`February 21, 2014 Conference Call
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` SEQUENOM, INC.
` Petitioner,
` v.
` THE BOARD OF TRUSTEES OF
` THE LELAND STANFORD JUNIOR UNIVERSITY
` Patent Owner.
` Case IPR2013-00390
` Patent 8,195,415
`
` Friday, February 21, 2014
` Conference call in the above-entitled
`matter, reported by SUSAN L. CIMINELLI, CRR, RPR, a
`Notary Public in and for the Commonwealth of
`Virginia, commencing at 4:00 p.m.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
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`SEQUENOM EXHIBIT 1014
`Sequenom v. Stanford
`Trial IPR2013-00390
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`Page 1 of 19
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`PATENT IPR2013-00390
`February 21, 2014 Conference Call
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`APPEARANCES:
` ADMINISTRATIVE PATENT JUDGES LORA M. GREEN,
` FRANCISCO C. PRATS, SCOTT E. KAMHOLZ
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` On behalf of the Petitioner:
` STEVEN P. O'CONNOR, ESQUIRE
` MICHELE C. BOSCH, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 901 New York Avenue, N.W.
` Washington, D.C. 20001-4413
` (202) 408-4000
` steven.oconnor@finnegan.com
` michele.bosch@finnegan.com
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` On behalf of the Patent Owner:
` R. DANNY HUNTINGTON, ESQUIRE
` Rothwell, Figg, Ernst & Manbeck, P.C.
` 607 14th Street, N.W.
` Suite 800
` Washington, D.C. 20005
` (202) 783-6040
` dhuntington@rfem.com
` ALSO PRESENT:
` John Peterson, Esquire, In-house counsel,
` Sequenom
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` P R O C E E D I N G S
` JUDGE GREEN: This is Judge Green. I
`should have Judges Prats and Kamholz with me as well.
`Who do I have for Petitioner?
` MR. O'CONNOR: Good afternoon, Your Honor,
`this is Steve O'Connor for the Petitioner, Sequenom.
`We also have on the call Michelle Bosch, my
`co-counsel, and John Peterson, who is in-house
`counsel at Sequenom, and we also have a court
`reporter on the line.
` JUDGE GREEN: I'm assuming you will file a
`copy of the transcript as an exhibit in due course.
` MR. O'CONNOR: Yes, Your Honor.
` JUDGE GREEN: And then who do I have for
`Patent Owner? Do we have anybody from Patent Owner
`on the line yet? I guess we'll give it another
`couple minutes to see if somebody from Patent Owner
`shows up.
` MR. HUNTINGTON: Hello, Your Honor, this
`is Danny Huntington. I just joined the call.
` JUDGE GREEN: Are you the only
`representative for Patent Owner?
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` MR. HUNTINGTON: Yes.
` JUDGE GREEN: Okay. And you understand
`that there is also a court reporter on the line.
` MR. HUNTINGTON: I understood that from
`the conversation I just heard. Yes.
` JUDGE GREEN: Okay. And then Petitioner
`will be filing a transcript as an exhibit. It's my
`understanding that Patent Owner requested the
`conference call. Would Patent Owner like to begin?
` MR. HUNTINGTON: Yes, Your Honor. On --
`well, you may remember that we had a conference call
`on the 6th of January in which we pointed out that
`there is a -- there are corresponding proceedings and
`an interference going on with respect to this
`proceeding, and we talked about the effect of that.
`And you said that you would check with the judge
`handling -- check again, I should say, with the judge
`handling the interference to see whether it made
`sense to delay things. And you indicated it did not.
` And there was also the outstanding request
`for reconsideration which you ruled on on January 13.
`And in that, you indicated that the request for
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`reconsideration was denied because you said that the
`provisional application was available through the
`corporation by reference, and so there was no need to
`have separate authorization for that. So as soon as
`we kind of digested that, I sent an email to
`Mr. O'Connor saying we wanted to cross-examine Dr.
`Gabriel, but we'd like to schedule it after the 21st
`of February. And the reason for that is the hearing
`on that interference is next Tuesday, the 25th.
` JUDGE GREEN: Had you had any discussions
`with Petitioner before that time with the
`understanding that you may have to adjust --
`stipulate to adjustments to due dates 1 through 3?
` MR. HUNTINGTON: No. Nothing other than
`what we had in the telephone call. I think we -- you
`had indicated that if there was a delay on the --
`with respect to the issuance of the request for
`reconsideration, that there was plenty of time in the
`schedule. And also, of course, we did not, we said
`we are not going to cross -- we are not going to
`amend the claims. And so necessarily, one of the
`dates drops out anyway. But to answer your exact
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`question, I had not done that prior to the February
`6th email.
` JUDGE GREEN: Okay. Thank you.
` MR. HUNTINGTON: And so I sent that email,
`and I heard nothing on it, assuming that that -- that
`we would continue cooperating as we had in the other
`interferences, where he is backup counsel to
`Ms. Bosch until -- and so on Sunday the 16th, I sent
`the reminder email that you saw on the attachment
`saying that I realized that Dr. Gabriel is busy
`because it's been difficult in previous times.
` One of the reasons that the schedule kind
`of moved along is often the very limited time for her
`availability between work, and she is also a single
`mother, so that she may be busy and you've not been
`able to obtain dates from her yet, but would you
`please acknowledge receipt of the email below.
` And on Monday the 17th, I got the email
`with the apology for responding, and said that they
`had reached out to Dr. Gabriel to explore her
`availability after February 21st, and she indicated
`she is not available until after the 24th and has
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`identified several days in March when she is
`available and talked about noting what the due dates
`were, and then said, please let us know what your
`plans are.
` I then, based upon the fact that we have
`the hearing coming up next Tuesday, suggested -- just
`so that I had no dates to work with, suggested
`Friday, March 14 for deposing Dr. Gabriel, and then
`moving the due date on to March 28th which would be
`two weeks later, and then said that I assumed that
`they would want to move the due date a similar
`amount, but the 14th wasn't available, to suggest
`dates that would be available.
` And the response I got was that there
`wasn't going to be any cross-examination because my
`time had already run. And it seems to me that if
`they were going to take the position that I had to do
`it within the time, that they could have told me that
`immediately, and there would have been time for the
`cross-examination.
` By waiting and only responding to my email
`after the time for cross-examination had run, they
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`basically left me with no alternatives. And as far
`as -- you know, there is no -- no deadline for me
`requesting it. I realized it needed to be reasonable
`in this regard, but I kind of feel like -- that just
`common courtesy would suggest that if they are not
`going to respond to my emails, then they should
`accommodate movement in the schedule.
` JUDGE GREEN: I think I understand your
`concern. Let's go to Petitioner. What's petition's
`response?
` MR. O'CONNOR: Your Honor, several points
`in response. As Mr. Huntington indicated, we
`discussed in the conference call on the 6th whether
`or not there was a possibility of moving the due date
`for the Patent Owner's statement, and he did also
`raise the question of the pending request for
`rehearing and having an impact on the scope of the
`cross-examination he might want to conduct.
` So on the 13th, that issue got resolved
`because we got the order denying the request for
`reconsideration. The 13th was six months -- or
`excuse me, six weeks before the due date for the
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`Patent Owner's statement, and five weeks before the
`closing date for cross-examination.
` And then the very next day, we got the
`order from the Board that they had considered the
`request to move the due date, the Patent Owner's
`statement and there was a decision made not to move
`the date. At that point, if I had been the Patent
`Owner's attorney, I would have reached out right away
`with two questions. The first one being, are you
`willing to stipulate to extend my due date from
`February 24th to some future date. And if the answer
`to that is no, I'm giving you notice that we want to
`take the cross-examination of Dr. Gabriel and provide
`some dates for us when we can do that before the
`period for cross closes.
` And instead of that happening, nothing
`happened, for three weeks and two days basically,
`when Mr. Huntington sent his email. At that point,
`there were six business days left in the period for
`cross, and although Mr. Huntington asserted that that
`was sufficient time to have the cross, it's actually
`not because Board rule 42.53(d)(4) says, the party
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`seeking the deposition must file a notice of the
`deposition at least 10 business days before a
`deposition.
` And at that point, there was not 10 days
`left. So when I got Mr. Huntington's email, what it
`said was inquired as to dates after February 21st.
`We had a call with Judge Katz the day after he sent
`his email to discuss the hearing in the
`interferences, and he indicated that we would have a
`discussion after the phone call with Judge Katz.
` That discussion with the judge took place
`on the 7th as scheduled, and Mr. Huntington never
`called for the discussion, and so I waited. And when
`he finally sent the second email on the 16th at 11
`p.m., I realized the discussion wasn't going to
`happen until I responded. And given the
`circumstances, it's difficult to see, to the extent
`Mr. Huntington is asking for some extension, why that
`should be granted.
` JUDGE GREEN: So I guess your solution to
`this is not to provide Patent Owner an opportunity to
`rely on -- to cross-examine an expert on whose
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`declaration you rely heavily?
` MR. O'CONNOR: Well, I think, Your Honor,
`he had the opportunity to do that and let nearly two
`months go by from the institution of the IPR before
`he first even requested the opportunity to take her
`deposition. And when he asked for that opportunity,
`he asked for dates essentially after the due date for
`his Patent Owner's date. And so it's not clear to me
`why that isn't the right outcome.
` JUDGE GREEN: Well, I mean, these
`proceedings are important proceedings, and honestly,
`we as the Board are trying to come to the best result
`we can. How much weight can we give a declaration
`where we have no cross-examination, when we do have
`some wiggle room in the schedule because we don't
`have a motion to amend, why -- you know, the
`cross-examination also helps us to understand what's
`going on as well.
` MR. O'CONNOR: Well, then -- then I guess
`it's also unfortunate because we had a deposition of
`Dr. Gabriel in the interferences on December 20th.
`It probably would have been a good idea to do the two
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`depositions back to back. But it sounds like Your
`Honor is willing to grant some sort of relief, and I
`don't know that --
` JUDGE GREEN: I would like the parties to
`come to an agreement because that's the best way to
`go. I mean, if I have to split the baby and say, you
`know, Mr. Huntington, you don't get your
`cross-examination, but then again, we are not going
`to give much weight to a declaration to which we
`don't have cross-examination of, I don't think that's
`in the interest of either party.
` We -- we -- a lot of our standards are in
`the interest of justice, and to -- in my view, it is
`really in the interest of justice to go ahead and use
`some of this wiggle room we have since we don't have
`a motion to amend coming in, and just to get this
`done.
` And like I said, my preference would be
`for Patent Owner and Petitioner, I think that there
`was misunderstandings and I think I understand such
`misunderstandings on both sides. And my preference
`is for you to work it out amongst yourselves.
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`Because you understand your availabilities and
`everything else, and you understand more about the
`way you're going with this, but I mean, we do have a
`declaration that was relied upon heavily, and we do
`have some time in the schedule that we can get this
`done, so if you were in my position, what would you
`do?
` MR. O'CONNOR: So Mr. Huntington and I
`will have a discussion. It sounds like that's where
`we are heading.
` JUDGE GREEN: That would be my preference.
` MR. HUNTINGTON: Your Honor, I would just
`--
` JUDGE GREEN: And have a discussion sooner
`rather than later.
` MR. HUNTINGTON: I was simply going to
`comment, Your Honor, that if Mr. O'Connor and whoever
`else he would like to have would like to call me
`right now, we can go through the dates that he has
`and work it out. I'd be pleased to have the
`conversation with him as soon as this call is over.
` JUDGE GREEN: And then come to a
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`14
`stipulation of how you're going to change due dates 1
`through 3, and file the stipulation with the Board.
` MR. O'CONNOR: Danny, before we have that
`conversation, since the information from Dr. Gabriel
`is roughly two weeks out of date, I should probably
`turn back to her before you and I pick dates.
` MR. HUNTINGTON: That's fine with me.
`Just send me an email when you'd like to talk.
` JUDGE GREEN: Patent Owner, anything
`further at this point?
` MR. O'CONNOR: No, Your Honor.
` JUDGE GREEN: Petitioner?
` MR. HUNTINGTON: No, Your Honor.
` JUDGE GREEN: Thank you very much and have
`a good weekend.
` (Whereupon, at 4:14 p.m., the conference
`call adjourned.)
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`CERTIFICATE OF REPORTER
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`I, Susan L. Ciminelli, Registered Professional Reporter and Notary Public if applicable) in
`and for the Commonwealth of Virginia,
`the officer before whom the proceedings were taken, do hereby certify that the foregoing
`transcript is a true and correct record of these proceedings; that said proceedings were taken in
`Stenotype notes by me on the 21st day of February, 2014 at the Law Office of Finnegan,
`Henderson, Farabow, Garrett & Dunner, LLP, 901 New York Avenue, NW, Washington DC
`20001, commencing at 4:00 p.m. and ending at 4:14p.m.
`
`I further certify that present on behalf of Petitioner Sequenom, was
`Steven P. O'Connor, Esq. and Michele C. Bosch, Esq. of Finnegan, Henderson, Farabow, Garrett
`& Dunner, LLP and present on behalf of Party The Board of Trustees of The Leland Stanford
`Junior University was R. Danny Huntington, Esq. of Rothwell, Figg, Ernst & Manpeck P.C., and
`John Peterson, In-house Counsel for Sequenom.
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`I further certify that I am not related to, nor associated with any of the parties or
`their attorneys, nor do I have any disqualifying interest, personal or financial in the actions
`within.
`
`Dated this 24th day of February, 2014 at Fairf=-~unty, Virginia.
`
`/
`
`Susan L. Ciminelli
`
`(/
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`,
`
`----"-"~~:1:-.t:i.U,-ati -J-£~~~L L~- __../
`
`My Commission Expires: 4/30/17
`Notary Registration Number 177349
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`A
`able 6:16
`aboveentitled
`1:14
`accommodate
`8:7
`acknowledge
`6:17
`actions 15:9
`adjourned
`14:17
`adjust 5:12
`adjustments
`5:13
`administrative
`2:2
`afternoon 3:5
`agreement 12:5
`ahead 12:14
`alternatives 8:1
`amend 5:21
`11:16 12:16
`amount 7:12
`answer 5:22
`9:11
`anybody 3:15
`anyway 5:22
`apology 6:19
`appeal 1:2
`appearances 2:1
`applicable 15:2
`application 5:2
`asked 11:6,7
`asking 10:18
`asserted 9:20
`associated 15:9
`assumed 7:10
`assuming 3:11
`6:5
`attachment 6:9
`attorney 9:8
`attorneys 15:9
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`authorization
`5:4
`availabilities
`13:1
`availability 6:14
`6:21
`available 5:2
`6:22 7:2,12,13
`avenue 2:8 15:4
`B
`baby 12:6
`back 12:1,1 14:6
`backup 6:7
`based 7:5
`basically 8:1
`9:17
`behalf 2:5,12
`15:6,7
`best 11:12 12:5
`board 1:2,7 9:4
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`given 10:16
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`8:11 11:2,19
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