UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________________________________
`
`SONY CORPORATION OF AMERICA and HEWLETT-PACKARD CO.,
`Petitioners
`
`v.
`
`NETWORK-1 SECURITY SOLUTIONS, INC.,
`Patent Owner
`
`___________________________
`
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,218,930
`
`Case IPR: To Be Assigned
`
`___________________________
`
`MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c),
`37 C.F.R. §§ 42.22, AND 42.122(b)
`
`Mail Stop Patent Board Patent
`Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________________________________
`
`SONY CORPORATION OF AMERICA and HEWLETT-PACKARD CO.,
`Petitioners
`
`v.
`
`NETWORK-1 SECURITY SOLUTIONS, INC.,
`Patent Owner
`
`___________________________
`
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,218,930
`
`Case IPR: To Be Assigned
`
`___________________________
`
`MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c),
`37 C.F.R. §§ 42.22, AND 42.122(b)
`
`Mail Stop Patent Board Patent
`Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`Sony Corporation of America and Hewlett-Packard Co. (“Petitioners”)
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`submit concurrently herewith a Petition for Inter Partes Review of U.S. Patent
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`No. 6,218,930 (“the ’930 Patent”) (“Petition”) based on identical grounds that form
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`the basis for two pending and joined IPR proceedings, Case Nos. IPR2013-00071
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`(“the Avaya IPR”) and IPR2013-00385 (“the Dell IPR”), both of which have been
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`joined into a single, joined IPR, Case No. IPR2013-00071 (“the joined IPRs”).
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`Pursuant to 35 US.C. § 315(c), Petitioners respectfully move that this
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`Petition be instituted and joined with the joined IPRs. As the Dell IPR and the
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`Avaya IPR have already been joined, joining the Petition by Petitioners to Dell’s
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`IPR will result in a consolidated IPR with four petitioners: Avaya, Dell, Sony, and
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`HP. Petitioners merely request an opportunity to join with the joined IPRs as an
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`“understudy” to Avaya and Dell, only assuming an active role in the event Avaya
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`and/or Dell settle with Network-1. Thus, Petitioners do not seek to alter the
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`grounds upon which the Board has already found support in instituting the joined
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`IPRs, and joinder will have no impact on the existing schedule in the joined IPRs.
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`I.
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`SPECIAL CIRCUMSTANCES WARRANT JOINDER
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`The following special circumstances warrant that the Board exercise its
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`discretion and grant this Motion and the Petition, and join the resulting proceeding
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`with the joined IPRs. In the event the Board deems it necessary, Petitioners also
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`submit that the following special circumstances warrant invocation of waiver of
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`1
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`pertinent requirements (most notably the requirement of Rule 42.122 that motions
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`for joinder be filed no later than one month after the institution date of the IPR for
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`which joinder is requested) pursuant to Board’s authority set forth in Rule 42.5(b):
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`• The Petitioners, unlike any other party in related proceedings,
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`have tried multiple times to participate in an inter partes review
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`of the ’930 patent. Prior to filing their previous petition (IPR2013-
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`00386), Petitioners recognized two potential routes to join Avaya’s
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`petition: (1) file a copy-and-paste version of Avaya’s petition; or (2)
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`raise new grounds of invalidity that—if joinder was denied—might be
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`the grounds for a separate IPR. The Petitioners understood Option 2
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`to be more likely to succeed, particularly because that previous
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`petition also included an invalidity ground instituted in Avaya’s IPR
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`(the 102 Matsuno argument). Just days before Petitioners efiled their
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`first IPR and accompanying petition, the Board granted a joinder
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`motion that employed Option 1. Paper No. 10, IPR2013-00256.
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`Ultimately, the Board denied the Petitioners’ IPR (in Case No. 386)
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`under Option 2, declining to consider the previous petition for
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`discretionary reasons alone.
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`• The Petitioners are uniquely situated, so granting this request will
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`not have lasting effects on future joinder motions. PTAB decisions
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`2
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`now clearly indicate that Option 1, the copy-and-paste method
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`(recently used by Dell) is the preferred means to join an instituted
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`IPR. Thus, all future parties will have notice of the Board’s preferred
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`way to join an IPR.
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`• Petitioners will be greatly prejudiced if not joined. If Network-1
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`settles with Dell and Avaya, and if a final decision in the joined IPRs
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`is not issued, then Petitioners will have to meet a much higher
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`standard (clear and convincing) when arguing invalidity before the
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`court than before the Board (preponderance of the evidence).
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`On the August 5, 2013 call with the Board, counsel for Network-1, counsel
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`for Petitioners, counsel for Avaya, and counsel for Dell, the Board noted that the
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`Dell IPR was terminated on the same day it was instituted, and thus the Dell IPR
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`was no longer available for purposes of being joined. As set forth below in Section
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`III. B, Petitioners respectfully submit that, since this motion is being filed within
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`30 days of the date that Dell’s IPR was granted, this request is nonetheless timely,
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`irrespective of the termination of the Dell IPR. As the Dell IPR was joined with
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`the Avaya IPR, granting this motion will effectively join Petitioners’ Petition with
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`the joined IPRs, which absorbed Dell’s IPR.
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`In the event the Board believes that this motion for joinder is not timely,
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`Petitioners request a waiver of Rule 42.122 under Rule 42.5 (Conduct of the
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`
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`3
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`proceeding), given the unique circumstances of the instant Motion outlined above.
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`II.
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`JOINDER WILL NOT PREJUDICE OR OTHERWISE BURDEN
`ANY OF THE OTHER PARTIES IN THIS IPR PROCEEDING
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`Since the Petitioners will minimize any additional cost or burden on other
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`parties, the Board should exercise its discretion to grant Petitioners’ request, and, if
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`necessary, invoke its authority to waive the requirements of Rule 42.122.
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`• No new arguments are presented. The Petition asserts, word-for-
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`word, only the arguments that the Board has already instituted in the
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`joined IPRs. Thus, there are no new arguments to consider.
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`• No schedule adjustments are necessary. The only potential deadline
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`that this motion will impact is the Patent Owner’s preliminary
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`response to the Petition, and Network-1 has already filed two
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`preliminary responses to identical arguments included in the petitions
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`for the Avaya IPR and the Dell IPR. Thus, Network-1 will not be
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`prejudiced if the Board denies it a third opportunity to respond.
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`• Petitioners agree to assume a limited “understudy” role. As long
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`as both Avaya and Dell remain in the joined IPRs, Petitioners agree to
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`remain in a circumscribed role without a separate opportunity to
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`actively participate. Thus, Petitioners will not file additional written
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`submissions, nor will they pose questions at depositions or argue at
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`oral hearing without the prior permission of Avaya or Dell. Only in
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`4
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`the event that at least one party settles will Petitioners seek to become
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`active in the joined IPRs. If either Dell or Avaya settle, Petitioners
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`can assume the “second chair” role, with its role dictated according to
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`the same rules that govern Dell’s current second chair role. (If Avaya
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`were to settle, Dell would then assume the “first chair” position.) If
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`both Avaya and Dell settle, then Petitioners would together assume
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`the first chair position.
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`• Dell and Avaya will suffer no additional cost or burden. As
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`Petitioners will assume a passive role, Dell and Avaya will not be
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`required to cooperate with Petitioners. Thus, Dell and Avaya will not
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`suffer further cost or burden in preparing motions and arguments.
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`• Network-1 will suffer no additional cost or burden. Network-1 is
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`already defending its patent against the same arguments. As
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`Petitioners will assume a passive role, Network-1 will not have to
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`address additional pages of argument if Petitioners are joined.
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`• Petitioners will only impact potential settlement discussions to the
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`extent that the joined IPRs will continue unless four parties settle.
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`In weighing settlement, Network-1 will have to consider the presence
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`of two additional parties to the IPR, but Sony and HP have previously
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`sought to join the IPR proceeding. Regardless of whether Petitioners
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`5
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`
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`are joined, a majority of the accused infringers will remain excluded
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`from the joined IPRs. (The key difference is that the other accused
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`infringers are excluded from the IPR process by their own choice, but
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`Sony and HP have diligently attempted to join the IPR proceedings.)
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`III. THE PRESENT CIRCUMSTANCES SATISFY THE FOUR
`FACTORS TO BE ANALYZED IN MOTIONS FOR JOINDER
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`In accordance with the Board’s Representative Order identifying matters to
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`be addressed in a motion for joinder (see Paper No. 15, IPR2013-00004, April 24,
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`2013), Petitioners respectfully submit that: (1) joinder is appropriate because it
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`will promote efficient determination of the validity of the ’930 Patent without
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`prejudice to Dell or Network-1 (or Avaya) (See, e.g., Paper No. 17, IPR2013-
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`00385, July 29, 2013 (granting motion for joinder under similar circumstances));
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`(2) Petitioners’ petition raises only the same grounds of unpatentability as Dell
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`(and Avaya) and for which the Board instituted review; (3) joinder would not
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`affect the pending schedule in the Dell IPR (or Avaya IPR) in any way nor increase
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`the complexity of that proceeding in any way, thus minimizing costs; and (4)
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`Petitioners are willing to accept an understudy role to minimize burden and
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`schedule impact. Absent joinder, Petitioners could be prejudiced if the Dell IPR
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`and Avaya IPR are terminated before a final written decision is issued as it would
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`have to litigate the same positions at the District Court under a higher burden of
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`proof. Accordingly, joinder should be granted.
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`6
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`A. Background and Related Proceedings
`Network-1 Security Solutions, Inc., is the owner of the ’930 Patent. In 2011,
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`Network-1 sued twenty-six (26) different companies, including Petitioners, Dell
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`and Avaya, for allegedly infringing the ’930 Patent by selling devices that are
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`compliant with the IEEE 802.3af and 802.3at Power over Ethernet (“PoE”)
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`standards (the “Underlying Litigation”).
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`In addition to the Underlying Litigation, the ’930 Patent is the subject of a
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`pending ex parte reexamination proceeding (Control No. 90/012,401) in which
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`claims 6, 8, and 9 have been non-finally rejected on multiple anticipation and
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`obviousness grounds. This proceeding has been stayed by the Board pending
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`outcome of the Dell IPR and Avaya IPR (See Paper No. 9, IPR2013-00071).
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`Avaya filed its petition for inter partes review of the ’930 Patent on
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`December 5, 2012. On March 5, 2013, the Underlying Litigation was stayed
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`pending the outcome of both the Avaya IPR and IPR2013-00092. The Board
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`instituted the Avaya IPR on May 24, 2013 (Paper No. 18, IPR 2013-00071) on
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`Grounds 1 and 3 in Avaya’s petition and set July 24, 2013, as the date for
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`Network-1’s response to the petition (Paper No. 19). On June 7, 2013, Avaya
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`requested a limited rehearing on the subject of its Ground 5 (Paper No. 20). The
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`Board denied this request. Oral argument is currently set for January 17, 2014.
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`7
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`Dell filed its petition for inter partes review of the ’930 Patent on June 24,
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`2013. The Board instituted the Dell IPR on July 29, 2013 (Paper No. 16, IPR2013-
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`00385). The Board joined the Dell IPR to the Avaya IPR on the same date (Paper
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`No. 17, IPR2013-000385). Oral argument is currently set for January 17, 2014.
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`Sony (with Axis Communications AB and Axis Communications Inc.) filed
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`a petition for inter partes review on December 19, 2012, that the Board denied to
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`institute on May 24, 2013. (Case IPR2013-00092). Sony and HP (with Axis
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`Communications AB and Axis Communications Inc.) filed another petition for
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`inter partes review on June 24, 2013, and requested to be joined to the Avaya IPR.
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`(Case IPR2013-00386). The Board denied that request for joinder and denied to
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`institute the petition on July 29, 2013. (Paper Nos. 15, 16, IPR2013-00386).
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`This Joinder Motion and the Petition are timely
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`B.
`The Petitioners submit that the Petition and the instant motion for joinder are
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`timely under 35 U.S.C. § 315(c), 37 C.F.R. §§ 42.22, and 42.122(b), as they are
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`being submitted within one month of July 29, 2013, the date that the Dell IPR was
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`instituted. Although the Dell IPR was instituted, joined, and then terminated,
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`Petitioners’ filings are within the time period prescribed by the statute and the
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`regulations for filing such a petition and motion for joinder, regardless of the
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`termination of the Dell IPR.
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`8
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`Rule 42.122 states that a motion for joinder shall be filed within one month
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`from the granting of the petition that is sought to be joined. Dell’s petition was
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`granted on July 29, 2013. The Petitioners’ instant Petition, filed on August 5,
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`2013, is filed less than one month from the granting of Dell’s IPR.
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`In the event the Board believes that this motion for joinder is not timely,
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`Petitioners request a waiver of Rule 42.122 under Rule 42.5 (Conduct of the
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`proceeding), given the unique circumstances of the instant Motion outlined above
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`in Sections I and II, which are summarized below:
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`•
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`The Petitioners have tried multiple times to participate in an inter
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`partes review of the ’930 patent, and will be prejudiced if not joined;
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`•
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`Granting this request will not result in a proliferation of future joinder
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`motions;
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`•
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`No new arguments are presented, and no schedule adjustments are
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`necessary;
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`•
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`•
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`Petitioners agree to assume a limited role; and
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`Neither Network-1, Dell nor Avaya will suffer no additional cost or
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`burden.
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`Moreover, the Petitioners’ instant Petition is not subject to the one year time
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`bar of Section 315(b). As the PTAB ruled in its Decision on Dell’s Motion to
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`Joinder, the Board has authority to join Petitioners as parties under § 315:
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`9
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`While [Petitioners] filed the Petition more than one year after being
`served with a complaint, the second sentence of Section 315(b)
`provides that the one-year bar ‘shall not apply to a request for joinder
`under subsection (c).’ The one-year bar, therefore, does not apply to
`[Petitioners] because [they] filed a motion for joinder with [their]
`Petition. This is confirmed by the Board’s rules, which provide that a
`petition requesting inter partes review may not be “filed more than
`one year after the date on which the petitioner, the petitioner’s real
`party-in-interest, or a privy of the petitioner is served with a complaint
`alleging infringement of the patent,’ but the one-year time limit ‘shall
`not apply when the petition is accompanied by a request for joinder.’
`IPR2013-00385, Paper 17 at 4-5; see also 37 C.F.R. §§ 42.101(b),
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`42.122(b); IPR2013-00109, Paper 15 (permitting joinder of a party beyond the
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`one-year window); IPR2013-00256, Paper 10 (same). Accordingly, Petitioners
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`respectfully submit that the Petition and the instant motion for joinder are indeed
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`timely and properly filed under both the applicable statutes and regulations.
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`Further, Petitioners submit that filing the instant Petition and request for
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`joinder to the Dell IPR is permissible. 35 U.S.C. § 315 states that granted petitions
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`may be joined, subject to the discretion of the Director. See Paper No. 17,
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`IPR2013-00385 at 6 (recognizing that multiple motions for joinder may be filed
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`and that the Board has discretion to join parties) (citing 157 CONG. REC. S1376
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`(daily ed. Mar. 8, 2011) (statement of Sen. Kyl) (“The Director is given discretion .
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`. . over whether to allow joinder. This safety valve will allow the Office to avoid
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`10
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`being overwhelmed if there happens to be a deluge of joinder petitions in a
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`particular case.”). Neither § 315 nor Rule 42.122 limit the types or numbers of
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`granted petitions that may be joined.
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`C.
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`Joinder will not impact the Board’s ability to complete the review
`within the one-year period
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`Joinder in this case will not impact the Board’s ability to complete its review
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`in a timely manner. Section 316(a)(11) provides that IPR proceedings should be
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`completed and the Board’s final decision issued within one year of institution of
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`the review. See also 37 C.F.R. § 42.100(c). Here, joinder will not affect the
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`Board’s ability to issue its final determination within one year because Petitioners
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`agree to an understudy role and do not raise any issues that are not already before
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`the Board. Indeed, the Petition includes only those grounds on which the joined
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`IPRs were instituted, and the invalidity grounds were copied verbatim from Dell’s
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`petition (which copied them verbatim from Avaya’s petition).
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`Given that Petitioners will assume an understudy role as outlined above,
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`their presence will not introduce any additional arguments, briefing, or need for
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`discovery.
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`Petitioners only offered identical support that Dell and Avaya previously
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`introduced. For example, Petitioners’ petition relies on the expert witness already
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`involved in the joined IPRs, Dr. George A. Zimmerman. Petitioners have not
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`submitted a new declaration. Further, Petitioners’ understand that Dr. Zimmerman
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`11
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`has already been deposed. Since Petitioners’ will enter the joined IPR as an
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`understudy, neither this deposition, nor any other discovery that has occurred, need
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`to be repeated.
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`Network-1 has twice exercised its opportunity to preliminarily respond to
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`these grounds, first in Avaya’s IPR and again in Dell’s IPR. Further, Network-1
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`has an opportunity file a Patent Owner’s Response to the Petition concurrently
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`with any motion to amend the patent on August 7. Thus, Petitioners submit that
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`Network-1 does not need to file a Patent Owner’s Preliminary Response, and
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`request that the Board proceed without it. This is consistent with the Board’s
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`Order IPR2013-00256 (Paper No. 8), which allowed the Patent Owner to file a
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`preliminary response addressing only those points raised in the new petition that
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`were different from those in the granted petition. Here, because the invalidity
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`grounds are word-for-word identical to those allowed grounds in Dell’s Petition,
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`there is nothing new for Network-1 to address.
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`If the Board allows Network-1 to file a third preliminary response, a two-
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`week response period is more than adequate. As the rules do not provide for a
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`petitioner to respond to the Patent Owner’s preliminary response, a two-week
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`response period can run concurrently with other upcoming deadlines so as not to
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`disrupt other deadlines already scheduled in the joined IPRs.
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`12
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`
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`In view of the above, Petitioners submit that the current schedule in the
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`Avaya IPR/Dell IPR can stay unchanged. At most, the Board can add an
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`additional deadline for Network-1 to respond to this Petition, but this deadline will
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`not impact other deadlines in the schedule.
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`D.
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`Joinder would enhance efficiency by avoiding duplicate efforts
`and inconsistencies and would avoid prejudice to Petitioners
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`A final written decision on the validity of the ’930 patent will at least
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`minimize issues in the Underlying litigation and, at most, resolve the Underlying
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`Litigation altogether. Allowing Petitioners to join would also avoid inconsistency
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`and avoid prejudice to Petitioners—who have diligently tried to institute or join an
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`IPR of the ’930 patent—in the event that Network-1 settles with both Dell and
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`Avaya. Section 317(a) provides that an inter partes review “shall be terminated
`
`with respect to any petitioner upon the joint request of the petitioner and the patent
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`owner” unless the Board has already reached its decision on the merits. If no
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`petitioner remains after settlement, “the Office may terminate the review.” Id.
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`Thus, if Network-1 were to reach a settlement with Dell and Avaya, the joined
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`IPRs could terminate without proceeding to a final written decision.
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`Indeed, if the Board terminated the joined IPRs, Petitioners (who have
`
`repeatedly tried to appear before the Board) would have to reargue the exact same
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`arguments that Avaya and Dell have already shown are reasonably likely to
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`prevail. See Paper No. 16, IPR 2013-00385. Arguments related to both claim
`
`
`
`13
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`construction and validity will have to be briefed and considered, increasing the
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`work for both Petitioners and Network-1.
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`The potential for inconsistency would be also heightened because Petitioners
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`would face a higher burden before the District Court of proving the invalidity of
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`claims 6 and 9 by clear and convincing evidence, as opposed to the lower burden
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`here of a preponderance of the evidence. See 35 U.S.C. § 316(e). Having to
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`overcome a higher burden to get the same result is by definition prejudicial to
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`Petitioners.
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`If the Board permits Petitioners to join the Dell IPR, and the ’930 patent is
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`upheld in a final decision, Petitioners will be estopped from further challenging the
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`validity of the patent on these grounds, avoiding duplication of Network-1’s efforts
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`at least as to Petitioners. See 35 U.S.C. § 315(e)(1). Accordingly, to avoid
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`duplicate efforts, the possibility of inconsistencies, and prejudice to Petitioners,
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`joinder is appropriate.
`
`Joinder will not prejudice Network-1, Avaya or Dell
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`E.
`Granting joinder and permitting Petitioners to assume the understudy role
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`will not prejudice Network-1, Avaya, or Dell. Petitioners raises no issues that are
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`not already before the Board, such that joinder would not affect the timing of the
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`joined IPRs or the content of Network-1’s Patent Owner response due on August 7,
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`2013. Petitioners’ understudy role ensures that Network-1, Avaya, and Dell will
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`
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`14
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`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`not suffer any additional costs. As a co-party, Avaya and Dell will not be
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`obligated to cooperate with (or share the limited time and briefing pages) with
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`more parties than they already do. Even if either Avaya or Dell settles, the
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`remaining co-party will only have to cooperate with Petitioners (who will act as a
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`unified entity) to the extent that the remaining co-party had to cooperate with the
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`settled party. Likewise, Network-1 will not have to coordinate with (or respond to
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`more briefing pages or arguments by) more parties than they already do.
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`Petitioners have done everything conceivable to minimize the burden on the other
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`parties in the joined IPRs in exchange for the opportunity to be a part of the joined
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`IPRs.
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`IV. Conclusion
`For the foregoing reasons, Petitioners respectfully request that their Petition
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`for Inter Partes Review of U.S. Patent No. 6,218,930 be granted and that the
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`proceedings be joined with IPR2013-00071 (into which IPR2013-00385 was
`
`consolidated).
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`Although Petitioners believe that no fee is required for this Motion, the
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`Commissioner is hereby authorized to charge any additional fees which may be
`
`required for this Motion to Deposit Account No. 06-0916.
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`
`
`15
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`
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`Dated: August 6, 2013
`
`
`
`U.S. Patent No. 6,218,930
`Sony and HP Motion for Joinder
`Respectfully submitted,
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`
`
` /Lionel M. Lavenue/
`
`
`
`
`
`Lionel M. Lavenue
`Registration No. 46,859
`Finnegan, Henderson, Farabow,
` Garrett & Dunner, LLP
`11955 Freedom Dr.
`Two Freedom Square
`Reston, VA 20190
`Tel: 571.203.2700
`Fax: 202.408.4400
`
`/Robert J. Walters/
`
`
`
`
`
`Robert J. Walters
`Registration No. 40,862
`McDermott Will & Emery LLP
`500 North Capitol Street, N.W.
`Washington, D.C. 20001
`Tel: 202.756.8138
`Fax: 202.756.8087
`
`16
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. §§ 42.6(e), 42.105(a)
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`Pursuant to 37 C.P.R. §§ 42.6(e) and 42.105(a), this is to certify that I
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`caused to be served a true and correct copy of the foregoing MOTION FOR
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`JOINDER UNDER 37 C.F.R. §§ 42.22 AND 42.122(b) by Federal Express
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`delivery, on this 6th day of August, 2013 on the Patent Owner at the
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`correspondence address of the Patent Owner as follows:
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`BUCHANAN, INGERSOLL & ROONEY PC
`1737 KING STREET, SUITE 500
`ALEXANDRIA, VA 22314-2727
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`Dated: August 6, 2013
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`Respectfully submitted,
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` /Lionel M. Lavenue/
`Lionel M. Lavenue
`Registration No. 46,859
`Finnegan, Henderson, Farabow,
` Garrett & Dunner, LLP
`11955 Freedom Dr.
`Two Freedom Square
`Reston, VA 20190
`Tel. 571.203.2700
`Fax. 202.408.4400
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