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`IPR2014-01181
`110797-0004-655
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`U.S. Patent No. 8,532,641 B2
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`SAMSUNG ELECTRONICS CO., LTD and SAMSUNG ELECTRONICS
`AMERICA, INC.,
`Petitioners
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC
`Patent Owner
`______________
`
`Case IPR2014-011811
`Patent 8,532,641 B2
`______________
`
`Before the Honorable KEVIN F. TURNER, LYNNE E. PETTIGREW, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`
`
`PETITIONERS’ RESPONSE TO
`PATENT OWNER’S MOTION FOR OBSERVATION ON
`EXAMINATION OF DR. SCHUYLER QUACKENBUSH
`
`
`1 Case Nos. IPR2014-01182 and IPR2014-01184 have been consolidated with the
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`instant proceeding. See IPR2014-01181, Paper 15; IPR2014-01182, Paper 15; and
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`IPR2014-01184, Paper 15. In view of this consolidation, Petitioners submit this
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`single Response in IPR2014-01181.
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`IPR2014-01181
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`U.S. Patent No. 8,532,641 B2
`GLOSSARY OF ABBREVIATIONS
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`Attorney Docket No.
`110797-0004-655
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`Shorthand
`PO
`POSA
`ID1
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`ID2
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`ID3
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`R
`RP
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`Description
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`Patent Owner
`Person of Ordinary Skill in the Art
`IPR2014-01181, Paper 10, Decision Institution of Inter Partes
`Review
`IPR2014-01182, Paper 10, Decision Institution of Inter Partes
`Review
`IPR2014-01184, Paper 10, Decision Institution of Inter Partes
`Review
`IPR2014-01181, Paper 20, Patent Owner’s Response
`IPR2014-01181, Paper 23, Petitioners’ Reply to Patent Owner’s
`Response
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`Note: All emphasis herein added unless otherwise stated.
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`Petitioners have the following responses to each of PO’s observations on the
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`September 30, 2015 cross-examination testimony of Dr. Quackenbush (Pap. 32):
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`Response to Observation #1. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO argues that Dr. Quackenbush advanced positions “for the first time
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`in his supplemental declaration” for the claim terms “stream a signal” / “streaming
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`audio signal,” “communication rate,” and “provides for a CD quality listening
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`experience”—but Dr. Quackenbush assumed a construction for each of these terms
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`in his initial declarations (Ex. 1023¶27, 1123¶27, 1223 ¶28); and in direct response
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`to Dr. Wolf’s opinions, Dr. Quackenbush opined on the proper construction for
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`these terms in his rebuttal declaration (Ex. 1025 ¶¶47-49, 51-58). See Ex. 2038 at
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`21:3-22:3. Dr. Quackenbush testified that the proper construction for these terms is
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`consistent with his initial declarations and the ‘641 patent specification (Ex. 2038
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`at 8:12-11:13, 21:19-22:3). Further, the testimony PO cites is incomplete—it
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`should include Ex. 2038 at 8:12-12:5, 12:23-13:6, 25:4-28:17; and contrary to
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`PO’s assertion, it is not relevant to at least Ex. 1025 ¶¶43-46, 50, 59-61.
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`Response to Observation #2. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, the Board correctly construed “streaming audio signal.” ID1 at 7-8;
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`ID2 at 7-8; ID3 at 6-7; Ex. 1015 at 7. PO is wrong that the constructions for
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`“stream a signal” and “streaming audio signal” are “over[broad].” In response to
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`Dr. Wolf’s declaration, Dr. Quackenbush agreed with the Board that the ordinary
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`meaning of “streaming audio signal” is an “audio signal that is transferred in a
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`continuous stream,”—consistent with the ‘641 patent specification. Ex. 1025 ¶47.
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`During his deposition, Dr. Quackenbush confirmed this understanding. Ex. 2038 at
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`9:14-18 (“streaming speaks to a transfer of data, and that may result in
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`downloading as ‘641 informs us.”); see also Ex. 2038 at 9:9-11:13, 14:9-17; Ex.
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`1001 at 8:31-35; Ex. 1025 ¶47; RP4.
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`Response to Observation #3. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, the
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`testimony PO cites does not demonstrate that “Petitioners’ arguments and Dr.
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`Quackenbush’s opinions regarding the functionality of Bluetooth … are based
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`upon a selective, hindsight-driven analysis,” as PO argues. During his deposition,
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`Dr. Quackenbush confirmed the opinions set forth in his declarations that a POSA
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`would have been motivated to use Bluetooth to wirelessly transfer data and
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`implementing Bluetooth would have worked, based on the cited references and the
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`knowledge of a POSA. See Ex. 2038 at 16:9-16, 17:16-18:18; see also Ex. 1023
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`¶¶74-76, Ex. 1123 ¶¶83-84; Ex. 1025 ¶¶68-79, 117-122, 133-155. And with
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`respect to the Bluetooth specification, Dr. Quackenbush testified that Bluetooth
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`“has been available and was … widely publicized, widely adopted, and therefore
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`would be well-known to [a POSA],” and that he reviewed the Bluetooth
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`specification in preparing his declarations and cited it in his rebuttal declaration.
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`Ex. 2038 at 16:9-16, 18:19-19:24.
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`Response to Observation #4. PO’s observation is based on an underlying
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`premise that is false: Petitioners do not argue “that Abecassis itself teaches a
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`rechargeable power supply” (see RP10). Thus, this observation is irrelevant.
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`Consistent with his declarations, Dr. Quackenbush testified that it would have been
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`obvious to include a rechargeable battery in Abecassis’ multimedia player based
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`on the knowledge of a POSA or Herrod. Ex. 2038 at 34:21-35:4 (“So that citation
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`which I just read out, plus one of ordinary -- plus the skill of a person, plus the
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`knowledge of a [POSA] and then of course I bring in Herrod.”); see also Ex.
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`2038 at 35:16-22; Ex. 1123 ¶¶41-44; Ex. 1025 ¶¶89-93. And, Dr. Quackenbush
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`cited Herrod’s disclosure that battery charging technology was “well known to the
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`skilled person...” (Ex. 1106 at 14:18-24) (not a “single disclosure” in Abecassis, as
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`PO asserts) to support his opinion that it would have been obvious to a POSA that
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`Abecassis’ power supply could be rechargeable. Ex. 1123 ¶42; Ex. 2038 at 35:5-15.
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`Response to Observation #5. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, PO is
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`wrong that Dr. Quackenbush’s opinion is based “only upon … [a] general
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`interpretation of the Herrod reference.” Dr. Quackenbush opined that the claimed
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`“physical interface” was well known in the art, and it would have been obvious to
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`include the claimed physical interface in Abecassis’ multimedia player based on
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`the knowledge of a POSA or Herrod. Ex. 1123 ¶¶45-52; see also Ex. 2007 at
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`151:5-156:20. Dr. Quackenbush provided specific citations to support his opinion
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`that Herrod teaches the claimed physical interface. Ex. 1123 ¶¶47-50 (citing Ex.
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`1106 at 5:34-38, 6:30-38, 6:43-48, 6:56-64, 7:32-34, 18:66-19:14). He also
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`confirmed this understanding of Herrod’s teachings during cross-examination. Ex.
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`2038 at 42:24-43:20, 45:1-20 (“…I see two functionalities, and they are called out
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`with a physical interface: Data and power…. The functionality which is, in my
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`opinion, well understood by one of ordinary skill, within the teachings of Herrod
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`would involve two wires, two conductive paths.”).
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`Response to Observations #6, #22, #25. PO’s observations are improper
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`and should be expunged or not considered because they contain attorney argument.
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`To the extent considered, PO mischaracterizes Dr. Quackenbush’s testimony. Dr.
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`Quackenbush applied the plain and ordinary meaning of “means for recharging.”
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`Ex. 1023 ¶¶28, 140, 45-49; Ex. 1123 ¶¶28, 138, 45-52; Ex. 1223 ¶¶29, 140, 52-57;
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`Ex. 2007 at 42:14-43:15; Ex. 1025 ¶¶93, 177, 238; Ex. 2038 at 48:12-21. PO
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`incorrectly argues that the term requires construction under §112(6)—Petitioners
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`explained it is not governed by §112(6) because it connotes a known class of
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`structures, namely battery rechargers (see RP28-29, 39, 51-52); but, to the extent
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`the Board decides §112(6) applies, the function is “recharging a rechargeable
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`power supply” and the corresponding structure is a “battery recharger.” Id. Dr.
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`Quackenbush further testified “a [POSA] would understand the function from the
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`plain meaning of the language in the claim term recharging a battery” (Ex. 2038 at
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`51:4-7) and “the structures identified in ‘641 are merely the very well-known
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`structure of battery charging circuit” (Ex. 2038 at 48:25-49:2). Further, the “battery
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`recharging circuit” is disclosed by the cited references. RP28-29, 39, 51-52; see
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`also Ex. 2038 at 48:22-49:4, 49:18-51:7, 52:14-53:2, 139:23-140:21, 141:9-18,
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`142:22-143:4, 151:22-152:14.
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`Response to Observation #7. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO argues that the cited testimony demonstrates that “Dr.
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`Quackenbush’s analysis is based upon his selective interpretation of disparate
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`disclosures within the Abecassis reference rather than a single teaching.” This is
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`irrelevant as a prior art reference need not teach the claimed limitation in a “single”
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`teaching or passage. Ex. 2038 at 57:7-22. Moreover, Dr. Quackenbush provided
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`citations to and explanation about the specific portions of Abecassis that teach the
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`claimed “selectable menu item.” Ex. 1123 ¶¶54-58; Ex. 1025 ¶¶101-112. Further,
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`the testimony PO cites is incomplete and should include Ex. 2038 at 61:3-64:7
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`Response to Observation #8. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO is wrong that the cited testimony “demonstrates the select
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`disclosures … that Dr. Quackenbush relies upon as disclosing [streaming a signal
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`representing at least a portion of a song].” The cited testimony does not address all
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`of Dr. Quackenbush’s opinions regarding Abecassis’ teachings of this claim
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`element. See, e.g., Ex. 1123 ¶¶69-74,131-137; Ex. 1025 ¶¶11-14, 80-88, 114.
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`Further, the testimony PO cites is incomplete and should also include Ex. 2038 at
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`75:6-78:4, 78:15-79:24.
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`Response to Observation #9. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, PO
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`argues incorrectly that “Dr. Quackenbush testified that Bluetooth includes a
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`synchronous … data channel.” See Ex. 2038 at 84:10-16 (“Q. … There is a
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`synchronous data channel for transmitting, data, correct? A. No. That is not
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`correct.”). Moreover, PO’s assertion that “data may be transmitted in Bluetooth on
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`either the synchronous and asynchronous data channel” is irrelevant. Dr.
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`Quackenbush relies on Chennakeshu’s express teachings of transferring data over
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`the asynchronous channel of Bluetooth. Ex. 1123 ¶¶72-74; Ex. 2038 at 88:9-15
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`(“Bluetooth is tailored so that data is transmitted over the asynchronous channel,
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`and that’s taught in Chennakeshu and also Ericsson Review.”), 75:6-77:5; see also
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`Ex. 1223 ¶¶67-73, 113. Moreover, during his deposition, Dr. Quackenbush
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`explained that the asynchronous channel “is where one of ordinary skill would
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`look to transmit data.” Ex. 2038 at 85:2-7. Further, the testimony PO cites is
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`incomplete and should include Ex. 2038 at 80:11-81:6, 83:9-13, 85:1, 87:24-88:15.
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`Response to Observation #10. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO asserts incorrectly that the testimony “demonstrates the limited
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`extent to which Dr. Quackenbush’s analysis … is based upon evidence outside of
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`his own opinions.” Contrary to PO’s assertions, Dr. Quackenbush explained in his
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`initial declaration why a POSA would have been motivated to use an asynchronous
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`channel (as taught by Chennakeshu) to transfer data in Abecassis’ system based on
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`the cited references. Ex. 1123 ¶¶73-74 (citing Ex. 1105, Ex. 1103, Ex. 1108A); see
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`also Ex. 1025 ¶116; Ex. 1223 ¶¶67-73, 113; Ex. 2038 at 17:16-18:3. He also
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`testified that his opinions were based on his understanding “as one of ordinary skill
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`in the art” (Ex. 2038 at 89:24-90:10; see also Ex. 2038 at 90:22-91:6), and
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`evidence of motivation to combine may be provided by expert testimony.
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`Response to Observation #11. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO’s assertion that Dr. Quackenbush’s opinions are “based upon
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`statements as to prospective adoption of Bluetooth technology” is irrelevant and
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`incorrect. It is irrelevant because reduction to practice is not required for
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`obviousness. It is also incorrect because Ex. 1007 (discussed in the cited testimony)
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`expressly states that “[m]any companies have since joined the consortium as
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`adopters of the technology (status as of July 11, 1998)…” (Ex. 1007 at 111).
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`Moreover, in direct response to Dr. Wolf’s claims, Dr. Quackenbush cited
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`evidence of working Bluetooth systems in his declaration, as he confirmed during
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`his deposition. Ex. 1025 ¶¶74, 121-122 (citing Ex. 1041A; Ex. 1042; Ex. 1043; Ex.
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`1044); Ex. 2038 at 96:4-25; see also Ex. 1025 ¶¶146, 154.
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`Response to Observations #12, #23, #24. PO’s observations are improper
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`and should be expunged or not considered because they contain attorney argument
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`and raise new arguments which constitute improper sur-reply. To the extent
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`considered, PO’s questioning (Ex. 2038 at 99:11-100:18) specifically concerned
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`Ex. 1025 ¶116, not ¶¶191, 201. In its Response, PO did not cite the ‘641 patent at
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`6:34-39 or Ex. 1218 at 529 to support written disclosure of the ‘641 claims with
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`respect to the priority date issue and has waived the ability to do so now. Moreover,
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`according to PO, Ex. 2004 is a redline comparison of the specification of the ‘947
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`patent as compared to the specification of the ‘641 patent, which shows that there
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`are differences between the specifications of the two patents.
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`Response to Observation #13. The testimony PO cites is irrelevant because
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`it is not disputed that Bluetooth operates in the range of 2.4 GHz. In his
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`declarations, Dr. Quackenbush explained that a POSA would have been motivated
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`and found it obvious to implement Bluetooth (as taught by Chennakeshu) in
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`Abecassis’ system, and implementing Bluetooth would have worked. Ex. 1123
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`¶¶83-84; Ex. 1025 ¶¶68-79, 117-122; see also Ex. 2038 at 17:16-18:10. Dr.
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`Quackenbush also explained that a POSA would have been motivated and found it
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`obvious to implement Bluetooth (as taught by Haartsen) in Ito’s system, and
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`implementing Bluetooth would have worked. Ex. 1023 ¶¶74-76, Ex. 1025 ¶¶133-
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`155. Dr. Quackenbush also noted that Ito teaches “the present invention is not
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`limited to [76-90 MHz] but also other frequency can be used.” Ex. 1025 ¶¶24, 142
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`(citing Ex. 1003 at 25:66-26:6).
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`Response to Observation #14. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO argues incorrectly there is no citation to or analysis of “other, non-
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`Bluetooth, wireless communications systems.” See, e.g., Ex. 1123 ¶¶72-74, 83-84;
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`Ex. 1023 ¶¶62-63, 74-76; Ex. 1025 ¶¶68-79, 117-122, 133-155; ID1 at 14; ID2 at
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`15 (citing Ex. 1108A at 110). Moreover, in direct response to Dr. Wolf’s assertions
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`regarding the existence of other available wireless standards, Dr. Quackenbush
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`opined in his rebuttal declaration as to why a POSA would have been motivated to
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`use Bluetooth even if other wireless standards were available. Ex. 1025 ¶¶75, 147.
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`Response to Observation #15. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, during
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`his deposition, Dr. Quackenbush explained that Chennakeshu itself teaches
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`Bluetooth. Ex. 2038 at 110:10-13. It is irrelevant whether Dr. Quackenbush
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`compared Chennakeshu’s disclosures (which are presumed enabled) to the
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`Bluetooth specification. In addition, with respect to the Bluetooth specification, he
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`testified that Bluetooth “has been available and was … widely publicized, widely
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`adopted, and therefore would be well-known to one of ordinary skill in the art,”
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`and that he reviewed the Bluetooth specification in preparing his declarations and
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`cited it in his rebuttal report. Ex. 2038 at 16:9-16, 18:19-19:24. He also opined that
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`a POSA would have been motivated and found it obvious to implement Bluetooth
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`(as taught by Chennakeshu) in Abecassis’ system and the combination would have
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`worked. Ex. 1123 ¶¶72-74, 81-84; Ex. 1025 ¶¶68-79, 113-116; Ex. 2038 at 17:16-
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`18:10. Further, contrary to PO’s assertion, the testimony it cites is not relevant to at
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`least Ex. 1025 ¶¶133-155, 212, 216; RP32-35, 47-49.
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`Response to Observations #16, #17, #18. PO’s observations are improper
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`and should be expunged or not considered because they contain attorney argument.
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`To the extent considered, PO argues incorrectly that Dr. Quackenbush’s opinions
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`regarding the motivation to implement Bluetooth in Ito’s system lack support. In
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`his declarations, Dr. Quackenbush explained that a POSA would have been
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`motivated and found it obvious to implement Bluetooth (as taught by Haartsen) in
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`Ito’s system and implementing Bluetooth would have worked. Ex. 1023 ¶¶74-76,
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`Ex. 1025 ¶¶133-155. Dr. Quackenbush explained regarding the second
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`embodiment that Ito teaches “the present invention is not limited to [76-90 MHz]
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`but also other frequency can be used” (Ex. 1025 ¶¶24, 142 (citing Ex. 1003 at
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`25:66-26:6)); and regarding the third embodiment the communication can be
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`“easily conducted” within a range of several tens MHz to 1 GHz but is not limited
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`to this (Ex. 2038 at 121:18-124:5). He also explained that Ito teaches “both ends of
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`the claimed system … so it is irrelevant whether other third-party Bluetooth
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`enabled vehicle loaded acoustic devices had been ‘widely adopted.’” Ex. 1025
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`¶146; see also Ex. 2038 at 118:5-21; 119:7-120:5.
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`Response to Observation #19. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument. To the extent
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`considered, PO mischaracterizes Dr. Quackenbush’s testimony. In his declaration,
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`Dr. Quackenbush explained that Ito supports transmissions over the FM band and
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`“[a] POSA would have understood that the FM band supported the transfer of
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`digital signals (such as IBOC).” Ex. 1025 ¶142 (citing Ex. 1003 at 25:66-26:15; Ex.
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`1030 at 421). Dr. Quackenbush confirmed this during his deposition, explaining
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`that “Ito teaches using frequency modulation, but of course it also teaches an RF
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`communication, which is why I have combined it with Haartsen to motivate using
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`Bluetooth. And the point of the citation … is one of ordinary skill would know that
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`IBOC is an example of technology which would also permit digital communication
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`in the FM band.” Ex. 2038 at 126:25-127:12.
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`Response to Observation #20. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, Dr.
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`Quackenbush testified that Haartsen itself teaches Bluetooth. Ex. 2038 at 130:5-9,
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`131:6-13, 132:11-133:2. It is irrelevant whether Dr. Quackenbush compared
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`Haartsen’s disclosures (which are presumed enabled) to the Bluetooth specification.
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`In addition, with respect to the Bluetooth specification, he testified that Bluetooth
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`“has been available and was … widely publicized, widely adopted, and therefore
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`would be well-known to one of ordinary skill in the art,” and that he reviewed the
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`Bluetooth specification in preparing his declarations and cited it in his rebuttal
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`report. Ex. 2038 at 16:9-16, 18:19-19:24. He also opined that a POSA would have
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`been motivated and found it obvious to implement Bluetooth (as taught by
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`Haartsen) in Ito’s system and that the combination would have worked. Ex. 1023
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`¶¶73-76; Ex. 1025 ¶¶133-155.
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`Response to Observation #21. PO’s observation is improper and should be
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`expunged or not considered because it contains attorney argument and raises new
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`arguments which constitute improper sur-reply. To the extent considered, Dr.
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`Quackenbush opines that Haartsen discloses transferring data over an
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`“asynchronous wireless channel” using Bluetooth. Ex. 1023 ¶61 (citing Ex. 1006 at
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`3:28-31, 5:52-55, 7:10-12). The “time division duplex link” taught by Haartsen is
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`an optional feature and is thus is irrelevant to Dr. Quackenbush’s analysis. Ex.
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`1006 at 4:13-16 (“the asynchronous link may be a Time-Division duplex link….”).
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`Dr. Quackenbush opined that a POSA would have been motivated and found it
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`obvious to implement an asynchronous channel (as taught by Haartsen) in Ito’s
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`system and that the combination would have worked. Ex. 1023 ¶¶59-66; see also
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`Ex. 2038 at 138:2-20. Contrary to PO’s assertion, the testimony it cites is not
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`relevant to at least Ex. 1025 ¶¶133-155 and RP32-35.
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`Respectfully submitted,
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`Dated: Oct. 13, 2015
`
`/J. Steven Baughman/
`By:
`J. Steven Baughman (Lead Counsel); Gabrielle E. Higgins (Backup Counsel)
`ROPES & GRAY LLP; Attorneys for Petitioners, Samsung Electronics Co., Ltd.,
`and Samsung Electronics America, Inc.,
`
`
`
`- 13 -
`
`
`
`
`IPR2014-01181
`
`U.S. Patent No. 8,532,641 B2
`CERTIFICATE OF SERVICE
`
`Attorney Docket No.
`110797-0004-655
`
`
`
`The undersigned hereby certifies
`
`that a copy of PETITIONERS’
`
`RESPONSE TO PATENT OWNER’S MOTION FOR OBSERVATION ON
`
`EXAMINATION OF DR. SCHUYLER QUACKENBUSH has been served by
`
`causing the aforementioned document to be electronically mailed, pursuant to
`
`Petitioners’ and Patent Owner’s agreement, to the following attorneys of record for
`
`the Patent Owner listed below:
`
`
`Ryan M. Schultz
`ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
`800 LaSalle Ave.
`2800 LaSalle Plaza
`Minneapolis, MN 55402
`rmschultz@rkmc.com
`
`Thomas R. DeSimone
`ROBINS, KAPLAN, MILLER & CIRESI L.L.P.
`One Atlantic Center
`1201 West Peachtree St., Suite 2200
`Atlanta, CA 30309
`TRDeSimone@rkmc.com
`
`
`
`Oct. 13, 2015
`
`
`/Carolyn L. Redding/
`Carolyn L. Redding
`
`ROPES & GRAY LLP
`
`1
`
`
`
`Dated: