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`CONFERENCE
`----------------------------------------
`IPR2013-00419 and IPR2013-00424
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`------------------------------------------
` TELECONFERENCE
` December 9, 2014
` 3:45 P.M.
`
` Taken by Dawn Miller, a Notary Public
`of the State of New York, pursuant to court
`order and stipulations between Counsel.
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`IPR2013-00419 - Exhibit 1029
`Toyota Motor Corp., Petitioner
`1
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`Page 2
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`1 A P P E A R A N C E S
`2 KENYON & KENYON, LLP
`3 Attorneys for TOYOTA
`4 1 Broadway
`5 New York, New York
`6 BY: MATTHEW BERKOWITZ, ESQ.
`7 GEORGE BADENOCH, ESQ.
`8 ANTHONY PFEFFER, ESQ.
`9
`10
`11
`12 McANDREW, HELD & MALLOY, LTD.
`13 Attorneys for PATENT ORDER
`14 500 West Madison Street
`15 Chicago, Illinois 60661
`16 BY: CHRISTOPHER SCHARFF, ESQ.
`17 TOM WIMISUS, ESQ.
`18 SCOTT McBRIDE, ESQ.
`19
`20 A L S O, P R E S E N T:
`21
`22 JUDGE LEE
`23 JUDGE PEDIGREE
`24 JUDGE JEFFERSON
`25
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`1 CONFERENCE
`2 in connection with both the 419 and
`3 the 424 IPR's on November 13th. What
`4 we need to do is file a motion to
`5 terminate those IPR's pursuant to the
`6 Board's authority under 315B, the
`7 Board relied on that --
`8 YOUR HONOR: Can I interrupt
`9 you? When you said, "IPR," did you
`10 mean, "Re-exam?"
`11 MR. SCHARFF: I'm sorry, Your
`12 Honor, I misspoke, I meant the
`13 re-exams.
`14 YOUR HONOR: There are two in
`15 re-exam, right?
`16 MR. SCHARFF: Yes, exactly.
`17 There are two petitions for
`18 reexamination. Reexamination one in
`19 connection with the 057 Patent that's
`20 the subject of the 419 IPR and one in
`21 connection with the Triple Zero Patent
`22 that's the subject of the 424 IPR.
`23 YOUR HONOR: Okay, thank you.
`24 MR. SCHARFF: And so what we
`25 -- we would be filing a motion to
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`2 MR. BERKOWITZ: Good afternoon,
`3 Your Honor, This is Matt Berkowitz
`4 from Kenyon & Kenyon.
`5 MR. SCHARFF: Good afternoon,
`6 Your Honor, this is Christopher
`7 Scharff from McAndrews, Held & Malloy
`8 along with Tom Timisus.
`9 YOUR HONOR: Good afternoon.
`10 MR. SCHARFF: Just to give you
`11 just a little of background, okay. So
`12 the 419 and 424 IPR's are set for a
`13 final decision within the next few
`14 weeks. And prior to that, in the last
`15 few weeks, Toyota has filed a number
`16 of papers to try to get a second bite
`17 at the apple. They filed a request to
`18 join the 419 and 424 IPR's with a new
`19 Mercedes IPR. That request has
`20 already been denied by an order last
`21 week. Then they also filed a new IPR
`22 that they requested to try to join
`23 with the Mercedes IPR and that request
`24 is still pending. Then they also
`25 filed ex parte reexamination request
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`1 CONFERENCE
`2 terminate those pursuant to the 315B,
`3 which is the same authority the Board
`4 decided to rely on a stay ex parte
`5 re-examination. For example, the
`6 Abayo (phonetic) versus Edward
`7 Security Solutions case (SIC) and our
`8 wrench (SIC) now would be that the
`9 board had expression to stay,
`10 transfer, consolidate or terminate all
`11 the proceedings in order to avoid
`12 abusive attacks on a patent which was
`13 congress's intent and also to ensure
`14 there would just be an inexpensive
`15 resolution of IPR's.
`16 In addition, it's our position
`17 that the Estoppel Provision, 315E,
`18 would also preclude this IPR -- I'm
`19 sorry, the reexamination and also be
`20 our basis, the reason why we are
`21 approaching the Board now is because
`22 pursuant to statute, EVS is not
`23 allowed to file a reply or a response
`24 in the ex parte reexamination until
`25 after the Patent Office would
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`2 determine whether or not to institute
`3 a reexamination and so given that
`4 termination, would cutoff the
`5 procedure completely. This will both
`6 save the Patent Office time and
`7 expense of having to consider it and
`8 then make an opinion in those
`9 reexaminations. It would also then
`10 save EVS, you know, the prejudice of
`11 having to both, at that later point,
`12 raise this argument, you know, that
`13 the ex parte reexamination should be
`14 terminated, as well as having also to
`15 substantively reply.
`16 So, at this point, we think this
`17 is the same situation that led the
`18 board to deny the request to join the
`19 419 and 424 IPR's with the Mercedes
`20 IPR and that's basically just trying
`21 to get another chance to argue
`22 obviousness arguments that it could
`23 have but did not raise in the 419 and
`24 424 IPR's.
`25 YOUR HONOR: If you're done, I
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`1 CONFERENCE
`2 see if my -- let me put you on mute
`3 while I confer with my colleagues to
`4 see if we have other questions for
`5 you.
`6 MR. SCHARFF: Sure.
`7 YOUR HONOR: We do not have
`8 anymore questions for the Patent
`9 Order. So let's turn it over to
`10 counsel for Toyota.
`11 MR. BERKOWITZ: Thank you,
`12 Your Honor. This is Matt Berkowitz.
`13 I think that EVS is really
`14 mischaracterizing this as a second
`15 bite at the apple. As if the Patent
`16 statutes and the rules prohibit any
`17 second challenge by the same party
`18 against the same claim. It's really
`19 not what the statutes provide for,
`20 it's not what the rules provide for.
`21 There's no question that the same
`22 party can file multiple ex parte
`23 reexaminations against the same claim
`24 or a party can file an ex parte, you
`25 know, if at one point and that years
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`2 have some questions.
`3 MR. SCHARFF: Yes, Your
`4 Honor.
`5 YOUR HONOR: What from all of
`6 that you said has anything to do with
`7 the final decisions that are in due
`8 within the few weeks in the 419 and
`9 the 424 case? The way I see it, none
`10 -- the re-exam cannot possibly effect
`11 the outcome of the final decisions
`12 that are expected in a few weeks in
`13 the 419 and 424 IPR; is that right?
`14 MR. SCHARFF: Yes, that's
`15 correct. It's the reverse situation.
`16 It's that the 419 and 424 IPR's,
`17 because there's a final decision
`18 coming, that Toyota should not be
`19 allowed a second chance to re-litigate
`20 all of those same issues in ex parte
`21 re-exam and the Board does have
`22 authority to direct the disposition of
`23 a re-exam and if not, just in the
`24 interest of efficiency of the IPR's.
`25 YOUR HONOR: I see. Let me
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`1 CONFERENCE
`2 down the road, subject to the
`3 limitations of 315B, file an IPR.
`4 There's not a blanket prohibition
`5 against a second bite at the apple and
`6 there's really, I don't think, any
`7 dispute that, at least as of this
`8 point, estoppel cannot possibly
`9 apply.
`10 This issue, the Patent and the
`11 stay that estoppel actually prohibits
`12 an ex parte at this point, I think
`13 that is actually -- that issue came up
`14 during proposed rulemaking relating to
`15 some of the miscellaneous provisions
`16 following the A.I.A., particularly
`17 with respect to Rule 1.510. The rules
`18 were -- from the proposed rules to the
`19 final rules, were amended to clarify
`20 that it's actually the office that
`21 maintains a reexamination proceeding
`22 and not the requester and that once a
`23 request is filed, it's then the office
`24 that handles it, and there's a Federal
`25 Register site for that which is Volume
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`2 77 Federal Register 46621 and that
`3 exact issue came up.
`4 EVS also, I heard them say that
`5 we're trying to -- that Toyota is
`6 trying to re-litigate the same issues
`7 in the ex parte and it's actually not
`8 true at all. The only thing that's in
`9 the Ex Parte Reexamination Request is
`10 a specific issue related to
`11 obviousness of the claims based on
`12 remelsen (SIC.) In particular, the
`13 obviousness of training in algorithm
`14 with a particular type of data that
`15 EVS says the claims require. This is
`16 an issue that Toyota, I think this has
`17 been the subject of some joinder
`18 briefing back and forth already in the
`19 IPR's, but Toyota's position is that
`20 it was precluded from offering that
`21 position during the IPR. So the ex
`22 partes are limited to just that one
`23 issue. It's not an abuse attack on
`24 patents. It's not the type of thing
`25 that EVS is saying congress is trying
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`1 CONFERENCE
`2 a lawsuit. I know these are things
`3 that if you -- you could do before
`4 another IPR but the point is, the
`5 statute cuts off any other further
`6 challenges after an IPR.
`7 Now, what Toyota's counsel was
`8 referring to was just a comment in
`9 connection with the rulemaking. There
`10 is no rule that addresses filing an Ex
`11 Parte Reexamination Petition while an
`12 IPR is pending and whether or not that
`13 constitutes maintaining a proceeding
`14 before the Patent Office but the
`15 statute definitely does not exempt an
`16 ex parte reexamination nor do the
`17 Patent Office's rules immediately
`18 could have if that's what was
`19 contemplated. If congress and the
`20 Patent Office intended that ex parte
`21 reexaminations were the one and only
`22 exception an accusant (SIC) fringer
`23 (SIC) could bring arguments that it
`24 could have but did not bring in an
`25 IPR, then the statute and the rules
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`2 to prohibit. If it really were the
`3 same issue that was in the IPR, then
`4 it wouldn't get passed the Eysenck
`5 (SIC) Test that's required for ex
`6 parte and EVS wouldn't have anything
`7 to worry about. But we think this is
`8 a new issue and it's very focussed and
`9 it's very limited.
`10 MR. SCHARFF: May I respond?
`11 YOUR HONOR: Let me make sure
`12 Toyota's counsel is finished.
`13 MR. BERKOWITZ: I am, Your
`14 Honor.
`15 YOUR HONOR: Yes, please,
`16 Patent Order, go ahead.
`17 MR. SCHARFF: Thank you, Your
`18 Honor. So first of all, this is
`19 actually a second bite at the apple
`20 that is prohibited. The statute
`21 expressly contemplates that after an
`22 IPR that accusant (SIC) fringer (SIC)
`23 (inaudible) participates in it, then
`24 they are then estoppel, they can't
`25 file another IPR, they can't maintain
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`1 CONFERENCE
`2 would have said so, but they don't.
`3 And so, it's our position that the law
`4 does prohibit Toyota from trying to
`5 get a second chance to raise arguments
`6 that it did not raise in the IPR.
`7 YOUR HONOR: Counsel, when you
`8 said that Toyota was precluded from
`9 filing or maintaining another
`10 proceeding, which section of the
`11 statute are you referring to?
`12 MR. SCHARFF: That's 315E.
`13 YOUR HONOR: Does it expressly
`14 talk about reexamination?
`15 MR. SCHARFF: It does not.
`16 Neither -- it doesn't say that
`17 reexaminations are exceptions either
`18 though.
`19 YOUR HONOR: I see. You're
`20 saying that it's talking about a
`21 proceeding before the office?
`22 MR. SCHARFF: Yes, Your
`23 Honor.
`24 YOUR HONOR: I understand. I
`25 understand. Does that complete your
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`2 presentation?
`3 MR. SCHARFF: Yes, Your
`4 Honor.
`5 MR. BERKOWITZ: Your Honor,
`6 this is Matt Berkowitz again. If I
`7 can just offer one last comment about
`8 that?
`9 YOUR HONOR: Okay, this is not
`10 going to be a limited go around. If
`11 you're going to say something, I'm
`12 going to give Mr. Scharff the last
`13 word.
`14 MR. BERKOWITZ: Yes. The only
`15 comment, Your Honor, is that the
`16 section of the stature that Patent
`17 Owner is clinging to, I don't think
`18 there's any debate as to the fact that
`19 what we filed, the Ex Parte
`20 Reexamination Request, there could not
`21 be possibly be any estoppel. The
`22 estoppel can't possibly kick in until
`23 after the final written decision.
`24 That section just doesn't apply to the
`25 filing of the request.
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`1 CONFERENCE
`2 your request or reason. Whatever else
`3 happens, is up to the office?
`4 MR. BERKOWITZ: We think
`5 that's what the proposed rule was
`6 exactly addressing. If you look, Your
`7 Honor, at Volume 77 Register 46621,
`8 that's exactly what the comment and
`9 the amendment dealt with, is that it's
`10 the office that's maintaining the Ex
`11 Parte Reexamination Request.
`12 YOUR HONOR: Very well. Let's
`13 have counsel finish up.
`14 MR. SCHARFF: Thank you, Your
`15 Honor. First of all, you know, the
`16 only comments from congress is that --
`17 reflect that congress did not intend
`18 there to be this kind of loophole
`19 where you could file an ex parte
`20 reexamination just a few weeks before
`21 the final decision that you know was
`22 coming and then argue that, you know,
`23 you just wash your hands with it and
`24 say that you're not maintaining a
`25 proceeding that is then continuing
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`2 YOUR HONOR: I see, so you're
`3 saying, to the extent that it might be
`4 a problem, it depends -- it only
`5 happens after the final decision is
`6 issued. It has no application right
`7 now.
`8 MR. BERKOWITZ: That's right,
`9 Your Honor. I guess EVS could debate
`10 whether we could do anything -- Toyota
`11 would be able to do anything with
`12 respect to these claims down the road
`13 after the Board issues a final written
`14 decision but there's no reading of
`15 that statute there's any estoppel with
`16 respect to request we already filed.
`17 MR. SCHARFF: Actually, Your
`18 Honor, we disagree.
`19 YOUR HONOR: Mr. Berkowitz,
`20 let me connect this with what you said
`21 previously. So let's say we issue a
`22 final decision in a few weeks, your
`23 side would say that you're no longer
`24 maintaining any proceeding in the
`25 office because you've already filed
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`2 after that. But moreover, the statute
`3 itself doesn't actually say that after
`4 a final written decision is entered,
`5 that then the estoppel kicks in. It's
`6 just that an inter parte review that
`7 results in a final decision, results
`8 in a estoppel. Here we have an IPR
`9 that is resulting in a final
`10 decision. Defense didn't draw a
`11 bright line as to estoppel the day of
`12 the written decision but not shortly
`13 there before.
`14 But, in any event, the main
`15 reason is just that this appears to
`16 have been a situation that just wasn't
`17 specifically contemplated by congress
`18 and it's inconsistent with everything
`19 else that they said about avoiding
`20 serial challenges, patents, you know,
`21 a finality and that's why we seek
`22 leave to file this motion.
`23 YOUR HONOR: Thank you. The
`24 justice will disconnect. We are going
`25 to deliberate and then we will call
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`2 CERTIFICATION
`3 I, Dawn Miller, a Notary Public
`4 for and within the State of New York,
`5 do hereby certify:
`6 That the within transcript is a
`7 true and accurate record of the
`8 proceedings.
`9 I further certify that I am not
`10 related to any of the parties to this
`11 action by blood or marriage, and that
`12 I am in no way interested in the
`13 outcome of this matter.
`14 IN WITNESS WHEREOF, I have
`15 hereunto set my hand this 11th day of
`16 December, 2014.
`17
`18
`19
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` <%Signature%>
`20 ___________________
`21 DAWN MILLER
`22
`23
`24
`25
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`1 CONFERENCE
`2 back in less than ten minutes.
`3 MR. BERKOWITZ: Thank you,
`4 Your Honor.
`5 MR. SCHARFF: Thank you, Your
`6 Honor.
`7 YOUR HONOR: Counsel for
`8 Toyota. First thing is, can we please
`9 have Toyota file the copy of the
`10 transcript for today's call as an
`11 exhibit?
`12 MR. BERKOWITZ: That's no
`13 problem, yes, we will do that when we
`14 receive it.
`15 YOUR HONOR: Thank you. We
`16 have come to a conclusion. We are not
`17 authorizing the Patent Owner's request
`18 to file a motion to terminate
`19 associated reexamination proceedings
`20 and we will issue an order in a few
`21 days, at most a few days. But the
`22 conclusion is that we will not be
`23 authorizing that request to file a
`24 motion to terminate re-exam, okay?
`25 That should take care of everything
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`1 CONFERENCE
`2 today.
`3 MR. BERKOWITZ: Thank you.
`4 MR. SCHARFF: Thank you.
`5 YOUR HONOR: We are
`6 adjourned.
`7 (END TIME: 4:07 P.M.)
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`&
`& 2:2,12 3:4,7
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`057 4:19
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`315e 5:17 13:12
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`419 3:12,18 4:2,20
`6:19,23 7:8,13,16
`424 3:12,18 4:3,22
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`46621 10:2 16:7
`4:07 19:7
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`500 2:14
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`77 10:2 16:7
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`abayo 5:6
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`abuse 10:23
`abusive 5:12
`accurate 20:7
`accusant 11:22
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`action 20:11
`addition 5:16
`addresses 12:10
`addressing 16:6
`adjourned 19:6
`afternoon 3:2,5,9
`ahead 11:16
`algorithm 10:13
`allowed 5:23 7:19
`amended 9:19
`amendment 16:9
`anthony 2:8
`anymore 8:8
`appears 17:15
`apple 3:17 8:15 9:5
`11:19
`application 15:6
`apply 9:9 14:24
`approaching 5:21
`argue 6:21 16:22
`argument 6:12
`arguments 6:22
`12:23 13:5
`associated 18:19
`attack 10:23
`attacks 5:12
`attorneys 2:3,13
`authority 4:6 5:3
`7:22
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`18:23
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`avoiding 17:19
`b
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`8:11,12 11:13 14:5
`14:6,14 15:8,19
`16:4 18:3,12 19:3
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`11:19
`blanket 9:4
`blood 20:11
`board 4:7 5:3,9,21
`6:18 7:21 15:13
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`bring 12:23,24
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`c
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`c 2:1
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`challenges 12:6
`17:20
`chance 6:21 7:19
`13:5
`chicago 2:15
`christopher 2:16 3:6
`claim 8:18,23
`claims 10:11,15
`15:12
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`clinging 14:17
`colleagues 8:3
`come 18:16
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`comment 12:8 14:7
`14:15 16:8
`comments 16:16
`complete 13:25
`completely 6:5
`conclusion 18:16,22
`confer 8:3
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`continuing 16:25
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`data 10:14
`dawn 1:12 20:3,21
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`dealt 16:9
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`december 1:9 20:16
`decided 5:4
`decision 3:13 7:17
`14:23 15:5,14,22
`16:21 17:4,7,10,12
`decisions 7:7,11
`defense 17:10
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`deliberate 17:25
`denied 3:20
`deny 6:18
`depends 15:4
`determine 6:2
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`mcandrew 2:12
`mcandrews 3:7
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`mcbride 2:18
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`years 8:25
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`understand 13:24
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