UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC. and YOUTUBE, LLC,
`Petitioners,
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Patent Owners.
`
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,415,280
`
`Case IPR: To Be Assigned
`
`MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c),
`37. C.F.R. §§ 42.22, 42.122(b), AND 42.5(b)
`
`Mail Stop Patent Board Patent
`Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC. and YOUTUBE, LLC,
`Petitioners,
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Patent Owners.
`
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,415,280
`
`Case IPR: To Be Assigned
`
`MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c),
`37. C.F.R. §§ 42.22, 42.122(b), AND 42.5(b)
`
`Mail Stop Patent Board Patent
`Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`Google Inc. and YouTube, LLC (“Petitioners”) submit concurrently
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`herewith a Petition for Inter Partes Review of U.S. Patent No. 6,415,280 (“the
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`ʼ280 Patent”) (“Petition”) based on identical grounds that form the basis for a
`
`pending IPR proceeding, Case No. IPR2014-00059 (“the Rackspace IPR”).
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`Pursuant to 35 U.S.C. § 315(c), Petitioners respectfully move that this
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`Petition be instituted and joined with the Rackspace IPR filed by Rackspace US,
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`Inc. and Rackspace Hosting, Inc. (collectively, “Rackspace”). The Rackspace IPR
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`was instituted by the Board on April 15, 2014. As discussed herein, Petitioners do
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`not seek to alter the grounds upon which the Board has already instituted the
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`Rackspace IPR, and seek no change in the existing schedule for that IPR
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`proceeding. Petitioners, by this Motion, request an opportunity to join with the
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`Rackspace IPR solely as an “understudy” to Rackspace, where Petitioners would
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`only assume an active role in the event Rackspace settles with PersonalWeb
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`Technologies, LLC (“PersonalWeb”) and Level 3 Communications, LLC (“Level
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`3”) (collectively, “Patent Owners”) and moves to terminate the Rackspace IPR.
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`I.
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`SPECIAL CIRCUMSTANCES WARRANT JOINDER
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`The following special circumstances warrant that the Board exercise its
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`discretion and grant this Motion and Petition, and join the resulting proceeding
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`with the Rackspace IPR. Petitioners also submit that such special circumstances
`
`warrant a waiver of certain requirements (including the requirement of Rule 42.122
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`1
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`that motions for joinder be filed no later than one month after the institution date of
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`the IPR for which joinder is requested) pursuant to the Board’s authority set forth
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`in Rule 42.5(b):
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`1. The Petitioners are seeking to join an IPR proceeding in its initial
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`stages which is already subject to a stipulated extension. The Board
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`only recently instituted the Rackspace IPR on April 15, 2014. The
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`Board’s scheduling order set Patent Owners’ Response for June 16, 2014.
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`See IPR2014-00059, Paper No. 10. However, the parties stipulated to a
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`30-day extension for the Response to July 16, 2014. See IPR2014-00059
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`Paper No. 14. The parties also agreed to delay Rackspace’s Reply to the
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`Response until September 15, 2014.
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`Id. To date, only the initial
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`telephonic conference has taken place. See IPR2014-00059, Paper No.
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`13. Given the current schedule and the agreed one-month delay in the
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`Rackspace IPR proceedings, Petitioner’s request for joinder is occurring
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`at a stage of the proceedings that is contemplated by Rule 42.122(b) –
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`i.e., shortly after Institution and prior to the Patent Owners’ Response.
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`Given the early stage of the proceedings, Petitioners submit that joinder
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`is appropriate, and that waiver or suspension of Rule 42.122(b) is
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`appropriate in these circumstances. See, e.g., IPR2013-00495, Paper No.
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`13 (exercising Board discretion under § 42.5(b) and granting joinder
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`2
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`U.S. Patent No. 6,415,280
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`motion filed outside the window set forth in § 42.122(b)).
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`2. Petitioners’
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`request
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`is
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`consistent with the
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`specific
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`set
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`of
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`circumstances under which the Board has, within its discretion,
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`previously approved joinder, and granting this request will not have
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`deleterious effects on future joinder motions. The decisions of the
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`Board suggest that filing a new Petition with identical grounds, a method
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`recently used in other cases, is an acceptable (if not preferred) means to
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`join an instituted IPR. See, e.g., IPR2013-00495, Paper No. 13 (granting,
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`in the Board’s discretion, joinder where the petition raises the same
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`grounds from an IPR that has already been instituted); IPR2013-00385,
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`Paper No. 17 (granting joinder where there are no new grounds not
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`already before the Board); compare IPR2013-00386, Paper No. 16
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`(denying joinder where accompanying petition challenged new claims,
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`added new references and raised new grounds of unpatentability). The
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`decisions of the Board also suggest that moving to join an IPR in the
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`limited role of an understudy solely to prevent a Patent Owner from
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`prematurely seeking to terminate an IPR through settlement
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`is an
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`acceptable basis for joining an existing IPR. See, e.g., IPR2013-00495,
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`Paper No. 13 (granting joinder where petitioner agreed to an
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`“understudy” role).
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`The present Petition is consistent with these
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`3
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`decisions and goals and will only confirm, and not expand, the Board’s
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`prior decisions.
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`3. Permitting joinder in this circumstance will preserve the Board’s
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`significant investment of resources in instituting the Rackspace IPR
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`proceeding (and related ones), ensure its continuation, and prevent
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`great prejudice to Petitioners. The Board’s contemporaneous decisions
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`regarding certain claims of the instant and other related patents confirm
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`that claims of these patents are invalid by a preponderance of the
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`evidence. See IPR2013-00082, Paper No. 83 (finding invalid claims of
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`the related ʼ791 patent); IPR2013-00086, Paper No. 66 (finding
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`invalid claims of the related ʼ662 patent); IPR2013-00083, Paper No.
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`80 (finding invalid claims of the ʼ280 patent); IPR2013-00087, Paper
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`No. 69 (finding invalid claims of the related ʼ096 patent); IPR2014-
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`00057, IPR2014-00059, IPR2014-00062, IPR2014-00066, Paper No.
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`9 (instituting proceedings on the ʼ791, ʼ280, ʼ310 and ʼ442 patents,
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`respectively).
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`Indeed, many of the Board’s findings in those related
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`proceedings, such as claim construction, have already been incorporated
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`into this IPR. Patent Owner has asserted certain of the claims at issue in
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`this IPR against Petitioner in district court.
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`If the Patent Owner settles
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`with Rackspace, and if a final decision in the Rackspace IPR is not
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`4
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`issued, then Patent Owner will effectively be able to shield itself from
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`review of
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`the challenged claims of
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`the instant patent under a
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`preponderance of the evidence standard.
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`Joinder by Petitioner in an
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`understudy role will prevent this prejudice.
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`Petitioners thus request a waiver of Rule 42.122 under Rule 42.5 (Conduct
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`of the proceeding), given the unique circumstances of the instant Motion outlined
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`above.
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`II.
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`JOINDER WILL NOT PREJUDICE OR OTHERWISE BURDEN
`ANY OF THE OTHER PARTIES IN THE IPR PROCEEDING
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`Where the Petitioners will minimize any additional cost or burden on other
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`parties, Petitioners request that the Board exercise its discretion to grant
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`Petitioners’ request, and, as necessary, invoke its authority under Rule 42.5 to
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`waive the requirements of Rule 42.122.
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` No new arguments are presented. The Petition asserts, word-for-word in
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`substance, only the arguments that the Board has already instituted in the
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`Rackspace IPR. Thus, there are no new arguments to consider.
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` No schedule adjustments are necessary. The Rackspace IPR is in its early
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`stage and Patent Owners will file their Response to that IPR on July 16, 2014
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`(in view of the stipulated 30-day extension). Given that this Petition raises
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`grounds identical to those allowed in the Rackspace IPR, Patent Owners’
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`Response in the Rackspace IPR should likewise apply equally to the instant
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`5
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`U.S. Patent No. 6,415,280
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`Petition. Thus, Patent Owners will not be prejudiced.
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` Petitioners agree to assume a limited “understudy” role. As long as
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`Rackspace remains in its IPR, Petitioners agree to remain in a circumscribed
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`role without a separate opportunity to actively participate. Thus, Petitioners
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`will not file additional written submissions, nor will they pose questions at
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`depositions or argue at oral hearing without the prior permission of Rackspace.
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`Only in the event
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`that Rackspace settles and attempts to terminate the
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`Rackspace IPR will Petitioners seek to become active in the IPR.
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` Rackspace will suffer no additional cost or burden. As Petitioners will
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`assume a passive role, Rackspace will not be required to cooperate with
`
`Petitioners. Thus, Rackspace will not suffer further cost or burden in preparing
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`motions and arguments.
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` Patent Owners will suffer no additional cost or burden. Patent Owners are
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`already defending the patent-at-issue against
`
`the same arguments in an
`
`instituted IPR. As Petitioners will assume a passive role, Patent Owners will
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`not have to address any additional arguments or pages of argument
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`if
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`Petitioners are joined.
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` Petitioners will only impact potential settlement discussions to the extent
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`that the Rackspace IPR will continue unless Rackspace settles. In weighing
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`settlement, PersonalWeb will have to consider the presence of Petitioners as
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`6
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`additional parties to the IPR.
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`SATISFY THE FOUR
`III. THE PRESENT CIRCUMSTANCES
`FACTORS TO BE ANALYZED IN MOTIONS FOR JOINDER
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`In accordance with the Board’s Representative Order identifying matters to
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`be addressed in a motion for joinder (see, e.g., IPR2013-00004, Paper No. 15,
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`April 24, 2013), Petitioners respectfully submit that: (1) joinder is appropriate
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`because it will promote efficient determination of the validity of the ʼ280 Patent
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`without prejudice to Rackspace or Patent Owners (see, e.g., IPR2013-00385, Paper
`
`No. 17, July 29, 2013 (granting motion for joinder under similar circumstances));
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`(2) Petitioners’ petition does not raise any issues that are not already before the
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`Board in the Rackspace IPR, i.e., the same grounds of unpatentability raised by
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`Rackspace and for which the Board instituted review; (3) joinder would not affect
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`the pending schedule in the Rackspace IPR in any way nor increase the complexity
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`of that proceeding in any way, thus minimizing costs; and (4) Petitioners are
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`willing to accept an understudy role to minimize burden and schedule impact.
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`Moreover, absent joinder, the Board’s investment of resources in review of this
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`patent and those related to it would not come to fruition. Further, Petitioners could
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`be prejudiced if the Rackspace IPR is terminated before a final written decision is
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`issued as it would have to litigate the same positions at the District Court under a
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`higher burden of proof. Accordingly, joinder should be granted.
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`7
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`Background and Related Proceedings
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`A.
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`PersonalWeb and Level 3 are the owners of the ʼ280 Patent. In 2011,
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`PersonalWeb sued thirteen (13) different companies, including Petitioners, for
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`allegedly infringing the ʼ280 Patent (among others in the same patent family). In
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`2012, PersonalWeb filed suit against at least nine (9) other companies alleging
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`infringement of the same. (“Underlying Litigations”)
`
`Rackspace filed its petition for inter partes review of the ʼ280 Patent on
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`October 10, 2013. The Board instituted the Rackspace IPR on April 15, 2014
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`(IPR2014-00059, Paper No. 9,) and ordered Patent Owners’ Response due on June
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`16, 2014 (IPR2014-00059, Paper No. 10,). Patent Owners and Rackspace
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`subsequently agreed to extend this deadline by 30 days to July 16, 2014 and agreed
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`to extend Rackspace’s Reply to September 15, 2014 (IPR2014-00059, Paper No.
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`14). Patent Owners also noticed the deposition of two of Rackspace’s expert
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`declarants for June 23-25, 2014 (IPR2014-00059, Paper Nos. 15-16).
`
`B.
`
`The Circumstances Warrant Granting Of The Joinder Motion
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`The instant Petition is not subject to the one year time bar of Section 315(b).
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`As the Board has previously held, the Board has authority to join Petitioners as
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`parties under 35 U.S.C. § 315:
`
`While [Petitioners] filed the Petition more than one year after being
`served with a complaint,
`the second sentence of Section 315(b)
`provides that the one-year bar ‘shall not apply to a request for joinder
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`8
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`under subsection (c).’ The one-year bar, therefore, does not apply to
`[Petitioners] because [they] filed a motion for joinder with [their] Petition.
`This is confirmed by the Board’s rules, which provide that a petition
`requesting inter partes review may not be “filed more than one year after
`the date on which the petitioner, the petitioner’s real party-in-interest, or a
`privy of the petitioner is served with a complaint alleging infringement of
`the patent,’ but the one-year time limit ‘shall not apply when the petition
`is accompanied by a request for joinder.’
`
`See IPR2013-00385, Paper No. 17 at 4-5; see also 37 C.F.R. §§ 42.101(b),
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`42.122(b); IPR2013-00109, Paper No. 15 (permitting joinder of a party beyond the
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`one-year window); IPR2013-00256, Paper No. 10 (same). As such, Petitioners
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`respectfully submit that the Petition and the instant motion for joinder are properly
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`filed under the applicable statute.
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`Although Rule 42.122 states that a motion for joinder shall be filed within
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`one month from the granting of the petition that is sought to be joined (i.e., one
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`month from April 15, 2014), Petitioners submit that filing the instant Petition and
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`request for joinder to the Rackspace IPR are nevertheless permissible. 35 U.S.C. §
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`315 states that granted petitions may be joined, subject to the discretion of the
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`Director. See IPR2013-00385, Paper No. 17 at 6 (recognizing that multiple
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`motions for joinder may be filed and that the Board has discretion to join parties)
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`(citing 157 CONG. REC. S1376 (daily ed. Mar. 8, 2011) (statement of Sen. Kyl)
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`(“The Director is given discretion . . . over whether to allow joinder. This safety
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`9
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`valve will allow the Office to avoid being overwhelmed if there happens to be a
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`deluge of joinder petitions in a particular case.”). Neither § 315 nor Rule 42.122
`
`limit the types or numbers of granted petitions that may be joined. Given the very
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`early stages of the Rackspace IPR whereby the Patent Owners have yet to even file
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`a response to the petition, as well as the unique circumstances outlined in this
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`Motion, including, but not limited to, the stipulated extension for the Response and
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`Reply, Petitioners request a waiver of Rule 42.122 under Rule 42.5 (Conduct of the
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`proceeding). In particular, as summarized in the above sections (Sections I and II),
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`at least the following reasons support such a waiver:
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` The Rackspace IPR was only instituted on April 15, 2014, and aside from an
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`initial conference call, no meaningful activity has occurred since the
`
`proceedings began;
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` Patent Owners and Rackspace agreed to a significant extension for both the
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`Patent Owners’ Response (from June 16, 2014 to now July 16, 2014) and
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`Petitioners Reply to that Response (from August 15, 2014 to now September
`
`15, 2014), resulting in an extended period of inactivity before the Board;
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` Granting this request will not result in a proliferation of future joinder motions;
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` No new arguments are presented, and no schedule adjustments are necessary;
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` Petitioners agree to assume a limited, understudy role; and
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` Neither PersonalWeb, Level 3, nor Rackspace will suffer any additional cost or
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`10
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`U.S. Patent No. 6,415,280
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`burden.
`
`C.
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`Joinder will not impact the Board’s ability to complete the review
`within the one-year period
`
`Joinder in this case will not impact the Board’s ability to complete its review
`
`in a timely manner. Section 316(a)(11) provides that the Board’s final decision
`
`should issue within one year of institution of the review. See also 37 C.F.R. §
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`42.100(c). Here, joinder will not affect the Board’s ability to issue its final
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`determination within one year because Petitioners agree to an understudy role and
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`do not raise any issues that are not already before the Board. Indeed, the Petition
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`includes only those grounds on which the joined IPRs were instituted, and the
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`invalidity grounds were copied verbatim from Rackspace’s petition.
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`Given that Petitioners will assume an understudy role as outlined above,
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`their presence will not introduce any additional arguments, briefing, or need for
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`discovery.
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`Moreover, Petitioners only offered identical support that Rackspace
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`previously introduced. For example, the Petition relies on the expert witnesses
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`already involved in the Rackspace IPR, Drs. Narashimha Reddy and Melvin
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`Mercer. Petitioners have not submitted a new declaration. Since Petitioners will
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`enter the Rackspace IPR as an understudy, all discovery that has occurred, if any,
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`need not to be repeated. Indeed, the depositions of Drs. Reddy and Mercer have
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`already been noticed by Patent Owners for June 23, 2014 (IPR 2014-00059, Paper
`
`11
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`No. 15) and June 24-25, 2014 (IPR 2014-00059, Paper No. 16), respectively, and
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`the instant Petition and Motion will not disrupt or delay them.
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`Patent Owners will have the opportunity to respond to the Rackspace IPR
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`next month (July 16, 2014) and will also have yet another opportunity to respond
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`to the exact grounds in the instant IPR. Yet, given that the Petition is the same as
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`that submitted in the Rackspace IPR, Petitioners submit that PersonalWeb and
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`Level 3 need not file a Patent Owners’ Preliminary Response to the Petition, and
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`request that the Board proceed without it. This is consistent with a prior Board
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`Order (IPR2013-00256, Paper No. 8), which allowed the Patent Owner to file a
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`Preliminary Response addressing only those points raised in the new petition that
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`were different from those in the granted petition. Here, because the invalidity
`
`grounds are identical to the grounds allowed in the Rackspace IPR Petition, there is
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`nothing new for the Patent Owners to address.
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`In view of the above, Petitioners submit that the current schedule in the
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`Rackspace IPR can remain the same.1
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`1 At most, the Board can add an additional deadline for PersonalWeb and Level 3
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`to respond to this Petition, but this deadline will not impact other deadlines in the
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`current schedule on this patent.
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`12
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`Google and YouTube Motion for Joinder
`Joinder would enhance efficiency by avoiding duplicate efforts
`and inconsistencies and would avoid prejudice to Petitioners
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`D.
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`A final written decision on the validity of the ʼ280 patent will at least
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`minimize issues in the Underlying Litigations and, at most, resolve the litigations
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`altogether. Allowing Petitioners to join would preserve the Board’s investment of
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`resources, avoid inconsistency, and also avoid prejudice to Petitioners in the event
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`that PersonalWeb and Level 3 settle with Rackspace. Section 317(a) provides that
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`an inter partes review “shall be terminated with respect to any petitioner upon the
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`joint request of the petitioner and the patent owner” unless the Board has already
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`reached its decision on the merits. If no petitioner remains after settlement, “the
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`Office may terminate the review.” Id. Thus, if PersonalWeb and Level 3 were to
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`reach a settlement with Rackspace, then the Rackspace IPR could terminate, in the
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`Board’s discretion, without proceeding to a final written decision.
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`Indeed, if the Board terminated the Rackspace IPR, Petitioners would have
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`to reargue in district court the exact same arguments that Rackspace has already
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`shown are reasonably likely to prevail in the PTAB. See IPR2014-00059, Paper
`
`No. 9. Arguments related to both claim construction and validity will have to be
`
`briefed and considered, increasing the work for both Petitioners and Patent
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`Owners.
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`The potential for inconsistency would be also heightened because Petitioners
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`would face a higher burden before the District Court of proving the invalidity of
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`13
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`claims 10, 15, 16, 18, 25, 31-33, 36, and 38 of the ʼ280 patent by clear and
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`convincing evidence, as opposed to the lower burden of a preponderance of the
`
`evidence applicable before the PTAB. See 35 U.S.C. § 316(e). Having to
`
`overcome a higher burden to reach the same result would be prejudicial to
`
`Petitioners.
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`If the Board permits Petitioners to join the Rackspace IPR, and the ʼ280
`
`patent is upheld in a final decision, Petitioners will be estopped from further
`
`challenging the validity of the patent on these grounds, avoiding duplication of
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`Patent Owners’ efforts at least as to Petitioners. See 35 U.S.C. § 315(e)(1).
`
`Accordingly, to avoid duplicate efforts, the possibility of inconsistencies, and
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`prejudice to Petitioners, joinder is appropriate.
`
`E.
`
`Joinder will not prejudice Rackspace, PersonalWeb or Level 3
`
`Granting joinder and permitting Petitioners to assume the understudy role
`
`will not prejudice any of the parties in the IPR on the ʼ280 patent. Petitioners raise
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`no issues that are not already before the Board, such that joinder would not affect
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`the timing of the Rackspace IPR or the content of Patent Owners’ Response due on
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`July 16, 2014. Petitioners’ understudy role ensures that Rackspace, PersonalWeb
`
`and Level 3 will not suffer any additional costs. As a co-party, Rackspace will not
`
`be obligated to cooperate with (or share the limited time and briefing pages) with
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`more parties than they already do. Likewise, PersonalWeb and Level 3 will not
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`14
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`U.S. Patent No. 6,415,280
`Google and YouTube Motion for Joinder
`have to coordinate with (or respond to more briefing pages or arguments by) more
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`parties than it currently does. Petitioners’ motion makes every effort to minimize
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`the burden on the other parties in the Rackspace IPR and has, in fact, been raised in
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`a way and at a stage in which the impact of a joinder is minimal.
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`IV. CONCLUSION
`
`For the foregoing reasons, Petitioners respectfully request that their Petition
`
`for Inter Partes Review of U.S. Patent No. 5,978,280 be granted and that the
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`proceedings be joined with IPR2014-00059.
`
`Although Petitioners believe that no fee is required for this Motion, the
`
`Commissioner is hereby authorized to charge any additional fees which may be
`
`required for this Motion to Deposit Account No. 50-2387.
`
`Dated: June 18, 2014
`
`Respectfully submitted,
`
`/Jennifer A. Sklenar/
`
`Jennifer A. Sklenar
`Reg. No. 40,205
`ARNOLD & PORTER LLP
`777 S. Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Telephone: (213) 243-4000
`Facsimile: (213) 243-4199
`jennifer.sklenar@aporter.com
`
`15
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`
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`CERTIFICATE OF SERVICE UNDER 37 C.F.R. §§ 42.6(e), 42.105(a)
`
`Pursuant to 37 C.P.R. §§ 42.6(e) and 42.105(a), this is to certify that I
`
`caused to be served a true and correct copy of the foregoing MOTION FOR
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`JOINDER UNDER 35 U.S.C. § 315(c), 37. C.F.R. §§ 42.22, 42.122(b), AND
`
`42.5(b) by UPS Express delivery, on this 18th day of June, 2014 on the Patent
`
`Owners at the correspondence address of the Patent Owner as follows:
`
`Brian Siritzky, Ph.D.
`Siritzky Law, PLLC
`8300 Greensboro Drive, Suite 800
`McLean VA 22102-3661
`
`By Email for counsel of record IPR2014-00059 (Patent 6,415,280):
`
`Joseph A. Rhoa
`Updeep S. Gill
`Nixon & Vanderhye P.C.
`901 North Glebe Road, 11th Floor
`Arlington, VA 22203-1808
`jar@nixonvan.com
`usg@nixonvan.com
`
`Dated: June 18, 2014
`
`Respectfully submitted,
`
`/Jennifer A. Sklenar/
`
`Jennifer A. Sklenar
`Reg. No. 40,205
`
`
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