UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Sipnet EU S.R.O.,
`
`Petitioner
`
`V.
`
`Straight Path IP Group, Inc.,
`
`Patent Owner
`
`Case No. IPR2013-00246
`
`US. Patent No. 6,108,704
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S OBSERVATION ON
`
`CROSS—EXAMINATION OF PETITIONER’S DECLARANT LESLIE
`
`EHRLICH
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Sipnet EU S.R.O.,
`
`Petitioner
`
`V.
`
`Straight Path IP Group, Inc.,
`
`Patent Owner
`
`Case No. IPR2013-00246
`
`US. Patent No. 6,108,704
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S OBSERVATION ON
`
`CROSS—EXAMINATION OF PETITIONER’S DECLARANT LESLIE
`
`EHRLICH
`
`
`
`Case No. IPR2013—00246
`
`US. Patent No. 6,108,704
`
`INTRODUCTION
`
`Pursuant to the Board’s authorization on June 4, 2014 and the Office Trial
`
`Practice Guide, 77 Fed. Reg. 48767—68 (Aug. 14, 2012), Petitioner Sipnet EU
`
`S.R.O. respectfully submits the following responses to the observations submitted
`
`by the Patent Owner regarding the May 29, 2014 cross—examination of Petitioner’s
`
`declarant Leslie Ehrlich.
`
`RESPONSES TO PATENT OWNER’S OBSERVATIONS
`
`A.
`
`Response to Observation 1
`
`In response to Patent Owner’s Observation 1 and specifically that “Ms.
`
`Ehrlich’s Testimony Establishes that Her Declaration Is Not Credible,” Petitioner
`
`respectfully notes that in Exhibit 2044, on Page 11, Line 15 through Page 12, Line
`
`10; and Page 16, Lines 14-24; Ms. Ehrlich testified that:
`
`EX. 2044, Page 11, Line 15 through Page 12, Line 10
`
`15
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`16
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`17
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`18
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`Q. Did you draft this declaration?
`
`A. No.
`
`Q. Who drafted the declaration?
`
`A. Paul Haughey. And then I reviewed it and
`
`19 made some edits and then executed it.
`
`20
`
`21
`
`Q. What edits did you make to it?
`
`A. I remember that I made edits to say that
`
`
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`Case No. IPR2013—00246
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`US. Patent No. 6,108,704
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`22 they were substantially identical except for the
`
`23 typo stuff and the section about the glossary.
`
`24
`
`Q. So the words "substantially identical,"
`
`25 does that come from Mr. Haughey?
`
`0012
`
`1
`
`2
`
`3
`
`4
`
`A. No, that came from me.
`
`Q. Well, what did it say before?
`
`A. I don't remember.
`
`Q. So you authored the words "substantially
`
`5
`
`identical"?
`
`6
`
`7
`
`A. I believe I did, but I can't remember.
`
`Q. And when you say substantially identical,
`
`8 you didn't actually mean the two documents were
`
`9 identical, correct?
`
`10
`
`A. No, then I would just say identical.
`
`EX. 2044, Page 16, lines 14-24:
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`14
`
`Q. So your declaration is incorrect again
`
`15 with respect to your comparison of the similarities
`
`16 between the two documents, correct?
`
`
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`Case No. IPR2013—00246
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`US. Patent No. 6,108,704
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`17
`
`A. Yes, I believe that when I said the main
`
`18 differences between the different texts of the
`
`19 glossary are formatting type differences due to the
`
`20 help screen format on the CD-ROM. I realize now
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`21 that doesn't read well, but that was my intent in
`
`22 the declaration to say that large differences in
`
`23 the text are due to the formatting from the CD—ROM
`
`24 versus the paper document.
`
`The above testimony is relevant to (1) Exhibit 1018, the Ehrlich Declaration;
`
`(2) Exhibit 1017, the Kolesnikov Declaration; (3) Exhibit 1019, the Yuri Guide;
`
`and (4) Exhibit 1004, the WINS. The above testimony is relevant because it
`
`demonstrates that, contrary to Patent Owner’s observation, Ms. Ehrlich clearly
`
`explained the reasons for the superficial differences between Exhibit 1004 (WINS)
`
`and Exhibit 1019 (Yuri Guide). It further establishes that the Ehrlich Declaration
`
`(Exhibit 1018) was candid and credible. It also corroborates the Kolesnikov
`
`Declaration (Exhibit 1017) and supports the conclusion that the Exhibit 1019, the
`
`Yuri Guide is substantially identical to the Exhibit 1004, the WINS and that the
`
`WINS was publicly available before the critical date.
`
`B.
`
`Response to Observation 2
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`
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`Case No. IPR2013—00246
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`U.S. Patent No. 6,108,704
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`In response to Patent Owner’s Observation 2 and specifically that “Ms.
`
`Ehrlich Testified that Exhibit 1004 (WINS) and Exhibit 1019 (Yuri Guide) Are
`
`Not the Same,” Petitioner respectfully notes that in Exhibit 2044, Page 19, Line 3,
`
`through Page 20, Line 10; and Page 21, Line 8, through Page 22, Line 24, Ms.
`
`Ehrlich testified that:
`
`Ex. 2044, Page 19, Line 3, through Page 20, Line 10:
`
`3
`
`Q. So when you did this comparison of the two
`
`4 documents, in fact, you didn't compare at least ten
`
`5 pages of Exhibit 1004 and at least 16 pages of
`
`6 Exhibit 1018, correct?
`
`7
`
`A. Correct. Because the computer program
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`8 does not contain references in the table of
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`9 contents to page numbers. The computer programs
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`10 don't have page numbers as the Exhibit 1004 does.
`
`11
`
`12
`
`Q. I'm sorry, I don't understand your answer.
`
`A. So Exhibit 1019, which is the printout of
`
`13 the computer program, has a table of contents but
`
`14 does not list page numbers for each section in the
`
`15 table of contents. Exhibit 1004 includes a table
`
`16 of contents with reference to page numbers.
`
`
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`Case No. IPR2013—00246
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`U.S. Patent No. 6,108,704
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`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Q. So you've identified yet another
`
`difference between the two documents, that is
`
`specifically Exhibit 1004 has a table of contents
`
`with page numbers and 1018 has a table of contents
`
`with no page numbers, correct?
`
`A. Yes, because the computer program doesn't
`
`have page numbers that I'm aware of.
`
`Q. So they're different again, and you've
`
`pointed out yet another difference in the
`
`0020
`
`1
`
`documents?
`
`2
`
`3
`
`A. Yes, due to the formatting as in this was
`
`formatted in a computer program and this isn't.
`
`Q. At the time, did you compare the two table
`
`of contents to determine that they were exactly the
`
`same with the exception of page numbers?
`
`A. I remember comparing the headings of all
`
`of the chapters and they were consistent.
`
`Actually, yes, I did compare them Visually myself
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`
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`Case No. IPR2013—00246
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`10 and they were the same.
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`Ex. 2044, Page 21, Line 8, through Page 22, Line 24
`
`8
`
`Q. Let's ask you a question about Page 31 of
`
`9 your declaration.
`
`10
`
`11
`
`12
`
`So can you explain to me the different --
`
`what's going on in terms of the compare that
`
`appears in the first set of double underlines on
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`13
`
`Page 31?
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`14
`
`A. Double underlines are insertions, so that
`
`15
`
`task was included in the Exhibit 1019 but not
`
`16
`
`included in Exhibit 1004.
`
`17
`
`18
`
`Q. So, for instance, this line about "Fiend
`
`Trap with Community Hamas" was in the 1018 but was
`
`19
`
`not in 1004, is that correct?
`
`20
`
`21
`
`22
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`23
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`24
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`A. Ibelieve so, yes.
`
`Q. So if you could turn to Page 35, at the
`
`bottom of 35, there is a cross—out starting —— says
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`Chapter 2 - "Installing and configuring Microsoft
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`TCP NP and SNPM option meaning."
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`
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`Case No. IPR2013—00246
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`25
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`What does that mean that's crossed out?
`
`0022
`
`1
`
`A. That that was included in Exhibit 1004 but
`
`not in Exhibit 1019.
`
`Q. And so a cross—out throughout your
`
`comparison is information that was deleted from ——
`
`or, sorry, information that's been —— with a single
`
`cross—out is information that does not appear in
`
`1004 but does —— sorry, I'm still confused. Let's
`
`8
`
`9
`
`10
`
`11
`
`12
`
`try this again.
`
`Information that's been crossed out is
`
`information that appears in 1004 but does not
`
`appear in Exhibit 1018, correct?
`
`MR. MORLOCK: Objection, foundation.
`
`13
`
`MR. HOFFMAN:
`
`14
`
`15
`
`16
`
`Q. You can answer.
`
`A. Not necessarily, no.
`
`Q. So explain to me what does a cross—out
`
`17
`
`line mean?
`
`18
`
`A. It either means that it was stuff that was
`
`
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`Case No. IPR2013—00246
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`US. Patent No. 6,108,704
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`19 deleted from Exhibit 1004 and is not contained in
`
`20 Exhibit 1019 or it can also mean that it was text
`
`21 that was in Exhibit 1004 and was moved in 1019.
`
`22
`
`There's a legend at the back of the
`
`23 exhibit. The printout does not appear in color.
`
`24 So it was not as informative.
`
`The above testimony is relevant to (1) Exhibit 1018, the Ehrlich Declaration;
`
`(2) Exhibit 1017, the Kolesnikov Declaration; (3) Exhibit 1019, the Yuri Guide;
`
`and (4) Exhibit 1004, the WINS. The above testimony is relevant because it
`
`demonstrates that Ms. Ehrlich clearly explained the reasons for the superficial
`
`differences between Exhibit 1004 (WINS) and Exhibit 1019 (Yuri Guide). It
`
`further establishes that the Ehrlich Declaration (Exhibit 1018) was candid and
`
`credible. It also corroborates the Kolesnikov Declaration (Exhibit 1017) and
`
`supports the conclusion that the Exhibit 1019, the Yuri Guide is substantially
`
`identical to the Exhibit 1004, the WINS and that the WINS was publicly available
`
`before the critical date.
`
`C.
`
`Response to Observation 3
`
`In response to Patent Owner’s Observation 3 and specifically that “Ms.
`
`Ehrlich’s Declaration Cannot be Offered to Establish the Public Availability of
`
`
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`Case No. IPR2013—00246
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`U.S. Patent No. 6,108,704
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`Exhibit 1004, the WINS Manual,” Petitioner respectfully notes that in Exhibit
`
`2044, on Page 7, Lines 11-25; and Page 8, Lines 7—15, Ms. Ehrlich testified that:
`
`EX. 2044, Page 7, Lines 11-25:
`
`11
`
`Q. When did you start doing any work on —-
`
`12 with respect to the Sipnet matter?
`
`13
`
`A. I was approached to do a special project
`
`14 for Paul Haughey to compare a disk to a paper copy.
`
`15
`
`Q. And prior to that time of being approached
`
`16 by Mr. Haughey, you hadn't done any work on the ——
`
`17 with respect to the Sipnet matter, is that correct?
`
`18
`
`A. No. That is correct.
`
`19
`
`Q. Okay. And what did Mr. Haughey ask you to
`
`20 do?
`
`21
`
`A. There was a paper copy of a document and a
`
`22 disk copy, and I was to compare the two to see that
`
`23 they were the same thing.
`
`24
`
`25
`
`Q. And what did you conclude?
`
`A. That they were pretty much the same thing.
`
`Ex. 2044, Page 8, lines 7-15:
`
`10
`
`
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`Case No. IPR2013—00246
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`
`7
`
`Q. So it's your testimony today under oath
`
`8 under penalty of perjury that when you did the
`
`9 comparison of the two documents, they were the same
`
`10 document, correct?
`
`11
`
`A. I believe I said in my declaration that
`
`12 they were substantially the same. There were some
`
`13 errors regarding things that looked like typos or
`
`14 formatting, and I believe that one section was
`
`15 different, glossary section was different.
`
`The above testimony is relevant to (1) Exhibit 1018, the Ehrlich Declaration;
`
`(2) Exhibit 1017, the Kolesnikov Declaration; (3) Exhibit 1019, the Yuri Guide;
`
`and (4) Exhibit 1004, the WINS. The above testimony is relevant because it
`
`demonstrates that Ms. Ehrlich clearly explained the reasons for the superficial
`
`differences between Exhibit 1004 (WINS) and Exhibit 1019 (Yuri Guide). It
`
`further establishes that, contrary to Patent Owner’s observation, the Ehrlich
`
`Declaration (Exhibit 1018) was candid and credible and can be used to show public
`
`availability of WINS (Exhibit 1004). It also corroborates the Kolesnikov
`
`Declaration (Exhibit 1017) and supports the conclusion that the Exhibit 1019, the
`
`Yuri Guide is substantially identical to the Exhibit 1004, the WINS and that the
`
`WINS was publicly available before the critical date.
`
`11
`
`
`
`Case No. IPR2013—00246
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`US. Patent No. 6,108,704
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`Dated: June 20, 2014
`
`/Pavel I. Pogodin/
`
`Respectfully Submitted,
`
`Pavel I. Pogodin
`Registration No. 48,205
`Transpacific Law Group
`530 Lytton Avenue, 2nd Floor
`Palo Alto, CA 94301
`pavel@transpacificlaw.com
`Tel.: 650—469—3750
`
`Fax: 650—472—8961
`
`Sanjay Prasad
`Registration No. 36,247
`Prasad IP, PC
`
`1768 Miramonte Avenue, #4845
`
`Mountain View, CA 94040
`sanjay@prasadip.com
`Tel: 650—918—7647
`
`Attorneys for Petitioner
`
`12
`
`
`
`Case No. IPR2013—00246
`
`US. Patent No. 6,108,704
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that this PETITIONER’S RESPONSE TO
`PATENT OWNER’S OBSERVATION ON CROSS—EXAMINATION OF
`
`PETITIONER’S DECLARANT LESLIE EHRLICH was served, by agreement of
`the parties, by electronic mail on counsel for the Patent Owner on June 20, 2014 as
`follows:
`
`Patrick J. Lee
`
`Alan M. Fisch
`
`Fisch Hoffman Sigler LLP
`Patrick.Lee@fischllp.com
`Alan.Fisch@fischllp.com
`
`Dated: June 20, 2014
`
`/Pavel I. Pogodin/
`
`Pavel I. Pogodin
`Registration No. 48,205
`Transpacific Law Group
`530 Lytton Avenue, 2nd Floor
`Palo Alto, CA 94301
`pavel@transpacificlaw.com
`Tel.: 650—469—3750
`
`Fax: 650—472—8961
`
`Sanjay Prasad
`Registration No. 36,247
`Prasad IP, PC
`
`1768 Miramonte Avenue, #4845
`
`Mountain View, CA 94040
`
`sanjay@prasadip.com
`Tel: 650—918—7647
`
`Attorneys for Petitioner
`
`13
`
`
`
`Case No. IPR2013—00246
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`US. Patent No. 6,108,704
`
`Dated: June 20, 2014
`
`Respectfully submitted,
`
`
`
`San Francisco, CA 94111
`
`Telephone: (415) 576—0200
`Facsimile: (415) 576—0300
`
`
`
`Case No. IPR2013-00246
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`US. Patent No. 6,108,704
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of
`
`PETITIONER’S LIST OF ISSUES FOR ORAL ARGUMENT
`
`PURSUANT TO 37 C.F.R. §42.70
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION TO
`
`EXCLUDE UNDER 37 C.F.R. 4264(0)
`
`PETITIONER’S RESPONSE TO PATENT OWER’S OBSERVATION
`
`ON CROSS-EXAMINATION OF PETITIONER’S DECLARANT
`
`LESLIE EHRLICH
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S OBSERVATION
`
`ON CROSS-EXAMINATION OF PETITIONER’S DECLARANT
`
`YURI KOLESNIKOV
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S OBSERVATION
`
`ON CROSS-EXAMINATION OF PETITIONER’S DECLARANT
`
`VADIM ANTONOV
`
`
`
`Case No. lPR2013-00246
`
`US. Patent No. 6,108,704
`
`have been served, by agreement of the parties, by electronic mail on counsel for
`
`Patent Owner on June 20, 2014 as follows:
`
`Patrick J. Lee
`
`Fisch Hoffman Sigler LLP
`Patricl<.lee@fischllp.com
`
` Dated:
`June 20, 2014 Paul C. Haughey
`
`Registration No. 31,836
`Kilpatrick Townsend & Stockton LLP
`Two Embarcadero Center, Eighth Floor
`San Francisco, CA 94111
`
`Telephone: 415-576—0200
`Fax: 415—576-0300
`
`Email: phaughey @killpatricktownsend.com
`Counsel for Petitioner
`
`
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