(cid:55)(cid:40)(cid:47)(cid:40)(cid:51)(cid:43)(cid:50)(cid:49)(cid:44)(cid:38)
`(cid:55)(cid:85)(cid:68)(cid:81)(cid:86)(cid:70)(cid:85)(cid:76)(cid:83)(cid:87) (cid:82)(cid:73)
`(cid:38)(cid:50)(cid:49)(cid:41)(cid:40)(cid:53)(cid:40)(cid:49)(cid:38)(cid:40) (cid:38)(cid:36)(cid:47)(cid:47) (cid:37)(cid:40)(cid:41)(cid:50)(cid:53)(cid:40) (cid:45)(cid:56)(cid:39)(cid:42)(cid:40)(cid:54) (cid:55)(cid:44)(cid:40)(cid:53)(cid:49)(cid:40)(cid:60)(cid:15)
`(cid:40)(cid:36)(cid:54)(cid:55)(cid:43)(cid:50)(cid:48) (cid:36)(cid:49)(cid:39) (cid:54)(cid:44)(cid:56)
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`(cid:39)(cid:68)(cid:87)(cid:72)(cid:29) (cid:45)(cid:88)(cid:81)(cid:72) (cid:20)(cid:19)(cid:15) (cid:21)(cid:19)(cid:20)(cid:23)
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`(cid:38)(cid:68)(cid:86)(cid:72)(cid:29) (cid:53)(cid:51)(cid:59) (cid:38)(cid:50)(cid:53)(cid:51)(cid:50)(cid:53)(cid:36)(cid:55)(cid:44)(cid:50)(cid:49) (cid:89)(cid:17) (cid:57)(cid:44)(cid:53)(cid:49)(cid:40)(cid:55)(cid:59)(cid:15) (cid:44)(cid:49)(cid:38)(cid:17) (cid:36)(cid:49)(cid:39) (cid:54)(cid:38)(cid:44)(cid:40)(cid:49)(cid:38)(cid:40)
`(cid:36)(cid:51)(cid:51)(cid:47)(cid:44)(cid:38)(cid:36)(cid:55)(cid:44)(cid:50)(cid:49) (cid:44)(cid:49)(cid:55)(cid:40)(cid:53)(cid:49)(cid:36)(cid:55)(cid:44)(cid:50)(cid:49)(cid:36)(cid:47) (cid:38)(cid:50)(cid:53)(cid:51)(cid:50)(cid:53)(cid:36)(cid:55)(cid:44)(cid:50)(cid:49)
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`(cid:51)(cid:79)(cid:68)(cid:81)(cid:72)(cid:87) (cid:39)(cid:72)(cid:83)(cid:82)(cid:86)
`(cid:51)(cid:75)(cid:82)(cid:81)(cid:72)(cid:29) (cid:27)(cid:27)(cid:27)(cid:16)(cid:23)(cid:22)(cid:22)(cid:16)(cid:22)(cid:26)(cid:25)(cid:26)
`(cid:41)(cid:68)(cid:91)(cid:29) (cid:27)(cid:27)(cid:27)(cid:16)(cid:24)(cid:19)(cid:22)(cid:16)(cid:22)(cid:26)(cid:25)(cid:26)
`(cid:40)(cid:80)(cid:68)(cid:76)(cid:79)(cid:29) (cid:87)(cid:85)(cid:68)(cid:81)(cid:86)(cid:70)(cid:85)(cid:76)(cid:83)(cid:87)(cid:86)(cid:35)(cid:83)(cid:79)(cid:68)(cid:81)(cid:72)(cid:87)(cid:71)(cid:72)(cid:83)(cid:82)(cid:86)(cid:17)(cid:70)(cid:82)(cid:80)
`(cid:44)(cid:81)(cid:87)(cid:72)(cid:85)(cid:81)(cid:72)(cid:87)(cid:29) (cid:90)(cid:90)(cid:90)(cid:17)(cid:83)(cid:79)(cid:68)(cid:81)(cid:72)(cid:87)(cid:71)(cid:72)(cid:83)(cid:82)(cid:86)(cid:17)(cid:70)(cid:82)(cid:80)
`
`RPX Corporation Exhibit 1079
`RPX Corporation v. VirnetX, Inc. et al.
`Case IPR2014-00173
`
`

`

` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`1
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`--------------------------x
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`RPX CORPORATION, :
`
` Petitioner, : Case IPR
`
` -v- : 2014-00171
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`VIRNETX, INC. AND : Patent:
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`SCIENCE APPLICATION : 6,502,135
`
`INTERNATIONAL CORPORATION :
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` Patent Owner :
`
`--------------------------x
`
`
`
` Telephonic Conference Call
`
` Held Before Judges Tierney, Easthom and Siu
`
` Tuesday, June 10, 2014
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` 1:30 p.m.
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`Job No.: 60491
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`Pages: 1 - 28
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`Reported by: Keith G. Shreckengast, RPR
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` A P P E A R A N C E S
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` ON BEHALF OF PETITIONER RPX:
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` OLIVER R. ASHE, JR., ESQUIRE
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` ASHE, PC
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` 11440 Isaac Newton Square North
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` Suite 210
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` Reston, Virginia 20190
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` (703) 467-9001
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`
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` GREGORY M. HOWISON, ESQUIRE
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` HOWISON & ARNOTT, LLP
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` Lincoln Centre II
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` 5420 LBJ Freeway
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` Suite 660
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` Dallas, Texas 75240
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` (972) 479-0462
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` A P P E A R A N C E S C O N T I N U E D
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` ON BEHALF OF RESPONDENT VIRNETX:
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` JOSEPH E. PALYS, ESQUIRE
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` FINNEGAN HENDERSON FARABOW GARRETT
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` & DUNNER, LLP
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` Two Freedom Square - 11955 Freedom Drive
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` Reston, Virginia 20190
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` (571) 203-2700
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` NAVEEN MODI, ESQUIRE
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` FINNEGAN HENDERSON FARABOW GARRETT
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` & DUNNER, LLP
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` 901 New York Avenue, NW
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` Washington, DC 20001
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` (202) 408-4000
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` ON BEHALF OF RESPONDENT APPLE:
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` JEFFREY P. KUSHAN, ESQUIRE
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` SIDLEY AUSTIN, LLP
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` 1501 K Street, NW
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` Washington, DC 20005
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` (202) 736-8000
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` C O N T E N T S
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`REMARKS BY: PAGE
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` Mr. Ashe 6
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` Mr. Kushan 9
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` Mr. Palys 21
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`FURTHER REMARKS BY:
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` Mr. Ashe 11
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` Mr. Kushan 19
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` Mr. Ashe 22
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` Mr. Kushan 24
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` P R O C E E D I N G S
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` JUDGE TIERNEY: Let it be known that the
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`judges are on the line, Judges Tierney, Easthom and
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`Siu. And I'm going to now just go to the parties, and
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`do we have representatives from RPX on the line today?
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` MR. ASHE: Yes, Your Honor, this is Oliver
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`Ashe, and Greg Howison is also on the line. And as I
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`understand from the informal role call that we've done
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`so far, nobody from Virnetx has joined the call yet.
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` JUDGE TIERNEY: Is anyone from Virnetx on
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`the call?
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` MR. MODI: Good afternoon, Your Honor, this
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`is Naveen Modi, I just joined the call, and I know Mr.
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`Palys should be dialing in if he's not already on.
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` MR. PALYS: Here I am.
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` JUDGE TIERNEY: So you're on the line, Mr.
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`Palys?
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` MR. PALYS: I am, thank you.
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` JUDGE TIERNEY: Do you need a moment before
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`we begin?
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` MR. PALYS: No
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` JUDGE TIERNEY: Do we have a representative
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`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`from Apple on the line today?
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` MR. KUSHAN: Yes, Your Honor, Jeff Kushan
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`for Apple.
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` JUDGE TIERNEY: The board requested a call
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`today in response to some email traffic that we had
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`last Friday, and just wanted to discuss the issues that
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`were raised in that email. Mr. Ashe, I believe you
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`were the one who sent the emails to the board
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`initially?
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` MR. ASHE: Yes, I sent the initial email.
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` JUDGE TIERNEY: If you would like,
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`counselor, for the record just give us an overview of
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`your request.
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` MR. ASHE: Sure. We became aware of the
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`fact that the decision that had been entered, or
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`decisions that had been entered by the board on June
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`5th were in public circulation, so we wanted to call
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`that to the board's attention. There were posts on
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`various I guess they're internet publication sites, as
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`well as some press releases from Virnetx. After I
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`sent -- I put a couple representative links into the
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`email to the board to give them examples of how this
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`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`information was being publicly distributed. And then
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`after the -- I believe Apple also sent something that
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`they can address. But after that, monitoring various
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`sites on the internet, it appears to have gone viral in
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`terms of access to that decision. And I believe that
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`there are still active links on the internet accessing
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`the decision that was identified as being entered under
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`seal. That's just a brief overview of why I contacted
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`the board. I wanted the board to be aware of the
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`situation, and therefore timely sent the email to them.
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` JUDGE TIERNEY: The board is aware of the
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`situation. Is there any request as to action you're
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`asking for us to take now, or it was more for
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`informative purposes?
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` MR. ASHE: Well, it was for informative
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`purposes initially. I guess I need to parse your
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`question a little bit in terms of, you know, is there
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`any action we need to be taking at this point in time,
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`how is that? Well, with respect to this specific case,
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`I believe it raises the issue that was in Footnote 2 of
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`the decision, and that is a public, or a redacted
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`version of the decision for public consumption at this
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`point in the proceedings. Footnote 2 instructed
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`parties to confer and to present any sort of redacted
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`version that might be appropriate. And we were simply
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`deprived of that opportunity of course because this
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`went publicly viral. So I guess the one issue is
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`guidance on whether the board sees any value in the
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`parties going through the exercise of coming up with a
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`redacted version, knowing that there are still active
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`sites out there that this decision is publicly
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`available in its sealed form.
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` JUDGE TIERNEY: This is Judge Tierney. Do
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`you wish me to go into how we view it at this point?
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`Is that what you're asking then, or is that the
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`question?
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` MR. ASHE: Yes, Your Honor.
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` JUDGE TIERNEY: I do find that, this is just
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`a single judge speaking at this point, I find it
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`beneficial to have an official record, having -- to the
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`extent the parties desire, having a redacted version.
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`I think it would be nice to have the official record
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`reflect what the parties believe to be appropriate.
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`Because keep in mind there will be when people go to
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`access the decision to the board's website, I'd rather
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`have the official record be complete rather than having
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`the parties have to go up to a different site to try
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`and find what is actually an official confidential copy
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`shall we say. But I'm willing to take other views on
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`that at this point, having just just said that. Let's
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`hear from Virnetx and Apple as to their views, starting
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`with Virnetx. What is your view on the situation,
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`having a redacted version.
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` MR. PALYS: This is Joseph Palys. I agree
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`with the board. I think it would be helpful for the
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`public to have a redacted version in the record.
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` JUDGE TIERNEY: Anything else before I move
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`on to Apple?
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` MR. PALYS: No, sir.
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` JUDGE TIERNEY: Let's hear from Apple on
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`this issue.
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` MR. KUSHAN: Thank you, Your Honor.
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`Obviously we're not a party to the proceeding. The
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`disclosure of the decision and the information is
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`still -- I don't know how that happened. We have sent
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`a note when we discovered that motions to the board
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`with hopes that both the board and the parties would
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`take steps within their power to try to remove the
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`confidential document from public circulation. So to
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`the extent the board and/or the parties can continue to
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`do that, I believe that would be proper, just to try to
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`take it offline, even though it's been disseminated. I
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`don't know -- certainly there were some sites that had
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`been identified that should be contacted to try to
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`explain to the site that the document is confidential.
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`That's one thing we believe would be appropriate. I
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`don't know if it's still practical, but at least some
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`effort to restrain the disclosure of it would be
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`preferable.
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` JUDGE TIERNEY: Let's back up. The question
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`on the table, though, and I haven't heard the answer
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`to, and maybe I missed it, was do you view it as
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`beneficial having a redacted copy and an official copy
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`to be on the system?
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` MR. KUSHAN: I was about to say yes to that
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`point, Your Honor. I share the view that to the extent
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`the board is going to put up a public version, it would
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`be one that would be exclusive of the confidential
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`information, a redacted form, to our view still has
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`value, and it should be produced.
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` JUDGE TIERNEY: Okay. So let's take care of
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`this issue first about a redacted version. The parties
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`are aware of -- let's see, the fact that it all -- that
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`this did go out, and we can talk about how it went out
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`and why it was invertent in the board's point of view.
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`But what I'd like to hear, then, from RPX, as well as
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`from Virnetx and Apple is what is the best way of
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`making a redacted copy available. I was hoping the
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`parties could work amongst themselves to come up with
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`what they believe to be a copy that would be beneficial
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`to the public and still redacting those portions they
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`wanted redacted, and hearing a time frame for doing
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`such. So I'd like to start the ball rolling with the
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`RPX. You heard the views so far expressed to me.
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`Would you prefer to have an official copy that's
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`redacted? Could you please speak to how you -- are you
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`able to go about or willing to go about making a
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`redacted copy?
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` MR. ASHE: Yeah, I think we're able to do
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`it, and certainly willing. I still question at the end
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`of the day whether it's an exercise in futility, since,
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`you know, there is already -- the cat is out of the
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`bag, the decision is still publicly available. And
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`we're going to be going through an exercise of
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`redacting things. I have some concerns there about
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`whether it's really a fruitful exercise, but certainly
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`we are willing and able to do it.
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` We'd need some time, certainly from Friday
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`through today, I've been trying to stomp out fires and
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`really haven't had a great amount of time to focus on
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`the redactions that we'd want. And I know that other
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`counsel on the line, their time has also been limited.
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`So we would probably need another week or so before we
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`would be in a position to identify the redacted version
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`of the decision.
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` JUDGE TIERNEY: What I'm hearing here is
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`that RPX is willing to work with the other parties, put
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`together a redacted copy. It's just a matter of trying
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`to find a time that you would be able to do it.
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` MR. ASHE: Yes.
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` JUDGE TIERNEY: I understood that one
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`week -- when would you -- I understand you have a lot
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`going on under the situation because of the inadvertent
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`disclosure. I understand you've been busy. What time
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`frame would you like to submit the redacted copy for
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`the board, opposed redacted copy for the official
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`record? Could you give me some times and dates that
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`would be beneficial for all involved?
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` MR. ASHE: Sure. And also a comment on
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`possibly efficiency. We were also -- I think this goes
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`hand in hand with possibility of motions to expunge
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`certain exhibits that we believe contained confidential
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`information that are not central to the decision. So
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`ideally I think that those two things go hand in hand,
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`that we would, in the redacted version for example, of
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`the decision, redact out cites to certain exhibits that
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`would in our motion to expunge we'd seek to have
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`removed from the record permanently. So if we push the
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`dates out two or three weeks to have those motion to
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`expunge and the publicly available redacted version of
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`the decision be presented at the same time, I think
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`that makes the most sense.
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` JUDGE TIERNEY: Could you give me a date
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`certain as to what you're --
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` MR. ASHE: Sure, let me pull up my calendar
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`here. So we are at the 10th now. Let's say the 24th.
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` JUDGE TIERNEY: Okay, so I hear the 24th
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`from RPX. Now is there anything further before I turn
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`it over to Apple and Virnetx? RPX, is there anything
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`further you'd like to say?
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` MR. ASHE: No, Your Honor.
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` JUDGE TIERNEY: We have RPX is saying that
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`the date of June 24th to file a redacted copy. I'd
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`like to hear from Apple. I know you're not technically
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`a party to the action, but I do want to have your views
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`on this, because the information does concern Apple.
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`What are your -- what's your ability to work with the
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`other parties, and what we have the 24th, are you able
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`to provide such a copy by the 24th?
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` MR. KUSHAN: I think we'd be fine proceeding
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`with that schedule, Your Honor. I'm sure the parties
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`can find an efficient path to create the redacted form
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`of the document. And I think we're fine to accept that
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`schedule.
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` JUDGE TIERNEY: Anything further before I
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`turn to Virnetx?
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` MR. KUSHAN: No, Your Honor.
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` JUDGE TIERNEY: Virnetx, please chime in the
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`same question as to ability to work with the other
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`parties, and as to the date of the 24th to file these
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`motions.
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` MR. PALYS: We'll be able to work with the
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`parties, Your Honor.
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` JUDGE TIERNEY: All right. Then we'll go
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`ahead, we will expect to see a copy from the parties, a
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`proposed redacted copy filed on June 24th. Is there
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`anything else we need to discuss with respect to the
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`redacted copies?
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` MR. ASHE: No, Your Honor, not on behalf of
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`RPX.
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` JUDGE TIERNEY: Apple and Virnetx, any
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`further questions before we turn over to other matters?
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` MR. PALYS: No, Your Honor.
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` MR. KUSHAN: No, Your Honor.
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` JUDGE TIERNEY: As to other matters, I note
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`we had a query, it appeared, from Apple, as to how this
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`occurred. I'm just going to say briefly it was
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`inadvertent on our part. Basically what happened is
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` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`that when the judges sent over a copy of the decision
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`to be posted, although it was identified in Footnote 2
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`to be kept confidential, the email itself did not
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`say -- mention the confidentiality. The paralegal
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`handling the case was not the same paralegal who
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`reviewed the case, so it was a miscommunication on our
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`part as judges. We did not identify clearly enough.
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`Once the issue came to our attention that it had not
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`been put under parties and board only, we immediately
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`had the paralegal turn the switch and made it private
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`to parties and board only. My understanding, and I
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`don't have the records in front of me, but my
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`understanding is it was less than an hour it was open,
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`it was probably about 40 minutes, maybe even less than
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`that. And it appears so that people were -- apparently
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`at least one person I believe is what you're telling me
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`had access and had a copy in that time, because it was
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`on one site out there. At least one.
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` MR. ASHE: Yeah, at least one, he's right.
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` JUDGE TIERNEY: That's the information I
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`have, but is there anything further that you wanted to
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`provide about the occurrence here? We are looking at
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`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`our procedures going forward. And I know the next time
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`we have a judges meeting, this topic, I can tell you I
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`will, along with my colleagues, be able to speak and
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`say should this situation arise, we need to be clear in
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`our email headers, because we can't guarantee it's the
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`same paralegal will handle the proofing as well as the
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`mailing.
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` MR. ASHE: I think that would be really
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`helpful. And perhaps marking the very first page, you
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`know, as it being under seal would help for people just
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`picking it up, the general members of the public
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`picking it up, to know that it's under seal.
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` JUDGE TIERNEY: I think that's a good
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`suggestion, and that's something I can say I will try
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`to remember to bring up, but I know my colleagues
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`Easthom and Siu, if I forget, they will also be able to
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`chime in. Are there any other suggestions? The email,
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`marked on the first page. We're open to suggestions on
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`this.
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` MR. ASHE: Your Honor, I don't know this is
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`necessarily on behalf of RPX, this suggestion, but just
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`as a practitioner before the board, my suggestion would
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`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`be that if this situation were to arise again, that the
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`board would enter and order and post it on the publicly
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`accessible portion of the website, and say look, the
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`order that was paper number whatever it was that was
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`recently entered was entered under seal, and the public
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`dissemination of it should not occur. And therefore
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`the people that are monitoring the website and pulling
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`documents off of it are all going to get that document,
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`and will all be on notice that to the extent it wasn't
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`obvious from the document itself, that the board's
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`intention, and the parties' understanding, is that that
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`document will be maintained under the provisions of the
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`protective order and treated as a document that's under
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`seal. And that would immediately broadcast to the
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`relevant audience the board's intentions.
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` JUDGE TIERNEY: I think that goes to your
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`first point, which is we need to put the -- the
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`footnote shouldn't be a footnote 2 on page 2, but a
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`footnote on page 1, or even have a heading somehow on
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`the first page saying this is confidential, parties and
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`board only of some nature. I think the point you're
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`making is a good suggestion there.
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`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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` MR. ASHE: It's actually a separate
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`suggestion, and that is to the extent that this same
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`scenario occurs again for example -- for some reason --
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` JUDGE TIERNEY: And then the second part.
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` MR. ASHE: Yeah.
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` JUDGE TIERNEY: We have to take a -- and I
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`don't know, I don't want to tell other panelists how
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`they want to handle it should this situation occur,
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`because it is my sincere hope that this does not occur
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`again. And one can always hope, put it that way.
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` All right. And further matters, I know
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`there was some other questions. We wanted to try and
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`talk to the parties on this situation. And if there's
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`questions, we wanted to be able to answer them today.
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`We didn't want any lingering questions on behalf of the
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`parties. So are there any further questions regarding
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`these matters, and then to go forward?
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` MR. KUSHAN: Your Honor, just very briefly,
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`I don't know whether it is in your discretion to reach
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`out to any of the sites that have been identified, to
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`just communicate from the office that the document
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`shouldn't be disseminated. That might be a little bit
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`better than one of the parties or a member of the
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`public requesting that to happen. That's just kind of
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`remedial to this particular instance. But that's the
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`only thing that I could imagine. And as Mr. Ashe
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`pointed out, I don't know if it's just futile at this
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`point, given the degree of dissemination of the
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`document, but I believe it would be would be one step
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`that could be taken.
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` JUDGE TIERNEY: The suggestion has been
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`considered and looked into. At this time it was not a
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`suggestion we were going to go forward with. We didn't
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`-- the office did not believe it had control over the
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`people that had it, and we're not going to reach out at
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`this time, under the circumstances of this case. But
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`we have actually had discussions on this point.
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` MR. KUSHAN: That's fine. We thought we'd
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`raise that as an idea to be explored, and we appreciate
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`the board taking it under consideration.
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` JUDGE TIERNEY: And again under the
`
`circumstances, we are trying to be open and listening
`
`to suggestions, and we do take them very seriously.
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`And that's why I'm asking if there are any other
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`suggestions? Because again I'm taking notes, and we'll
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`have the transcript, and I will be able to take this to
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`our next judges meeting, and we'll mention these
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`suggestions. Because this is something we would not
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`want to happen again.
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` So if there any other suggestions, we're
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`taking notes.
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` MR. PALYS: This is Joseph Palys, Your
`
`Honor. Maybe when you put the sealed document on the
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`site, that the actual heading on the site has an under
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`seal label on it. So before anyone loads or attempts
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`to download something like that, you can see that
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`that's a confidential document or something like that.
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`I don't know if that would be helpful.
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` JUDGE TIERNEY: Can you clarify that for me?
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`Would it be like a heading, or like a water mark, or
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`what are you saying?
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` MR. PALYS: No, no, not on the document
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`itself, Your Honor, which is what you guys were already
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`talking about. I'm saying when you go to the site, you
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`can download the document, when you see the transcript,
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`you can see the document, there's a heading, that maybe
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`that heading, that label had something that says under
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`seal or confidential or something like that. I don't
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`know if that's possible.
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` JUDGE TIERNEY: That's one for our computer
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`team. We can pass that along to our development team.
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`I appreciate the suggestions. And again, discussing
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`that we did not expect it to happen, it happened. We
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`need to make sure we go forward appropriately. We look
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`forward to redacted copies.
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` Is there anything else that we can be doing
`
`in this situation that we've not already discussed
`
`today going forward? I'm not hearing any suggestions.
`
` Is there anything else that we need to
`
`discuss for these particular cases? I'll start with
`
`RPX.
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` MR. ASHE: Yes, Your Honor, one procedural
`
`question, with regard to motions to expunge, it's not
`
`clear based on the cases that we've reviewed whether
`
`requesting authorization is required before the filing
`
`of the motion.
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` JUDGE TIERNEY: And to the extent
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`authorization is required, go ahead, you have my
`
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`authorization.
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` MR. ASHE: Okay. And then the second
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`question is I'm assuming it's treated as a
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`miscellaneous motion with a 15 page limit. Is that per
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`exhibit, or is that -- do you have to have everything
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`into 15 pages?
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` JUDGE TIERNEY: It would be in total.
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`However, under the circumstances are you wishing to
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`have more pages? Because the board is open to having
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`additional pages to the extent you need them.
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` MR. ASHE: At this point I think, you know,
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`15 pages is, you know, to the extent that we've
`
`reviewed this issue, would be enough. But at least if
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`the board notes the issue, we can probably have a
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`pretty efficient discussion. If we need another five
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`pages, you know, if you would --
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` JUDGE TIERNEY: How about if we do this,
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`under the circumstances we understand you're going to
`
`be reviewing it very carefully, there may be a few
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`exhibits to expunge, why don't we go ahead and
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`authorize 20 pages today and not have to worry about
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`it, to give you the peace of mind as you write the
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`motion.
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` MR. ASHE: Thank you, Your Honor.
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` JUDGE TIERNEY: And just to make sure, is
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`there any objection from RPX on giving the five extra
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`pages before we actually go forward with the
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`authorization?
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` MR. PALYS: You mean Virnetx? No, Your
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`Honor.
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` JUDGE TIERNEY: So five additional pages are
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`authorized. And should the parties believe that 20
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`somehow is insufficient, of course please let us know.
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`But it's my hope that 20 pages should be sufficient.
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` Anything else, RPX?
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` MR. ASHE: No, Your Honor.
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` JUDGE TIERNEY: Virnetx, is there anything
`
`else we need to discuss today?
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` MR. PALYS: No, Your Honor.
`
` JUDGE TIERNEY: Lastly to Apple, was there
`
`anything that you believe that we need to discuss today
`
`before we adjourn?
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` MR. KUSHAN: I have one minor issue, and
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`that is since we're not a party to the proceeding, if
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`

`

` TELEPHONIC CONFERENCE CALL BEFORE JUDGES TIERNEY, EASTHOM AND SIU
`CONDUCTED ON TUESDAY, JUNE 10, 2014
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`there is going to be a motion to expunge, should we
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`participate in the briefing on that or not?
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` JUDGE TIERNEY: My understanding would be
`
`that you are not necessarily needing to partake in the
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`motion to expunge. If there's a need for you to chime
`
`in, please let me know, and we can discuss it.
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` MR. KUSHAN: All right. If it's okay with
`
`you, I'd propose to just consult with Mr. Ashe to see
`
`if there's any -- because it would only be Apple
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`confidential information arising out of the RPX
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`documents.
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` JUDGE TIERNEY: Understood. And then just
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`maybe to simplify matters, if you wish to maybe go to
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`Virnetx and see if RPX can, before you file it, see if
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`they're going to oppose. If they're not going to
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`oppose, that would make things a littl