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`Case IPR2014-00746
`U.S. Patent No. 5,563,883
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`ARRIS GROUP, INC.
`Petitioner7
`V.
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`____________________
`CASE IPR2014-00746
`Patent 5,563,883
`_________
`
` CONFERENCE CALL
` Thursday, June 26, 2014
` 3:00 p.m.
`
`Reported by:
`ROBIN NUNEZ
`JOB NO. 81630
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`Case IPR2014-00746
`U.S. Patent No. 5,563,883
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`ARRIS GROUP, INC.
`Petitioner7
`V.
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`____________________
`CASE IPR2014-00746
`Patent 5,563,883
`_________
`
` CONFERENCE CALL
` Thursday, June 26, 2014
` 3:00 p.m.
`
`Reported by:
`ROBIN NUNEZ
`JOB NO. 81630
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`TSG Reporting - Worldwide 877-702-9580
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`A P P E A R A N C E S:
` KENYON & KENYON
` Attorneys for Patent Owner
` One Broadway
` New York, New York 10004
` BY: LEWIS POPOVSKI, ESQ
` JEFFREY GINSBERG, ESQ
` DAVID KAPLAN, ESQ
`
` WINSTON & STRAWN
` Attorneys for Petitioner
` 1700 K Street, N.W.
` Washington, D.C. 20006
` BY: ANDREW SOMMER, ESQ
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` THE COURT: So I think I heard from
`the point in which you were citing the
`trial practice guide.
` MR. POPOVSKI: Yes, ma'am, so we've
`identified some evidence here that would,
`we believe, show that one can reasonably
`believe that Arris had at the very least
`the opportunity and the contractual
`obligation to control the portion of that
`previous litigation that relates to the use
`of Arris's products by Comcast. Two pieces,
`first, Arris has stated terms and
`conditions of sale that it publishes on its
`website. Those terms and conditions show
`that Arris, at the time of the filing of
`the complaint and through the entire
`damages period, is contractually obligated
`to indemnify customers only where, and this
`is a critical portion of this, "customer
`gives Arris reasonable assistance and sole
`control and defense of all negotiations
`towards settlement or compromise."
` We believe that type of document is
`very critical, and again, according to the
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` CONFERENCE CALL
`guide, is common, as evidentiary support
`for a claim of privity.
` Second, from Arris's SEC
`disclosures, we know that Comcast was in
`fact indemnified by Arris, as those
`disclosures state. Arris agreed to pay
`Comcast a settlement indemnification claim
`related to that lawsuit, related to the
`claims being asserted on Comcast's use of
`Arris's products.
` THE COURT: I'm sorry, counsel. Can
`you repeat that? They agreed to pay what?
` MR. POPOVSKI: The SEC disclosure
`states that Arris agreed to pay Comcast to
`settle indemnification claims related to
`the Comcast use of Arris products in the
`Texas litigation. The quote is "Arris
`agreed to pay Comcast settled
`indemnification claims."
` THE COURT: And you said your
`standard terms and conditions found in the
`website offers the terms that Arris would
`indemnify?
` MR. POPOVSKI: Under paragraph 22 of
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` CONFERENCE CALL
`the document that's published on the
`website, it says Arris will indemnify and
`hold customer harmless against damages,
`liabilities, cost, and then it goes on.
`And then as a condition of that, it says
`that it requires that, quote, "customer
`give Arris reasonable assistance in and
`sole control of the defense and all
`negotiations for its settlement or
`compromise."
` That's a precondition to
`indemnification.
` THE COURT: Okay.
` MR. POPOVSKI: So we wanted to
`confirm our understanding of the exact
`nature of the relationship between Comcast
`and Arris at the time, so we did. We served
`upon them a very, very narrow document
`request, a single document request that
`requests one thing, and one thing only, we
`are seeking the agreements between Arris
`and Comcast, that include provisions to
`asserting Arris's ability to control the
`defense of claims asserted against it,
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`against the use of Arris's product in the
`Texas action. So, we showed that to them,
`and they declined our offer for -- or
`declined our request, and we have a meet
`and confer on that, on June 16th.
` THE COURT: What are the objections
`based on?
` MR. POPOVSKI: One of their
`objections was that our request was seeking
`a privilege log, which they didn't think
`was reasonable for us to get. So we agreed
`to withdraw that. Their objection's based
`upon the other things, your Honor, I know I
`wasn't physically, personally present at
`that meet and confer, so I'll let my
`partner here, Jeff Ginsberg, speak on that.
` But I believe the objections were
`that they don't believe that we justified
`our scope of the request.
` THE COURT: Mr. Ginsberg is not
`listed as backup counsel in this case.
` MR. GINSBERG: I believe I am.
` MR. POPOVSKI: He should be, and I
`think he is.
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` THE COURT: I see.
` MR. POPOVSKI: We'll look into that,
`and if it is incorrect, we'll correct it,
`but I believe he is.
` MR. GINSBERG: Yeah. I was -- I
`believe I was on the response.
` THE COURT: Well, you aren't on this
`list.
` MR. GINSBERG: I'm sorry, your
`Honor. I'm on the mandatory disclosures.
` THE COURT: Yes, but the purpose
`does not list you as a backup counsel, so
`that needs to be updated.
` MR. POPOVSKI: We will update that
`immediately, your Honor.
` THE COURT: Okay. Yes, please. Thank
`you. All right, Mr. Ginsberg
` MR. GINSBERG: Mr. Sommer is on the
`call as well, but it is my understanding,
`consistent with what Mr. Popovski said. I
`believe one of the bases for their
`objections was that Arris did not have the
`ability to control the litigation, and
`therefore didn't think the discovery
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`request was appropriate. So in advance of
`the meet and confer, which took place on
`June 16th, we did send them our proposed
`request, which is, as Mr. Popovski read, it
`is very focused. It's one request limited
`to the agreement between Arris and Comcast,
`under which Comcast requested
`indemnification for the claims brought
`against Comcast in the Texas litigation.
` We discussed that request, and after
`receiving Arris's objection, we asked
`whether or not there would be any discovery
`that they would give to us in connection
`with our understanding that Arris was in
`privity with Comcast, and had an obligation
`to indemnify them based on the ability to
`control of litigation.
` We followed up with that meet and
`confer on December 16th, and Mr. Sommer's
`can correct me if I'm wrong, but it's my
`understanding that Arris said there's no
`discovery they'd be willing to agree to on
`this point.
` THE COURT: Mr. Sommer?
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` MR. POPOVSKI: Your Honor, it is our
`position and we respectfully submit that
`we've marshaled as much public evidence as
`one possibly can, and from that, a person
`can reasonably infer that there is an
`agreement between Arris and Comcast, that
`the agreement does speak to the obligation
`and the opportunity to control the
`litigation, or defensive litigation, and
`thus I think we've supported the rather
`narrow scope of our single document
`request.
` THE COURT: Okay, we turn now to
`petitioner to address the document request,
`and the objections launched against
`producing the document.
` MR. SOMMER: Yes, your Honor. First
`of all, as your Honor and the board is well
`aware, the requirements for a motion or
`grantable motion for additional discovery
`beyond that, contemplated by automatic
`discovery or mandatory discovery
`provisions, is that they have to show it's
`in the interest of justice, and the court
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`in the Garmin decision says that they have
`to demonstrate that something useful will
`be found.
` And so I turn to a couple of things
`that counsel for patent owner said. One,
`they said something about they believe
`Arris could have controlled a portion of
`the litigation. I don't understand the
`concept of portion of the litigation, but I
`will point out that patent owner has made
`this exact same argument against Cisco, and
`they said Cisco was in control of the
`litigation. So I don't understand how Cisco
`and Arris were both in control of the same
`litigation. They also cited a provision on
`the website that says "our indemnification
`is contingent on having sole control of the
`litigation." To the extent that we had the
`ability to solely control the litigation,
`their arguments against Cisco and the
`related IPR would be -- they don't gel,
`they don't make sense. They can't have it
`both ways. Either Arris had sole control or
`it didn't.
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` So if you assume for a moment that
`the agreement that they've identified on
`the website is the same agreement that my
`client has with Comcast, and I can't
`represent here on the phone whether the
`agreement is the same or not, I have not
`personally seen it. But even if you assume
`for a moment that the agreement gave the
`opportunity for control, I think this, the
`board has addressed a very similar factual
`circumstance in the Broadcom v Ericsson
`IPR, that's 2013/00601, when it denied
`discovery to the patent owner in remarkably
`similar circumstances.
` And in that case the board relied on
`a fed circuit case in 1958 called Brothers
`Co, with W.E. Grace Manufacturing, and that
`case basically stands for the proposition
`that in normal patent litigation, even
`providing some support or paying some
`counsel fees to a party that's actually
`involved in the litigation, will not result
`in some finding of estoppel, or res
`judicata at that, they said unless the
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`manufacturer jumps in and presents a full
`and active defense, then, and only then,
`does the manufacturer become a real party
`and interest for that litigation.
` And we submit, your Honor,
`basically, what the patent owner is trying
`to do in this circumstance is have it both
`ways, the fate of the litigation that they
`are identifying resulted in the dismissal
`of all claims brought between both parties
`to that litigation with prejudice.
` If, in fact, we were a party to that
`litigation, or we should be considered a
`party to that litigation, they should not
`be suing my client in district court,
`because they would be estopped under that
`judgment from pursuing claims that they
`should have brought in that litigation
`against my client.
` And so, we respectfully submit they
`are actually trying to have it both ways,
`and no matter which way you look at it, if
`you assume that this provision is in the
`agreement that exists between Arris and
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`Comcast, it is still not useful information
`that can result in a finding of privity
`that would preclude my client from bringing
`IPR, or filing its petition in this
`instance.
` THE COURT: What about the
`statements made to the public that there
`has been an indemnification.
` MR. SOMMER: Well, so --
` THE COURT: Doesn't that raise the
`inference that there has been control based
`on your website's statement?
` MR. SOMMER: Well, your Honor, we
`respectfully would disagree with that, to
`the extent that Cisco may -- I'm sorry --
`Arris may have owed Comcast an obligation
`to indemnify, settling a claim I don't
`think should give rise to the inference
`that they, in fact, owed that obligation,
`first of all. The fact that there existed a
`contractual dispute between Comcast and
`Arris, and that that contractual dispute
`was settled, and was disclosed in an SEC
`filing, I don't believe gives rise to the
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`inference that in fact they were able to
`control the litigation, they were in
`control of the litigation, or in fact that
`the facts were such that control of
`litigation for Arris, when a myriad of
`other products, for example Cisco products,
`were at issue in that case, you know, the
`inference just doesn't seem to make sense
`to us, and is in fact contrary to the
`facts.
` One thing that patent owner failed
`to mention, it wasn't just Arris's product
`at issue in that case. There were a number
`of other products at issue in that case,
`and I think that's acknowledged by the fact
`they made this exact same argument against
`Cisco, although they didn't file a motion
`for additional discovery in that case.
` THE COURT: Well, what I'm hearing
`here is that in this case, they -- the
`patent owner has made an attempt to serve a
`very narrow document request concerning the
`agreement or arrangement between Arris and
`the defendant in that case, to show the
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`elements needed to prove control. And it
`seems what I'm hearing here is the exercise
`the board would undertake in weighing
`whether that evidence is evidence of
`control or not, is whether the agreement
`itself should be produced, or that the
`documents should be produced.
` How the Garmin factors, would be
`relevant here, and the question is: Is this
`mere speculation that there is control, or
`are these documents likely to produce
`something useful to patent owner?
` MR. SOMMER: Your Honor, it is our
`position that the act of exercising control
`is purely speculative based on the
`agreement itself, I submit that even if we
`assume that the provision in the agreement
`is the exact same one that the patent owner
`found on our website, that itself will not
`prove the existence of control such that
`Arris should be treated as if it were a
`real party and interest in the litigation.
` THE COURT: Well, is there an
`agreement?
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` MR. SOMMER: I understand there is
`such an agreement, yes.
` THE COURT: It's just that your
`position is that that agreement will not
`show evidence of control?
` MR. SOMMER: Yes, and your Honor, I
`would be willing to take that to my client,
`some form of stipulation, that would say
`whether or not such a provision does exist
`in the agreement akin to the one on the
`website, or we would be able to possibly
`produce, and I haven't discussed this with
`my client yet, the provision of the
`agreement related to indemnification, that
`is a possibility.
` Nonetheless, I have not discussed
`that with my client. The vast majority of
`the commercial terms in these agreements
`are, of course, highly sensitive, and
`beyond that, are very complex, well beyond
`the ins and outs of any indemnification
`provision in the agreement.
` THE COURT: Well, I mean, we can
`discern, and patent owner I guess will
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`focus in on the relevant language it
`contends proves that theory. The question
`is: If there is an agreement, what is the
`objection with producing it at this stage?
` MR. SOMMER: Well, your Honor, we
`don't think this satisfies the Garmin
`factors, because even if you assume that
`everything they said is true about the
`agreement, we --
` It will not lead to a conclusion of
`privity, which actually requires some
`showing of actual control, at least that's
`our position. And what I heard patent
`owner to say earlier in this call is that
`there was an opportunity for us to control
`a portion of a litigation, and --
` THE COURT: Just to clarify, I think
`that our trial practice guide also states
`that it is not just actual control, but
`also having the opportunity to control, and
`it is the totality of circumstances and
`factors, so it is not just one instance or
`one particular activity, and my concern
`here is that this seems to be a much closer
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`question than anything that patent owner
`has brought to us in the past regarding
`whether we even authorized the motion for
`additional discovery.
` It wouldn't be granting the
`discovery, it's just whether we would
`authorize the motion.
` MR. SOMMER: Your Honor, we'd be
`happy to brief this issue for your Honor's
`consideration, if you are inclined to grant
`authorization to file the motion.
` THE COURT: I will prefer that you
`all figure out whether you can produce the
`agreement. If you are not worried about it,
`I don't understand why we would have to
`engage into extensive briefing if the
`agreement is available, and you have a
`position regarding it. But let me -- I'm
`going to confirm with my panel at this
`time, and we will get back to you as soon
`as we have finished our conference.
` MR. SOMMER: Your Honor, may I
`interject? Because I think there might be
`an understanding at least with concerns
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` CONFERENCE CALL
`with producing it. Perhaps I can run by my
`client the indemnification provision that
`seems to be the thrust of this concern.
` However, there are a number of
`confidential, sensitive provisions in that
`agreement that we submit have no bearing on
`the issues in this particular proceeding,
`and to the extent that we were even ordered
`to produce this agreement, we would request
`some form of redactions.
` THE COURT: Well, we have a
`protective order, a default protective
`order that the parties can agree on for
`purpose of filing that, or serving it to
`each other, and that would protect the
`confidentiality of your agreement.
` MR. SOMMER: I understand that the
`board's rules also say that if they were to
`rely on it in a decision, that the
`agreement could become public.
` THE COURT: It's the portions that
`would be referred to in the order that
`would become public knowledge.
` MR. SOMMER: Correct, which -- it
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` CONFERENCE CALL
`does underlie my client's concern.
` THE COURT: You cannot -- if there
`is an issue of discovery here, that patent
`owner needs to get to in order to prove
`their case, we can't hide it from the
`public if it is the reason we -- we rule on
`whether there is privity or not privity.
` At this point it is premature to say
`one way or another whether we would even
`allow this motion, but that is not a
`consideration for us in whether we would
`grant the discovery.
` MR. SOMMER: I understand. Thank
`you, your Honor.
` THE COURT: Okay. A few minutes,
`please, for us to confer.
` MR. SOMMER: Thank you, your Honor.
` THE COURT: This is Judge Miriam
`Quinn, I have a question for the parties.
`This is more for patent owner. We recall
`this is the same panel as in IPR 214454
`where a similar request was lodged with
`panel, and our recollection is that the
`language that you found in the website, and
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` CONFERENCE CALL
`its being proffered as evidence of control
`is slightly different. Can you address
`that?
` MR. POPOVSKI: Yes, your Honor.
`There is actually a number of differences
`on the present situation entirely. The
`most notable one is the scope of the
`discovery we are requesting. If your Honors
`recall, we had quite a number of document
`requests, and interrogatories, in the
`previous one, and they were seeking some
`expansive discovery that the court found
`that the evidence that we had in that case
`didn't support the full scope. Didn't deny
`our request, but they said if we come back
`with more evidence they may reconsider it.
` We've learned, and at this time
`here, our request is so narrow that it is
`really just a pinpoint of the discovery
`process.
` We are seeking only the agreement
`that is found -- it is the same exact
`agreement that is found on the website, it
`is just we are looking for the executed
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` CONFERENCE CALL
`copy of it. We assume it exists because
`they've almost admitted that such an
`agreement does exist. They stated that the
`agreement exists here, and on the website,
`the SEC disclosures stated -- the SEC --
`they told the SEC, or publicly stated that
`they did in fact indemnify.
` So we are just looking for the
`signed copy of what we believe exists. In
`the previous case, we were looking for much
`more expansive discovery, and I think we
`even may have asked for a deposition.
` That, I believe, is one of the
`critical differences here, is that the
`scope of discovery that we are seeking
`today is commensurate with the evidence
`that we showed to the court.
` THE COURT: And concerning the
`language of the indemnification provision
`in the website, it does provide that as a
`condition of indemnification, Arris would
`exercise sole control?
` MR. POPOVSKI: That is their
`language, your Honor, that's exactly their
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` CONFERENCE CALL
`language. Sole control is their word.
` THE COURT: Okay. I'll be back after
`conferring with the panel. Please hold.
` (A short conference between the
`judges. 3:25 p.m.)
` (On the record. 3:29 p.m.)
` THE COURT: Okay. The panel is back.
`We are authorizing the patent owner to file
`the motion for additional discovery based
`on the presentation that the document
`request is very narrow, and is limited to
`the documents that represent the
`indemnification agreement that has been
`used with the defendant at issue in the
`previous lawsuit. And of course, the
`parties can agree on the production of it
`without our involvement. If the parties
`can't agree -- it is always preferable to
`having to brief the issue and having us
`decide the issue.
` As far as the timing is concerned,
`how soon do you foresee filing this motion
`Mr. Popovski?
` MR. POPOVSKI: Your Honor, we can
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`file it within a week. Having said that,
`though, we will, perhaps tomorrow, today is
`rather soon, but we will call the
`petitioner's counsel tomorrow if the
`petitioner's counsel is available, and see
`if we can forego the need for briefing.
` THE COURT: Okay. If you cannot
`agree, we will send out an order shortly
`that will set a briefing schedule for this.
`I know we are in the early stages of the
`time before the preliminary response is
`due, but our proceedings, as you know, time
`is of the essence, so we'll set a briefing
`schedule that will move at a fast clip.
` So please let us know, I would say
`by July 2nd, whether the parties agree or
`not, and we will issue an order with the
`briefing schedule.
` MR. POPOVSKI: Thank you, your
`Honor.
` THE COURT: Anything else we need to
`address?
` MR. SOMMER: No, your Honor.
` MR. POPOVSKI: Not from patent
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` CONFERENCE CALL
`owner, your Honor.
` THE COURT: Thank you very much for
`your time today. With nothing further, this
`call is adjourned.
` (Time noted: 3:32 p.m.)
`
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`Page 26
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` C E R T I F I C A T E
`
`STATE OF NEW YORK )
` ) ss.:
`COUNTY OF NEW YORK )
`
` I, ROBIN NUNEZ, a Notary
`Public within and for the State of New
`York, do hereby certify that the within is a
`true and accurate transcript, to the best of my
`ability, of the proceedings held on June 26,
`2014.
` That I am not related to any of the
` parties to this action by blood or
` marriage; and that I am in no way
` interested in the outcome of this matter.
` IN WITNESS WHEREOF, I have hereunto
` set my hand this 7th day of July, 2014.
`
` -------------------------
` ROBIN NUNEZ
`
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