`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`WHATSAPP INC. and FACEBOOK, INC.
`
`Petitioner
`
`v.
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`TRIPLAY, INC.
`
`Patent Owner
`
`IPR2015‐00740
`
`____________
`
`Patent 8,332,475 B2
`
`
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`PATENT OWNER’S LIST OF PROPOSED MOTIONS
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`
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`
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`In anticipation of the initial conference call scheduled for September 18,
`
`2015, TriPlay, Inc. (“Patent Owner”) hereby submits a list of proposed motions
`
`presently contemplated or for which it may seek future authorization.
`
`1. Motion for Additional Discovery
`
`In the event the parties cannot agree on additional discovery, Patent Owner
`
`seeks authorization to file a motion for narrowly tailored discovery with respect to
`
`the secondary considerations “long felt need” and “commercial success.”
`
`As to long felt need, WhatsApp’s own patent application, Ser. No.
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`12/732,182, which was filed on March 25, 2010 and published on November 22,
`
`2012 as US 2012/0294352, establishes at paragraphs 5 through 8 that there is more
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`than a mere possibility and mere allegation that WhatsApp has documents
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`regarding long felt need.
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`Further as to long felt need and commercial success, the required nexus is
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`more than a possibility and mere allegation because the claims of the ‘475 patent
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`cover the entire process by which WhatsApp, Inc. derives its revenues.
`
`2. Motion to Exclude Petitioner’s Expert David Klausner
`
`In Patent Owner’s Objections To Evidence Submitted In The Petition, Patent
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`Owner objected to Petitioner’s Expert on the grounds that there is nothing in the
`
`record establishing that David Klausner is qualified to opine as to the knowledge of
`
`a person of ordinary skill in the art at the time of the ‘475 patent. Patent Owner
`
`
`
`2
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`
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`respectfully requests that the Board consider a motion to excluded David Klausner
`
`after Patent Owner has had the opportunity to take Mr. Klausner’s deposition.
`
`3.
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`Contingent Motion to Amend
`
`Patent Owner may move to amend one or more claims of the ‘475 patent.
`
`Any such amendments will be made to respond to one or more of the grounds of
`
`unpatentability involved in the trial, and will not enlarge the scope of the claims of
`
`the ‘475 patent (37 C.F.R. § 42.221(a)(2)(i)) or introduce new matter (37 C.F.R. §
`
`42.221(a)(2)(i)).
`
`Although Patent Owner does not presently contemplate filing additional
`
`motions, Patent Owner reserves the right to seek subsequent authorization for
`
`motions consistent with the relevant rules.
`
`Respectfully submitted,
`
`
`/Barry J. Schindler/
`By
`Barry J. Schindler (Reg. No. 32,938)
`Greenberg Traurig, LLP
`200 Park Avenue
`P.O. Box 677
`Florham Park, NJ 07932
`Telephone: 973-360-7900
`Facsimile: 973-301-8410
`SchindlerB@gtlaw.com
`njdocket@gtlaw.com
`
`
`
` /Jeremy J. Monaldo/
`Jeremy J. Monaldo (Reg. No. 58,680)
`
`
`
`
`
`
`
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`
`
`
`
`
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`
`
`Dated: September 16, 2015
`
`
`
`3
`
`
`
`Fish & Richardson P.C.
`1425 K Street, NW
`11th Floor
`Washington, DC 20005
`Telephone: 202-783-5070
`Facsimile: 202-783-2331
`monaldo@fr.com
`
`Counsel for Patent Owner TriPlay Inc.
`
`
`
`4
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