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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
` FORD MOTOR COMPANY
` Petitioner
` v.
` VERSATA SOFTWARE, INC.
` Patent Owner
` CASE CBM2016-00100 - Patent 8,805,825
`
` - - -
` Monday, May 1, 2017
` 4:03 p.m.
`
` - - -
`
` TELECONFERENCE IN THE ABOVE MATTER
`
` - - -
`
` BEFORE: SALLY MEDLEY
` JAMES B. ARPIN
` Administrative Patent Judges.
` - - -
` Veritext Legal Solutions
` Mid-Atlantic Region
` 1250 Eye Street NW - Suite 350
` Washington, D.C. 20005
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`Versata 2013
`Ford v. Versata
`CBM2016-00100
`
`

`

`Page 2
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`APPEARANCES:
` FOR PETITIONER:
` BROOKS KUSHMAN, P.C.
` BY: CHRISTOPHER C. SMITH, ESQ.
` THOMAS A. LEWRY, ESQ.
` LISSI MOJICA, ESQ.
` 1000 Town Center, 22nd Floor
` Southfield, Michigan 48075-1238
` 248.358.4400
` E-mail: csmith@brookskushman.com
` tlewry@brookskushman.com
` lmojica@brookskushman.com
`
` FOR PATENT OWNER:
`
` STERNE, KESSLER, GOLDSTEIN & FOX, PLLC
` BY: MICHELLE K. HOLOUBEK, ESQ.
` ROBERT GREENE STERNE, ESQ.
` SALVADOR M. BEZOS, ESQ.
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005-3934
` 202.371.2600
` E-mail: mholoubek@skgf.com
` rsterne@skgf.com
` sbezos@skgf.com
`and
` JONES & SPROOS, PLLC
` BY: SHAROON SALEEM, ESQ.
` 1605 Lakecliff Hills Lane, Suite 100
` Austin, Texas 78732-2437
` 713.446.0217
` sharoon.saleem@jonesspross.com
`
`Also Present: Cathy Nikkila
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`Page 3
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` ---oOo---
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` JUDGE MEDLEY: All right. So we're on the
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`record. Good afternoon. This is Judge Medley, along
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`with Judge Arpin. This is a call regarding CBM
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`2016-00100.
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` I'd like to begin with a role call for
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`Petitioner.
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` MR. SMITH: Good afternoon, Judge, this is
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`Christopher Smith on behalf of Ford Motor Company, and
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`also on the call with me is Tom Lewry and Cathy Nikkila.
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` JUDGE MEDLEY: Okay, thank you.
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` MS. MOJICA: This is Lissi Mojica also on the
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`call for the Petitioner.
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` JUDGE MEDLEY: Okay. Anybody else for
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`Petitioner?
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` MR. SMITH: No, Your Honor.
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` JUDGE MEDLEY: Okay, and for Patent Owner?
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` MS. HOLOUBEK: For Patent Owner, this is
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`Michelle Holoubek and with me on the call are Rob Sterne,
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`Sal Bezos and Sharoon Saleem.
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` JUDGE MEDLEY: Okay, great, thank you very much.
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`And obviously we have a court reporter. Who requested,
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`or who is the court reporter working for?
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` MS. HOLOUBEK: The Patent Owner, Versata,
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`requested the court reporter.
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` JUDGE MEDLEY: Okay, so Patent Owner, could you
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`please file a copy of the transcript as an exhibit as
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`soon as possible?
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` MS. HOLOUBEK: Yes, Your Honor.
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` JUDGE MEDLEY: We understand the Patent Owner
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`requests us to expunge Petitioner's rehearing request as
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`untimely, and if we do not, Patent Owner requests
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`authorization to file an opposition to their --
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`Petitioner's rehearing request. I'd like to begin by
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`hearing from Petitioner as to why your rehearing request
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`was filed a day late.
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` MR. SMITH: Yes, Your Honor. This is
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`Christopher Smith on behalf of the Petitioner.
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` It's Ford's position that it wasn't filed late.
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`There was an issue with the -- attaching the document,
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`and we could -- we'd actually be willing to provide a
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`declaration that sets forth all the facts, but
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`effectively, we went through the procedure and submitted
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`the filing, we actually got a receipt indicating that it
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`had been filed on April 19th at 3:18 p.m. Eastern
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`standard time, and at that point we thought we were
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`filed.
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` JUDGE MEDLEY: So you didn't check -- you didn't
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`independently check the P -- Patent End To End system to
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`make sure that it had been uploaded?
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` MR. SMITH: It was listed on the docket report
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`but -- would it be okay if Cathy Nikkila could speak?
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`She was the secretary that actually filed the document
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`and she has information that might be helpful to the
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`Court.
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` JUDGE MEDLEY: That's fine, I don't need to hear
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`from her. I'd rather hear from counsel for Petitioner.
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`I just wanted to know if you all had independently gone
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`into Patent End to End to verify that, yes, it had been
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`uploaded. I'm not saying you had to, I'm just wondering
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`what other steps you had taken besides just receiving the
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`receipt.
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` MR. SMITH: We did not independently check that
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`based on the fact that we had received a receipt,
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`therefore we thought it was filed.
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` JUDGE MEDLEY: Okay, good enough. And then I
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`believe we contacted you the following day to say it
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`looked like you had attempted but we don't see anything,
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`and then you went ahead and uploaded again; correct?
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` MR. SMITH: That is correct, Your Honor.
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`Immediately after we had received your phone message,
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`we actually followed up with the PTAB to verify what they
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`wanted us to do and we were instructed to try refiling.
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`Apparently the issue had come down to -- with the PTAB
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`website, effectively a window -- after the filing issue
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`had come up and we thought it had been filed, there was a
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`window under multiple windows where there was a Done
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`button that needed to be clicked and it was just missed.
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` JUDGE MEDLEY: Okay.
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` MR. SMITH: But on top of filing it -- just to
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`make this clear -- we also served the document on
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`opposing counsel, on then what was filed the subsequent
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`day was the identical document that was served on counsel
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`on April 19th.
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` JUDGE MEDLEY: So you independently served; you
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`didn't agree to serve it through Patent End to End?
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` MR. SMITH: We independently served via email.
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` JUDGE MEDLEY: Okay.
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` Okay, I'd like to hear from Patent Owner. So
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`having heard from the Petitioner, we wanted to focus
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`specifically on why we should not excuse a one-day late
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`filing for rehearing request. Specifically, could you
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`identify the prejudice to you?
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` MS. HOLOUBEK: Certainly, Your Honor. This is
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`Michelle Holoubek for the Patent Owner. There are a couple
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`of things here that need to be pointed out as they should
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`be considered as calculus.
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` One, the renotice, this receipt that Petitioner
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`talks about that was received on the 19th, it actually
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`includes a document uploaded field that was left blank,
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`so it should have been evidence that no documents were
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`uploaded. Even though the Patent Owner called it a
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`receipt, it's a receipt that actually puts the Petitioner
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`on notice that no document was uploaded.
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` Additionally, the Board has a rule that governs
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`late filings. They're governed by 35 CFR 42.5(c)(3) and
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`that indicates that a late action will be excused on a
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`showing of good cause or upon the Board's decision that
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`consideration would be in the interest of justice.
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` Here the proper procedures weren't followed and
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`the e-mail that we received, the service e-mail that we
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`received on the 20th, Ford indicated that due to a
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`clerical error -- and I think we just heard them admit
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`that there was an error on filing when they didn't click
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`the Done button, they said that the request hadn't been
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`uploaded into E to E and so they just filed the document
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`anew on the 20th.
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` This -- you know, the Board has rules for
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`reasons and the Board has previously dealt with issues
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`where dates were missed because of upload issues and laid
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`out a particular procedure that should be followed. That
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`hasn't been done here. The filing was made without any
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`discussion with Patent Owner about whether that was the
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`proper procedure to follow when they had been notified
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`that their filing had not actually been made. And so --
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`the Board also has a procedure for requesting a waiver of
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`due date. That hasn't happened. We've heard the
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`Petitioner say that a filing date was not missed, and
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`they had previously indicated to us in other
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`correspondence that they do not believe a waiver of the
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`due date was necessary because they maintained that it
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`was filed on the 19th. And therefore, the harm to the
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`Patent Owner is that this case was over and done with,
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`and a day after the deadline it has now been tried to
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`revive. The deadline passed without documents being
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`filed or having performed the necessary showings of good
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`cause in the interest of justice to accept the late
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`filing, and it's really opening a Pandora's box to grant
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`a filing date -- or extension of a filing date that the
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`Petitioner hasn't requested or argued is necessary. And
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`could be detrimental to us as well because this case was
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`finished, and even though Petitioner may have tried to
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`upload, they were unsuccessful in the proper filing by
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`the due date.
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` JUDGE MEDLEY: Okay. We'll let Petitioner wrap
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`up on this issue just briefly.
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` MR. SMITH: Thank you, Your Honor. I've just
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`got a couple things.
`
` First, the filing receipt, it did -- the filing
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`courtesy notice, the notice I believe that wasn't
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`uploaded, admittedly -- admittedly -- I mean, we'll agree
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`that the document doesn't appear at the bottom of the
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`page, but it wasn't our understanding that that indicated
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`it hadn't been uploaded.
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` And I would further argue that in the interest
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`of justice -- so, first of all, we served the proper
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`document on Patent Owner, so they're not prejudiced at
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`all. They had the document on the date. As soon as we
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`were notified by the Patent Office that it didn't get --
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`the document did not get uploaded properly, we
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`immediately called the Patent Office, followed their
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`procedure, which was to refile the document, and within
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`an hour of receiving the call we refiled the document,
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`included the Patent Owner on the communication when we
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`sent that e-mail that the Patent Owner referenced about
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`the clerical error. It all really comes down to a Done
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`button being missed under three layers of web pages on
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`the PTAB website, and we would think it would be against
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`the interest of justice to conclude that we missed our
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`ability to seek rehearing over something as trivial as
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`that, and we had served it already on Patent Owner the
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`day before. Thank you, Your Honor.
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` JUDGE MEDLEY: Okay. All right, thank you.
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`We've conferred and based on the facts of this case and
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`the presentation, we excuse the one-day late filing of
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`Page 10
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`the rehearing request.
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` So moving on, Patent Owner seeks authorization
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`to file an opposition to the rehearing request. We
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`generally do not authorize oppositions to rehearing
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`requests, as you know, so Patent Owner, we would like you
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`to please explain why we should deviate from our ordinary
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`practice of not entertaining opposition to rehearing
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`requests.
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` MS. HOLOUBEK: Certainly, Your Honor. Again,
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`this is Michelle Holoubek for the Patent Owner.
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` In this case, the Patent Owner should be
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`instilled to an opposition because Ford's request raises
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`new arguments on a cap federal circuit opinion that was
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`decided after the instituted decision in this case was
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`issued. This constitutes a new argument based on a case
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`that had not previously been briefed in the CBM. So
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`Patent Owner would like a reply so that it can address
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`two issues. The first is the procedural errors for
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`submitting a reply that does not meet the requirements of
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`37 CFR 42.71(d), which is the rule that governs the
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`filing of a request for rehearing in the first place.
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`And then second, the reasons why Ford's argument on this
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`new case has not disturbed the non-institution decision
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`already entered on the Board.
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` JUDGE MEDLEY: Okay, I'd like to hear from
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`Petitioner. Petitioner, I'm assuming you oppose, or do
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`you oppose them filing an opposition?
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` MR. SMITH: Your Honor, in general we oppose
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`because typically it's our understanding that a response
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`is not typically granted or allowed. Ultimately, Your
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`Honor, we would defer to the Board. If the Board feels
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`that the Patent Owner -- a response would be helpful, you
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`know, obviously it's the Board's discretion to do that.
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` JUDGE MEDLEY: Okay. Yeah, so you raised the
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`Rembrandt Wireless case initially, it may be pertinent to
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`hear from them on that issue.
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` Okay, we're going to confer and we'll be right
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`back with you.
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` MS. HOLOUBEK: Thank you, Your Honor.
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` (Pause in proceeding.)
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` JUDGE MEDLEY: Okay, we're back. Thank you for
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`your patience.
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` We've conferred and we've decided that we would
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`like to hear from the Patent Owner, especially on the
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`Rembrandt Wireless case and how that would apply in this
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`case. So we're going to authorize Patent Owner to file a
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`four-page response or opposition to the rehearing motion,
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`and we're also going to authorize Petitioner to file a
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`reply, two-page reply, and these papers are limited only
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`to the Rembrandt Wireless case. We don't want to hear
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`anything else. We will give Patent Owner a week, and
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`then subsequently we'll give Petitioner a week from that;
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`so we'll be a week from when we come out with the order,
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`which will probably be tomorrow or the next day.
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` Are there any questions, issues with timing?
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` MR. SMITH: No questions from Petitioner, Your
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`Honor.
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` MS. HOLOUBEK: No questions from Patent Owner,
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`Your Honor.
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` JUDGE MEDLEY: All right, we will send out an
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`order shortly. And again, as soon as you get the
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`transcript, if you could file it as an exhibit, we would
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`greatly appreciate that.
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` MS. HOLOUBEK: Yes, Your Honor, we'll do that.
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` JUDGE MEDLEY: Okay, we are adjourned. Thank
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`you very much.
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` (Time noted: 1:18 p.m.)
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` I, the undersigned, a Certified Shorthand
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`Reporter of the State of California, do hereby
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`certify:
`
` That the foregoing proceedings were taken
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`before me at the time and place herein set forth;
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`that any witnesses in the foregoing proceedings,
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`prior to testifying, were administered an oath; that
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`a record of the proceedings was made by me using
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`machine shorthand which was thereafter transcribed
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`under my direction; that the foregoing transcript is a
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`true record of the testimony given.
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` Further, that if the foregoing pertains to
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`the original transcript of a deposition in a Federal
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`Case, before completion of the proceedings, review
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`of the transcript [ ] was [ ] was not requested.
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` I further certify that I am neither financially
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`interested in the action nor a relative or employee
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`of any attorney or any party to this action.
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` IN WITNESS WHEREOF, I have this date
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`subscribed my name.
`
`Dated: May 3, 2017
`
` <%signature%>
`
` THERESA A. NARDELLO
`
` CSR NO. 9966
`
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`8:5
`counsel 5:7 6:7,8
`couple 6:20 8:23
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`[court - issued]
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`court 3:22,23,25
`5:5
`courtesy 8:25
`csmith 2:6
`csr 13:25
`d
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`d 10:20
`d.c. 1:23 2:13
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`e 2:6,14 7:11,11,16
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`honor 3:16 4:4,12
`5:20 6:19 8:22
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`i
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`4:24 5:8,13 6:10
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`interest 7:9 8:12
`9:5,19
`interested 13:17
`issue 4:15 5:24,25
`8:21 11:11
`issued 10:15
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`[issues - previously]
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`issues 7:19,20
`10:18 12:5
`j
`james 1:19
`jones 2:16
`jonesspross.com
`2:18
`judge 3:2,3,4,8,11
`3:14,17,21 4:1,5
`4:23 5:6,16 6:4,10
`6:13 8:20 9:23
`10:25 11:9,16
`12:10,15
`judges 1:20
`justice 7:9 8:12
`9:6,19
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`k
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`k 2:11
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`10:5 11:8
`kushman 2:3
`l
`laid 7:20
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`7:6,7 8:12 9:25
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`m
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`m 2:12
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`3:11,14,17,21 4:1
`4:5,23 5:6,16 6:4
`6:10,13 8:20 9:23
`10:25 11:9,16
`12:10,15
`meet 10:19
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`n
`n.w. 2:12
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`o
`oath 13:7
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`6:4,13,14 8:20
`9:23 10:25 11:9
`11:12,16 12:15
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`owner 1:6 2:9 3:17
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`6:14,20 7:2,23 8:8
`9:7,14,15,21 10:2
`10:5,10,11,17 11:7
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`2:9 3:17,18,24 4:1
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`3:7,13,15 4:10,13
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`8:3,15,17,20 11:1
`11:1,23 12:2,6
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`present 2:20
`presentation 9:25
`previously 7:19
`8:4 10:16
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`prior 13:7
`probably 12:4
`procedural 10:18
`procedure 4:18
`7:21,24 8:1 9:12
`procedures 7:10
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`proper 7:10,24
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`q
`questions 12:5,6,8
`r
`raised 11:9
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`transcribed 13:9
`transcript 4:2
`12:12 13:10,13,15
`trial 1:2
`tried 8:9,17
`trivial 9:20
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`[true - york]
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`Page 5
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`wireless 11:10,20
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`true 13:11
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`ultimately 11:5
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`week 12:1,2,3
`went 4:18 5:19
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`willing 4:16
`window 5:25 6:2
`windows 6:2
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