`14 rehearing and they didn't do that.
`15 So our view that this is an extremely
`16 untimely motion for reconsideration. And
`17 furthermore, there is no need on the substance to
`18 revisit this issue. We've already indicated that
`19 Petitioner is not relying on any aspects of this
`20 declaration and the testimony therein. The Board
`21 has already found that the testimony was not
`22 relied on by the Board in its institution
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 decision. It doesn't appear that there is any
`2 need for this deposition, even if their request
`3 was timely which it is not.
`4 The final point I'll make, and this is
`5 something that just came up in preparing for
`6 today's call, I was reviewing my notes--I guess
`7 you can call it. I'm not sure because I haven't
`8 talked to our expert in a while, but I believe
`9 she's traveling out of the country for a
`10 substantial period of time. So I don't know that
`11 she even could be made available were the Board to
`12 consider this untimely request.
`13 JUDGE KIM: Okay. Is that it from the
`14 Petitioner?
`15 MR. DAYBELL: Yes, Your Honor.
`16 JUDGE KIM: Okay, Patent Owner.
`17 MR. PICKARD: Yes, concerning the
`18 timeliness of the request I would--we don't
`19 believe it's untimely. First of all, I think the
`20 issue sort of re-raised itself when the Board
`21 handed down its denial of the expungement order,
`22 which I believe was early last week. And it
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 wasn't until we had that order which tells us
`2 definitively that the Newton evidence is going to
`3 remain in the record; that gives us cause to move
`4 the Board to reconsider it.
`5 So to the extent that the request for
`6 reconsideration is out time, which we don't
`7 believe it is, we believe there is good cause to
`8 excuse that delay. Concerning the availability of
`9 Newton, I'll simply say that we're happy to work
`10 with Petitioner to find an available date and
`11 adjust the other deadlines in the case. But to
`12 the extent she's not available, that's not a
`13 problem that Patent Owner should have to deal
`14 with. If we're entitled to the deposition, then
`15 her unavailability is not our problem.
`16 She voluntarily provided a declaration,
`17 presumably understood that she would be called
`18 upon to appear at a deposition and this is really
`19 a thrust upon issue from the perspective of Patent
`20 Owner.
`21 So I believe that's all we have.
`22 JUDGE KIM: I'm a little curious as to
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 how will the recent order reopened the question of
`2 whether Dr. Newton should be deposed. I mean,
`3 from our reading of the orders I think probably
`4 made it pretty clear that neither Petitioner nor
`5 the Board has relied on this. And so, as far as
`6 the Board is concerned, you know, it's a nullity
`7 and quite frankly the only reason we really left
`8 it in the record was that you said in the July
`9 phone call that you may want to rely on it for
`10 inconsistent statements. So that's the only
`11 reason we left it in.
`12 So, I guess I'm a little confused as to
`13 why the August 12th order really changes anything.
`14 MR. PICKARD: Well, from our perspective
`15 when we concluded the hearing on the issue of
`16 whether we would compel Newton to appear at a
`17 deposition, I think, it was expected that evidence
`18 would be expunged. As it turns out, it wasn't.
`19 And that's correct, we didn't want it to be
`20 expunged because we believe that there are certain
`21 statements in the Newton declaration that are
`22 helpful to our case.
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 JUDGE KIM: So why don't you just use
`2 that?
`3 MR. PICKARD: I'm sorry.
`4 JUDGE KIM: Why don't you just use that?
`5 MR. PICKARD: We will use those. But we
`6 also believe that there are other statements in
`7 the declaration that warrant a cross-examination.
`8 I believe we may have some disagreements with her
`9 on the level of the skill and the art, and so
`10 forth.
`11 JUDGE KIM: Why can't you present your
`12 own testimonial evidence? Because like I said, as
`13 far is the Board is concerned I mean, it's not
`14 there. The only reason it will be there is if you
`15 wanted to be there. So right now in the face of
`16 no evidence you can present some evidence. So, I
`17 guess I'm having a hard time seeing where, you
`18 know, why this is necessary.
`19 MR. PICKARD: Well, I think there has
`20 been some confusion about whether there's
`21 evidence. It's our view that the Petitioner has
`22 no evidence. I think I'm encouraged to hear that
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 the Board shares that view.
`2 JUDGE KIM: Yeah, that's pretty clear in
`3 the order is that as far as Petitioner is not
`4 allowed to rely on this, because they did not
`5 present the cross-examination.
`6 So it's all in your advantage--
`7 MR. PICKARD: Well, perhaps. I will say
`8 I do think it is a fundamental deprivation of our
`9 due process rights to have evidence in the record
`10 that we cannot take the cross examination of--
`11 JUDGE KIM: So why didn't you oppose
`12 expunging it?
`13 MR. PICKARD: Because at the same time
`14 we shouldn't be left in the position where the
`15 Petitioner voluntarily submits evidence when it
`16 did not have to and willy-nilly withdraw that
`17 evidence as it sees fit throughout the proceeding.
`18 The evidence, some of it's good for us,
`19 some of its harmful to us. We believe that we
`20 should be entitled to take her cross-examination
`21 on those areas which are potentially harmful to us
`22 and yet not be deprived of relying on those
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 aspects of her testimony that are helpful to us.
`2 JUDGE KIM: Okay. All right, let me
`3 confer with my colleague real quick and I'll be
`4 right back.
`
`5 6
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`record at 1:40 p.m. and went back on the record at
`7 1:47 p.m.]
`8 JUDGE KIM: Thank you very much for
`9 waiting, the panel is back and we are going to
`10 deny Patent Owner's request for rehearing or
`11 compel cross-examination, whatever you want to
`12 call it.
`13 We feel that right now Patent Owner is
`14 trying to have it both ways. On the one hand you
`15 don't want it in the record, but on the other hand
`16 you do want it but only for specific purposes.
`17 So, we're going to offer Patent Owner a
`18 choice. One, we can either expunge it, which you
`19 opposed but you know, we're giving the option
`20 again to expunge it so that there's clarity that
`21 this can't be relied on by anybody for anything
`22 even though already we said that Petitioner cannot
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 rely on it or we can keep it in the record, as we
`2 did before, and you can cite for inconsistent
`3 statements but there's going to be no cross-
`4 examination. So, you can use it but you use it at
`5 your peril.
`6 So, it's up to you Patent Owner.
`7 MR. PICKARD: Thank you Your Honor. Is
`8 there a deadline in which the Board wants Patent
`9 Owner to make its election or how do we move
`10 forward?
`11 JUDGE KIM: Good question. Hold on one
`12 second.
`13 [Pause.]
`14 JUDGE KIM: All right. We will provide
`15 Patent Owner until the 21st, the end of the day on
`16 the 21st. So two days to make its election. All
`17 right.
`18 MR. PICKARD: Very good.
`19 JUDGE KIM: Okay. Anything else?
`20 MR. PICKARD: Not from Patent Owner.
`21 MR. DAYBELL: Not from Petitioner, Your
`22 Honor.
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`13
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`1 JUDGE KIM: Okay, great. Thank you very
`2 much everyone. Appreciate it. Bye-bye.
`3 MR. PICKARD: Thank you.
`4 MR. DAYBELL: Thank you.
`5 (Whereupon, at 1:49 p.m., the conference
`6 call concluded.)
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
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`1 CERTIFICATE OF COURT REPORTER
`2 I, CHRISTINE ALLEN, the reporter before
`3 whom the foregoing hearing was taken, do hereby
`4 certify that the witness whose testimony appears
`5 in the foregoing deposition was duly sworn by me;
`6 that the testimony of said witness was recorded by
`7 me and thereafter reduced to typewriting under my
`8 direction; that said deposition is a true record
`9 of the testimony given by said witness; that I am
`10 neither counsel for, related to, nor employed by
`11 any of the parties to the action in which this
`12 deposition was taken; and, further, that I am not
`13 a relative or employee of any counsel or attorney
`14 employed by the parties hereto, nor financially or
`15 otherwise interested in the outcome of this
`16 action.
`17
`18
`19 CHRISTINE ALLEN
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`lead 3:10
`level 9:9
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`LOCKWOOD
`1:7
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`M
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`9:13
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`5:8,12,16
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`N
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`
`O
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`(866) 448 - DEPO
`www.CapitalReportingCompany.com © 2014
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`Capital Reporting Company
`Lockwood, Lawrence B. 08-19-2014
`Page 4
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`seeing 9:17
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`
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`
`S
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`
`T
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`9:12
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`14:4,6,9
`thank 3:13 4:2 5:6
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`www.CapitalReportingCompany.com © 2014
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`11:8 12:7
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`
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`
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`
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`
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`13:5
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`
`Y
`yet 4:10 10:22
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`
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`Lockwood, Lawrence B. 08-19-2014
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