CONFERENCE CALL
`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` BLACKBERRY CORP. AND BLACKBERRY LTD.,
` Petitioners,
`
` v.
` ZIPIT WIRELESS INC.,
` Patent Owner.
`
` Conference Call Before the Panel
` NOVEMBER 19, 2015
`
`REPORTED BY: Meredith R. Schramek
`JOB NO: 100463
`
`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 1
`Blackberry v. Zipit
`IPR2014-01507
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`
`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` BLACKBERRY CORP. AND BLACKBERRY LTD.,
` Petitioners,
`
` v.
` ZIPIT WIRELESS INC.,
` Patent Owner.
`
` Conference Call Before the Panel
` NOVEMBER 19, 2015
`
`REPORTED BY: Meredith R. Schramek
`JOB NO: 100463
`
`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 1
`Blackberry v. Zipit
`IPR2014-01507
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`Page 2
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` CONFERENCE CALL
` A P P E A R A N C E S
`
`For the Petitioner:
` JOHN PRESPER, ESQ. (Via Telephone)
` Oblon McClelland Maier & Neustadt
` 1940 Duke Street
` Alexandria, Virginia 22314
`
`For the Patent Owner:
` STEPHEN RISLEY, ESQ. (Via Telephone)
` Smith Risley Tempel Santos
` Two Ravinia Drive
` Atlanta, GA 30346
`
`Administrative Patent Judges:
` Trevor M. Jefferson (Via Telephone)
` Neil T. Powell (Via Telephone)
` Frances L. Ippolito (Via Telephone)
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`Blackberry Ex 1057, pg. 2
`Blackberry v. Zipit
`IPR2014-01507
`
`
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`Page 3
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` P R O C E E D I N G S
` JUDGE JEFFERSON: Good morning. We've
`received Petitioner's request for a conference call for
`the board to obtain permission to file a motion to
`strike portions of Patent Owner's surreply. Could you
`start with the Petitioner and explain your position and
`why you think this relief is necessary.
` MR. PRESPER: Thank you, Your Honor. This is
`John Presper for Petitioner. We are seeking a leave to
`file a motion to strike certain portions of Patent
`Owner's surreply because those portions -- and I can
`direct Your Honor to them -- exceed the bounds of what
`the parties discussed with the board on our
`October 16th conference call. It was understood that
`Patent Owner's surreply would be limited to issues
`raised by Petitioner's reply declarants, and the -- as
`Your Honor will recall, the issue of Mr. Konchitsky's
`alleged PhD.
` Patent Owner, however, has taken the
`opportunity in filing that surreply to appear to try to
`get the last word in on merit issues. So we
`e-mailed -- Petitioner e-mailed counsel for Patent
`Owner on November 10th asking them to withdraw the
`specific portions of the surreply that BlackBerry,
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`Blackberry Ex 1057, pg. 3
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 4
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` CONFERENCE CALL
`Petitioner, believes are improper and have been
`refused. And so that's why we're here.
` JUDGE JEFFERSON: Thank you. Patent Owner,
`can I hear your position on -- first let me understand.
`Was there an agreement? Did you understand the
`surreply would be limited to the new issue raised that
`you were seeking to have stricken from the Petitioner's
`reply.
` MR. RISLEY: I'm sorry, Your Honor. Is that
`a question for the --
` JUDGE JEFFERSON: Patent Owner, I'm asking
`your understanding of the scope of your surreply.
` MR. RISLEY: No, Your Honor. And let me
`explain. I think the -- there's two issues, I guess,
`here. If I understand Petitioner's request and what
`Petitioner just said, it's their understanding that in
`the conference call that we all held together on
`October 16th that the issue discussed was just the
`substance, I guess, of the five declarations that
`Petitioner submitted with its reply. I think we
`strongly disagree with that. I think the issue that
`the board was concerned about and that mentioned a
`reference in its amended scheduling order was actually
`the issues raised in the reply and specifically the
`
`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 4
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 5
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`bolded, italicized, and underlined accusations of
`perjury and forgery and falsified credentials,
`et cetera, et cetera.
` None of that information is in the
`declarations. The declarations don't make any
`accusations of perjury. They don't make any
`accusations of forgery. They don't make any
`accusations of falsified credentials. All of those
`allegations are only in the reply. And so it's our
`belief that the board allowed us, Zipit, to file a
`surreply to address the allegations that were made.
` And if I may, I think what BlackBerry or
`Petitioner did in their reply was basically a
`three-step attack. And we, Zipit, address the
`three-step attack in our surreply. And the three-step
`attack was that, first of all, Petitioner alleges that,
`quote, "Konchitsky falsified his credentials and
`perjured himself in his declaration."
` Then, second, Petitioner alleged -- their
`second step is they alleged that Patentee's
`constructions are, quote, "so unreasonable that it
`could only be supported with a declaration of an expert
`with falsified credentials," end quote.
` And then their third and final step of their
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`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 5
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 6
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`three-point attack was to say that they're going to use
`those allegations to argue that Dr. Konchitsky's
`testimony should be excluded. And because of that and
`based on their allegation that that's the only support
`for Zipit's constructions, that the Patentee has no
`basis whatsoever for its claim constructions. That's
`what their reply does. That's why they're making the
`allegations that they did about Dr. Konchitsky.
` So in our surreply, Your Honor, we addressed
`all three allegations. Number 1, we submitted a
`declaration of Dr. Konchitsky and strongly rebutted
`that he does, in fact, have a PhD. Number 2, we
`attempted to strongly rebut that Zipit's constructions
`are not based solely on Dr. Konchitsky's testimony
`contrary to what BlackBerry says in their reply brief.
`We base the constructions on the specification and the
`claims of the patents and suit. So their allegation
`that our entire case is premised upon Dr. Konchitsky is
`wrong. The claim constructions are based on the
`specifications.
` And then, third, we submitted a case, Your
`Honor, that BlackBerry's position that, if
`Dr. Konchitsky lied about a PhD, that his testimony
`should be excluded completely, we submitted a Liberty
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`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 6
`Blackberry v. Zipit
`IPR2014-01507
`
`
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`Page 7
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`Mutual case in our surreply brief that says, no, that's
`not true, that the board has previously found that, if
`anything, it just goes to weight. It does not go to
`admissibility.
` And because of that, the fourth point we made
`in our surreply is that Dr. Konchitsky has many other
`qualifications separate and apart from whether or not
`he has a PhD. And as a result, his testimony should be
`admitted and considered and given the appropriate
`weight given all the other credentials and
`qualifications that Dr. Konchitsky has.
` JUDGE JEFFERSON: Thank you.
` MR. RISLEY: I'd be happy to walk through in
`more detail bullet by bullet.
` JUDGE JEFFERSON: That's unnecessary. Let me
`ask this specific question. You say that you have
`portions of the Patent Owner's surreply, answer to
`accompanying exhibits are unrelated to reply. Which
`exhibits are you referring to?
` MR. PRESPER: Yes, Your Honor. I'm referring
`to Exhibits 2080 and 2081 which are purported
`Nexus/secondary considerations charts which were not
`submitted in Patent Owner's response. And we,
`BlackBerry, is frankly puzzled as to how they could
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`Blackberry Ex 1057, pg. 7
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 8
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`possibly relate to anything having to do with
`Konchitsky's PhD.
` And I can go through -- I can point
`specifically to the portions of the surreply that
`Petitioner is seeking to exclude, but I want to point
`out two things, Your Honor. Number 1, contrary to what
`Mr. Risley just said, Petitioner has never sought to
`exclude Konchitsky's testimony. That's nowhere in our
`reply.
` And, Number 2, I would direct both the board
`and Mr. Risley to Your Honor's November 9th order,
`Paper 29 on the bottom of page 2 where it says, quote,
`"We also requested the parties agree to a schedule that
`allowed a date for the Patent Owner to file a surreply
`to issues raised by Petitioner's reply declarants." So
`we think there was an understanding that that's what
`Petitioner's surreply would be limited to. And,
`obviously, we didn't have a court reporter on that
`call, which is why Petitioner wanted to have one on
`this call.
` Now, as to the specific portions of the
`surreply that we think should be stricken because they
`are improper because they go to the merits, the first
`section would be on page 4 of the surreply starting at
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`Blackberry Ex 1057, pg. 8
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 9
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`line 6. It's the first full paragraph that begins
`"Petitioner's shameful allegations are merely an
`attempt to knock out Dr. Konchitsky's testimony because
`Petitioner would have the board believe that Patent's
`arguments are based solely on Dr. Konchitsky's
`testimony. This is not true, for example," and then
`Patent Owner walks through its previous arguments in
`its initial response. And that goes to the bottom of
`page 6 for both IPRs. So page 4, line 6 through the
`bottom of page 6, Petitioner seeks to strike.
` Also Section 2C beginning on page 8 and going
`to page 10, these are all arguments that go to -- on
`page 8, it says "Petitioner made no effort to contact
`the extension of Professor Cohen, Professor Meidan, or
`anyone else in Israel." That's not true. Petitioner
`has -- Petitioner's counsel, we have tried to contact
`people at the now defunct Ramat Gan College with no
`success. So from page 8 through page 10, these are
`things that -- the top of page 10, the first full
`paragraph on page 10, we believe is improper.
` And then Section 3A, which is pages 16 to the
`top of page 20. And, again, these are all Patent Owner
`rehashing its arguments in its response. And then as I
`indicated, Your Honor, Exhibits 2080 and 2081, which
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`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 9
`Blackberry v. Zipit
`IPR2014-01507
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`Page 10
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`are Nexis/secondary considerations charts, which,
`again, has nothing to do with any of Petitioner's reply
`declarants.
` And then finally there was a few paragraphs
`in Konchitsky's second declaration, Exhibit 2082,
`paragraphs 101 to 103, which referred to -- which we
`think also don't go to any of the issues raised in
`Petitioner's reply declarants. They're discussing --
` JUDGE JEFFERSON: Say that again in the
`Konchitsky second declaration?
` MR. PRESPER: Exhibit 2082, paragraphs 101 to
`103, where he starts talking about other portions of
`his CV. And paragraphs 102 and 103 are speculating on
`Blackberry's motives. We don't think that is proper
`either. It goes beyond the bounds of what the parties
`agreed to in the surreply.
` JUDGE JEFFERSON: Thank you, Petitioner.
` Patent Owner, specifically to the secondary
`considerations exhibits.
` MR. RISLEY: Yes.
` JUDGE JEFFERSON: How do those relate to
`those three prongs that you listed as the scope of your
`surreply?
` MR. RISLEY: Your Honor, they go to counter
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`Blackberry Ex 1057, pg. 10
`Blackberry v. Zipit
`IPR2014-01507
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`Page 11
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`Petitioner's attacks to knock out Dr. Konchitsky and to
`show that Dr. Konchitsky's testimony is admissible --
`at a minimum it goes to weight -- and that he testified
`not only with respect to claim constructions and other
`issues but also the prior are. And the 103 secondary
`considerations and Nexis and all of that -- I guess the
`key point is all of that is unrebutted.
` Rather than getting someone to substantively
`attack Dr. Konchitsky's opinions, Petitioner chose to
`attack his credentials and try to knock him out
`completely. And if I may -- I don't want to go too
`far, but I would like an opportunity to respond. But
`Mr. Presper says that BlackBerry has not said they're
`trying to exclude, I would direct the board's attention
`to page 8, for example, the 1506 and 1507 replies where
`in Petitioner's words, when characterizing the case --
`the only case that they cite of Mitchell versus Hull,
`the parenthetical says "excluding testimony of witness
`who lied under oath and was not qualified as an
`expert."
` Based on that sentence, Your Honor, that's a
`lot of reason why we wrote the surreply the way we
`wrote it. So they did cite a case. And they admit in
`their words -- they're not quoting the case. Those are
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`Blackberry Ex 1057, pg. 11
`Blackberry v. Zipit
`IPR2014-01507
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`Page 12
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`BlackBerry's words of trying to use this case to
`exclude Dr. Konchitsky's testimony.
` JUDGE JEFFERSON: Counsel, did they
`specifically request to us to strike his testimony?
` MR. RISLEY: No, sir, not yet. But our
`motions in limine are due on Monday. If I may too,
`sir, I'm a little very surprised anyway at least from
`our point of view that Petitioner's counsel has not
`informed the board that on last Friday the 13th, the
`lead counsel for BlackBerry sent me an e-mail stating
`that they withdraw their allegation against
`Dr. Konchitsky with respect to perjury and the lack of
`a PhD. And we were not --
` JUDGE JEFFERSON: Hold on. Hold on.
`Petitioner?
` MR. PRESPER: Yes, Your Honor. Mr. Risley
`said that he sent us an ultimatum the day before
`demanding that we withdraw our accusations against
`Dr. Konchitsky regarding his PhD including accusations
`of perjury and forgery. We responded that we have not
`actually accused Konchitsky specifically of forgery
`because, as best we can tell, the origin of his PhD
`diploma bearing what appears to be a forged signature
`of Chancellor John Taylor is unclear. We don't know
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`Blackberry Ex 1057, pg. 12
`Blackberry v. Zipit
`IPR2014-01507
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`Page 13
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`where exactly it came from, whether it was Konchitsky
`himself or somebody or something going on at the late
`great Ramat Gan College. And, again, we never actually
`accused Mr. Konchitsky specifically of forgery in our
`papers.
` Relating to the PhD, as we told Mr. Risley,
`we forwarded the surreply evidence to Bournemouth
`University, and they provided us with some additional
`information demonstrating that neither Konchitsky's
`alleged PhD diploma nor his PhD transcript, which is
`Exhibit 2085, are genuine. Bournemouth University
`is -- they were frankly shocked at what we had provided
`them. And they confirmed that there's no doubt that
`the PhD and the transcript did not come from
`Bournemouth University.
` That being said, as we told Mr. Risley,
`giving Konchitsky every benefit of the doubt that
`perhaps he was fooled into believing that he was
`granted a genuine PhD in intellectual engineering from
`Bournemouth University. In an effort to try to ratchet
`things back a bit here, we told him that he may
`consider the accusations of perjury in Petitioner's
`reply regarding considering Konchitsky's PhD withdrawn.
` To be clear, there's no doubt in our mind
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`Blackberry Ex 1057, pg. 13
`Blackberry v. Zipit
`IPR2014-01507
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`that Bournemouth University did not grant Alon
`Konchitsky a PhD. That being said, we're willing to
`withdraw accusations of perjury against him because, as
`I said, possibly he was duped in all of this.
` JUDGE JEFFERSON: I'm going to take this in
`order. Let's back up. Did -- we'll start with the
`surreply. I think -- do the parties have anything to
`add on that particular subject? Because we're going to
`double back and talk about the allegations and what's
`written.
` Let's start with you, Petitioner. Do you
`have anything to add with respect to the surreply?
` MR. PRESPER: No. Other than I'll happily
`say for the record we agree that the issues with
`Mr. Konchitsky's PhD go to weight of his testimony not
`admissibility. We have not sought to exclude his
`declaration.
` JUDGE JEFFERSON: Can I at least preview
`where you're going without any prejudice toward you
`making any other decisions? Are you planning to
`request that his testimony be stricken?
` MR. PRESPER: Subject to talking to it with
`lead counsel -- Mr. Mattson, who's not on the call.
`He's out of the country -- I think that's correct, yes.
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`Blackberry Ex 1057, pg. 14
`Blackberry v. Zipit
`IPR2014-01507
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` JUDGE JEFFERSON: Patent Owner, do you have
`anything to add?
` MR. RISLEY: Yes, sir, if I may --
` JUDGE JEFFERSON: Just with respect to the
`surreply issue.
` MR. RISLEY: Yes, sir. I'll just try to keep
`it brief, but I would like to rebut some of the points
`that Mr. Presper said that I haven't had the
`opportunity --
` JUDGE JEFFERSON: Specifically, what were you
`trying to address?
` MR. RISLEY: So at one point, Mr. Presper
`cited to the amended scheduling order, and I believe he
`cited to I think it was page 2, but actually on page 3,
`sir, it's pretty clear that the order says, note --
`quote -- I'm sorry -- "We note the importance of issues
`raised by Petitioner's reply, and declarants compelled
`that these issues be addressed on the full record."
` And clearly every, every time, even on
`page 2, it talks about the issues raised. And then
`again on page 3, it talks about the issues. And it's
`very important, I think, that the declarations
`themselves really talk about what they don't know and
`what they didn't find. It's the reply briefs
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`Blackberry Ex 1057, pg. 15
`Blackberry v. Zipit
`IPR2014-01507
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`Page 16
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`themselves that actually have all the nasty accusations
`and that are premised upon what the declarations said.
`And to say we only can rebut the declarations, I think,
`almost doesn't make sense. We have to be able to
`address the accusations of falsified credentials and
`perjury and forgery. And our entire case is premised
`upon Dr. Konchitsky's PhD. And that's what we
`attempted to.
` Thirdly, the next point, Your Honor, I guess,
`this was the very first time -- and I think the record
`will reflect this -- certainly there's been no off the
`record communication between Mr. Presper or
`Petitioner's counsel and Zipit or Zipit's counsel.
`It's the very first time we've heard that they've ever
`tried to contact anybody in the entire country of
`Israel including anyone at Ramat Gan College. As we
`briefed in our surreply, as to the time that that
`surreply was filed, it was pretty clear that on the
`record -- and I personally cross-examined Professor
`Hadfield, one of their declarants, they never tried to
`contact anybody in Israel, never tried to contact Ramat
`Gan College, never tried to contact Professor Cohen,
`never tried to contact Professor Meidan.
` And that's actually one of the sections that
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`TSG Reporting - Worldwide - 877-702-9580
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`Blackberry Ex 1057, pg. 16
`Blackberry v. Zipit
`IPR2014-01507
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` CONFERENCE CALL
`Mr. Presper was just reading to that they're trying to
`exclude. And I find that remarkable. Section 2C,
`that's basically what it's saying, that they made no
`effort whatsoever to contact any of those sources that
`Dr. Konchitsky testified existed back in August before
`any of this was raised and made no effort whatsoever to
`go down those leads and try to confirm or not confirm
`his testimony.
` JUDGE JEFFERSON: Thank you.
` MR. PRESPER: Your Honor, counsel for
`Petitioner if I respond to that very quickly?
` JUDGE JEFFERSON: Briefly, please.
` MR. PRESPER: When Mr. Risley says "they"
`when he was actually talking about Professor Hadfield,
`he was referring to only Mr. Hadfield and the officials
`at Bournemouth University. He never sought to try to
`find out whether BlackBerry or Petitioner's counsel
`tried to contact Ramat Gan College. And we have, you
`know, e-mailed demonstrating that we, Oblon, on behalf
`of BlackBerry, did try, in fact, to reach out to Ramat
`Gan College unsurprisingly without success. And we'd
`be happy to submit that if you like.
` MR. RISLEY: Your Honor --
` JUDGE JEFFERSON: Counsel, we're done. We're
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 17
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 18
`
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` CONFERENCE CALL
`done.
` MR. RISLEY: Can I please? Just one more.
` JUDGE JEFFERSON: Briefly.
` MR. RISLEY: I find that reprehensible, sir.
`They have created such a distorted record --
` JUDGE JEFFERSON: Let me stop you both.
`Let's take down the language a little bit. I'll
`explain what I mean by that. I'm just under the
`distinction being that you were referring to a
`deposition where you asked someone and referred to
`"they," and he's saying collectively they did not
`include their counsel. To say that his distinction is
`reprehensible is probably unnecessary.
` MR. RISLEY: I apologize.
` JUDGE JEFFERSON: So let's dial it back a
`little bit on both sides. I'm asking again, do you
`have anything briefly to add to what counsel said?
` MR. RISLEY: Yes.
` JUDGE JEFFERSON: Let's do that.
` MR. RISLEY: Just simply to say again, as we
`set forth in our surreply, the record or the picture
`that has been tainted by Petitioner is unfair. They
`had information available to them at the time that they
`filed the reply brief and at the time that they drafted
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 18
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 19
`
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` CONFERENCE CALL
`and submitted the five declarations that they did not
`tell Zipit and they didn't tell the board. And now for
`the first time we're hearing exactly what
`Dr. Konchitsky's been saying for two months. The
`college doesn't exist. The people that are at the
`so-called new college are very uncooperative and that
`none of them are going to do anything without the legal
`subpoena power. And I think that Mr. Presper and
`Petitioner should have told the board that.
` They also didn't tell the board that it's not
`that Bournemouth University in the UK doesn't have any
`computer records of Dr. Konchitsky's PhD --
` JUDGE JEFFERSON: Now we're getting into the
`substance of this --
` MR. RISLEY: I'm just saying the record that
`has been created is very disordered.
` JUDGE JEFFERSON: Understood. And hopefully
`you have clarified that. And if not, we certainly may
`be asking for more. So I'm going to ask you to stay on
`the line. And if you're not done when this is being
`transcribed, then we will at least address the surreply
`issue first. But we're going to double back and talk
`about the particular e-mail allegations and what we're
`going to do going forward. So hold tight, and we'll be
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 19
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 20
`
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` CONFERENCE CALL
`back with you shortly.
` (Off the record 10:26 a.m. to 10:40 a.m.)
` JUDGE JEFFERSON: Judges Ippolito and Powell
`are also on the line as well.
` With respect to the surreply issue, we're
`going to deny the request for motions to strike
`portions of the surreply and the exhibit. We certainly
`thought the issues were -- needed to be addressed to
`the extent that they raised new evidence that was not
`previously presented or a direct response to the
`declarations and the issues presented in the
`Petitioner's reply brief. We certainly can take that
`under consideration, would be considered the weight of
`the evidence.
` With respect to the tone of the proceedings,
`we recognize that the allegations here are serious as I
`think I've said. We were not on the record when I said
`them. But to paraphrase what I said to you at the very
`beginning was that the duty of candor here is very
`important to the board. And either in the allegations
`raising the expert's credentials and efforts that may
`have been or may not have been undertaken to obtain
`those credentials, that's a very serious allegation
`that the party has a duty of candor to deal with. And
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 20
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 21
`
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` CONFERENCE CALL
`once put on notice, I would say that the party
`proffering that evidence, in this case the Patent
`Owner, is under an equal obligation to both investigate
`and be scrupulously direct with the board with respect
`to the evidence that they proffered and continue to
`proffer.
` So to the extent that the reply goes into
`some substance, we certainly can weigh whether that
`substance is directly related or not. But we certainly
`think at this stage we don't need any additional
`information.
` I would like to -- what the Patent Owner can
`do -- sorry -- Petitioner can do is in the e-mail -- I
`prefer an e-mail not necessarily a filing -- e-mail
`because the trial is directed to the board outlined by
`just page number and line number and exhibit number and
`those portions of the Patent Owner's surreply that you
`think went beyond. No substance please of what you
`think characterizing those statements. Just whatever
`portions you were seeking to be withdrawn -- sorry --
`seeking to have stricken, and we will take that into
`consideration.
` Turning now to the issue of correspondence
`that may or may not have stricken portions in the
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 21
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 22
`
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` CONFERENCE CALL
`record, first I'd like to again implore the parties
`to -- even though the allegations are quite serious and
`having had experts myself in private practice that have
`been accused of things, I certainly know that that can
`be a very personal thing for your witnesses. But I
`hope that the parties can find a way to talk about
`these issues in somewhat less passionate terms.
` But I would like to find out from Petitioner,
`the correspondence that was referred to by the
`parties -- I'm sorry. Let me take a step back. There
`has been an awful lot of talk in this record about
`correspondence and things that are not of record. Both
`Patent Owner did it in discussing exchanging
`correspondence, and the Petitioner has referred to
`efforts that were undertaken by counsel to investigate
`these things. And both sides have an opportunity to
`make a record here. And whether it's in the
`Petitioner's reply or in the Patent Owner's surreply,
`we certainly expect that you can stick to the evidence
`that's before us, and there's no need to ratchet up the
`"but they did and then we did" language here.
` And, yes, I expect both parties to prosecute
`their cases and be straightforward and again has a duty
`of candor and hopefully of decorum that goes along with
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 22
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 23
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` CONFERENCE CALL
`that that you can find a way to do that without turning
`this into a tit-for-tat exercise.
` Having that said, Patent Owner -- sorry --
`Petitioner, am I understanding this correspondence that
`you're referring to -- and I'm not asking to -- for a
`chapter and verse of it -- are there portions of your
`reply brief that you are withdrawing from consideration
`or you plan to withdraw from consideration per this
`exchange of correspondence with Patent Owner?
` MR. PRESPER: Your Honor, the short answer
`is, yes, the accusations of perjury in Petitioner's
`reply regarding Konchitsky's PhD.
` JUDGE JEFFERSON: Are these specific -- would
`there be a specific line number, page number, paragraph
`you could give us right now that would line up with
`this withdrawal?
` MR. PRESPER: I don't want to try to give you
`exact citations right now, but I'm happy to do it in
`the near future. And also, if it would help Your
`Honor, I'm happy to provide, forward the correspondence
`that we're talking about to the board submitted so that
`we know what we're all talking about here.
` JUDGE JEFFERSON: Let me hear from the Patent
`Owner. Patent Owner? I understand that there's been
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 23
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 24
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` CONFERENCE CALL
`some back and forth specifically -- and it sounds like
`it was done in what I would hope would be an ongoing
`dialogue between the parties about the seriousness of
`the allegations and the way you make your record.
`Would that be sufficient if they would place on the
`record either correspondence and the portions of their
`briefs, the reply brief at issue here that they the
`Patent Owner -- sorry -- Petitioner is now striking?
` MR. RISLEY: I think it would be a good idea
`to get the e-mails on the record, sir. I apologize. I
`don't know what you mean by "would that be sufficient."
` JUDGE JEFFERSON: I'm just trying to ask
`would that meet your understanding of what the parties
`have agreed to and discussed in correspondence? What
`I'm trying to avoid here is I don't want to have the
`Patent Owner -- Petitioner -- I apologize -- I keep
`getting those backward -- Petitioner put something on
`the record, and then I end up with another call two
`days before a conference arguing about this and what
`has been withdrawn or not withdrawn.
` MR. RISLEY: I think it would be helpful for
`Patentee if Petitioner similar to what Your Honor just
`suggested with respect to surreply and if Petitioner
`did the same thing with respect to their reply of page
`
`TSG Reporting - Worldwide - 877-702-9580
`
`Blackberry Ex 1057, pg. 24
`Blackberry v. Zipit
`IPR2014-01507
`
`
`
`Page 25
`
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` CONFERENCE CALL
`and line number of what they envision or do withdraw so
`that we would know that prior to the final hearing.
`That would be helpful.
` JUDGE JEFFERSON: I think it would be helpful
`for us because one of the things we are going to do in
`the trial order that will be shortly coming to you is
`we're going to set aside time at the outset of our
`hearing to discus
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