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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`PETROLEUM GEO-SERVICES INC.
`Petitioner
`
`v.
`
`WESTERNGECO LLC
`Patent Owner
`
`
`
`Case No. IPR2014-00688
`Patent No. 7,080,607
`
`
`
`
`
`PETITIONER’S SUBMISSION OF TRANSCRIPT
`
`
`
`On September 8, the Board expunged Petitioner’s Notice Concerning Status
`
`of Discovery, and ordered “that the notice concerning the status of discovery filed
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`September 4, 2014 be refiled with the transcript of the August 27 phone conference
`
`as the only attachment.” See Paper 24. In response to the Board’s Order,
`
`Petitioner files this Submission of Transcript and attaches the transcript of the
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`August 27 phone conference between the parties and the board as Exhibit A.
`
`

`

`
`
`Dated: September 12, 2014
`
`Respectfully submitted,
`
`
`
`
`
`
`
`/s/ David I. Berl
`
`David I. Berl
`Reg. No. 72,751
`Williams & Connolly, LLP
`725 12th St., NW
`Washington, DC 20005
`Telephone: 202-434-5491
`Facsimile: 202-434-5029
`Email: dberl@wc.com
`
`Attorney for Petitioner
`
`
`
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`
`
`
`
`
`
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`
`
`
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`
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`
`
`
`

`

`CERTIFICATE OF SERVICE
`(37 C.F.R. §§ 42.6(e) and 42.105(a))
`
`The undersigned hereby certifies that the above-captioned “PETITIONER’S
`
`SUBMISSION OF TRANSCRIPT” and a true copy of Exhibit A was served on the
`
`counsel of record for the Patent Owner on September 12, 2014 via email to the
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`email addresses at which Patent Owner consented to accept electronic service, and
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`via notifications from the Patent Review Processing System. Service was effected
`
`by the foregoing means using the email addresses listed below:
`
`Scott McKeown
`OBLON, SPIVAK, McCLELLAND,
`MAIER & NEUSTADT, L.L. P.
`1940 Duke Street
`Alexandria, Virginia 22314
`703-413-3000
`CPDocketMcKeown@oblon.com
`
`Christopher Bullard
`OBLON, SPIVAK, McCLELLAND,
`MAIER & NEUSTADT, L.L.P.
`1940 Duke Street
`Alexandria, Virginia 22314
`CPDocketBullard@oblon.com
`
`DATE: September 12, 2014
`
`
`
`
`
`
`

`

`
`
`
`
`
`
`
`
`_/s/ David I. Berl______________
`David I. Berl
`Reg. No. 72,751
`Williams & Connolly, LLP
`725 12th St., NW
`Washington, DC 20005
`Telephone: 202-434-5491
`Facsimile: 202-434-5957
`Email: dberl@wc.com
`
`Attorney for Petitioner
`
`

`

`EXHIBIT A
`
`

`

`Page 1
`
`------------------------------X
`PETROLEUM GEO-SERVICES, INC.
` Petitioner
` OBLON DOCKET NO.: 435219US
` vs.
`WESTERNGECO, LLC,
` Patent Owner
`CASES: IPR2014-00687, -00678, -00689, -00688
`------------------------------X
`
` ** T E L E C O N F E R E N C E **
` Wednesday, August 27, 2014
`
` BEFORE: JUDGE BRYAN MOORE
` JUDGE BEVERLY BUNTING
` JUDGE SCOTT DANIELS
` (Appearing Telephonically)
`
`Reported by:
`JOMANNA DeROSA, CSR
`JOB NO. 83930
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`Page 2
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`Page 3
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`A P P E A R A N C E S:
`
` WILLIAMS & CONNOLLY
` Attorneys for Petitioner
` 725 Twelfth Street, N.W.
` Washington, D.C. 20005
` BY: DAVID BERL, ESQ.
` CHRISTOPHER SUAREZ, ESQ.
` (Appearing Telephonically)
`
` OBLON SPIVAK MCCLELLAND MAIER & NEUSTADT
` Attorneys for Patent Owner
` 1940 Duke Street
` Alexandria, Virginia 22314
` BY: SCOTT MCKEOWN, ESQ.
` CHRISTOPHER BULLARD, ESQ.
` (Appearing Telephonically)
`
`ALSO PRESENT:
`MITCH BLAKELY, In-House Counsel for Patent Owner
`
`Page 5
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` TELECONFERENCE
`the protective order in the District Court.
` Unless Mr. McKeown discusses them,
`I don't intend to discuss them, but they
`shouldn't be discussed as long as in-house
`counsel is on the call.
` JUDGE MOORE: Okay. And, Patent
`Owner, can you live by those rules for this
`call?
` MR. MCKEOWN: Sure, Your Honor.
`I'm not on that protective order, so I haven't
`seen any highly confidential materials.
` MR. BLAKELY: To the extent you
`need me to drop off because something like
`this comes up, just let me know and I'll drop
`off.
` JUDGE MOORE: Sure. I appreciate
`that. Okay. The call was requested by Patent
`Owner. And the purpose of this call is to
`request authorization for a motion to say that
`ION, I-O-N, I believe, is a real party in
`interest in this case.
` So, since Patent Owner called this
`or asked for this call, maybe you can start
`and describe the issue.
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` August 27, 2014
` 1:00 p.m.
`
` Teleconference, before Jomanna
`DeRosa, a Certified Shorthand Reporter and
`Notary Public of the States of New York,
`New Jersey, California and Arizona.
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` JUDGE MOORE: This is a phone
`conference in IPR 2014678, 2014687, 2014688,
`and 2014689. This is Judge Moore, and I'll
`have Judge Bunting and Judge Daniels.
` Starting with Petitioner, who is on
`the call?
` MR. BERL: Good morning or good
`afternoon, Your Honor. It's David Berl of
`Williams & Connolly for Petitioner. And with
`me on the call is Christopher Suarez, also
`with Williams & Connolly.
` JUDGE MOORE: Okay. And for Patent
`Owner.
` MR. MCKEOWN: For Patentee, Your
`Honor, it's Scott McKeown of Oblon Spivak.
`And with me is Chris Bullard, also of Oblon
`Spivak. And we also have in-house counsel for
`Patentee, Mitch Blakely, is on the line.
` JUDGE MOORE: And there's no
`objection to Mitch Blakely being on the call.
` Correct?
` MR. BERL: Yes, your Honor, as long
`as there's no discussion of materials that
`were produced highly confidential pursuant to
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` TELECONFERENCE
` MR. MCKEOWN: Sure. Thank you,
`Your Honor. This is Scott McKeown. As
`detailed in the e-mail, which goes through
`some of the lengthy back and forth that we've
`already had in this proceeding, last we spoke
`we were dealing with the addition of real
`parties in interest that were added to these
`petitions on the day our preliminary response
`was due.
` This was after we spent a few weeks
`chasing these issues down through calls
`seeking additional discovery and explanation
`from the Petitioners.
` Once the Petitioner decided to come
`clean on those RPI issues the petitions were
`deemed non-compliant and new filing dates were
`accorded.
` We were then, Patentee, given six
`weeks to respond to the corrected petitions,
`and at the time we had asked for three full
`months because we were aware of another RPI
`issue that had not been addressed, and that's
`the issue with ION Geophysical.
` Just as background, ION was sued
`
`Page 8
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` TELECONFERENCE
`million reasons for participating -- as I
`said, we explained previously that we believe
`that PGS is a straw man for ION, and that ION
`has 125 million reasons for participating in
`these IPRs, and we have evidence of them doing
`exactly that.
` As we discussed in the last call,
`the ongoing discovery in the District Court
`was represented as being completed by mid
`June. That's incorrect. Petitioner continues
`to update their privilege log. They're
`claiming joint interest with ION, which is
`interesting considering the lack of
`identification of ION as a joint party or a
`real party, rather, in these IPR proceedings.
` The Petitioners have withheld
`discovery on the District Court side on the
`justification that discovery pertaining to
`these IPRs is best left to the PTAB.
` So, we've approached the Petitioner
`a few weeks back about that discovery, and
`asked them if they would be willing to engage
`us in some limited discovery on this topic.
`And unfortunately the Petitioners have
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` TELECONFERENCE
`years ago on these patents and is currently
`appealing a $125 million judgment.
` And I want to be perfectly clear
`here. We're not arguing that there is any
`joint defense agreement between co-defendants
`that is necessitating discovery. These are
`completely different lawsuits that were filed
`years apart. The ION case is now up on appeal
`at the federal circuit.
` And the Petitioner, or at least the
`identified Petitioners in this suit, are in a
`separate litigation in the very early stages.
`ION and the identified Petitioners in these
`IPR proceedings are partners in buying and
`using the infringing products.
` Despite what we believe to be its
`direct involve in these IPR proceedings ION is
`not named as a real party in interest. As we
`discussed last time, the need for the six
`weeks for coming up with our preliminary
`responses is that we needed to explore this
`relationship that was being smoked out on the
`District Court side, and that we believe that
`PGS is a straw man for ION. And ION has 125
`
`Page 9
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` TELECONFERENCE
`continued to stonewall our efforts for delay
`purposes.
` We asked them a few weeks back for
`discovery specifically on the ION RPI issue
`based upon documents that they themselves have
`produced in the District Court, and they claim
`not to understand the scope of that discovery.
` Then we went back and explained
`that we wanted limited interrogatories on the
`documents. They still explained that they
`were unsure of the scope based on the
`documents they produced. Then we sent them an
`actual interrogatory and said, well, here's
`what we have in mind, and then they came back
`and said, well, we still don't understand the
`scope and we need to see all of the
`interrogatories.
` And at that point, given the track
`record here, and what we deemed to be an
`effort to burn up our remaining time, we're
`bringing this dispute now to the Panel.
` Again, we have until September 16th
`to draft these preliminary responses, so we
`believe that we're entitled to discovery for
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`two reasons. One, the Petitioners have
`represented to the Court that this discovery
`was appropriate for the PTAB. Presumably they
`weren't talking out of both sides of their
`mouth when they withheld that discovery from
`the District Court and promised to produce it
`here.
` And second -- and this is outlined
`in the e-mail -- the Garmin factors are
`satisfied here in that we have documentary
`evidence that shows meetings between ION's
`in-house counsel and the attorneys that
`drafted these petitions.
` There's discussions of references
`that appear in these petitions. There's
`provision of legal research pertaining to
`those same references. There's inquiries as
`to supplementation strategies for additional
`prior art that was alleged to have been
`uncovered by ION recently.
` In fact, the e-mail from ION on
`that point expressly states that their
`interests are aligned in this IPR.
` JUDGE MOORE: Okay. I'm going to
`
`Page 12
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` TELECONFERENCE
` JUDGE MOORE: Okay. I just want to
`be clear. I don't need to get anyone off this
`call or do anything right at this moment.
` Okay. So, then I believe we can go
`back and deal with the evidence that you were
`talking about just a moment ago.
` MR. MCKEOWN: Right. So, what I'm
`talking about are meeting requests with
`individuals from ION and the attorneys that
`drafted these petitions, and attorneys from
`PGS. You know, what the content of some of
`those meetings were. That's why we need
`interrogatories, because this is -- the
`District Court is not allowing interrogatory
`discovery. We only have documentation.
` So, without getting into the
`substance, the extent of this material is
`protected, I'm not sure if it is, but there's
`back and forth between ION's attorneys, the
`attorneys that drafted these petitions, and it
`relates to the art and substance of what was
`presented in these petitions. And that
`communication continues to this day.
` JUDGE MOORE: Okay. A couple
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` TELECONFERENCE
`stop you there. You're moving pretty quickly,
`and this is really sort of the heart of what
`we're talking about. And I don't know exactly
`when I'm going to get the transcript. So, you
`started to list evidence.
` And if you could go back and list
`that, give me some pauses here so I can make
`sure that I understand everything that you're
`saying.
` MR. BERL: And if I may quickly
`interpose, it appears that Mr. McKeown was
`beginning to describe documents that were
`produced in the District Court litigation
`pursuant to protective order, which he says he
`has never seen and doesn't even have.
` JUDGE MOORE: Okay. What is your
`point here? Is there something that you want
`at this moment or are you just making me aware
`of your understanding?
` MR. BERL: I'm making you aware of
`our understanding, and I am making Mr. McKeown
`and his client aware of that understanding so
`they don't further violate the District Court
`protective order wittingly or unwittingly.
`
`Page 13
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` TELECONFERENCE
`things here because we had the same issue
`before. When you say attorneys filing this
`IPR, well, we don't have -- I just want to
`make sure -- we had some co-attorneys for
`different parties. I guess now that all of
`those parties are now a real party in
`interest, that's not an issue. I'm sorry if
`that's sort of talked myself out of asking you
`a question, but I think that's correct.
` Now, the attorneys in District
`Court for all the PTS entities are attorneys
`in the IPR in the sense that all the PTS
`entities are now real parties in interest.
` MR. MCKEOWN: Let me clarify that.
`When I say the attorneys that drafted the IPR,
`I'm talking about Williams & Connolly
`attorneys that are representing at least the
`identified Petitioners.
` And then we have communication
`between them, in-house PGS attorneys, and
`in-house ION personnel. I'm not sure that
`that -- ION or PGS folks are all attorneys,
`but I guess the point is there is
`communication between ION, PGS, and the
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`Page 14
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`attorneys that drafted these petitions.
` JUDGE MOORE: Okay. And you said
`relating to the patents and the issues of the
`IPR. Could you expand a little bit on that?
` MR. MCKEOWN: Sure. There's a
`discussion of one of the pieces of prior art,
`the PCT application that's applied across
`these petitions. And there's at least
`reference to the provision of legal research
`from ION to the attorneys that drafted this
`petition.
` JUDGE MOORE: Okay. And if I can
`stop you right there. These pieces of prior
`art, were they at issue in the prior ION
`litigation, District Court litigation?
` MR. MCKEOWN: I believe that they
`were, yes.
` JUDGE MOORE: Okay. All right.
`So, the next piece of evidence?
` MR. MCKEOWN: So then there's
`additional provision of prior art after these
`petitions had been filed, where there was a
`discussion between ION and PTS about how this
`prior art would be introduced into these IPR
`
`Page 16
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` TELECONFERENCE
`issued by the PTAB for Question No. 5.
`Queries the public as to whether or not real
`party in interest is an issue that could be
`raised later at trial. And given that there's
`at least some implication there that perhaps
`PTAB would not consider RPI issues later on,
`we think it's imperative that this matter be
`settled now before the trial begins.
` JUDGE MOORE: Okay. All right.
`So, I have a couple questions here.
` First of all, you mentioned that
`ION and PGS were named as joint interest in
`the District Court. And if you could explain
`to me what that is or what that means.
` MR. MCKEOWN: Yes. I'm sorry if I
`misspoke. They're claiming -- so, PGS is
`refusing to produce some documentation based
`upon a privilege, and that privilege is a
`common interest privilege. At least that's
`what they've identified.
` JUDGE MOORE: All right. I think
`I've got that. So, Petitioner, if you could
`give me your comments to what's been said.
` MR. BERL: Thank you, Your Honor.
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`proceedings.
` And, again, this is from a litigant
`that was sued years ago that's now up on the
`federal circuit. So, we have someone that's
`actively engaged in supplementation strategies
`for these petitions.
` JUDGE MOORE: Okay. Anything else?
` MR. MCKEOWN: I think those are the
`high points, but there's consistent reference
`to oral communications that we just don't have
`records for. And that's the purpose of these
`interrogatories, is to get at some of that
`information.
` JUDGE MOORE: Okay. Are you
`complete with your presentation? If not,
`please continue.
` MR. MCKEOWN: No, I believe that is
`the points we were looking to make here. I
`guess I would just add one other point, that
`on our last call we had discussed, you know,
`the time line of these filings and the ability
`to raise real party in interest later, but I
`just want to bring the Board's attention to
`the request for comments that was recently
`
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` TELECONFERENCE
`I appreciate it. This is David Berl from
`Williams & Connolly for Petitioner.
` There's quite a bit to respond to,
`including an e-mail that was transmitted by
`Patent Owner, to which we did not respond in
`writing. The short answer is that nearly all
`of what counsel just said is either falling
`into the category of pure speculation or
`blatant falsehood, and there is no basis
`whatsoever for discovery.
` First, it is incorrect that any
`documentation was withheld in the District
`Court relating to the IPR on the basis of a
`joint defense privilege. That is simply
`untrue. There was never an assertion of a
`joint defense privilege vis-a-vis the IPR
`between ION and EGS.
` JUDGE MOORE: And just to be clear,
`because we're all lawyers here, by "joint
`defense" you include what is called a common
`interest privilege. Correct?
` MR. BERL: Yes. I'm not making
`such a distinction, Your Honor. No common
`interests, no joint defense privilege was ever
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`asserted vis-a-vis the IPR.
` Likewise, it is not true that PGS
`told the District Court that it would be
`willing to engage in its discovery before the
`PTAB. Rather, it was asserted that the PTAB,
`pursuant to its own rules and case law, should
`determine the proper scope of discovery
`vis-a-vis the real party in interest in the
`IPR, rather than the District Court sitting in
`Texas.
` The basic argument that the Patent
`Owner has advanced is that PGS is somehow a
`straw man for ION. There's no evidence for
`that whatsoever, and it's simply not true.
` As the Board is aware, the standard
`for privity here is that a party funds or
`directs or controls this IPR. There is no
`unnamed party, including ION, that funds,
`directs, or controls this IPR, none
`whatsoever.
` In addition, there is no party,
`including ION, that has authorized,
`controlled, reviewed or provided confidential
`work product for the IPRs that PGS filed.
`
`Page 20
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` TELECONFERENCE
`that the Patent Owner used the piece of prior
`art, and I wasn't sure if I understood it. I
`thought it was prior art from the ION
`litigation.
` MR. BERL: It was. And so, let me
`go back and explain. And a meeting is not
`even the proper characterization. It was a
`teleconference. It was not a meeting. It was
`a teleconference of approximately 30 minutes.
`That's the sum total of the teleconferences or
`meetings between PGS' IPR counsel, that is,
`Williams & Connolly, and ION's counsel.
` There was a 30-minute
`teleconference, and it related to the question
`of whether Patent Owner, WesternGeco, had
`admitted or disputed in the ION litigation
`whether this referenced the prior art.
` That's it. It did not even relate
`to the substance of that prior art reference.
`It simply related to whether there was any
`dispute or agreement in the ION litigation as
`to whether it was prior art.
` And the legal research that was
`furnished, so to speak, as it was termed by
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` That ends the matter, and indeed
`negates the need for any discovery, as the
`Board held recently in the TD Ameritrade case.
`That's CBM 2014 00131, Paper 11.
` In fact, contrary to the assertions
`you just heard, the actual record of the
`District Court litigation reflects that ION
`did not even know about the IPRs before they
`were filed, and apparently learned about them
`when everyone else did, through the public
`system and electronic filing system.
` There was one communication, one
`meeting between counsel for PGS and ION.
`Patent Owner is in possession of the e-mails
`relating to that meeting. That meeting
`related to a single prior art reference, and
`related to the question of whether Patent
`Owner had disputed in the litigation whether
`that reference was, in fact, prior art. It
`did not even relate to the substance of that,
`whether --
` JUDGE MOORE: I just need you to go
`back. You said that that meeting -- if you
`could just -- that last sentence. You said
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`Patent Owner, was simply a follow-up to that
`teleconference, sending along a couple cases
`relating to the question of whether a
`reference is or is not prior art. That's it.
` The assertion in the e-mail to the
`Board, and just now that there were multiple
`meetings between Williams & Connolly and ION
`counsel is simply false and without basis. It
`is not true.
` And if there is any basis for the
`assertion that there were multiple meetings,
`I'd like to hear it from Patent Owner's
`counsel so that we understand his position in
`any future litigation sanctions or otherwise
`before the Board.
` The record reflects here that there
`was one teleconference, and that is all. The
`additional provision --
` JUDGE MOORE: I'm sorry to
`interrupt again. The piece of prior art that
`we're talking about, is that one that
`Petitioner has asserted in this IPR?
` MR. BERL: It is.
` JUDGE MOORE: All right. I just
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`wanted to be clear. Okay. Go ahead.
` MR. BERL: It's the Patent Owner's
`own prior art 636 application. That's
`correct. That is prior art. So, from the ION
`litigation and here.
` JUDGE MOORE: Okay.
` MR. BERL: The additional provision
`of legal services that were referenced in
`Patent Owner's presentation about
`supplementation to these proceedings
`constituted e-mails that were sent from ION
`unsolicited, relating to ways to find
`additional prior art that were not pursued,
`that were not included in the petitions, and
`that were not substantively responded to by
`PGS.
` Patent Owner has no basis to
`believe otherwise, has presented no basis to
`believe otherwise, and there is no reason to
`believe otherwise because it's simply the case
`that there was no further substantive
`communication relating to the IPR.
` There is, in essence, nothing here.
`Even parties that work closely together have
`
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`Rather, Patent Owner provided one
`interrogatory, which, in scope, went far
`beyond the discovery we're discussing here,
`far beyond ION's participation in the IPR, and
`refused to provide the other interrogatories
`that would serve as a basis for a meet and
`confer, and instead suggested that we could
`only see the four other interrogatories if we
`agreed to answer their one overbroad one.
`That's obviously not a way that one can
`reasonably negotiate a scope of discovery.
` We would be willing, subject to the
`proviso I'll get into in one moment, to answer
`an interrogatory directed to setting forth
`ION's participation in the IPR.
` Aside from the Patent Owner's
`refusal to engage in a meet and confer and
`provide us with the requested scope of
`discovery, the other thing standing in the way
`of our ability to answer that interrogatory is
`that the Patent Owner in the District Court
`litigation is asserting somehow that the
`privileges of work product and/or other
`privileges, such as attorney-client, have been
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`been found not to be real parties in interest
`or parties in privity. Here you have nothing
`even close. There's one 30-minute
`teleconference between a party filing an IPR
`and a prior defendant to ascertain more
`quickly, rather than combing through the
`entire trial record and pleadings at trial, to
`ascertain whether the Patent Owner had
`disputed the prior art status of a single
`reference.
` Now, notwithstanding everything I
`just said, and the fact that this relationship
`comes not even close to meeting the privity or
`real party in interest standard, just to put
`this issue to bed we had offered to answer
`some or limited interrogatories relating to
`ION's participation or lack thereof in this
`IPR proceeding.
` We attempted to resolve the issue
`and the Patent Owner referenced this, but
`mischaracterized what happened. We asked the
`Patent Owner to provide us the five
`interrogatories it is now seeking to serve.
`Patent Owner repeatedly refused to do that.
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`waived somehow by the production of documents
`relating to the communications between ION and
`PGS.
` We cannot agree to answer such an
`interrogatory relating to ION's participation
`in the IPR as long as there's a specter that
`answering that interrogatory will be used by
`WesternGeco, by the Patent Owner, in the
`District Court litigation to argue that there
`has been some privilege waiver.
` So, if Patent Owner agrees that our
`answering this interrogatory relating to ION's
`participation in the IPR will not be used by
`WesternGeco to argue in the District Court
`that a privilege has been waived, then we
`stand willing to answer that interrogatory and
`put this issue to bed, and set forth, once and
`for all, what ION's participation in the IPR
`was.
` JUDGE MOORE: Is that the end of
`your response?
` MR. BERL: Subject to the Court's
`questions, it is, and I would like to hear the
`Patent Owner's basis for his e-mail to the
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`Court and representations to the Board today
`that there were multiple meetings, plural,
`between --
` JUDGE MOORE: All right. We're not
`in a situation where we're going to require
`something from the other side. I understand
`your concern there.
` MR. MCKEOWN: I'd be happy to
`respond to that, Your Honor.
` JUDGE MOORE: Okay. Just give me
`one moment here. Okay. All right. If you
`wanted to respond, go ahead.
` MR. MCKEOWN: Sure. And I think I
`made this clear when I was discussing the RPI
`concern here. I'm not just talking about
`communications from ION to Williams &
`Connolly. I'm talking about communications
`from ION to Williams & Connolly, and from ION
`to PGS, where the IPR was the point of the
`discussion. But I think we're just, you know,
`taking a blanket approach here to what I was
`saying.
` Also, I never said that any
`documents were withheld under a common
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` TELECONFERENCE
`what happened the last time we had this
`discussion about blatant mischaracterizations
`and IPR issues. A couple weeks later the
`record was updated.
` JUDGE MOORE: Okay. There's some
`representation of an offer regarding answering
`interrogatories. What is your reaction to
`that?
` MR. MCKEOWN: Well, we were happy
`to have them answer interrogatories. I'm not
`in a position to agree to that without
`discussing it with litigation counsel, but we
`would hope that the process we started when we
`sent them the first interrogatory, which they
`never mentioned was overly broad. They just
`wanted to see all of them so that we could
`quibble about language for the next couple of
`weeks.
` We don't have a lot of time here
`and we just want to get to the end of the
`process and get the information we need.
`That's it.
` JUDGE MOORE: All right. Okay. Do
`you need to deal with litigation counsel for
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`interest privilege on the District Court side
`that were related to the IPR. What I said is
`there were two buckets of information that
`were withheld. One was under the common
`interest privilege, and the other was under --
`they can get this at the PTAB -- and in that
`transcript from July they state that it
`wouldn't be complicated. It's just a matter
`of asking.
` So, the implication there was we
`have no problems with discovery of the PTAB.
`If they want to go back and correct what they
`said to the District Court Judge, that's
`another issue.
` But, you know, funding and things
`like that, that's not dispositive of control
`here. We have two partners working on the
`same product, one of which is under
`$125 million judgment. And to dismiss
`communications with respect to these IPRs as,
`oh, it was just a 30-minute phone call to
`check something that they could have read in
`the record themselves, it just falls a little
`flat, and I would just remind the Panel of
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`the question of whether you'd be willing to
`show them the entirety of the interrogatories
`rather than just the one?
` MR. MCKEOWN: No. I think the
`offer, Your Honor, is they'd be happy to
`answer some interrogatories based on some
`agreement that relates to what's going on in
`the District Court. I'm not in a position to
`comment on what those issues are on the
`District Court side.
` JUDGE MOORE: All right. Well,
`tell me this: Are you willing to pursue that?
`And I understand we have a time issue, and we
`can deal with that in a minute, but I just
`need to understand that if we got off this
`call, that's something that you could go
`forward or that you'd be willing, I should
`say, to go and discuss with litigation counsel
`or not.
` MR. MCKEOWN: Sure. Our concern
`here is timing. We don't want to embark in
`another exercise in chasing our tail here. If
`we have an agreement that we can provide these
`interrogatories and commit to certain dates
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`that were going to keep the process moving
`forward, then that's acceptable to us.
` Our concern previously was that
`that was not going to happen, so that's what
`brought us to the Panel.
` JUDGE MOORE: All right. Anything
`further from Petitioner?
` MR. BERL: Other than to
`categorically reject the ad hominem attacks
`that we're seeking to delay or otherwise have
`misrepresented