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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`Inter Partes Review Nos. IPR 2013-00593(SGW)
` and IPR 2013-00594(SGW)
`Patent Nos. 8,045,952 and 8,050,652
`Inter Partes Review Nos. IPR 2013-00597(SGW)
` and IPR 2013-00598(SGW)
`Patent Nos. 8,230,099 and 8,214,873
`--------------------------------------------
`YAMAHA CORPORATION OF AMERICA,
` Petitioner,
` vs.
`BLACK HILLS MEDIA,
` Patent Owner.
`---------------------------------------------
` TELEPHONE CONFERENCE
` WEDNESDAY, SEPTEMBER 10, 2014
` 3:00 P.M.
`BEFORE ADMINISTRATIVE PATENT JUDGES:
` BRIAN J. McNAMARA
` PETER P. CHEN
` STACEY G. WHITE
`
`REPORTED BY: ADRIENNE M. MIGNANO, RPR
` Job Number: 84415
`
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` JUDGE McNAMARA: As I just
`indicated, my understanding is that
`this call is because the patent's
`owner is seeking authorization to file
`a motion to strike the petitioner's
`reply.
` I think we'll hear from the
`patent owner first.
` MS. GLADSTEIN: This is Lana
`Gladstein.
` The patent owner is seeking to
`file a motion to strike certain
`portions of petitioner's reply filed
`in the IPR 2013-00593, '594, '597 and
`'598 because those replies and new
`evidence are not responsive to the
`patentee's responses in those
`proceedings.
` I will start with the '593 and
`the '594 because they have the same
`arguments and the same exhibits were
`submitted in those IPRs.
` JUDGE McNAMARA: Okay.
` MS. GLADSTEIN: We seek to
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` PROCEEDINGS
`are objecting to in connection with
`the '593 IPR, Exhibits 1019, which is
`a patent application to Microsoft;
`Exhibit 1020, which is an Apple
`patent; and Exhibit 1023, which is a
`reference to Nomad Jukebox. And the
`same exhibits were submitted on the
`'594 IPR as Exhibits 1017, 1018 and
`1021.
` So aside from the fact that the
`Microsoft patent application and the
`Apple patent are improper evidence in
`support of claims construction,
`petitioner did not submit any expert
`declaration in support of its usage of
`these exhibits or the argument that it
`set out with respect to the meaning of
`the term "playlist" on reply.
` Moreover, in light of the
`related litigation history of this
`case and the relationship among
`defendants, petitioner was aware of
`the issues that would be in dispute in
`these IPRs.
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`A P P E A R A N C E S:
`
`MORRISON & FOERSTER
`Attorney for Petitioner
` 707 Wilshire Boulevard
` Los Angeles, California 90017
`BY: DAVID FEHRMAN, ESQ.
`
`PEPPER HAMILTON
`Attorney for Patent Owner
` 125 High Street
` Boston, Massachusetts 02110
`BY: LANA GLADSTEIN, ESQ.
` THOMAS ENGELLENNER, ESQ.
`
`ALSO PRESENT BY TELEPHONE:
`MEHRAN ARJOMAND
`REZA MOLLAAGHAEABA
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`strike new claim construction in the
`'593 and '594 -- patent owner seeks to
`strike new claim construction stated
`by the petitioner for the first time
`on reply and the three new exhibits
`that were associated with the new
`claim construction.
` Petitioner acknowledged in the
`replies in the '593 and '594 cases in
`the reply that it is proposing for the
`first time claim construction for
`the -- petitioner did not propose a
`construction for the term "playlist"
`in the original petition where such
`construction should have been
`submitted under Rule 42.104(b), nor
`accepted the board's construction as
`set out in the institution decisions.
` It is the patent owner's
`position that this is not proper
`rebuttal and is a submission of new
`argument and new evidence in support
`of petitioner's case in chief.
` There are three exhibits that we
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` PROCEEDINGS
` That the patent owner would
`contest the construction for the term
`"playlist" is not a surprise. Indeed,
`this issue should have reasonably been
`anticipated and should have been
`supported with testimony in the first
`instance.
` Moreover, even if petitioner did
`not believe that construction of this
`term would be an issue at the time of
`filing, the patent owner's attention
`to this issue in the preliminary
`response should have provided
`sufficient notice to enable the
`petitioner to present supplemental
`information within one month of the
`institutional decision. Petitioner
`did not do that.
` The petitioner's belated
`position and new evidence is
`prejudicial to the patent owner
`because the patent owner has no
`opportunity to respond to the new
`construction and new exhibits. And as
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` PROCEEDINGS
`reply was exactly respond to those
`arguments presented by the patent
`owner. And I don't see any
`requirement that we needed to respond
`to those any earlier.
` And as an aside, this was not
`raised in the meet and confer that
`these arguments could have been
`presented somehow in response to the
`institution's decision.
` MS. GLADSTEIN: May I respond?
` JUDGE McNAMARA: I have a quick
`question for the petitioner.
` The exhibits, was there some
`reason for not submitting them as
`supplemental information within a
`month of the decision?
` MR. FEHRMAN: Yes, your Honor.
`They were in response to the
`submissions, the declaration and
`supporting evidence made by the patent
`owner's expert in terms of what one of
`ordinary skill in the art would take
`as the meaning of "playlist". And it
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`such, petitioner's back door attempt
`to introduce new arguments after the
`closing of argument is improper and
`should be rejected.
` That was in connection with the
`'593 and '594 IPRs.
` JUDGE McNAMARA: Before I have
`you move on, I would like to hear what
`the petitioner has to say about that.
` MR. FEHRMAN: This is David
`Fehrman. It is not clear to me how
`the petitioner is required to
`anticipate and think ahead as to every
`claim construction issue that may be
`brought up by the patent owner or even
`brought up by the board.
` When we filed a petition, we did
`not see a necessity to construe the
`term "playlist". Then the patent
`owner put in their response and the
`board made a construction. Patent
`owner did their response and presented
`much evidence regarding construction
`of this term. And what we did in our
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` PROCEEDINGS
`was evidence directly responsive to
`those arguments and their additional
`evidence at that point in time.
` JUDGE McNAMARA: Let me ask
`this -- never mind.
` Okay, let me hear the patent
`owner's response to the petitioner's
`petition.
` MS. GLADSTEIN: Thank you, your
`Honor.
` First of all, we believe that
`reply is improper because it supposes
`brand new claim construction. It is
`not that the reply adopts the board's
`construction or merely attacks the
`proposed construction advanced by the
`patent owner, it proposes a brand new
`construction on reply and submits no
`declaration.
` So there is no expert that we
`could cross examine or on whose
`testimony we could submit observations
`on cross examination. So basically
`the patent, the petitioner's position
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` PROCEEDINGS
`is the last word and it stands
`unrebutted. And for that reason, it
`is simply improper. That's one point.
` And with respect to the point of
`the issue of claim construction, we
`had an e-mail correspondence exchange
`where petitioner's counsel responded
`on the issue of claim construction and
`the three exhibits that were used in
`support of that issue.
` JUDGE McNAMARA: Let me ask the
`petitioner: Patent owner makes an
`interesting point with respect to the
`fact that you are proposing a new
`construction here.
` What do you say to that?
` MR. FEHRMAN: Your Honor, it is
`not a brand new construction. In the
`institution decision, the board
`adopted a construction which we think
`in many aspects is correct, but there
`are some direct inconsistencies in the
`specification itself. And because of
`that, we pointed that out, that that
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`two cases that you wanted to talk
`about, '597 and '598.
` MS. GLADSTEIN: With respect to
`the '598 and '597, the first issue
`that I will raise is, again, with
`respect to claim construction and
`essentially for the same reasons.
` Let me take a step back.
` On reply, the petitioner
`submitted two new exhibits. Again,
`it's a Microsoft patent application
`and the Apple patent in support of a
`different construction of the term
`"playlist". And our issue is that
`aside from the fact that the Microsoft
`patent application and the Apple
`patent are improper extrinsic evidence
`in support of claim construction,
`petitioner relies solely on attorney
`argument to interpret these new
`exhibits.
` Petitioner could have presented
`these documents when it cross-examined
`patent owner's expert on July 28th and
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` PROCEEDINGS
`construction was adopted for the first
`time in the institution decision.
` It seems that this is the
`appropriate time for us to provide our
`opinion as to the correct construction
`rather than just sit on the sidelines
`because the patent owner was the first
`one to raise that issue, that term as
`a construction issue.
` MS. GLADSTEIN: Your Honor,
`construction of the term "playlist"
`was raised in the preliminary response
`and then the board issued its decision
`on institution construing the term
`"playlist".
` A brand new construction on the
`reply at this phase of the proceeding
`is simply prejudicial. And we have no
`meaningful opportunity to respond to
`the propriety of the proposed
`construction.
` JUDGE McNAMARA: Okay. All
`right.
` Let's hear, I guess, the other
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`29th, but didn't, and is submitting
`brand new exhibits that it purports to
`rebut the positions that we have taken
`on claim construction.
` It is new evidence that is
`belatedly presented and is
`objectionable because we have no way
`of responding to the impropriety of
`using another inventor's patent
`application and the patent in support
`of the claim construction of a
`different patent.
` They have not -- that is one
`issue with respect to the '597 and
`'598 of the IPRs.
` And the last issue solely with
`respect to the '598 IPR is a new
`argument and new exhibits that were
`introduced on reply with respect to
`the prior art reference. That was one
`of the references on the ground of
`unpatentability on which that decision
`was instituted.
` So at page 14 of the reply in
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`the '598 IPR, petitioner presents a
`new unsupported attorney argument and
`new exhibit, Exhibit 1022, which I
`will refer to as the Motorola
`reference for the preparation that,
`and it's a quote, "It appears that the
`Bi's navigator was essentially a form
`of PDA."
` It is the patent owner's
`position that this is improper
`rebuttal and points to new argument
`and evidence in support of
`petitioner's case in chief.
` As I just mentioned, petitioner
`did not submit an expert declaration
`in support of its new theory. In
`fact, petitioner's expert did not
`opine in the original declaration
`submitted with the petition that the
`navigator of Bi appears to be a PDA.
`As such, patent owner and its expert
`never had an opportunity to respond.
` Moreover, this new argument in
`evidence is not responsive to the
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` PROCEEDINGS
`to authorization to file a motion.
` Let me hear about the
`petitioner's response to that.
` MR. FEHRMAN: Yes, your Honor.
`I'll first respond to the discussion
`about Bi.
` The patent owner declares that
`Loy provided a declaration with over
`100 paragraphs. At paragraph 107, Loy
`was specific in discussions about the
`Bi navigator and the difference
`between Bi and Ericsson and made
`assertions regarding that.
` So in direct response to his
`discussions regarding the scope of the
`Bi reference, we submitted in response
`a data sheet that shows -- that
`discusses the processor that Bi
`identified as being used in its
`product. The data sheet speaks for
`itself. There is no requirement that
`an expert then opine. The board can
`determine what weight is to be given
`to the data sheet or not. But it was
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`patent owner's response, which argued
`that the petitioner provided no
`evidence why a person of ordinary
`skill in the art would have been
`motivated to replace the dedicated
`navigator of Bi for the general
`purpose remote control of Ericsson to
`arrive at the claims of the '873
`patent.
` As such, the petitioner's new
`argument and new evidence is improper
`and should be stricken.
` Additionally, with its original
`petition, petitioner submitted a
`13-page expert declaration in support
`of eight different grounds of
`patentability. And only three short
`paragraphs of that 13-page declaration
`were allocated to the analysis of the
`combination of the Bi and Ericsson
`reference.
` JUDGE McNAMARA: It sounds like
`at this point we're getting into the
`motion. This is only a conference as
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`clearly in direct response to the
`arguments made by the patent owner and
`was appropriate in that regard.
` And there is a recent case, GE
`Vibrant Media v. PE, IPR 2013-00172,
`and it says, "The need for relying on
`evidence not previously discussed in
`the petition may not exist until a
`certain point has been raised and the
`patent owner responds."
` Much depends on the specific
`argument in the patent owner response.
`And this is one of the clearest of it
`was in direct response to assertions
`made regarding the scope and content
`of the Bi prior art reference.
` JUDGE McNAMARA: Okay.
` MR. FEHRMAN: Now, with respect
`to the patents and patent applications
`referred to, again, the patent owner
`provided arguments and their evidence
`that they best afforded their position
`on playlist, and stated so through
`declarations after the testimony and
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`the papers that we responded and
`submitted the evidence are again
`directly responsive to that.
` JUDGE McNAMARA: Anything else
`from patent owner?
` MS. GLADSTEIN: Yes, your Honor.
` With respect to the Bi
`reference, the reply actually draws
`the conclusion. It says, in fact, "it
`appears that the Bi navigator was
`essentially a form of PDA evidenced by
`comparison to Motorola drawing of
`Exhibit 1022 and Figure 5 of Bi."
` Now, petitioner could have
`sought leave to file supplemental
`information since receiving the
`patentee's response on June 12th.
`Petitioner didn't do that. They could
`have marked the Motorola reference of
`the patentee's expert on July 28th,
`and at the very least launched the
`declaration by its own expert in
`support of its new argument that it
`just made on reply. But it didn't do
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`third-party patent documents to argue
`what the term "playlist" should be
`construed in a manner different from
`what it is proposed by the patent
`owner. And, again, they could have
`marked these exhibits at the patent
`owner's expert's deposition and sought
`the expert's opinion on what those
`references disclose.
` But more so, those references
`are just -- those extrinsic documents
`are inappropriate to be used in
`support of claim construction. That's
`our position.
` JUDGE McNAMARA: Okay. I
`appreciate that.
` Just a second.
` MR. FEHRMAN: Your Honor, if I
`may make a brief comment?
` JUDGE McNAMARA: Hold on just
`one second.
` Is that Mr. Fehrman that I just
`heard?
` MR. FEHRMAN: Yes, your Honor.
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`that either.
` So since the petitioner never
`did any of these things at this late
`date in the proceeding, the patentee
`has no way to cross examine anyone,
`any witnesses or lodge any observation
`on cross examination.
` This is a back door attempt to
`introduce new arguments and evidence
`in support of petitioner's case in
`chief at this very late date in the
`proceeding.
` The fact that the patent owner's
`expert has no ability at this point to
`either agree or disagree with the
`position submitted on reply for the
`first time is prejudicial, and it
`shouldn't be the last word in this
`proceeding.
` And we briefly wanted to respond
`to the argument with respect to the
`Microsoft application and the Apple
`patent.
` The petitioner is using the
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` JUDGE McNAMARA: Sure.
` MR. FEHRMAN: So one of the
`evidence that the patent owner relied
`upon itself for claim construction
`regarding playlist was a Microsoft
`handbook, which they argued purported
`their construction. And it seems
`quite logical that another document
`from Microsoft would be relevant in
`terms of understanding the broadest
`reasonable term of that meaning, if
`we're going outside of the
`specification as it is.
` And then it also seems that
`there is no requirement with respect
`to what their expert should be
`questioned about. I mean, the
`evidence on these things is
`appropriately submitted and it is our
`ultimate burden and it is why we have
`a reply here, and we filed that reply
`only in response to arguments that
`were raised by them for the first
`time.
`
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` JUDGE McNAMARA: Okay.
` MS. GLADSTEIN: If I may respond
`to that?
` JUDGE McNAMARA: I was going to
`give you the opportunity.
` MS. GLADSTEIN: With respect to
`the Microsoft handbook, that
`reference -- first of all, that is a
`handbook, that is not a patent
`application where an inventor has an
`opportunity to define a term in
`however manner it wishes. It is a
`handbook published by the Microsoft
`Corporation that describes the
`operation of the Windows Media Player.
`There is nothing specific with respect
`to the definition of "playlist" that
`an inventor in contrast -- that an
`inventor would have assigned to the
`term "playlist" in a patent
`application.
` But Mr. Fehrman also did not
`explain the relevance of an Apple
`patent being submitted in evidence for
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`the position of the construction of
`the term "playlist".
` Again that is a third-party
`patent document. And as I stated, an
`inventor has discretion to define and
`use the term in any manner it wishes
`versus a Microsoft handbook which is
`just a general purpose handbook.
` And, finally, claim construction
`is conducted from the perspective of
`one of ordinary skill in the art and
`there is no mention of that in the
`reply, nor is there any declaration
`that purports to tell us how one of
`ordinary skill in the art would have
`interpreted the Microsoft patent
`application or the Apple patent back
`in 2004.
` JUDGE McNAMARA: All right.
`Thank you both. I appreciate your
`discussion.
` I think that the panel is going
`to take this request to file a motion
`under advisement. We're not going to
`
`Page 24
`
`Page 25
`
` PROCEEDINGS
`MS. GLADSTEIN: Thank you.
`(Time noted: 3:25 p.m.)
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` PROCEEDINGS
`rule on it immediately. I would like
`to ask when do you think we could get
`a transcript of what we've just been
`through?
` MS. GLADSTEIN: We requested a
`rough transcript to be circulated
`shortly after the call, and a final
`version to be issued within three
`days.
` JUDGE McNAMARA: I think we
`would like to see the transcript
`before we make a decision as well, so
`that we know we understand the
`parties' positions on this.
` So if you could, you're
`authorized to submit the transcript as
`soon as you have it, and then we will
`take this up as quickly as we can
`right after that.
` Is there anything else?
` MS. GLADSTEIN: No, your Honor.
` MR. FEHRMAN: No, your Honor.
` JUDGE McNAMARA: Great. Thank
`you all very much. We are adjourned.
`
`7 (Pages 22 to 25)
`TSG Reporting - Worldwide 877-702-9580
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`Page 26
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` C E R T I F I C A T E
`STATE OF NEW YORK )
` : SS
`COUNTY OF NEW YORK )
`
` I, Adrienne M. Mignano, a Notary
`Public within and for the State of New
`York, do hereby certify that the within is
`a true and accurate transcript of the
`proceedings taken on September 10, 2014.
` I further certify that I am not
`related to any of the parties to this
`action by blood or marriage and that I am
`in no way interested in the outcome of
`this matter.
` IN WITNESS WHEREOF, I have
`hereunto set my hand this 11th day of
`September 2014.
`
` _____________________
` ADRIENNE M. MIGNANO
`
`TSG Reporting - Worldwide 877-702-9580
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`8 (Page 26)
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`TSG Reporting - Worldwide 877-702-9580TSG Reporting - Worldwide 877-702-9580
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