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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`___.___.._________...______..._.._._.____._ o
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`XILINX,
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`INC“,
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`Petitioner,
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`: Case No.:
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`vs.
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`:
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`IPR2013—00112(SCM)
`
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`INTELLECTUAL VENTURES :, LLC,
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`Patent Owner.
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`: CERTIFIED Copy,
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`Washington, D.C.
`
`Wednesday, July 24, 2013
`
`BEFORE:
`
`THE HONORABLE SALLY C. MEDLEY, KARL D.
`
`EASTHOM, and JUSTIN T. ARBES
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`The following pages constitute the
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`telephonic conference call held in the
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`above—captioned matter, held at Foley & Lardner,
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`LLP, 3000 K Street, N.W., Suite 600, Washington,
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`D.C., 20007, before Robert Michael Jakupciak, RPR, a
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`Notary Public in and for the District of Columbia,
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`beginning at approximately 2:00 p.m.
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`A P P E A R A N C F
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`PANEL MEMBERS:
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`JUDGE SALLY C. MEDLEY
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`JUDGE KARL D. EASTHOM
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`JUDGE JUSTIN T. ARBES
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`On behalf of the Petitioner:
`
`(Present by phone.)
`
`DAVID L. MCCOMBS, ESQUIRE
`
`THOMAS B. KING, ESOUIRE
`
`THOMAS KELTON, ESQUIRE
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`Haynes and Boone, LLP
`
`2323 Victory Avenue, Suite 700
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`Dallas, Texas
`
`75219
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`(214)
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`651—5000
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`On behalf of the Patent Owner:
`
`
`GEORGE E. OUILLIN, ESQUIRE
`
`Foley & Lardner, LLP
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`3000 K Street, N.W., Suite 600
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`Washington,
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`D C., 20007
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`(202)
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`672—5413
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`and
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`A P P E A R A N C E S
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`(Cont‘d.)
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`(Present by phone.)
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`PAUL S. HUNTER, ESQUIRE
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`Foley & Lardner, LLP
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`150 East Gilman Street
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`Madison, Wisconsin
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`53703
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`(608) 257—5035
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`Also Present by Phone
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`Don Coulman
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`Joey Dewey
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`P R O C E E D I N G S
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`Whereupon,
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`JUDGE MEDLEY: This is the initial
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`conference call for IPR 2013—00112.
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`I would first
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`like to start with a roll—call.
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`For Petitioner, who
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`do we have on the line?
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`MR. MCCOMBS: Yes, Your Honor. This is
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`David McCombs and Tom King,
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`for the Petitioner
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`Xilinx.
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`Owner?
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`JUDGE MEDLEY:
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`Thank you. And for Patent
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`MR. QUILLIN: Your Honor,
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`this is George
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`Quillin, on behalf of the Patent Owner, Intellectual
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`Ventures.
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`We also have a court reporter here with
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`me, as well as some in—house colleagues.
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`I will let
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`partner, Paul Hunter, may be calling in as well.
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`But
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`I will let Mr. Coulman and Ms. Dewey introduce
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`themselves.
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`JUDGE MEDLEY:
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`Thank you.
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`MR. COULMAN: This is Don Coulman,
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`from
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`Intellectual Ventures.
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`MS. DEWEY:
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`And Joey Dewey,
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`from
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`Intellectual Ventures.
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`JUDGE MEDLEY: Okay.
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`Thank you.
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`MR. MCCOMBS: Your Honor,
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`this is David
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`McCombs.
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`One of my colleagues, Thomas Kelton,
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`just
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`walked in as well.
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`JUDGE MEDLEY: Okay.
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`So, Mr. Ouillin,
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`should we wait for Mr. Hunter or should we begin?
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`MR. QUILLiN:
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`think we could begin, Your
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`JUDGE MEDLEY: All right.
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`So 1 would
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`first like to ask the parties if they discussed
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`settling this case? And I'll direct that to
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`Petitioner.
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`MR. MCCOMBS: No, Your Honor.
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`JUDGE MEDLEY: Okay.
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`If there is anything
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`that the Board can assist in making settlement
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`happen, please do not hesitate to contact us.
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`All right.
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`So moving on to the list that
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`we received in preparation for this call, we
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`received Xilinx's motion or notice regarding
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`conference call indicating that it does not
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`presently intend to file any motions.
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`Is that
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`correct or has that changed in any way? This is
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`directed to Mr. McCombs.
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`MR. MCCOMBS: That has not changed, Your
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`Honor.
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`JUDGE MEDLEY: Okay.
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`Thank you. And then
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`we received the Patent Owner's list, and they
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`requested to file a Motion to Amend,
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`a Motion to
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`Exclude Evidence, and other motions, quote/unquote,
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`Patent Owner‘s proposed motions.
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`Mr. Quillin, do you have anything
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`specifically you want
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`to discuss with respect to
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`your Motion to Amend?
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`: assume that TV intends to
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`file a motion to amend at this point?
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`MR. QUZLLTN:
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`I believe that's correct,
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`Your Honor. We haven‘t sorted out exactly what we
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`a Motion to Amend. And I guess at this stage we
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`may have about
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`the bases or the justifications it
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`more than a strict one-for—One number of motions;
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`that is,
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`if we are going to cancel say three claims,
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`can we have a motion that would present four claims?
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`JUDGE MEDLEY: Mr. Quillin, have you
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`reviewed the Idle Free decision?
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`MR. QUILLIN:
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`l have, Your Honor.
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`:t
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`talks about, as I recall,
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`if there is sufficient
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`reason.
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`I guess we are trying to learn what sort Of
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`reasons there would be.
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`JUDGE MEDLEY: Okay.
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`SO I think that the
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`Board takes into account that the proceedings must
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`come to an end,
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`so if a party presents a lot OF new
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`claims beyond substituting for one—for-One,
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`I think
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`that does sort of put us *— put a negative spin on
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`things, but, Of course,
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`the decision says that if
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`it‘s justified by special circumstances, and I
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`realize the Idle Free decision does not necessarily
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`provide special circumstances. But we are always up
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`for listening to a good story, good cause.
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`I can't hypothetically think Of something,
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`but we are always —— if it's a good story, you know,
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`that you want to introduce a claim, perhaps that you
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`are not sure how the Board is going to interpret the
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`proposed language,
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`so in case we interpret it one
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`way, you would proposal another claim,
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`that might be
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`considered a special circumstance.
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`So that's just something that pops into my
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`mind.
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`Honor.
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`MR. QUILLIN:
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`I appreciate that, Your
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`I guess I'm thinking more in terms of not
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`claims in the alternative so much as increasing
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`specificity,
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`if you will.
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`So,
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`for example, you
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`cancelled three claims and you present a claim that
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`has certain limitations, and then further deepen a
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`claim that has more limitations in it as a way of
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`increasing the likelihood that,
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`patentable claim that will pass muster.
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`JUDGE MEDLEY: Okay. Well, again,
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`I just
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`would point you to the Idle Free decision.
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`I think
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`it sort of set out what we wouldn't want
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`to see, and
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`that might be what we wouldn't want to see.
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`If you
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`look at page 6,
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`in that's decision it says the
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`desire to obtain a new set of claims having a
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`constitute special circumstance, which it sounds
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`like that's what you were suggesting.
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`MR. QUILLIN: Well,
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`I guess I‘m trying to
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`understand how that would apply to,
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`for example,
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`claims that were limited to one—to—one.
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`I
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`take it
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`that if there —~ if the amendment did limit the
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`claims to a one—to—one substitution,
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`that there
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`could be a hierarchy.
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`is that a correct
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`understanding, Your Honor?
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`JUDGE MEDLEY:
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`The one—to—one could have,
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`right, hierarchy already in place. Are you
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`suggesting that you would replace like claim one and
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`you have two and three,
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`two depends from one,
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`three
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`depends from two, and you would substitute one,
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`two
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`and three?
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`MR. QUILLiN: Right. That would be one
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`kind of a possibility, Your Honor.
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`JUDGE MEDLEY: Right. But what
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`I
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`understood you were asking is you would replace with
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`four,
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`five, and six and seven and add even more.
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`MR. QUILLIN: Right. Well,
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`there is, for
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`example,
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`in the trial guide,
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`there is this example
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`of four claims that are presented, and the amendment
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`combines the limitations from several of those
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`dependent claims and then adds a new claim that has
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`a further,
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`a further limitation.
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`So I guess I'm trying to understand if,
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`that if the hierarchy is already built in and that's
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`okay, and if the trial guide says we can add a fresh
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`then what,
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`limited limitation in it.
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`JUDGE MEDLEY: Well, without seeing the
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`claim,
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`I don‘t think we can really tell you exactly.
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`And I hate to be vague about that, but you are sort
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`too.
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`I apologize, but it's hard for
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`hypotheticals,
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`hypotheticals.
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`So I would just advise you to look at the
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`Idle Free, and if you want
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`to point to the practice
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`guide and say, hey, you said in the practice guide
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`that this fourth thing was permitted, and if it
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`seems to be what‘s in the practice guide, outside
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`the scope of Idle Free,
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`then, of course,
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`there is
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`that contention there, we would have to resolve
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`that.
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`So I think you just, you know, as long as you
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`have a story or something to back it up, we are
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`going to consider it.
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`MR. QUILLIN: All right.
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`Thank you, Your
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`Honor. Would it be appropriate for us to set up
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`another call further down the road when we get
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`closer to actually filing an amendment to pass that
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`by you all?
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`JUDGE MEDLEY:
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`1 don't think that's
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`necessary. What my experience has been is that no
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`one really wants to discuss their,
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`their proposed
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`amendments on the conference call because it sort 0;
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`gives the Petitioner notification before the paper
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`is actually due.
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`I don‘t think anybody really wants
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`to tip their hat that way.
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`Certainly though, conversely,
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`if you want
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`to get into specifics of what you are proposing, you
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`can have another conference call. But this
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`satisfies the requirement that you converse,
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`so it's
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`not necessary that you set up another call for us to
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`discuss this again.
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`MR. QUILLIN: All right, Your Honor.
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`Thank you.
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`JUDGE MEDLEY:
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`And then moving on to your
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`Motion to Exclude Evidence.
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`MR. QUILLIN: Yes, ma‘am.
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`JUDGE MEDLEY:
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`I mean that‘s set
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`in place.
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`You don't need prior authorization for that.
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`I saw
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`that you objected to the declaration from
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`Petitioner, Petitioner came back with a substitute
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`declaration,
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`so if you want to file a Motion to
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`Exclude, that's within the rules.
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`You don't need
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`prior authorization for that.
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`MR. QUILLIN: Right. We do have I guess a
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`broader question about that whole process, not about
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`this specific objection in evidence, but
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`I guess
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`more broadly.
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`JUDGE MEDLEY: Okay.
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`MR. QUILLIN:
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`So the way —— as I
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`understand it,
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`the way the rules are set up, a
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`patent owner like us could object to evidence, and
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`then the petitioner gets a certain amount of time to
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`submit supplemental evidence, and that happened
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`here. And so as we understand it, as you just said,
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`that when the time comes down the road,
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`time period
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`four I guess it is, we can submit a motion to
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`exclude the evidence that was previously objected
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`to,
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`that we have preserved our objection and can
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`file a motion to exclude.
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`But our question has to do with I guess
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`the status in the meantime of the supplemental
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`evidence.
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`Is that in the record or is it not
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`in the
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`record?
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`i understand from interference practice,
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`for example,
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`Judge McKelvey has written an
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`explanation about how that works in that other
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`proceeding, and the rules for the IPRs don't go into
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`any detail about whether this supplemental evidence
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`is in yet or if it —— what‘s its status,
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`if you
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`will.
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`JUDGE MEDLEY: Right.
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`I think,
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`I believe
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`they filed it.
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`MR. QUILLIN: Yes. Yes.
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`JUDGE MEDLEY:
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`So it's in the record right
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`now.
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`It‘s different from interferences, because as
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`you know, Mr. Quillin,
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`in interferences everything
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`chugs along until everything is filed on time period
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`eight.
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`But here it’s different because we have to
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`make a decision to —— before anything else happens.
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`So we are going forward on the evidence that we
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`already have. And then so you can object to the
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`evidence that we relied upon as part of our
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`decision.
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`So it‘s different, it is a little
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`different in that respect. Because in interferences
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`we wouldn't even see the original —— we wouldn't
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`rely on ~— like if someone objected to a declaration
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`and they filed a substitute declaration and you were
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`okay with that declaration,
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`then you wouldn't file a
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`motion to exclude and we would rely on the
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`substitute declaration ~—
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`MR. QUILLZN: Right.
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`JUDGE MEDLEY:
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`~— when doing our decision.
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`But here it‘s different because we rely on the first
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`declaration that's submitted in rendering our
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`to have is an evidentiary dispute in a preliminary
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`phase. We want
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`to hold off and have that during the
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`trial phase.
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`So I don't know if that answers your
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`question or actually confused things.
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`MR. QUILLIN: Well,
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`for the —— it didn‘t
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`happen here,
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`to Mr. McCombs's credit, but there is a
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`if one objects to say the declaration that
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`declaration that's limited to the objection,
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`instead
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`of doing that,
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`the petitioner would file say an
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`entirely revised declaration.
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`it would seem, it
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`would seem confusing about whether, whether
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`that's —- whether the petitioner could use that
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`additional information, additional evidence, as it
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`were,
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`to sort of beef up its original petition.
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`JUDGE MEDLEY: Well, at that point then it
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`would become supplemental evidence and then we would
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`have to get
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`are supposed to have everything that they want to
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`So if they added,
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`like they have the
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`advantage of maybe seeing in our decision a flaw or
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`something like that,
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`they can't substantively beef
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`it up and say that's just a response to an objection
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`to evidence;
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`So then the Board would get
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`involved
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`at that point.
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`MR. QUILLIN: Okay. Well,
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`thank you, Your
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`Honor.
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`That is sort of a lingering concern I think
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`among some parties, because the rules don't lay out
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`very clearly how the supplemental evidence is being
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`treated and what,
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`I guess what the boundaries are,
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`what
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`the limits are on what one does, what one is
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`permitted to do in submitting supplemental evidence.
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`JUDGE MEDLEY: Well,
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`I
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`think that, you
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`know, we need to address the objections and then it
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`really shouldn't go beyond that.
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`So if somebody is
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`objecting to someone's evidence because he is not an
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`expert,
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`for example, he didn't set forth in his
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`declaration his background sufficiently or something
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`like that, and people are trying to correct that
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`then, and it's not beyond those additional facts,
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`I
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`think that's what's contemplated by the rules.
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`Now, if he added a bunch of substantive
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`information that would actually beef up,
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`quote/unguote,
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`the petitioner‘s case,
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`I think that
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`would be beyond what we are thinking about.
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`MR. QUILLIN: All right, Your Honor.
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`That's certainly my understanding of what's going
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`on.
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`It's just that there doesn't seem to be any I
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`guess express guidance from the Board in the :PR
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`proceedings anyway.
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`JUDGE MEDLEY: Okay.
`
`I appreciate that.
`
`That's good feedback. Because we are trying to
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`improve the process as we all go along to make it
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`clear for everybody involved.
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`So I will pass that
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`along, because I
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`tend to agree that that whole
`
`process isn't clear either, and what
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`the answer may
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`be is that we come up with some FAQs.
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`I don't know
`
`if the counsel are aware, we have a list of FAQs on
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`our website addressing various issues that come up.
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`So that might be something that we add to our FAQS
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`to help clarify.
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`So I will pass that along.
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`MR. QUILLIN: That would be helpful I
`
`think, Your Honor.
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`JUDGE MEDLEY: Okay.
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`I appreciate the
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`feedback. All right. And then other motions as the
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`occasion arises.
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`So I would pose we don't have any
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`on the table right now.
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`MR. QUILLIN: Not yet, Your Honor, no.
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`JUDGE MEDLEY: Okay. Are there any
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`questions regarding the scheduling order?
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`MR. QUiLLiN: This is George Quillin
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`again, Your Honor.
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`: do have one question i guess
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`due date five.
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`It's December 18 until January 2,
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`you have got
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`two federal holidays in there, and
`
`during that period of time there is evidently the
`
`opportunity for the patent owner —— I'm trying to
`
`think about
`
`the nature of who is deposing who.
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`JUDGE MEDLEY: Well, you have the patent
`
`owner's reply to the petitioner's opposition to the
`
`motion to amend, that's time period three.
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`So that
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`would be your reply. Let's say petitioner comes in,
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`they oppose your motion to amend,
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`they have to bring
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`in their expert. Okay?
`
`So you want to, of course,
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`cross—examine him —— well, you may or may not want
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`to cross—examine him.
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`Then in time period four you
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`can file a motion for observation regarding
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`cross—examination of the petitioner's witness.
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`Is
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`that right?
`
`MR. QUILLIN: Yes. Yes.
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`JUDGE MEDLEY: Maybe I'm reading that
`
`wrong.
`
`MR. QUILLIN:
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`So my reply that's due on
`
`due date three could include —~ my reply could
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`include a declaration from my expert, and then in
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`the,
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`in the period of time between three and four
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`the petitioner has the opportunity to cross-examine
`
`him and then submit observations regarding that
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`crOSS*examination.
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`JUDGE MEDLEY: Right.
`
`
`
`: think : misspoke
`
`and said "patent owner.‘
`
`But you are correct, it's
`
`I
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`the petitioner that can then file observations
`
`regarding cross of your witness,
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`the patent owner's
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`reply witness. Right.
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`So and I understand the
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`parties can only adjust one through three, but if
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`you have come to an agreement that you don‘t need as
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`much time, or are you suggesting you need more time?
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`MR. QUILLIN: Well,
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`I'm just I guess
`
`struck by the, by the short amount of time.
`
`It's
`
`less than a month between three and four. And I'm
`
`just trying to think through how much time it takes
`
`under the rules to notice the deposition and how
`
`much time before time period four the deposition has
`
`got to be done and that sort of thing.
`
`I don‘t know
`
`if the Board has much experience so far with getting
`
`to that stage, but it just strikes me as a small
`
`window of time.
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`JUDGE MEDLEY:
`
`There is a lot in the
`
`forefront here.
`
`So if the parties wanted to adjust
`
`their time, you know, compress them at all,
`
`then the
`
`Board would be willing to adjust due date four to
`
`earlier December.
`
`So perhaps, Mr. Quillin,
`
`if you
`
`can discuss off line with Mr. McCombs as you get
`
`along further and have a concern, and if you want to
`
`adjust those three or any of those three and
`
`shorter,
`
`then we would certainly consider shortening
`
`due date four.
`
`MR. QUILLIN: Okay, Your Honor.
`
`As
`
`I say,
`
`
`
`we are not there yet.
`
`I don't know if it's going to
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`(888) 297—6863
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`happen, but
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`I just,
`
`I was just remarking to myself
`
`that that seems a small window of time to do all the
`
`tasks that are potentially due then.
`
`JUDGE MEDLEY: Okay. Well,
`
`1 think that
`
`we kept it short maybe because oftentimes there is
`
`no motion to exclude,
`
`there is no observation
`
`regarding cross, you know, maybe you don't even have
`
`a reply witness.
`
`So if you have the worst case
`
`scenario, you may need more time, but that could be
`
`adjusted perhaps with adjusting the dates to one,
`
`two or three and/or all of them. Okay. Are there
`
`any other questions?
`
`
`MR. QUiLLlN: This is —— not
`
`from the
`
`Patent Owner's side, Your Honor.
`
`JUDGE MEDLEY: Mr. McCombs?
`
`MR. MCCOMBS: None here.
`
`JUDGE MEDLEY: Okay. All right. Well, we
`
`appreciate your time.
`
`Thank you very much.
`
`MR. QUILLIN:
`
`Thank you, Your Honor.
`
`MR. MCCOMBS:
`
`Thank you.
`
`JUDGE MEDLEY:
`
`Bye bye.
`
`
`
`(Whereupon, at 2:24 p.m.,
`
`the
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`
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`fl
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`proceedings adjourned.)
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`23
`
`CERTIFICATE OF NOTARY PUBLIC
`
`I, ROBERT M.
`
`JAKUPCIAK,
`
`the officer before
`
`whom the foregoing proceedings were taken, do hereby
`
`certify that the proceedings were taken by me in
`
`stenotype and thereafter reduced to typewriting
`
`under my direction;
`
`that said proceedings are a true
`
`record;
`
`that I
`
`am neither counsel for, related to,
`
`nor employed by any of the parties to the action in
`
`which these proceedings were taken; and, further,
`
`that I
`
`am not a relative or employee of counsel or
`
`attorney employed by the parties hereto, nor
`
`financially or otherwise interested in the outcome
`
`of this action.
`
`
`IN WITNESS WHEREOF,
`I have hereunto set my
`aq n/
`.
`,1!
`
`hand this 54
`é2a%%bj'
`
`_ day of
`
`, 2013.
`
`
`
`//m /
`f}rUAHJCL
`ROBERT M.
`JAKUPC_IAK
`
`
`l
`
`Notary Public in and for the:
`
`District of Columbia
`
`My Commission Expires: December 14, 2013
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`

`IPR 2013-00112
`U.S. Patent No. 5,779,334
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing Patent Owner
`
`Certified Copy of Transcript of Telephonic Conference held July 24, 2013, is being
`
`served on counsel of record by filing these documents through the Patent Review
`
`Processing System as well as delivering a copy via commercial overnight courier
`
`directed to the counsel of record for the Petitioner at the following address:
`
`David L. McCombs, Esq.
`Haynes and Boone, LLP
`2323 Victory Avenue, Suite 700
`Dallas, TX 75219
`
`Dated: August 27, 2013
`
`Respectfully submitted,
`
`By: /George E. Quillin/
`George E. Quillin
`Registration No. 32,792
`Counsel for Patent Owner
`
`4815-3327-2597.1
`
`