Conference Call
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`December 19, 2014
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`Washington, D.C.
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`------------------------------
` :
`MICROSOFT, : Case Nos.
` :
` Petitioner, : IPR2014-00610
` :
` v. : IPR2014-00614
` :
`VIRNETX, : IPR2014-00615
` :
` Patent Owner. : IPR2014-01418
` :
`------------------------------ IPR2014-01421
`
` Friday, December 19, 2014
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` Telephone Conference before Judge Michael
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`Tierney, Judge Karl Easthom, and Judge Stephen Siu in
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`the above-entitled matter, commencing at 11:02 a.m.,
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`the proceedings taken down by Stenotype by
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`Catherine B. Crump, stenographic court reporter, and
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`transcribed under her direction.
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`Alderson Reporting Company
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`Page 1 of 22
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`VIRNETX EXHIBIT 2038
`Microsoft v. VirnetX
`Trial IPR2014-00610
`
`
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`December 19, 2014
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`Washington, D.C.
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`------------------------------
` :
`MICROSOFT, : Case Nos.
` :
` Petitioner, : IPR2014-00610
` :
` v. : IPR2014-00614
` :
`VIRNETX, : IPR2014-00615
` :
` Patent Owner. : IPR2014-01418
` :
`------------------------------ IPR2014-01421
`
` Friday, December 19, 2014
`
` Telephone Conference before Judge Michael
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`Tierney, Judge Karl Easthom, and Judge Stephen Siu in
`
`the above-entitled matter, commencing at 11:02 a.m.,
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`the proceedings taken down by Stenotype by
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`Catherine B. Crump, stenographic court reporter, and
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`transcribed under her direction.
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`Alderson Reporting Company
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`Page 1 of 22
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`VIRNETX EXHIBIT 2038
`Microsoft v. VirnetX
`Trial IPR2014-00610
`
`
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`Conference Call
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`December 19, 2014
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`Washington, D.C.
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`APPEARANCES:
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`On behalf of the Petitioner:
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` KEVIN GREENE, ESQ.
`
` KARL RENNER, ESQ.
`
` Fish & Richardson
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` 1425 K Street, N.W., 11th Floor
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` Washington, D.C. 20005
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` (202) 626-6447
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`On behalf of the Patent Owner:
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` JOSEPH PALYS, ESQ.
`
` NAVEEN MODI, ESQ.
`
` Paul, Hastings, LLP
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` 875 15th Street, N.W.
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` Washington, D.C. 20005
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` (202) 551-1717
`
` JASON E. STACH, ESQ.
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` Finnegan, Henderson, Farabow,
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` Garrett & Dunner, LLP
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` 3500 Sun Trust Plaza
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` 303 Peachtree Street, N.E.
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` Atlanta, Georgia 30308
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` (404) 653-6400
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`Alderson Reporting Company
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`Page 2 of 22
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` P R O C E E D I N G S
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` JUDGE TIERNEY: Welcome to the call.
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` I now would just like to go to the parties
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`and make sure that we have a representative from each
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`of the parties on the phone. I'll start with
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`Petitioner. Is there a member of Petitioner on the
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`call?
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` Not hearing from counsel from Petitioner,
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`we'll go ahead and wait until they come on the line.
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` [Pause.]
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` MR. PALYS: Your Honor, this is Joe Palys for
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`VirnetX. Just to let you know, I sent opposing
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`counsel an E-mail just to let him know in case there
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`was some issue with the communication.
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` JUDGE TIERNEY: Thank you.
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` [Pause.]
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` MR. GREENE: Kevin Greene for the Petitioner
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`is on the line. Karl Renner should be on as well.
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` MR. RENNER: I'm on also. Thanks, Kevin.
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` JUDGE TIERNEY: Okay. We were starting off
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`with a roll call for Petitioner and noticed a
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`representative was not on the line. So if we could
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`start again.
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` Is there a representative for Petitioner on
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`the line?
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` MR. GREENE: There is. Kevin Greene and Karl
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`Renner.
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` JUDGE TIERNEY: Thank you. I now will turn
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`it over to the patent owner. Mr. Palys, you already
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`announced yourself, but could you please introduce
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`your colleagues.
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` MR. PALYS: Sure. Again, this is Joseph
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`Palys, and with me is Naveen Modi, both of us from
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`Paul, Hastings, and Jason Stach from Finnegan is also
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`on line.
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` JUDGE TIERNEY: Welcome to the call.
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` The parties had sent an E-mail to the board
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`indicating there's a potential for settlement in this
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`case and we wanted to, at the board, get a little bit
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`more information.
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` I believe there's a request to file a paper
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`announcing the settlement to the board and confirming
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`the settlement and, essentially, that the settlement
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`has to be in writing, as you're aware. Maybe if the
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`parties could give us a little bit more information,
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`and I'll start with the patent owner today.
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` MR. PALYS: Thank you, Your Honor. This is
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`Joseph Palys. Before we get into the particulars,
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`I'd just like to request that to the extent any
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`discussions during this call involves any
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`confidential information that the transcript be kept
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`confidential.
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` JUDGE TIERNEY: I would appreciate it if you
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`could file it as an exhibit and do have a motion to
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`seal to go along with it and you can file it as
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`parties and board only. There is a question which
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`parties are aware of the settlement at this time.
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` MR. PALYS: To answer that question, I
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`believe it's the parties Microsoft and VirnetX. So
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`the fact of the settlement, as I hinted in our
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`E-mail, is still confidential. It is my
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`understanding, however, that the parties will be
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`making this fact public relatively soon, but at this
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`point, it's confidential, and depending on the nature
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`of this call, if it stays at that level, it might be
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`-- by the time we have to file, if we even have to
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`file the transcript, it might not be confidential,
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`just depending on how this call goes.
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` JUDGE TIERNEY: And we'll figure out the time
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`for filing a transcript before we adjourn.
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` MR. PALYS: Okay. Great.
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` JUDGE TIERNEY: Can you go ahead and give us
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`some background? Which cases are you seeking to
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`settle? In approximately what timeframe are you
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`thinking to file your settlement, etc.?
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` MR. PALYS: Sure. Thank you, Your Honor.
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` So the parties have actually reached
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`settlement. It is in written form. That's for
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`Microsoft and VirnetX, and regarding the patents at
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`issue involving IPR2014 Nos. 610, 614, 615, 1418, and
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`1421, there are also a couple other matters that I'll
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`address as we address these particular matters.
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` We're requesting, both parties are seeking,
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`permission to file a motion to terminate under 35
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`U.S.C. 317(A) and, also, we'll being filing a
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`settlement agreement in written form, but we'll also
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`follow that up with a request so that that is
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`confidential for this information.
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`Washington, D.C.
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`Page 7
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` JUDGE TIERNEY: Understood.
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` MR. MODI: Your Honor, this is Naveen Modi.
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`If I could just add one more point on the settlement,
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`Your Honor. The settlement agreement actually does
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`resolve all of the parties' pending disputes. So I
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`just wanted the Court to know that, for the
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`litigation, the lawsuit that's pending.
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` JUDGE TIERNEY: So this court litigation is
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`also settled?
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` MR. PALYS: That's right.
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` MR. MODI: Yes, Your Honor.
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` JUDGE TIERNEY: Thank you.
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` And what timeframe are we looking at to have
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`the motion to terminate filed?
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` MR. PALYS:
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` So, basically, we would be -- once we have an
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`agreement between the parties on the subject matter,
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`the motions will be filed relatively soon, if not
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`today, if we can get that taken care of between the
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`parties.
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` JUDGE TIERNEY: By relatively soon -- and I'm
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`not concerned so much as to, you know, if it's
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`Monday, Tuesday or in two weeks. I just want to make
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`sure that we are going to have something filed and
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`that I'm aware of it.
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` We're going to grant the leave, is my
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`understanding and I'll confirm that with my
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`colleagues, but what, again, timeframe and impact are
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`you wanting us to -- we do have some pending
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`petitions here that are, as you're aware in your
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`E-mail, you pointed out, awaiting decision on
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`institution and joinder.
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` Do you wish us to hold in abeyance at this
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`time that decision or are you wishing us to go
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`forward with that decision? What are your
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`inclinations and recommendations to the board?
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` MR. PALYS: Sure, Your Honor. Regarding
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`these matters, we will be filing, as I mentioned, the
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`motion, assuming the board has granted us leave to do
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`so, very, very soon. In other words, it might be
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`today, hopefully today, if not by tomorrow, and we're
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`requesting an expedited decision on those motions to
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`the extent the board can accommodate that, and
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`regarding the status of those pending joinder issues,
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`etc., no. We're not requesting any abeyance. We
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`just seek to have these matters terminated in
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`accordance with the motions that we'll be filing.
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` JUDGE TIERNEY: Okay.
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` MR. MODI: And just -- I'm sorry, Judge. I
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`think perhaps we're asking -- maybe we misunderstood
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`the question. Were you asking if there are -- in our
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`E-mail, we had 1418 and 1421. I believe the board's
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`deadline to institute those is the 31st. Is that
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`what you're getting at, Judge Tierney?
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` JUDGE TIERNEY: Well, the ultimate deadline
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`is the 31st. As you're aware, we were trying to look
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`at them in an expedited fashion to ensure that we
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`didn't encounter any potential delay should we
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`institute and join those two decisions with the
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`earlier already prior institutions.
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` MR. MODI: Right.
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` JUDGE TIERNEY: And I'm taking it from what
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`you're saying today is you would like to -- you're
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`recommending that the board hold off on reaching the
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`decisions while you file your motion to terminate and
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`go ahead and just terminate the proceedings instead
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`of going forward with it.
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` MR. PALYS: Yes, Your Honor. Thank you.
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` JUDGE TIERNEY: That's what I was taking from
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`your --
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` MR. PALYS: My apologies.
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` JUDGE TIERNEY: Oh, no, no, no. I
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`understood.
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` Anything else you'd like to add today before
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`I turn it over to the petitioner?
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` MR. PALYS: Yeah. I think I mentioned that
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`there's two other matters that are involved with the
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`settlement, and those are IPR2014-403 and 404, and
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`we're not addressing them in particular today, but
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`we're going to address those in a separate E-mail.
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` They involve issues with Apple. So we're
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`going to seek to discuss these issues with Apple at
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`that time and then come back to the board to handle
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`those matters.
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` JUDGE TIERNEY: Okay. Anything further
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`before I turn it over to the petitioner?
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` MR. PALYS: Well, I think that's it unless
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`Naveen or Jason has anything.
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` MR. MODI: Nothing from me.
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` JUDGE TIERNEY: Okay. Thank you.
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` We'll now turn it over to the petitioner and
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`let's hear from the petitioner on what information
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`would you like to provide the board today.
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` MR. GREEN: Thank you, Your Honor. Not much
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`in addition, but two items. The first one is just so
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`that you understand the contours of when we would be
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`filing the motion to terminate.
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`It will be very, very shortly after we receive the
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`board's permission, and then I would just ask
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`VirnetX's counsel for clarification on the 00403 and
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`404.
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` You're not going to be seeking permission to
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`file the motion to terminate right now; is that
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`correct? You want to do that in a separate call in
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`order to involve Apple as well?
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` MR. PALYS: Yes. This is Joe Palys.
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`Regarding the 403 and 404 matters, they're not at
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`issue regarding this request at this point. We'll
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`address those separately.
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` JUDGE TIERNEY: This is Judge Tierney. Will
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`you be seeking a conference call for those two cases?
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` MR. GREENE: Most likely. Again, like I
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`said, we're going to have to touch base with the
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`parties and talk about those separately, but I would
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`assume that at some point, we're going to have to --
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`we'll probably do the same thing in terms of an
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`E-mail to the board. There may be conference call
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`involved as well.
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` MR. TIERNEY: For purposes of today, it's my
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`understanding that those two cases are not being
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`discussed, essentially.
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` MR. PALYS: That's right.
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` JUDGE TIERNEY: Thank you.
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` Going back to Petitioner, you said you have
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`two points.
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` Was there another point?
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` MR. GREENE: The second was just seeking
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`clarification on the 00403 and the 00404. Other than
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`that, we have nothing else to add.
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` JUDGE TIERNEY: Did you receive sufficient
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`clarification on the 403-404?
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` MR. GREENE: Petitioner will follow up with
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`them after this call.
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` JUDGE TIERNEY: And it's my understanding we
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`will be having a separate conference call where those
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`two cases will be discussed, that they are not the
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`subject of today's call.
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` MR. GREENE: Right.
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` JUDGE TIERNEY: Thank you for the
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`information. I'll turn it over to my colleagues.
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` Judge Easthom, Judge Siu, do you have any
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`questions?
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` JUDGE EASTHOM: This is Judge Easthom. I was
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`just wondering is there something in the works also
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`for 401 and 405 cases?
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` MR. PALYS: Let me -- thank you, Your Honor.
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`I've got to actually get my notes and figure out
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`what's going on with those as well. Unless Jason or
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`Naveen want to chime in right now, I'll have to look
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`up those notes.
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` MR. GREENE: This is Kevin Greene for the
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`petitioner. I believe -- I have to double check
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`this, but I believe those two have already been
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`denied institution.
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` JUDGE EASTHOM: Oh, I might have mis -- oh,
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`okay. This is Judge Easthom again. That's right.
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`Okay.
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` JUDGE TIERNEY: This is Judge Tierney. On an
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`earlier conference call, we had asked to have an
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`update on the status of the various cases as we do
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`have a number of VirnetX cases before us between
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`VirnetX and Apple, VirnetX and Microsoft. I would
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`hope that it would be possible for the next call with
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`the 403-404, and I'll discuss it in more detail
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`there, that we'll again ask that the parties give us
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`an update on the status of the various cases so we're
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`on the same page. You don't have to take care of it
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`over the holiday season. We'll reach out later.
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`Washington, D.C.
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` Any other questions from Judge Easthom and
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`Judge Siu?
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` JUDGE EASTHOM: Not for Judge Easthom.
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` JUDGE SIU: This is Judge Siu. Nothing from
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`me.
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` JUDGE TIERNEY: Okay. Anything more from the
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`parties before we go back to the transcript and the
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`matter of filing and when to file?
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` MR. PALYS: Not from the patent owner, Your
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`Honor.
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` MR. GREENE: Not from petitioner, Your
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`Honor.
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` JUDGE TIERNEY: The only question I had
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`outstanding is we were going to revisit the
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`transcript. Do the parties have a recommendation on
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`when they'd like to have a copy of the transcript
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`filed?
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` MR. PALYS: This is Joe Palys again. So
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`based on the nature of this call, depending on how we
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`move forward in terms of public dissemination of the
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`settlement, I think we'll be able to file this -- we
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`may be able to file this without any confidential
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`designation. Of course, we'll talk about that
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`amongst the parties, but as far as getting that
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`filed, we can do that as soon as possible unless my
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`colleagues think otherwise.
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` MR. MODI: That's fine. Your Honor, we can
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`probably file it within a week. We'll work with
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`Microsoft to make sure and then we'll file it.
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` JUDGE TIERNEY: This is Judge Tierney. I
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`recognize it is the holiday season. If the parties,
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`if it's beneficial for them to have two weeks, I'd be
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`amenable to it. I'm just wondering. What timeframe
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`would you like?
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` MR. MODI: Your Honor, this the Naveen Modi
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`again. As long as it won't delay your ruling on the
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`motion for termination, I think two weeks would be
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`great, but if you need it sooner, we're happy to get
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`it to you sooner, Your Honor.
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` JUDGE TIERNEY: Let me clear it with my
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`colleagues.
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` Judge Easthom, Judge Siu, do you feel we will
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`need a copy of the transcript prior to our decision
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`on any motion to terminate that's filed?
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`December 19, 2014
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`Washington, D.C.
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` JUDGE EASTHOM: This is Judge Easthom. No.
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`We wouldn't need the transcript for that, I don't
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`think.
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` JUDGE TIERNEY: This is Judge Tierney. I
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`agree, but Judge Siu, do you have any objection or
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`comment on that?
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` JUDGE SIU: Yeah. I agree. I don't think we
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`need that.
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` JUDGE TIERNEY: Okay. So you've heard from
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`the panel. The panel will not require a copy of the
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`transcript prior to any decision on the motion to
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`terminate. Two weeks, if that's beneficial for the
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`parties, that's amenable to the board.
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` MR. MODI: That's acceptable to us.
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` JUDGE TIERNEY: So the next, I just want to
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`confirm with my colleagues I'm in favor of
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`authorizing the motion to terminate. I'll go to
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`Judge Easthom, Judge Siu. Any objections? Comments?
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` JUDGE EASTHOM: That sounds like a good plan.
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` JUDGE SIU: I have no objection.
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` JUDGE EASTHOM: Okay. The panel has decided.
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`We authorize the motion to terminate. Do the parties
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`Washington, D.C.
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`require a specific date? Do you have a file no later
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`Page 18
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`than
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`? Let's hear from the parties on that.
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` MR. PALYS: This is Joe Palys, Your Honor. I
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`think that's right. I think we're self-regulated at
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`this point.
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` JUDGE TIERNEY: For purpose of the record,
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`we'll say two weeks from today, we will expect to
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`have the motion to terminate filed and that will
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`allow the time for the parties to file it as well as
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`file a copy of any transcripts that they wish.
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` Again, we do wish to have a copy of the
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`transcript put in as an exhibit, and if it is to be
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`marked as confidential, please file a motion to seal
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`with it.
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` Any questions regarding the board's rulings
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`today, starting with the petitioner?
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` MR. GREENE: One item, Your Honor, and that
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`has to do with when you will issue an order on the
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`conduct of proceedings. Can you give a sense on when
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`Washington, D.C.
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`you would expect that to be issued since that may, in
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`fact, make the fact of settlement public once you do
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`Page 19
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`so?
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` JUDGE TIERNEY: What I'm inclined to do today
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`is we do have a court reporter present who is
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`recording the board's orders and the termination. I
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`would be willing to have the transcript serve as the
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`public record on this and not put out a separate
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`order. What are the parties thoughts on that?
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` MR. GREENE: Petitioner would be amenable to
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`that.
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` JUDGE TIERNEY: Patent owner?
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` MR. PALYS: Well, this is, again, the issue
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`of whether the fact of settlement before it's
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`actually public be known. I guess it would be
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`simultaneous at that point.
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` Naveen, I don't know if you have any thoughts
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`on that.
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` MR. MODI: Your Honor, I think that's fine.
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`Your Honor, that's fine with us. I think the
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`transcript is good enough as a record, Your
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`Honor.
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`December 19, 2014
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`Washington, D.C.
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`Page 20
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` JUDGE TIERNEY: It is entirely possible that
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`the decision and motion to terminate would be ready
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`prior to the filing of the transcript, but we'll go
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`ahead, unless there's an objection from Judge Easthom
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`and Siu, we'll go ahead with having the transcript
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`serve as the record of the call. No additional order
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`will be put out.
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` Should the parties, of course, desire written
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`orders put out today, the parties are to contact the
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`board and let us know that they would like such.
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` Are there any other questions, concerns
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`today? I'll start with Petitioner.
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` MR. GREENE: None from Petitioner, Your
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`Honor.
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` JUDGE TIERNEY: Patent owner?
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` MR. PALYS: No, Your Honor.
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` JUDGE TIERNEY: Judge Easthom, Judge Siu,
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`questions? Thoughts?
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` JUDGE EASTHOM: No, not from Judge Easthom.
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` JUDGE SIU: Not from Judge Siu.
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` JUDGE TIERNEY: Well, having no further
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`questions, the panel concludes the call, and should
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`December 19, 2014
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`Washington, D.C.
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`anything arise, of course, the parties are free to
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`contact the board and arrange for another conference
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`Page 21
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`call.
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` With that, we're adjourned. Thank you,
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`everyone. We look forward to a motion to terminate.
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` [Whereupon, at 11:19 a.m., the conference
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`call concluded.]
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`CERTIFICATE OF NOTARY PUBLIC
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`I, CATHERINE B. CRUMP,
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`the officer before
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`whom the foregoing deposition was
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`taken, do hereby
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`testify that the witness whose testimony appears in
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`the foregoing deposition was duly sworn by me;
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`that
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`the testimony of said witness was taken by me
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`stenographically and thereafter reduced to
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`typewriting under my direction;
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`that said deposition
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`is a true record of the testimony given by said
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`witness;
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`that
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`I
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`am neither counsel for, related to,
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`nor employed by any of the parties to the action in
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`which this deposition was taken; and further,
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`that
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`I
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`counsel employed by the parties hereto nor
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`financially or otherwise interested in the outcome of
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`the action.
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` _______AOL—L3:___
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`CATHERINE B. CRUMP
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`Notary Public in and for the
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`District of Columbia
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`My Commission Expires: October 31, 2017
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`Page 22 of 22
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