UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`
`
`
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., &
`SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
`CISCO SYSTEMS, INC., and AVAYA, INC.,
`
`Petitioner,
`
`v.
`
`STRAIGHT PATH IP GROUP, INC.
`Patent Owner
`
`________________
`
`
`
`Case IPR2014-013661
`U.S. Patent No. 6,009,704
`
`________________
`
`SUBMISSION OF TRANSCRIPT OF
`DECEMBER 15, 2015 CONFERENCE CALL
`
`
`
`
`
`
`
`
`
`1 IPR2015-01011 has been joined with this proceeding.
`
`

`
`Case IPR2014-01366
`Patent No. 6,009,704
`
`Pursuant to the Board’s request during the December 15, 2015 conference
`
`call with the parties, Patent Owner Straight Path IP Group, Inc. hereby files the
`
`transcript of that conference call as Attachment A.
`
`
`Dated: December 17, 2015
`
`
`
`
`
`
`Respectfully submitted,
`
`/William Meunier/
`William A. Meunier (Reg. No. 41,193)
`Michael C. Newman (admitted pro
`hac vice)
`Mintz, Levin, Cohn, Ferris, Glovsky
`and Popeo, P.C.
`One Financial Center
`Boston, MA 02111
`Telephone: (617) 348-1845
`Facsimile: (617) 542-2241
`StraightPathIPRs@mintz.com
`
`2
`
`

`
`Case IPR2014-01366
`Patent No. 6,009,704
`
`CERTIFICATE OF SERVICE
`
`
`
`I certify that a copy of the Submission of Transcript of December 15, 2015
`
`Conference Call is being served by electronic mail on the following counsel for the
`
`For Cisco Systems, Inc. and AVAYA Inc.
`Wilmer Cutler Pickering Hale
`and Dorr LLP
`David L. Cavanaugh (Reg. No. 36,476)
`Jason D. Kipnis (Reg. No. 40,680)
`david.cavanaugh@wilmerhale.com
`Jason.kipnis@wilmerhale.com
`
`
`
`
`/William Meunier/
`William A. Meunier (Reg. No. 41,193)
`Michael C. Newman (admitted pro hac
`vice)
`Mintz, Levin, Cohn, Ferris, Glovsky
`and Popeo, P.C.
`One Financial Center
`Boston, MA 02111
`Telephone: (617) 348-1845
`Facsimile: (617) 542-2241
`StraightPathIPRs@mintz.com
`
`
`
`Petitioners:
`
`For Samsung Electronics Co., Ltd.
`DLA Piper LLP
`Brian Erickson (Reg. No. 48,895)
`brian.erickson@dlapiper.com
`Jeff Cole (Reg. No. 56,052)
`jeff.cole@dlapiper.com
`Samsung-SP-IPR@dlapiper.com
`
`For AVAYA Inc.
`Fish & Richardson
`Dorothy P. Whelan (Reg. No. 33,814)
`Christopher O. Green (Reg. No. 52,964)
`Whelan@fr.com
`cgreen@fr.com
`
`
`
`
`Dated: December 17, 2015
`
`
`44689858v.1
`
`3
`
`

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`ATTACHMENT A
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`ATTACHMENT A
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`Page 1
` PROCEEDINGS
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ___________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ___________________
` SAMSUNG ELECTRONICS CO., LTD.,
` SAMSUNG ELECTRONICS AMERICA, INC., &
` SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
` CISCO SYSTEMS, INC., and AVAYA, INC.
` Petitioner,
` v.
` STRAIGHT PATH IP GROUP, INC.,
` Patent Owner
` ___________________
` Case IPR2014-01366* (Patent 6,108,704 C1)
` Case IPR2014-01367** (Patent 6,009,469 C1)
` Case IPR2014-01368*** (Patent 6,131,121 C1)
` __________________
`
`
` ____________________
` *IPR2015-01011 has been joined with this proceeding.
` **IPR2015-01007 has been joined with this proceeding.
` ***IPR2015-01006 has been joined with this proceeding.
`
`Job No. 101311
`
`TSG Reporting - Worldwide 877-702-9580
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`

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`Page 2
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` PROCEEDINGS
` APPEARANCES:
` (ALL PRESENT APPEARED VIA TELECONFERENCE)
`
` BEFORE: Honorable Kaylan Deshpande
` Honorable Trenton A. Ward
` Honorable Bart A. Gerstenblith
`
` ON BEHALF OF PATENT OWNER STRAIGHT PATH:
` Mintz, Levin, Cohn, Ferris, Glovsky and Popeo
` WILLIAM MEUNIER, ESQ.
` One Financial Center
` Boston, Massachusetts 02111
`
` - and -
`
` Straight Path Communications, Inc.
` VANDANA KOELSCH, ESQ.
` 5300 Hickory Park Drive
` Glen Allen, Virginia 23509
`
`
`
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`Page 4
` PROCEEDINGS
` APPEARANCES (CONTINUED):
`
` WilmerHale
` JASON LISS, ESQ.
` 60 State Street
` Boston, Massachusetts 02109
`
`
`
` Also Present: (Via Teleconference )
` David Jonas, CEO, Straight Path
` Communications, Inc.
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` PROCEEDINGS
` APPEARANCES (CONTINUED):
`
` ON BEHALF OF PETITIONER SAMSUNG:
` DLA Piper
` BRIAN ERICKSON, ESQ.
` JEFF COLE, ESQ.
` 401 Congress Avenue
` Austin, Texas 78701
`
`
`
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` ON BEHALF OF PETITIONER CISCO SYSTEMS AND AVAYA:
` WilmerHale
` DAVID CAVANAUGH, ESQ.
` 1875 Pennsylvania Avenue, NW
` Washington, DC 20006
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`Page 5
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` PROCEEDINGS
` P R O C E E D I N G S
` (2:06 p.m.)
` MR. ERICKSON: Thank you, Your Honor. This
` is Brian Erickson for the Petitioner.
` We've requested that -- that the parties be
` permitted to file briefs to direct the applicability
` of the Federal Circuit's opinion in the appeal of the
` Sipnet IPR in the instant three IPRs.
` The reason for that request is, as the Board
` is aware, the parties have previously agreed to
` submit and the -- and the Board allow the submission
` of all of the briefing in that appeal.
` Subsequent to the briefing, Petitioner
` requested the oral argument be made of record, and
` the Board granted that.
` Subsequent to the Federal Circuit decision,
` Patent Owner filed the decision in this IPR, and at
` this point, given the stage of this proceeding, that
` the original briefing period is closed and the oral
` argument has occurred, we believe the Board should
` exercise its discretion to allow a final set of
` briefs to address the applicability of the Federal
` Circuit's opinion to these IPRs.
` Specifically, the -- one of the key
`
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` PROCEEDINGS
` differences between the background and data opinion
` in these IPRs is the Patent Owner has taken a
` different position, and under O2Micro, the Board
` needs to address the degree of accuracy required by
` the claims, specifically the Federal Circuit opinion.
` The majority opinion appears to require a
` very high level of accuracy which the opinion implies
` but does not expressly hold may be satisfied by the
` teaching that a -- a client device should be
` registered with the server when it is no longer
` on-line.
` The dissent clearly believes that the --
` based on the representations at oral argument, that
` the Patent Owners sought a guarantee of perfect
` accuracy. The majority does indicate that the
` systems that may be inaccurate may not practice
` claims and here -- but, unfortunately, the claim
` construction itself just uses the word, is, and the
` claims construction doesn't expressly address the
` degree of accuracy required in the answer and how
` that relates to the definition of the question being
` asked.
` So, under O2Micro, that's an issue that
` needs to be resolved by this Board in the first
`
`Page 8
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` PROCEEDINGS
` argument and withdrew the rejection, and the file
` history of the reexam here was shown that the
` examiner, in fact, rejected that narrowing argument
` and that the claims that depended on that narrowing
` argument were actually canceled by the Patent Owner.
` If you look at the Federal Circuit opinion,
` they -- for court, the majority cites to the argument
` the Patent Owner made, and then the following
` sentence says that the rejection was withdrawn, but
` it does not cite to anything in the file history for
` that proposition. Here the entire file history is of
` record.
` Now, to be clear, Petitioner attempted to
` get those arguments in front of the Federal Circuit
` by filing an amicus brief. The Federal Circuit
` granted and allowed that amicus brief to filed but
` did not discuss those arguments in its order.
` The Federal Circuit only needs to address
` arguments raised by the parties and need not address
` arguments raised by amicus. They did not in this
` instance, and it's clear that even the Petitioner in
` that proceeding did not read the amicus briefs,
` because when asked at oral argument about the file
` history, the Petitioner didn't even recognize that
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` PROCEEDINGS
` instance, at least clarify it in the record, and the
` claim construction record here is dramatically
` different than what was before the Federal Circuit on
` appeal in a couple of key ways.
` One way is that, in this proceeding, the
` Board has squarely before it the claim construction
` doctrine that the claim construction should not
` exclude all disclosed embodiments. That was not
` before the Federal Circuit.
` The Federal -- the Petitioner of the Federal
` Circuit raised 112 issues which the Federal Circuit
` noted it would not address, but the Petitioner there
` did not raise the claim construction doctrine that
` the proposed construction should not exclude all
` disclosed embodiments. That is -- that has been
` raised here.
` The second issue is that the file history
` directed in the appeal is very different than it is
` here. In the appeal, the parties addressed the
` incorrect partial reading of the file history where
` the -- the file history record that was submitted to
` the Federal Circuit had 180 degrees from what had
` actually occurred and that the Patent Owner
` represented that the examiner accepted the narrowing
`
`Page 9
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` PROCEEDINGS
` the file history record was incorrect. So those
` issues are squarely before the Board here.
` The pertinent issue that's different is the
` expert testimony where all experts agree that the --
` both the disclosed embodiment and the prior art, at
` least the WINS prior art, it is possible for
` computers or networks to crash, and that would affect
` the disclosed embodiment in the prior art
` identically.
` So that extrinsic evidence -- the Federal
` Circuit held there was no relevant extrinsic evidence
` for the issues before it on the appeal. There is
` extrinsic evidence here.
` So there are a lot of issues to address of
` at least clarifying in the record and in the first
` instance for the Federal Circuit to consider on any
` subsequent appeal as they relate to subsidiary issues
` that lead to claim construction.
` The final issue would be the Board and the
` Sipnet IPR is going to be considering on remand
` whether the requisite anticipate the claims under
` the -- under the Federal Circuit's construction.
` Here the Board, PTAB, is slightly different, but
` importantly, differently PTAB is judging whether the
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`Page 10
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` PROCEEDINGS
` reference has made the claims obvious so -- under --
` under the Federal Circuit's instruction. So we think
` that should be addressed in briefing as well.
` THE JUDGE: Okay. Counselor, how many pages
` are you requesting?
` MR. ERICKSON: We think this should be done
` very succinctly given the schedule. We would
` certainly be -- seven pages would be sufficient with
` me, a repeated or a simultaneous exchange of briefs
` at seven pages or, if the Board prefers, to make sure
` the issues are joined fully, we can have an -- an
` opening brief response and an extremely short reply.
` THE JUDGE: Okay. Thank you, Counselor.
` Patent Owner, I understand you object to
` such a request.
` MR. MEUNIER: That's correct, Your Honor.
` THE JUDGE: Can you please explain a little
` bit.
` MR. MEUNIER: Sure. Well, this is the first
` time we're hearing the basis for the request, but I
` can address what I believe were the four issues in
` order.
` One, the idea -- the notion that somehow the
` claim construction entered by the Federal Circuit is
`
`Page 12
` PROCEEDINGS
` appeal in which it made the exact same arguments on
` claim construction that it made in these -- in these
` IPRs.
` It submitted the exact same prosecution
` history, and -- and the Federal Circuit accepted both
` that prosecution history and the amicus brief that
` it's now saying were somehow not at issue in the
` Sipnet appeal.
` So the idea that there's issues that were
` raised in this IPR -- these IPRs that weren't raised
` in the Sipnet appeal is also incorrect.
` As an aside, any notion at this point that
` somehow the Federal Circuit's claim construction on
` this issue isn't controlling here, because the
` parties are different is also incorrect, and if you
` want to, I can get into the case law on that.
` But to get the third -- the third point,
` that there's a difference in expert testimony as to
` what's covered and what's not covered under this
` claim construction.
` I want to be very clear here. The parties
` have already addressed, to the extent they wanted to,
` this exact claim construction. The exact claim
` construction that the Federal Circuit entered is the
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` PROCEEDINGS
` somehow vastly different or at all different from the
` one that Straight Path and the parties have already
` been addressing throughout this IPR is incorrect and
` that there's some kind of confusion about what the
` Federal Circuit's claim construction was.
` The Federal Circuit's claim construction was
` that the limitation and its counterpart claim phrases
` can only be reasonably understood to mean it is
` connected to the computer network at the time that
` the query is transmitted to the server. That's at
` Page 13. That's exactly what Straight Path has
` advocated throughout these IPRs and what Samsung --
` Samsung has argued against.
` Straight Path's -- Straight Path's
` instruction was a query as to whether the process is
` connected to the computer network at the time of the
` query. They are the same constructions. So there's
` no difference there that needs to be addressed here.
` So that's issue number one.
` Issue number two, that there were somehow
` arguments made in this -- in this IPR concerning
` claim construction that weren't made to the Board is
` also incorrect. Samsung filed and received
` permission to file an amicus brief in the Sipnet
`
`Page 13
` PROCEEDINGS
` exact same one that Straight Path has argued
` throughout the Sipnet IPR, the Samsung IPR, and later
` on when we talk about the LG IPR.
` Samsung was -- had a full opportunity to
` address that claim construction. It chose to only
` address and argue that the claim construction was
` wrong, which the Federal Circuit had now rejected,
` and is the same exact arguments that Samsung made in
` the appeal as an amicus brief. So those arguments
` have been rejected already.
` For Samsung to now say that, under its Items
` 3 and 4, it now wants to reargue somehow why the
` prior -- why the prior art somehow teaches these
` limitations under Straight Path's claim construction,
` it's too late. The record is closed.
` If it wanted it do that, if Samsung wanted
` to make those arguments, it was well aware of and
` needed to address Straight Path's and now the Federal
` Circuit's claim construction in Samsung's petition
` and at least in its reply brief. It chose not to.
` It didn't argue that the -- that the prior
` art teaches these limitations under Straight Path's
` and the Federal Circuit's claim construction, and
` it's too late to do so now.
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` Again, I don't want to tell the Board what
` it already knows, but as the Board itself brought up
` in the Sipnet hearing, at this point in the
` proceedings, post-reply brief, you can't bring up new
` arguments. You can't bring up new evidence. That's
` what Samsung is trying to do right now on Issues 3
` and 4.
` To the extent it wanted to argue in -- in
` these IPRs that, even under Straight Path's claim
` construction, this prior art teaches these
` limitations, it needed to do so in its petition and,
` certainly, by its reply brief, and the fact that it's
` asking to brief that now just shows that it didn't do
` that. And it just shows that, once the Federal
` Circuit's claim construction is applied here as the
` Board now must and which was a big subject over oral
` argument that we had just a little while ago, the
` fact that Samsung never made that argument means it
` loses, and it shouldn't get to -- to try to save
` itself now by asking additional briefing in violation
` of this Board's own rules and other opinions stating,
` at this point in the proceedings, you can't raise new
` arguments, and you can't point to new evidence, which
` is what they are trying to do.
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`Page 16
` PROCEEDINGS
` So I would argue against a simultaneous
` brief, and I would also argue against the notion that
` not only should Samsung and the Petitioners get one
` extra brief; they should somehow get two extra
` briefs, which seems to be their alternative plan.
` If there's going to be briefing here -- and,
` again, that would violate PTAB's own rules on raising
` new arguments and presenting new evidence. If
` that -- if that's going to happen nonetheless, it
` should be Samsung files a brief making its arguments,
` and Straight Path responds to that, and that should
` be it.
` I guess, the third point on briefing that
` I'd like to make is, if Samsung is somehow allowed to
` provide a new briefing on this, it's -- it's
` basically the equivalent of a -- of a rehearing.
` They've basically lost claim construction right now,
` and they're seeking a rehearing is what they are
` doing pre-final written decision.
` If that's what they're doing, they should
` have to follow the rules of a rehearing motion and
` request, and that would require them to -- in each
` part of their brief where they're making an argument
` right now, they should have to cite back to where
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` PROCEEDINGS
` Just as an aside, if for some reason the
` Board was going to go against its own previous
` rulings both in the Sipnet case, its own regulations
` saying that you can't bring up new arguments
` post-reply brief, if there was for some reason going
` to be briefing in this or more briefing here, I want
` to make two points.
` There is still a chance that Sipnet might
` file for a rehearing of -- of the Sipnet decision. I
` would think it makes sense that there not be any
` briefing until that date has passed and we know
` whether there's going to be rehearing or not.
` Sipnet's rehearing request is due December 28th. So
` that's one issue.
` Another issue is it doesn't make sense to
` have a simultaneous brief on this, because I have no
` idea how we're supposed to respond to what Samsung
` and the rest of the Petitioner's arguments are when,
` despite their need to put those arguments in their
` petition in a reply brief, they haven't made them
` yet.
` So I'm not sure how Straight Path is
` supposed to file a simultaneous brief responding to
` arguments we've never received before.
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` PROCEEDINGS
` either in their petition or their reply brief they
` previously made this argument before, and if they
` didn't make that argument, the entire brief should be
` stricken.
` So that's our -- that's Straight Path's
` position.
` THE JUDGE: This is Judge Deshpande again.
` Let me -- let me clarify. At least for what
` we were discussing is that, if additional briefing
` was allowed, it would be narrowly tailored to
` arguments and evidence already of record. So items
` not already in the petition would not be allowed to
` be presented in any additional briefing at this
` point.
` I'm going to put the parties on mute for now
` and discuss with the panel. I will return in a
` minute or two. Thank you for presenting your
` positions clearly to me right now.
` (Recess)
` THE JUDGE: Counsel for Petitioner, can you
` very briefly just list out your four items that you'd
` mentioned as to the reasons why you want -- you want
` additional briefing just very concisely, please.
` MR. ERICKSON: Certainly. So the first
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` order reflecting our decision in the due course of
` time.
` Is there any --
` MR. MEUNIER: Thank you, Your Honor.
` THE JUDGE: -- further question from
` Petitioner?
` MR. ERICKSON: No, Your Honor.
` THE JUDGE: Patent Owner, do you have any
` questions for me at this time?
` MR. MEUNIER: No, Your Honor.
` THE JUDGE: Thank you.
` Thank you for the call, and -- and we will
` issue an order shortly reflecting our decision.
` MR. MEUNIER: Thank you.
` THE JUDGE: And, for Patent Owner, I think
` you're on the next call with us, and we'll go back to
` the original phone number.
` MR. MEUNIER: Okay. Thank you.
` THE JUDGE: Thank you.
` (Whereupon the hearing
` concluded at 2:26 p.m.)
`
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` PROCEEDINGS
` issue is, under O2Micro, the degree of accuracy
` required should be clearly stated in -- in the
` Board's instruction.
` The second issue is the -- the doctrine and
` the claim -- law of claim construction that preferred
` embodiment should not be excluded. The basis for
` whether it is -- whether it is excluded or that law
` doesn't apply should be articulated by the Board in
` this case.
` The third reason is to address the full file
` history, and the fourth reason is to address the
` additional extrinsic evidence as of record here.
` This is -- this is in the context of the Patent Owner
` are arguing two very different claim constructions to
` the Federal Circuit and this Board regarding the
` amount of accuracy required by the response to define
` the question.
` THE JUDGE: Thank you. I'm going to place
` both parties back on hold for a moment.
` (Recess)
` THE JUDGE: This is Judge Deshpande again.
` The panel and I have -- have discussed and
` we think it's appropriate at this time to take all of
` the arguments under advisement, and we will issue an
`
`Page 20
` PROCEEDINGS
` C E R T I F I C A T E
` I, Valerie Rae Johnston, Registered Professional
` Reporter, do hereby certify that the foregoing
` transcript, Volume I, is a true and accurate
` transcription of my stenographic notes taken on
` Tuesday, December 15, 2015.
`
`
`
` ________________________________
` Valerie Rae Johnston
` Registered Professional Reporter
`
` Dated: December 16, 2015
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