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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________________________X
`ZTE CORPORATION and ZTE (USA) INC.,
` Petitioner,
` IPR2014-00525
` IPR2015-00074
` V.
`INTERDIGITAL TECHNOLOGY CORPORATION,
` Patent Owner.
`______________________________________________X
` July 18, 2017
` 2:31 p.m.
`BEFORE:
` HON. BEVERLY M. BUNTING
` HON. MIRIAM L. QUINN
` HON. SALLY C. MEDLEY
`
`Reported by:
`Mary Agnes Drury
`JOB NO. 127408
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`Ex. 2026-0001
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________________________________X
`ZTE CORPORATION and ZTE (USA) INC.,
` Petitioner,
` IPR2014-00525
` IPR2015-00074
` V.
`INTERDIGITAL TECHNOLOGY CORPORATION,
` Patent Owner.
`______________________________________________X
` July 18, 2017
` 2:31 p.m.
`BEFORE:
` HON. BEVERLY M. BUNTING
` HON. MIRIAM L. QUINN
` HON. SALLY C. MEDLEY
`
`Reported by:
`Mary Agnes Drury
`JOB NO. 127408
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`Page 2
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`A P P E A R A N C E S:
`
` McDERMOTT WILL & EMERY
` Attorneys for Petitioner
` 444 West Lake Street
` Chicago, Illinois 60606-0029
` BY: CHARLES M. MCMAHON, ESQ.
` BRIAN A. JONES, ESQ.
`
` LATHAM & WATKINS, LLP
` Attorneys for Patent Owner
` 505 Montgomery Street
` Suite 2000
` San Francisco, California 94111-6538
`
` BY: JULIE M. Holloway, ESQ.
` JONATHAN D. LINK, ESQ.
` JONATHAN M. STRANG, ESQ.
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` Proceedings
` HON. BUNTING: Good afternoon. This 02:31
` is the conference call in IPR2014-00525 02:31
` involving Patent Number 8,380,244, which is 02:31
` back before us on remand from the US Court 02:31
` of Appeals for the Federal Circuit. 02:31
` I am Judge Bunting and I'm joined 02:31
` today by Judge Medley and Judge Quinn. We 02:31
` will begin with appearances of counsel. 02:31
` Who do I have on the call for Petitioner? 02:31
` MR. McMAHON: Charles McMahon and 02:31
` Brian Jones of McDermott, Will & Emery, 02:31
` your Honor. 02:31
` HON. BUNTING: And who will be doing 02:31
` the speaking, you, Mr. McMahon? 02:31
` MR. McMAHON: Yes, ma'am. 02:31
` HON. BUNTING: Thank you. 02:31
` And who do we have on the call for 02:31
` the Patient Owner? 02:31
` MS. HOLLOWAY: Good morning, your 02:31
` Honor, this is Julie Holloway from Latham & 02:31
` Watson. We also have Jonathan Link and 02:31
` Jonathan Strang, and I will be speaking for 02:32
` Patent Owner. 02:32
` HON. BUNTING: Thank you. And I 02:32
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`Ex. 2026-0003
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` Proceedings
` understand we have a have a court reporter.
` Who is responsible for the court reporter? 02:32
` MS. HOLLOWAY: We are, your Honor, 02:32
` the Patent Owner.
` HON. BUNTING: Will you please file 02:32
` a copy with the Board? 02:32
` MS. HOLLOWAY: Certainly. 02:32
` HON. BUNTING: Thank you. So by way 02:32
` of background in an April 20, 2017, 02:32
` decision that that Circuit affirmed our 02:32
` determination as to most of these claims 02:32
` and vacated and remanded as to claim 8 for 02:32
` further proceedings, which is why we are 02:32
` here. 02:32
` The Court confirmed our construction 02:32
` of plurality of assigned physical channels. 02:32
` And in a footnote, advised that we do 02:32
` evaluate whether the parties had noticed an 02:32
` opportunity to respond to the grounds it 02:32
` ultimately relies on. 02:32
` So the purpose of our call today is 02:32
` to discuss the overall schedule and 02:32
` potential topics for additional briefing. 02:33
` So my first question is: Have the 02:33
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`Ex. 2026-0004
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` Proceedings
` parties conferred regarding potential 02:33
` topics? And do you have any agreement 02:33
` between the parties in this regard? 02:33
` So beginning with Petitioner, have 02:33
` you conferred at all? 02:33
` MR. McMAHON: Your Honor, we have 02:33
` not, and I apologize for that. We have 02:33
` reached out to counsel for the patent 02:33
` owner, but just very late today and we did 02:33
` not have a chance to connect before the 02:33
` call. 02:33
` I think the issue probably is going 02:33
` to be agreed as fairly narrow. 02:33
` HON. BUNTING: Okay. 02:33
` MR. McMAHON: But we will have to 02:33
` talk through it. 02:33
` HON. BUNTING: All right. Thank 02:33
` you. That's the purposed of our call
` today. Patent owner, do you generally 02:33
` agree with that? 02:33
` MS. HOLLOWAY: Yes, your Honor, we 02:33
` have not previously conferred. We 02:33
` apparently received an E-mail from 02:33
` Mr. McMahon just before this call, but 02:33
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`Ex. 2026-0005
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` Proceedings
` Mr. Link was traveling and we do agree the 02:33
` issue is very narrow. 02:33
` HON. BUNTING: Okay. My other 02:33
` question we understand that the joint 02:33
` petitioner Microsoft is no longer part of 02:34
` this proceeding. 02:34
` Have there been any discussions 02:34
` between the two remaining parties then 02:34
` regarding settlement? 02:34
` MR. McMAHON: Your Honor, this is 02:34
` Charles McMahon for the petitioner. 02:34
` There are on-going discussions over 02:34
` time between the parties, so there have 02:34
` been discussions and -- but nothing -- no 02:34
` settlement today. 02:34
` HON. BUNTING: Okay. And 02:34
` Ms. Holloway, do you generally agree with 02:34
` that? 02:34
` MS. HOLLOWAY: Yes, your Honor, we 02:34
` generally agree. 02:34
` HON. BUNTING: All right. So 02:34
` beginning with petitioner -- I'm sorry, did 02:34
` I hear someone ask a question? 02:34
` MR. McMAHON: No, your Honor. 02:34
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`Ex. 2026-0006
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` Proceedings
` HON. BUNTING: Maybe -- I think 02:34
` there is just some static on the phone, at 02:34
` least that's perhaps what I heard. 02:34
` All right. Beginning with 02:34
` Mr. McMahon, can you provide us with as to 02:34
` potential topics for additional briefing? 02:35
` MR. McMAHON: Certainly, your Honor. 02:35
` I think the simplest way to state it would 02:35
` be the obviousness of claim 8 within ground 02:35
` one as originally presented in the 02:35
` petition. 02:35
` And just to explain that a little 02:35
` more, as you noted, the Federal Circuit 02:35
` affirmed the Board's finding as to all of 02:35
` the challenged claims under ground one, 02:35
` except for claim 8. Claim 8 was the one 02:35
` claim that the Federal Circuit found was 02:35
` insufficiently supported in the Board's 02:35
` decision as to the obviousness claim, and 02:35
` that was the subject of the hearing. 02:35
` So petitioner submits that the scope 02:35
` of the remand should be focused on the 02:35
` obviousness of claim 8, based on the ground 02:35
` one references to -- and 802.11, and I 02:36
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` Proceedings
` guess I'll stop there and ask if you have 02:36
` any questions about that. 02:36
` HON. BUNTING: Okay. No, I think 02:36
` that the Court was pretty clear. 02:36
` They also discussed whether patent 02:36
` owner had the notice and opportunity to 02:36
` respond to new arguments. 02:36
` How did you feel about that? Should 02:36
` that be part of the discussion? 02:36
` MR. McMAHON: Our feeling would be 02:36
` that there is no issue of new argument. In 02:36
` other words, the record we think is fairly 02:36
` clear from the original proceedings before 02:36
` the Board that the arguments that were 02:36
` presented were proper, if I'm responding to 02:36
` the correct issue here, the arguments that 02:36
` patent owner argued were new were properly 02:36
` replied in the original proceeding, and 02:37
` were properly supported by the original 02:37
` petition. 02:37
` I don't think there was any new or 02:37
` improper about the arguments and see no 02:37
` reason to raise that issue on remand. 02:37
` HON. BUNTING: All right. 02:37
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`Ex. 2026-0008
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` Proceedings
` Ms. Holloway, how would you respond? What 02:37
` is your position regarding any additional 02:37
` briefing in the subject matter thereof? 02:38
` MS. HOLLOWAY: Okay. Well, we don't 02:38
` believe briefing is necessary as an opening 02:38
` matter. We agree with counsel that the 02:38
` question is the obviousness of claim 8 in 02:38
` ground one as originally presented in the 02:38
` petition. And more specifically, per the 02:38
` Federal Circuit, whether the record has 02:38
` substantial evidence that supports a 02:38
` motivation to combine the PDP context 02:38
` feature of the GPRS with the CDMA network 02:38
` referenced in Jawanda. 02:38
` So we believe that's the issue 02:38
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` but the question is whether this motivation 02:38
` is then sufficient.
` As to notice and opportunity, we 02:38
` believe that's a topic for briefing, and we 02:38
` have a suggestion with respect to the 02:38
` approach to any such briefing if the Court 02:38
` wishes -- if the Board wishes to entertain 02:39
` briefing. Specifically -- pardon me? 02:39
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`Ex. 2026-0009
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` Proceedings
` HON. BUNTING: Go ahead, please 02:39
` explain. 02:39
` MS. HOLLOWAY: Okay. Specifically, 02:39
` if the Board wishes to hear everything 02:39
` rather than simply reviewing the petition 02:39
` for evidence of motivation to combine for 02:39
` claim 8, we suggest the approach that was 02:39
` given in MasterCard International v 02:39
` D'Agostino, which is IPR2014-00543 and 02:39
` 0544, paper 13, February 16th of this year. 02:39
` Using that approach, we propose that 02:39
` any brief filed by ZTE, Inc. should be 02:39
` required to include citations to -- to 02:39
` ensure that no new evidence or arguments 02:39
` are submitted. 02:39
` So the briefing, if any, would be 02:39
` limited to pointing out in the petition ZTE 02:39
` has identified motivation to combine and 02:39
` where ZTE cited the evidence to support it. 02:40
` And of course if the motivation to 02:40
` combine and evidence was discussed in the 02:40
` opening brief and further elaborated on in 02:40
` reply, they can point to that as well. But 02:40
` this will ensure that there is no new 02:40
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`Ex. 2026-0010
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` Proceedings
` evidence or argument introduced on remand. 02:40
` HON. BUNTING: Okay. And would that 02:40
` also cover your -- a concern that was 02:40
` raised regarding new arguments in the reply 02:40
` brief? 02:40
` MS. HOLLOWAY: To the extent -- yes. 02:40
` If ZTE complies with this approach that 02:40
` we're suggesting, then I believe that will 02:40
` address the question of whether there are 02:40
` new arguments. 02:40
` If of course ZTE said something that 02:40
` was in reply was simply an elaboration on 02:40
` that which was in the petition and we 02:40
` disagree, we would like the opportunity to 02:40
` respond to that. 02:40
` If the arguments were in the 02:40
` petition, then there wouldn't be any need 02:40
` for a response, we would simply agree that 02:41
` the evidence was in the petition. 02:41
` HON. BUNTING: And, Mr. McMahon, how 02:41
` do you feel about that approach? 02:41
` MR. McMAHON: I think -- I mean in 02:41
` general that sounds fine. I have no 02:41
` problem relying on the context of the 02:41
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`Ex. 2026-0011
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` Proceedings
` original briefing in the original 02:41
` proceeding. 02:41
` HON. BUNTING: And that was, I 02:41
` think, the Panel's perspective also, that 02:41
` perhaps just limited to the type of listing 02:41
` of where the arguments were made, along 02:41
` with citations to the record with no 02:41
` argument. Is that essentially what you're 02:41
` thinking about, Ms. Holloway? 02:41
` MS. HOLLOWAY: Yes, that is. Thank 02:41
` you. 02:41
` HON. BUNTING: And petitioner, you 02:41
` would be agreeable with that type of 02:41
` approach. 02:41
` MR. McMAHON: I think so, yes, your 02:41
` Honor, but I want to make sure I know 02:41
` what's meant by a "listing". 02:41
` Would this be in the form of a brief 02:42
` or some other form? 02:42
` HON. BUNTING: I'll confer with the 02:42
` Panel, but I think it would be more like a 02:42
` one sentence pointing out where it's in the 02:42
` petition, you know, just show where the 02:42
` argument is in the petition or the reply or 02:42
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`Ex. 2026-0012
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` in the record generally, and then have that 02:42
` cited. 02:42
` So it would be very narrow -- but 02:42
` basically, we're not looking to an 02:42
` argument, just tell us where it's at. 02:42
` MR. McMAHON: Sure. That makes 02:42
` sense. So just to put some context on 02:42
` that, claim 8 of course is a dependant 02:42
` claim which depends from claim 1, and so 02:42
` the support we would be pointing to would 02:42
` be through the discussion of the elements 02:42
` of claim 1, which are incorporated in claim 02:42
` 8.
` Would it be appropriate to include a 02:42
` sentence or two to say this limitation was 02:42
` addressed in the context of claim 1 in the 02:43
` petition at, cite. And then there was a 02:43
` supporting citation to the declaration of 02:43
` Dr. Bim's (phonetic) at paragraph's cite, 02:43
` that type of thing? 02:43
` HON. BUNTING: That's what I'm -- 02:43
` let me confer with the Panel to see if they 02:43
` agree with that direction, but I don't 02:43
` think -- again, narrow topic, I don't think 02:43
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`Ex. 2026-0013
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` Proceedings
` we are going to need much other than what 02:43
` evidence there is with regard to claim 8, 02:43
` which is just a very narrow claim 02:43
` limitation. 02:43
` So with this, I'm going to put the 02:43
` parties hold and discuss with the Panel. 02:43
` MS. HOLLOWAY: Your Honor, may I be 02:43
` heard? 02:43
` HON. BUNTING: I'm sorry, yes, very 02:43
` briefly. 02:43
` MS. HOLLOWAY: Julie Holloway. The 02:43
` issue is really not only claim 8, but 02:43
` motivation. So we certainly see no need of 02:43
` going through all the elements of 02:44
` independent claim 1 from claim 8 that was 02:44
` already addressed by the Board and not 02:44
` subject of the remand. So we think simply 02:44
` claim 8 and simply motivation to combine is 02:44
` the appropriate topic here. 02:44
` Thank you. 02:44
` MR. McMAHON: Your Honor, 02:44
` Mr. McMahon again, if I may? 02:44
` HON. BUNTING: Yes. 02:44
` MR. McMAHON: The reason I reference 02:44
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`Ex. 2026-0014
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` claim 1 is because the motivation to 02:44
` combine argument that Ms. Holloway is 02:44
` pointing to is a question of whether there 02:44
` is a motivation to combine the specific 02:44
` feature of claim 8 with the features of 02:44
` claim 1, and that's why it's necessary to 02:44
` look at the evidence that we presented in 02:44
` the original petition as to both of those 02:44
` claims. 02:44
` HON. BUNTING: All right. Thank 02:44
` you. I'm going to put the parties on hold 02:44
` now and confer with the panel. 02:44
` (Proceedings were recessed for a 02:45
` brief period of time and resumed.) 02:52
` HON. BUNTING: Hello. The Panel is 02:52
` back. Mr. McMahon, are you still with us? 02:53
` MR. McMAHON: Yes, your Honor. 02:53
` HON. BUNTING: And, Ms. Holloway? 02:53
` MS. HOLLOWAY: Yes, your Honor. 02:53
` HON. BUNTING: Thank you. And I 02:53
` have a question. So based on the 02:53
` conversation that we had, it looks like, 02:53
` Ms. Holloway, what you suggested is that 02:53
` petitioner just file a one-page listing 02:53
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`Ex. 2026-0015
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` where their support evidence is for the 02:53
` motivation to combine. Were you also 02:53
` proposing that you as patent owner would 02:53
` file any type of paper? 02:53
` MS. HOLLOWAY: Yes. We would file, 02:53
` if appropriate, just explain any short 02:53
` objection to any citation without argument. 02:53
` HON. BUNTING: Okay. And the reason 02:53
` would be just to -- I guess what would be 02:53
` reasoning there? 02:53
` MS. HOLLOWAY: For example, if you 02:53
` were to point to something in the reply 02:53
` that was not anywhere presented in the 02:54
` petition, or if ZTE was to point to 02:54
` something in the petition that was not part 02:54
` of the specific ground on which the 02:54
` petition was granted; that sort of thing. 02:54
` I mean, it's hard to speak in a 02:54
` vacuum without seeing it, but those are the 02:54
` sort of things that I have in mind. 02:54
` HON. BUNTING: Okay. I understand 02:54
` about speaking in a vacuum. And so 02:54
` beginning with Mr. McMahon, if we're 02:54
` talking about a paper, I can't image it 02:54
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` being such a listing being more than one to 02:54
` two pages. And how long would it take for 02:54
` you to prepare the document? 02:54
` MR. McMAHON: I think, your Honor, 02:54
` we could prepare that very quickly, let's 02:54
` say a week. 02:54
` HON. BUNTING: Okay. That would be 02:54
` sufficient. If you want to take up to two 02:54
` weeks, that would be fine, too. But I 02:54
` think it's -- again, it's a very narrow 02:55
` issue. 02:55
` So what the Panel will do is -- I'm 02:55
` sorry, Ms. Holloway, did you have a 02:55
` question? 02:55
` MS. HOLLOWAY: Umm, no. No, I do 02:55
` not. Just, we would request the same page 02:55
` limits, whatever they are, and the same 02:55
` amount of time. 02:55
` HON. BUNTING: Okay. And what I 02:55
` would like to do is review the orders in 02:55
` the case that you referred us to 02:55
` IPR2015-00543.
` So what the Panel will do is we will 02:55
` issue an order memorializing this 02:55
`
`TSG Reporting - Worldwide 877-702-9580
`
`Ex. 2026-0017
`
`
`
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`Page 18
`
` Proceedings
` conference in due course, but basically, 02:55
` we're going to request that petitioner 02:55
` provide us with a listing with citations to 02:55
` the existing record pointing out where it 02:55
` presented arguments and evidence in the 02:55
` petition regarding its proffer motivation 02:55
` to combine the PDP context, the GPRS 02:56
` standards with the CDMA network referenced 02:56
` in Jawanda. 02:56
` And so the paper will be two pages 02:56
` in length, which I think is -- which should 02:56
` cover all their arguments. 02:56
` Are there any other arguments or 02:56
` concerns or comments beginning with 02:56
` petitioner? 02:56
` MR. McMAHON: No, your Honor. Well, 02:56
` let me just ask a question: What I'm 02:56
` envisioning now is one to two pages with 02:56
` the listing, perhaps even quotations, from 02:56
` the record, but also including maybe two to 02:56
` three sentences of introduction just to 02:56
` provide context, does that sound -- is that 02:56
` what you're discussing? 02:56
` HON. BUNTING: I'm not sure that we 02:56
`
`TSG Reporting - Worldwide 877-702-9580
`
`Ex. 2026-0018
`
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`Page 19
`
` Proceedings
` need context at this point. I think if you 02:56
` can point in the record, it should be 02:56
` sufficient. 02:56
` MR. McMAHON: Okay. 02:56
` HON. BUNTING: So just point to the 02:57
` record, if you want to include the 02:57
` quotation and the cites, the specific 02:57
` citation. 02:57
` MR. McMAHON: Okay. Will it be okay 02:57
` to include a sentence that, you know, per 02:57
` the Board's order instructing that 02:57
` petitioner provide a listing of the record 02:57
` evidence that supports, and then kind of 02:57
` state the issue. That's the type of 02:57
` contextual introduction that I'm thinking 02:57
` about. 02:57
` HON. BUNTING: Oh, okay. Yeah. The 02:57
` point I'm making is that we're not asking 02:57
` for any argument. 02:57
` MR. McMAHON: Understood. Thank 02:57
` you, your Honor. 02:57
` HON. BUNTING: It would just be 02:57
` specifically a listing. We'll give the 02:57
` specifics in our order in terms of that. 02:57
`
`TSG Reporting - Worldwide 877-702-9580
`
`Ex. 2026-0019
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`Page 20
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` Proceedings
` Ms. Holloway, did you have any 02:57
` questions? 02:57
` MS. HOLLOWAY: Just, again, we would 02:57
` like the opportunity to object if 02:57
` appropriate, that's all. 02:57
` HON. BUNTING: Okay. Thank you. 02:57
` And we'll -- I'll look again at the paper 02:57
` that you referenced, and we will put an 02:57
` order in due course and we'll memorialize 02:57
` the conference call and set out the 02:58
` requirements for the briefing. 02:58
` So thank you for your attention and 02:58
` attendance this afternoon and this call is 02:58
` adjourned. 02:58
` MR. McMAHON: Thank you. 02:58
` MS. HOLLOWAY: Thank you. 02:58
` (Proceeding Concluded at 2:58 p.m.)
` *****
`
`TSG Reporting - Worldwide 877-702-9580
`
`Ex. 2026-0020
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`
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`Page 21
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` C E R T I F I C A T E
`
`STATE OF NEW YORK )
` ) ss.:
`COUNTY OF ONONDAGA )
`
` I, Mary Agnes Drury, 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
` held on July 18, 2017.
` That I am not related to any of the
` parties to the 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 28th of July, 2017.
`
` ___________________
` Mary Agnes Drury
`
`TSG Reporting - Worldwide 877-702-9580
`
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`
`Ex. 2026-0021
`
`
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