AVAYA INC. AV-1056 IPR2013-00071
`Avaya Inc. v. Network-1 Security Solutions, Inc.
`
`
`Avaya Inc. v. Network-1 Security Solutions, Inc.
`
`
`
`TELECONFERENCE
`
` 1 UNITED STATES PATENT AND TRADEMARK OFFICE
`
` 2 BEFORE THE PATENT AND TRIAL AND APPEAL BOARD
`
` 3
`
` 4 AVAYA, INC., DELL, INC., )
` SONY CORPORATION OF AMERICA, )
` 5 and HEWLETT-PACKARD CO., )
` )
` 6 Petitioners, )
` )
` 7 vs. ) Case No. IPR2013-00071
` ) U.S. Patent
` 8 NETWORK-1 SECURITY SOLUTIONS, ) No. 6,218,930
` INC., )
` 9 )
` )
`10 Patent Owner. )
` ______________________________)
`11
`
`12
`
`13
`
`14
`
`15 Teleconference, taken on behalf of the
`
`16 Petitioner Avaya, Inc., at 2040 Main Street, Suite 250,
`
`17 Irvine, California, beginning at 10:04 a.m. and ending
`
`18 at 10:42 a.m., on Tuesday, January 7, 2014, before
`
`19 JOANNA B. BROWN, Certified Shorthand Reporter No. 8570,
`
`20 RPR, CRR, RMR.
`
`21
`
`22
`
`23
`
`24
`
`25
`
`2
`
`
`
`TELECONFERENCE
`
` 1 APPEARANCES OF COUNSEL:
`
` 2 FOR THE PETITIONER AVAYA, INC.:
`
` 3 CROWELL & MORING, LLP
` BY: JEFFREY D. SANOK, ESQ.
` 4 1001 Pennsylvania Avenue N.W.
` Washington, D.C. 20004-2595
` 5 (202) 624-2995
` jsanok@crowell.com
` 6
` FOR THE PETITIONER SONY CORPORATION OF AMERICA:
` 7
` FINNEGAN, HENDERSON, FARABOW,
` 8 GARRETT & DUNNER, LLP
` BY: THERESA WEISENBERGER, ESQ.
` 9 Two Freedom Square
` 11955 Freedom Drive
`10 Reston, Virginia 20190-5675
` (571) 203-2700
`11 theresa.weisenberger@finnegan.com
`
`12 FOR THE PATENT OWNER NETWORK 1 SECURITY SOLUTIONS,
` INC.:
`13
` BUCHANAN INGERSOLL
`14 BY: CHARLES F. WIELAND, III, ESQ.
` ROBERT G. MUKAI, ESQ.
`15 1737 King Street
` Suite 500
`16 Alexandria, Virginia 22314-2727
` (703) 838-6604
`17 charles.wieland@bipc.com
` robert.mukai@bipc.com
`18
` FOR THE PATENT TRIAL AND APPEAL BOARD:
`19
` HONORABLE JONI Y. CHANG, JUSTIN T. ARBES,
`20 AND GLENN J. PERRY
`
`21 ALSO PRESENT:
`
`22 RAY GABRIEL
`
`23
`
`24
`
`25
`
`3
`
`
`
`TELECONFERENCE
`
` 1 Irvine, California; Tuesday, January 7, 2014
`
` 2 10:04 a.m.
`
` 3
`
` 4 HON. JUSTIN ARBES: Hello everyone. This is
`
` 5 Judge Arbes from the Patent Trial and Appeal Board. I
`
` 6 have with me Judge Chang and Judge Perry. This is a
`
` 7 conference call, Case IPR2013-71. Do we have counsel
`
` 8 for the petitioner, Avaya, on the line?
`
` 9 MR. SANOK: Yes, we do, Your Honor. This is
`
`10 Jeff Sanok with Crowell & Moring.
`
`11 HON. JUSTIN ARBES: And counsel for any of the
`
`12 other petitioners?
`
`13 MS. WEISENBERGER: This is
`
`14 Theresa Weisenberger for Sony.
`
`15 MR. GABRIEL: And Ray Gabriel for HP.
`
`16 HON. JUSTIN ARBES: Anyone for Dell, Inc.?
`
`17 MR. SANOK: I do not believe Dell is able to
`
`18 make the call.
`
`19 HON. JUSTIN ARBES: Okay. That's fine. And
`
`20 counsel for the patent owner, Network-1?
`
`21 MR. WIELAND: Yes. This is Charles Wieland.
`
`22 HON. JUSTIN ARBES: Okay. The conference call
`
`23 today, which was originally scheduled yesterday, was to
`
`24 address the parties' objections to the demonstratives
`
`25 that have been served on each other on both sides.
`
`4
`
`
`
`TELECONFERENCE
`
` 1 We've received two emails within the last hour with
`
` 2 copies of the demonstratives to be discussed, and it
`
` 3 looks like there are a number of them. There are 15
`
` 4 demonstratives that Avaya is objecting to of
`
` 5 Network-1's and four of Avaya's demonstratives to which
`
` 6 Network-1 objects. And we've received two emails with
`
` 7 copies of those exhibits.
`
` 8 Does that represent the universe of what the
`
` 9 parties are objecting to at this point?
`
`10 MR. SANOK: Yes, it does, Your Honor, and I
`
`11 think, as far as the objections to the Network-1
`
`12 exhibits, they are sort of grouped. So there's really
`
`13 three issues only.
`
`14 HON. JUSTIN ARBES: Okay. Before we begin, we
`
`15 are going to go through one example for each one. What
`
`16 we would tell the parties -- we attempted to do this
`
`17 yesterday -- is that the use of demonstratives is
`
`18 intended to be merely a visual aid -- merely visual
`
`19 aids for hearings for the board and for the other
`
`20 parties so that everyone knows exactly what is being
`
`21 argued.
`
`22 We found that it is particularly useful, when
`
`23 you have figures, to have that up on the screen so that
`
`24 everyone can see it. They are intended for that use
`
`25 only. With that in mind, these are definitely things
`
`5
`
`
`
`TELECONFERENCE
`
` 1 that the parties should be able to agree on. There is
`
` 2 no reason for large disputes over many issues with
`
` 3 demonstratives.
`
` 4 We found -- the board has conducted a number
`
` 5 of hearings so far. It is the rare case when there are
`
` 6 objections to the demonstratives from parties before
`
` 7 the hearing. The number of objections yesterday and
`
` 8 the number of objections that are continuing today are
`
` 9 not the ordinary, we would tell the parties, and is not
`
`10 something that the parties -- that the board intends to
`
`11 spend a lot of time on, looking at demonstratives
`
`12 before the actual hearing when we examine the merits of
`
`13 the case itself.
`
`14 With that in mind, what we are going to do is
`
`15 discuss one example for -- of an objection from each
`
`16 party. We have referred the parties to the previous --
`
`17 to the order in a previous case, the CBS Interactive
`
`18 case where it was determined that there was such a
`
`19 large number of objections that the parties were not
`
`20 permitted to use the demonstratives that they wanted
`
`21 and were only permitted to use pages from the existing
`
`22 records as demonstratives at the hearing.
`
`23 So what we are going to do is we are going to
`
`24 go through an example from each one. Both parties will
`
`25 have an opportunity to point to an exhibit that they
`
`6
`
`
`
`TELECONFERENCE
`
` 1 object to, and if there is an objectionable -- if there
`
` 2 is an objectionable exhibit from that party, then what
`
` 3 we will do is do the same thing that the board did in
`
` 4 the CBS Interactive case. The parties will only be
`
` 5 able to use as demonstratives pages from the record.
`
` 6 Obviously, I don't think that's preferable to
`
` 7 the parties. This is something that we had hoped that
`
` 8 the parties would be able to work out. So -- but
`
` 9 that's how we intend to proceed.
`
`10 So, with that, we can start with Network-1's
`
`11 demonstratives, and what we'll ask Avaya is if you can
`
`12 point to one example of a slide of Network-1's that you
`
`13 object to. We have the slides up on our screens right
`
`14 now. If you can, point to one, and explain the reason
`
`15 for your objection to it.
`
`16 MR. SANOK: Sure, Your Honor. And it may seem
`
`17 that we have a lot of issues with the slides, but I
`
`18 will say that both Avaya and the patent owner's
`
`19 counsel, we've been working very closely over the last
`
`20 day since you've given us your order to really narrow
`
`21 the issues. And I really think there's only a couple
`
`22 of, as I said, issues to be addressed. We've sort of,
`
`23 in a sense, in general, made sure that we'll address
`
`24 them. So let me --
`
`25 Following what you'd like to do, if you want
`
`7
`
`
`
`TELECONFERENCE
`
` 1 to look at Slide 18, which is on page 5 of the exhibit
`
` 2 that Network-1 sent you --
`
` 3 HON. JUSTIN ARBES: Okay.
`
` 4 MR. SANOK: What I want to also say, though,
`
` 5 is the slides 14 through 21 of which 18 is one example,
`
` 6 those all, in our view, will either stand or fall
`
` 7 together if we use the old board parlance. These
`
` 8 slides essentially are introducing a new argument, a
`
` 9 so-called transistor argument that had never been
`
`10 developed or introduced in any of Network-1's papers,
`
`11 and it's being done now for the first time in violation
`
`12 of the CBS Interactive standard.
`
`13 What they are doing -- I'll summarize their
`
`14 argument because, as you can see from Slide 18, they
`
`15 are highlighting particular transistors. 24A and 24B,
`
`16 they are highlighted in red. What they are doing is
`
`17 they are now arguing that those transistors essentially
`
`18 eat up almost the majority of the voltage supply
`
`19 current that comes out of that Power Supply No. 1.
`
`20 And in the past, in their original papers, the
`
`21 only argument that had been addressed or raised in the
`
`22 patent-owner response had been whether there was
`
`23 sufficient voltage available at the access device to
`
`24 operate the access device. So that was their original
`
`25 argument.
`
`8
`
`
`
`TELECONFERENCE
`
` 1 Now, what happened here in this series of
`
` 2 slides, they are developing this argument based on
`
` 3 paragraphs from Dr. Knox's second declaration that was
`
` 4 submitted in the reply to the opposition to the motion
`
` 5 to amend. So this argument has nothing, of course, to
`
` 6 do with the motion to amend. It all has to do with the
`
` 7 argument about the delivering of the low-level current.
`
` 8 So our position on this series of slides is
`
` 9 that this argument should have been introduced in the
`
`10 patent-owner response. That was the first instance.
`
`11 They had that opportunity to do so to try and show that
`
`12 somehow the current was eaten up in the power supply
`
`13 versus over the data-signaling lines, which is what
`
`14 they are arguing. But they didn't do it there.
`
`15 And they then had an opportunity to
`
`16 cross-examine Petitioner Avaya's expert on this issue,
`
`17 and they conducted a lengthy cross-examination of him
`
`18 with respect to these transistors. And they had an
`
`19 opportunity at that point to file a motion for
`
`20 observation on that cross-examination of
`
`21 Dr. Zimmerman's reply declaration.
`
`22 HON. JUSTIN ARBES: Okay. That's
`
`23 Exhibit 2025?
`
`24 MR. SANOK: That is Exhibit 20 -- let's see.
`
`25 I'm not exactly sure. It is -- you'll see they
`
`9
`
`
`
`TELECONFERENCE
`
` 1 cited -- you'll see on Slide 18 they cited to a portion
`
` 2 of Dr. Zimmerman's cross-examination, and it says,
`
` 3 "Zimmerman Deposition, page 225," but they didn't give
`
` 4 us the exhibit number.
`
` 5 HON. JUSTIN ARBES: Well, Counsel, I'm looking
`
` 6 at Slide 18. It says that's Exhibit 2025.
`
` 7 MR. SANOK: Yes, yes. I'm sorry. You are
`
` 8 correct. That's right. So you have -- they
`
` 9 cross-examined Petitioner Avaya's reply declarant on
`
`10 this issue, and they had an opportunity to file a
`
`11 motion for observation on that cross-exam, which is
`
`12 what they should have done if they wanted to introduce
`
`13 this argument.
`
`14 What we believe happened is they did not do
`
`15 that because they essentially wanted to follow a
`
`16 pattern they've had here of introducing this argument
`
`17 at a late stage in the demonstrative evidence so that
`
`18 the patent owner or the petitioner, Avaya, would not
`
`19 have an opportunity to respond to the motions for
`
`20 observation.
`
`21 So we have an issue here where they are
`
`22 developing this new transistor argument that was never
`
`23 in their original patent-owner response, and it was
`
`24 first introduced in the very last declaration of
`
`25 Dr. Knox, paragraphs 275 through 280, that had nothing
`
`10
`
`
`
`TELECONFERENCE
`
` 1 to do with the opposition to the motion to amend. And,
`
` 2 in fact, the reply to the opposition to the motion to
`
` 3 amend never even cited to these particular paragraphs
`
` 4 of Dr. Knox because, of course, they didn't have
`
` 5 anything to do with the motion to -- the opposition to
`
` 6 the motion to amend.
`
` 7 HON. JUSTIN ARBES: Okay. Counsel, I'm sorry.
`
` 8 If I can stop you. So you obviously have a
`
` 9 disagreement with Dr. Knox's second declaration. We
`
`10 understand. We had a conference call on that
`
`11 previously. We understand that Avaya objects to that
`
`12 as being beyond the scope of what was permitted on
`
`13 reply. The board will make a determination when it
`
`14 prepares the final written decision as to whether or
`
`15 not that declaration or portions of it was appropriate.
`
`16 But, as of right now, that declaration is part
`
`17 of the record, and it looks like Network-1 has cited
`
`18 you to a paragraph in that declaration where this
`
`19 argument -- this argument was made. So that's part of
`
`20 the record right now; right?
`
`21 MR. SANOK: Well, it's part of the testimony,
`
`22 but the CBS Interactive case stands for the proposition
`
`23 that you cannot introduce or develop the testimony in a
`
`24 new argument for the first time at the appropriate
`
`25 time, and this isn't the appropriate time for it. They
`
`11
`
`
`
`TELECONFERENCE
`
` 1 should have had a motion for observation on
`
` 2 Dr. Zimmerman's cross-exam, or they should have been in
`
` 3 their patent-owner response in support of their
`
` 4 argument that the low-level current wasn't going to be
`
` 5 sufficient.
`
` 6 So this is a new argument developed for the
`
` 7 first time that the petitioners had no opportunity to
`
` 8 respond to. We haven't been able to address it in any
`
` 9 paper, in any observation. We should have had an
`
`10 opportunity to address it in the response to the
`
`11 motions for observation of Dr. Zimmerman's
`
`12 cross-examination.
`
`13 And this will tie into slides that the patent
`
`14 owner has objected to where we anticipated that
`
`15 Network-1 may try to -- I hate to use the word, but --
`
`16 sandbag us on this issue. And so we added a couple of
`
`17 quotations from Dr. Zimmerman's testimony, the
`
`18 cross-exam testimony, that we would have been able to
`
`19 do in the response to their motion for observation had
`
`20 they filed it.
`
`21 So, as it stands, if allowed to proceed with
`
`22 the argument that they are developing, this transistor
`
`23 argument, for the first time in Slides 14 through 21 --
`
`24 and the slides all go together because they all
`
`25 developed -- it is -- it takes seven slides to develop
`
`12
`
`
`
`TELECONFERENCE
`
` 1 the argument for them. If allowed to go, we've never
`
` 2 had an opportunity to actually respond to it, and now
`
` 3 they are even --
`
` 4 And so it really is in violation of the
`
` 5 CBS Interactive standards. And that case says in
`
` 6 particular that, you know -- it says that the arguments
`
` 7 have to be presented at an appropriate time during the
`
` 8 trial, and they -- it also says that any party should
`
` 9 be able to point specifically to a sentence or two or
`
`10 even a paragraph in an appropriate paper to support a
`
`11 demonstrative slide.
`
`12 This is a situation where, for the first time,
`
`13 this argument is being developed, and, again, we have
`
`14 not had any opportunity to respond to it. CBS says,
`
`15 "Testimony may not be first developed, discussed,
`
`16 explained, or summarized for the first time in
`
`17 demonstrative slides."
`
`18 HON. JUSTIN ARBES: Okay. But, Counsel,
`
`19 again, this was -- this was in -- this was presumably
`
`20 in Dr. Knox's second declaration; correct?
`
`21 This argument was developed in that
`
`22 declaration. You object to that, but it was made
`
`23 there; right?
`
`24 MR. SANOK: It -- yes. They did set forth in
`
`25 paragraphs 275 to 280, which are subject to our motion
`
`13
`
`
`
`TELECONFERENCE
`
` 1 to exclude, as you know --
`
` 2 HON. JUSTIN ARBES: Yes.
`
` 3 MR. SANOK: They did make that argument. They
`
` 4 never cited to that argument in their reply. Again, it
`
` 5 was, you know -- in our view, of course, it's just
`
` 6 additional legal briefing they were getting in, in that
`
` 7 declaration. So they never cited to it in the reply
`
` 8 because this paragraph has nothing to do with the
`
` 9 motion to amend.
`
`10 HON. JUSTIN ARBES: Okay. But, Counsel, if we
`
`11 agree with -- let's say that we agree with you
`
`12 eventually that that portion of Dr. Knox's declaration
`
`13 was not appropriate and we will not consider that
`
`14 argument. That is a risk that Network-1 ran whenever
`
`15 you introduced something in a reply declaration. If we
`
`16 would -- if we would agree with that, that argument
`
`17 would not be considered. What is the prejudice, then?
`
`18 Just as if Network-1 would make the argument
`
`19 here and that argument will not be considered, it is
`
`20 not supported by a declaration, it becomes a waste of
`
`21 time. What is the prejudice, then?
`
`22 If we eventually agree with you -- and it
`
`23 hasn't been decided yet -- but if we eventually agree
`
`24 with you, what is the prejudice from having them argue
`
`25 it here?
`
`14
`
`
`
`TELECONFERENCE
`
` 1 MR. SANOK: Well, the prejudice, of course,
`
` 2 here is that this will be argued now for the first time
`
` 3 at the hearing, and we are stuck in a situation of do
`
` 4 we have to address that in the hearing or not? Do
`
` 5 we --
`
` 6 We have not had an opportunity to put in any
`
` 7 counter-testimony into the record because this is the
`
` 8 first time it shows up. That's the real prejudice here
`
` 9 is we have not been given any opportunity to submit any
`
`10 evidence counter.
`
`11 For example, in Slide 18, they are relying on
`
`12 parts of the cross-examination of Dr. Zimmerman. Well,
`
`13 there are other parts of the cross-examination that
`
`14 essentially directly contradict what they are relying
`
`15 on, and those are not -- those have not -- there was no
`
`16 opportunity at all for us to submit that in.
`
`17 So if the board were to allow this testimony
`
`18 in at the appropriate time, there is no vehicle to
`
`19 submit it, the proper vehicle for Network-1 that should
`
`20 have been in their patent-owner response
`
`21 unquestionably. And, secondly, they had an opportunity
`
`22 to file motion for observation of that cross-exam to
`
`23 which we would have then had a responsive pleading, and
`
`24 then the issue would have been properly before the
`
`25 board.
`
`15
`
`
`
`TELECONFERENCE
`
` 1 But this is the first time it's raised, the
`
` 2 first time it's developed, this transistor argument,
`
` 3 and that is -- that series of slides, 14 through 21,
`
` 4 are all the crux of that argument.
`
` 5 HON. JUSTIN ARBES: Can we hear from
`
` 6 Network-1, please.
`
` 7 MR. WIELAND: Yes. We have an argument of the
`
` 8 sequence of events.
`
` 9 HON. JUSTIN ARBES: Counsel, if I can --
`
`10 rather than going into the sequence of events, can
`
`11 you -- looking at this slide, why is this slide
`
`12 justified? Pointing to evidence in the record where
`
`13 the things in this demonstrative were used and
`
`14 developed, why is this slide appropriate?
`
`15 MR. WIELAND: So, Your Honor, in our response
`
`16 and in our motion to amend, one of the fundamental
`
`17 arguments that we have is whether or not the current is
`
`18 insufficient to operate an access device, and that's
`
`19 where their slides were to go to.
`
`20 So Network-1 submitted evidence for the
`
`21 specific access device in Matsuno to be disclosed as
`
`22 being sufficient because it was approximately 48 volts,
`
`23 just to hit some key words there.
`
`24 What we did or what Avaya did in their reply
`
`25 to the first time, they asserted that that 48 volts was
`
`16
`
`
`
`TELECONFERENCE
`
` 1 actually only eight volts. And so, in response to
`
` 2 Dr. Zimmerman's declaration, Dr. Knox, our expert,
`
` 3 contested why Dr. Zimmerman was mistaken, and that's
`
` 4 what we are citing to in these slides.
`
` 5 So we didn't have an opportunity to reply to
`
` 6 Avaya's new argument in their reply, and we have an
`
` 7 order in this case saying that a motion to exclude is
`
` 8 not appropriate, et cetera. So this is our opportunity
`
` 9 to reply to that new argument that came from Avaya's
`
`10 reply. That is, Network-1 will be arguing that Avaya
`
`11 failed to present the evidence in its position, and
`
`12 that evidence was submitted for the first time in
`
`13 petitioner's reply. And that should be considered --
`
`14 and it was done to make out a prima facie case because
`
`15 they had not submitted evidence as to the insufficiency
`
`16 of the current in their petition. So they were trying
`
`17 to fix a hole that they had in their initial petition.
`
`18 So we are going to argue that this should be excluded
`
`19 from your deliberations.
`
`20 Also, we are not just limiting ourselves to
`
`21 standing on that objection. We are also throwing in
`
`22 that Network-1 argues that this is incorrect, that the
`
`23 analysis that Dr. Zimmerman had was incorrect, and
`
`24 Dr. Knox shows us why.
`
`25 So these slides are perfectly appropriate.
`
`17
`
`
`
`TELECONFERENCE
`
` 1 The arguments were late, introduced by Avaya, and we
`
` 2 have this opportunity under the procedures to respond
`
` 3 to it at the oral arguments.
`
` 4 And as you said, it is evidence of record. So
`
` 5 it's really just that one point.
`
` 6 MR. SANOK: If I may respond just briefly.
`
` 7 HON. JUSTIN ARBES: Briefly, please.
`
` 8 MR. SANOK: Network-1 has said they did not
`
` 9 have an opportunity to respond. They did. They took
`
`10 the cross-examination of Dr. Zimmerman, and they had --
`
`11 they should have filed a motion for observation on that
`
`12 cross-examination just as the patent or the petitioner
`
`13 had to do with Dr. Knox. So that was the opportunity,
`
`14 and the regulations were set up such that the
`
`15 petitioners would then have had a fair opportunity to
`
`16 file a response to the observations.
`
`17 MR. WIELAND: I think --
`
`18 MR. SANOK: That is the problem.
`
`19 MR. WIELAND: -- the board is aware that the
`
`20 motion for observations are very, very succinct. It
`
`21 would not have been the appropriate vehicle for this.
`
`22 MR. SANOK: Excuse me for being interrupted.
`
`23 But the motion for observations, if they are an
`
`24 appropriate vehicle for the petitioner to deal with the
`
`25 last declaration filed by the patent owner, it's the
`
`18
`
`
`
`TELECONFERENCE
`
` 1 same for the patent owner. And if you look at
`
` 2 IPR2013-0170, that's exactly what happens. The patent
`
` 3 owner has an opportunity to file for a motion for
`
` 4 observation on the cross-examination of a reply
`
` 5 declarant, and that would have given petitioners the
`
` 6 fair opportunity to respond. That did not occur.
`
` 7 There is no opportunity for us to respond because this
`
` 8 is now being introduced, the demonstratives, at the
`
` 9 hearing.
`
`10 HON. JUSTIN ARBES: Okay.
`
`11 MR. SANOK: No one showed up before. You
`
`12 won't find transistor arguments anywhere earlier in
`
`13 their papers.
`
`14 HON. JUSTIN ARBES: Okay. I think we
`
`15 understand the parties' positions as to this exhibit.
`
`16 Let's move on to discuss one example. Network-1 can
`
`17 point to one example from Avaya's demonstratives that
`
`18 you object to.
`
`19 MR. WIELAND: Well, I have a fundamental
`
`20 question, which may alleviate our objections to two of
`
`21 the exhibits, and that is, the deposition transcript
`
`22 that -- portions of the deposition transcript that have
`
`23 not been cited to in any paper or in any declaration,
`
`24 is that part of the record that they can draw upon for
`
`25 their slides?
`
`19
`
`
`
`TELECONFERENCE
`
` 1 HON. JUSTIN ARBES: Has it been filed in the
`
` 2 case?
`
` 3 MR. WIELAND: Yes.
`
` 4 MR. SANOK: Yes.
`
` 5 HON. JUSTIN ARBES: Then it is part of the
`
` 6 record.
`
` 7 MR. WIELAND: Okay. So what I would point to
`
` 8 is just the second slide, 15, the second on our list.
`
` 9 So that would be, I think, page 2 of the slides that we
`
`10 sent over to you.
`
`11 HON. JUSTIN ARBES: Okay.
`
`12 MR. WIELAND: And this is a very minor point.
`
`13 The objection that we have is Figure 11 that they
`
`14 highlight there and they add ST point and U point, that
`
`15 was referenced to establish that Matsuno is an ISDN
`
`16 terminal. They seem to want to use those points to
`
`17 argue that there's a voltage differential, which was
`
`18 never argued before, and so we are objecting.
`
`19 The slide is fine if they only want to
`
`20 introduce it to establish that Matsuno is an ISDN, but
`
`21 we would object if they are going to use it to suggest
`
`22 a new argument that we haven't heard before.
`
`23 HON. JUSTIN ARBES: Okay. I think there is a
`
`24 difference between the parties in what -- in how the
`
`25 demonstratives are being viewed. The material on this
`
`20
`
`
`
`TELECONFERENCE
`
` 1 slide appears to come directly from the record as it
`
` 2 exists, and speculating about what Avaya might or might
`
` 3 not argue at the hearing, I don't think is a proper
`
` 4 ground for us to strike this demonstrative.
`
` 5 MR. WIELAND: I apologize, Judge Arbes. I
`
` 6 should have said that the support that they provided
`
` 7 for the slide makes it seem like that's what they want
`
` 8 to argue. It's not just speculation. I apologize for
`
` 9 not pointing that out.
`
`10 MR. SANOK: If I may respond.
`
`11 HON. JUSTIN ARBES: Yes. Where in the
`
`12 record -- if that is the argument that Avaya tends to
`
`13 make, where is that -- where was that argument made in
`
`14 the record?
`
`15 MR. SANOK: Our support in the original
`
`16 petition, we identify the U and ST points as being part
`
`17 of the ISDN, and in the reply to the patent-owner
`
`18 response, we discuss where -- the 40 volts that are
`
`19 going to be on the ST point. So I think every -- as
`
`20 you've recognized, paragraph 4 is right out of the
`
`21 Matsuno reference. Figure 11 is directly out of the
`
`22 Matsuno reference. The original petition referenced it
`
`23 all.
`
`24 I frankly don't understand what they are
`
`25 arguing, but I don't find this objectionable, and I
`
`21
`
`
`
`TELECONFERENCE
`
` 1 think that's a big contrast between the argument that
`
` 2 they are developing in their slides that we just
`
` 3 discussed. This is directly out of the Matsuno patent,
`
` 4 and the ST and U points are colored there simply
`
` 5 because they are very hard to read otherwise.
`
` 6 It would appear they may be objecting to the
`
` 7 highlighting, which that would affect everyone's
`
` 8 slides.
`
` 9 MR. WIELAND: No. Of course, we are not. I
`
`10 apologize if I interrupted there, Mr. Sanok. I thought
`
`11 you were creating a point that I should respond to.
`
`12 One thing that Mr. Sanok said was the Paper 56 that
`
`13 they are citing to, that doesn't actually point to the
`
`14 ST as being a voltage point.
`
`15 And that's really our concern is they may be
`
`16 introducing a technical argument that we've never heard
`
`17 before, and it seems like that's what they want to do.
`
`18 And that's our objection is, yes, Your Honor, you are
`
`19 absolutely correct. The slide itself is just content
`
`20 from Matsuno, but we thought this was the appropriate
`
`21 vehicle to object to them using a demonstrative in a
`
`22 manner that is not in accordance with the board's
`
`23 prerogative or directive not to introduce new arguments
`
`24 at this late stage.
`
`25 HON. JUSTIN ARBES: Okay. I think we
`
`22
`
`
`
`TELECONFERENCE
`
` 1 understand the parties' positions to this slide. The
`
` 2 panel will confer. We'll go and meet and confer
`
` 3 briefly and be back shortly.
`
` 4 MR. WIELAND: Thank you.
`
` 5 (Pause in the proceedings.)
`
` 6 HON. JUSTIN ARBES: Okay. The panel has had a
`
` 7 chance to confer. Looking at the two example slides
`
` 8 that both parties have pointed to, we don't see, in
`
` 9 either side, a situation where there is a new argument
`
`10 itself in the demonstratives. The demonstratives
`
`11 appear to have content directly taken from the record
`
`12 rather than, for instance, having new text, making it
`
`13 completely new argument, which was the case in the
`
`14 CBS Interactive case.
`
`15 With that in mind, the parties are free to
`
`16 make arguments that they want at the hearing. The
`
`17 board will decide the case then based on the existing
`
`18 record. If an argument was not made in the record and
`
`19 a party's paper in the record, that party runs the risk
`
`20 that that argument may not be considered.
`
`21 But the board will not parse out what may or
`
`22 may not be new argument based on speculation of what
`
`23 the parties will argue from the demonstratives. Under
`
`24 the circumstances, the demonstratives appear to have
`
`25 material directly from the record, and the time when
`
`23
`
`
`
`TELECONFERENCE
`
` 1 the board will decide what is a new argument and what
`
` 2 is not is not on the fly -- is not now and is not on
`
` 3 the fly at the hearing but, rather, when the board
`
` 4 reviews the entire record and reaches a decision.
`
` 5 One other note we would have for the parties
`
` 6 at the hearing is that if a party believes that the
`
` 7 opposing party is making a new argument, we will not
`
` 8 want the party to object at that time during the other
`
` 9 party's presentation. You had the opportunity to rebut
`
`10 the other side and any arguments that they make. And,
`
`11 again, the board will determine what arguments are new
`
`12 and what are not when it reaches a final decision.
`
`13 So, with that in mind, the parties should file
`
`14 their demonstratives in these proceedings, and none
`
`15 will be stricken at this time. Are there any
`
`16 questions?
`
`17 MR. SANOK: Your Honor, this is Jeff Sanok for
`
`18 Avaya. I just have one, I guess, point of order or
`
`19 procedure. I'm assuming that -- we understand -- I
`
`20 understand your instruction. We can all proceed with
`
`21 our current demonstratives. I just want to -- I assume
`
`22 that either party is also going to be able to use at
`
`23 the hearing the other party's demonstratives since they
`
`24 are of record. So I just want to make sure that's
`
`25 understood or correct.
`
`24
`
`
`
`TELECONFERENCE
`
` 1 HON. JUSTIN ARBES: That's fine. Yes. Both
`
` 2 demonstratives will be filed in the case and will
`
` 3 become part of the record and may be used by either
`
` 4 side of the case as well. Yes.
`
` 5 MR. SANOK: Okay.
`
` 6 HON. JUSTIN ARBES: And we will have a
`
` 7 projector an
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
