`Filed: October 11, 2016
`
`Naveen Modi
`Paul Hastings LLP
`875 15th Street NW
`Washington, DC 20005
`Telephone: (202) 551-1990
`Facsimile: (202) 551-0490
`E-mail: naveenmodi@paulhastings.com
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`THE MANGROVE PARTNERS MASTER FUND, LTD., and APPLE INC.,
`Petitioner
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`v.
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`VIRNETX INC.,
`Patent Owner
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`
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`Case IPR2015-010461
`Patent No. 6,502,135
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`Patent Owner’s Request for Rehearing and Suggestion for Expanded Panel
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`1 Apple Inc., who filed a petition in IPR2016-00062, has been joined as a Petitioner
`in the instant proceeding.
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`Filed on behalf of: VirnetX Inc.
`By:
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`Joseph E. Palys
`Paul Hastings LLP
`875 15th Street NW
`Washington, DC 20005
`Telephone: (202) 551-1996
`Facsimile: (202) 551-0496
`E-mail: josephpalys@paulhastings.com
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`
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`I.
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`II.
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`Case No. IPR2015-01046
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`Table of Contents
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`INTRODUCTION AND PRECISE RELIEF REQUESTED ......................... 1
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`BACKGROUND ............................................................................................. 3
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`A.
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`B.
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`Prior Challenges to the ’135 Patent ....................................................... 3
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`Current Challenge to the ’135 Patent .................................................... 4
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`III. LEGAL STANDARD ..................................................................................... 6
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`IV. STATEMENT OF REASONS FOR RELIEF REQUESTED ........................ 7
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`A.
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`B.
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`The Board Should Have Found at Least the Mangrove Partners
`Hedge Fund, a Company That Provided Funding for the IPR
`Petition, and Whose Executives Dictated the Contents of the
`Petition and Corresponding Expert Declaration, to be an RPI ............. 7
`
`The Board Should Not Have Given Any Weight to Dr. Guerin’s
`Declaration Given That It Was Altered, After Being Signed, by
`an Executive of a Company Involved in Preparing the IPR
`Petition .................................................................................................11
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`V.
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`PATENT OWNER SUGGESTS REHEARING BY AN EXPANDED
`PANEL THAT INCLUDES THE CHIEF JUDGE .......................................14
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`VI. CONCLUSION ..............................................................................................15
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`i
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`Case No. IPR2015-01046
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Aceto Agricultural Chems. Corp. v. Gowan Co.,
`IPR2015-01016, Paper No. 15 at 11 (Oct. 2, 2015) ..................................... 11, 15
`
`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc.,
`IPR2013-00453, Paper No. 88 at 13 (Jan. 6, 2015) ...................................... 11, 15
`
`Galderma S.A. v. Allergan Industrie, SAS,
`IPR2014-01422, Paper No. 14 at 6-7, 12 (Mar. 5, 2015) ............................. 10, 15
`
`Statutes
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`35 U.S.C. § 315(b) ................................................................................................. 3, 4
`
`Other Authorities
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`37 C.F.R. § 42.71(d) .................................................................................................. 6
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 157 (Aug. 14, 2012)............. 10, 14
`
`Standard Operating Procedure 1, Rev. 14 (May 8, 2015) ................................... 2, 14
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`ii
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`I.
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`Case No. IPR2015-01046
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`INTRODUCTION AND PRECISE RELIEF REQUESTED
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`Patent Owner VirnetX Inc. requests rehearing of the Patent Trial and Appeal
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`Board’s Final Written Decision entered September 9, 2016 (Paper No. 71,
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`“Decision”). This request presents two issues:
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`(1) Whether a company that provides funding for an IPR petition, and
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`whose executives dictate
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`the contents of
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`that petition and
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`corresponding expert declaration, is a real party-in-interest (“RPI”)?
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`(2) Whether an expert declaration accompanying an IPR petition should
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`be given any weight by the Board if, after being signed by the
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`declarant, the declaration was altered by an executive of a company
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`involved in preparing the petition?
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`The Decision misapprehended or overlooked arguments and evidence in the Patent
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`Owner’s Response as to each of these issues.2
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`With respect to the first issue, the Decision misapprehended or overlooked
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`evidence regarding representations by The Mangrove Partners Master Fund, Ltd.
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`(“Petitioner Mangrove”) to the United States Securities and Exchange Commission
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`(“SEC”), and evidence uncovered during additional discovery, showing that RPIs
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`2 In presenting this Request for Rehearing, Patent Owner reserves all rights to
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`appeal these and other aspects of the Decision.
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`1
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`were improperly omitted. Paper No. 44 (“Patent Owner’s Response” or
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`Case No. IPR2015-01046
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`“Response”) at 51–52, 54–56. The Board should vacate its Decision and terminate
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`this proceeding for this failure to disclose RPIs, as other panels have done before.
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`With respect to the second issue, the Decision misapprehended or
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`overlooked arguments and evidence that the content of the declaration of Dr. Roch
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`Guerin (Petitioner’s expert), Exhibit 1003, was improperly changed, after being
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`signed by Dr. Guerin, by (at a minimum) the Chief Operating Officer of an entity
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`involved in preparing the Petition in this proceeding. Id. at 39–41. The Board
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`should find that Exhibit 1003 is entitled to no weight and reverse its findings of
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`unpatentability, which rely on Exhibit 1003.
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`VirnetX suggests rehearing by an expanded panel that includes the Chief
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`Judge in deciding at least the RPI issues raised in this request. Standard Operating
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`Procedure 1, Rev. 14 (May 8, 2015), Section III.D (“When a judge, a merits panel,
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`or an interlocutory panel . . . receives a suggestion for an expanded panel, the
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`judge, merits panel, or interlocutory panel shall notify the Chief Judge, Deputy
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`Chief Judge, and the Vice Chief Judges of the suggestion, in writing.”). The RPI
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`issues need to be considered “by an expanded panel . . . to secure and maintain
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`uniformity of the Board’s decisions,” given that the Decision here conflicts with
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`what other panels have done under similar circumstances. See Standard Operating
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`Procedure 1, Rev. 14, Section III.A.
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`2
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`II. BACKGROUND
`Prior Challenges to the ’135 Patent
`A.
`Before the challenge in IPR2015-01046, the ’135 patent was challenged
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`several times in IPR proceedings. Apple filed the first two IPR petitions against
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`the ’135 patent on June 12, 2013, in IPR2013-00348 and IPR2013-00349,
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`respectively. The Board denied both of these petitions because Apple was time-
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`barred under 35 U.S.C. § 315(b). IPR2013-00348, Paper No. 14 at 5 (Dec. 13,
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`2013), reh’g denied Paper No. 18 (Feb. 12, 2014); IPR2013-00349, Paper No. 14
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`at 5 (Dec. 13, 2013), reh’g denied Paper No. 18 (Feb. 12, 2014).
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`The third IPR petition against the ’135 patent was filed by New Bay Capital,
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`LLC on June 23, 2013. That proceeding was terminated in favor of VirnetX,
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`pursuant to New Bay’s request for adverse judgment. IPR2013-00375, Paper No.
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`16 (Nov. 12, 2013).
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`RPX Corporation, which the Board found was acting as a proxy for time-
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`barred Apple, concurrently filed two other IPR petitions against the ’135 patent on
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`November 20, 2013, in IPR2014-00171 and IPR2014-00172 (i.e., the fourth and
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`fifth IPR petitions). As VirnetX explained, Apple tried to hide its involvement in
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`the RPX proceedings in several ways, giving the false impression that Apple and
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`RPX were unconnected entities without a privity or real party-in-interest
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`relationship. IPR2014-00171, Paper No. 55 at 5–7 (redacted) (Mar. 6, 2014);
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`3
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`IPR2014-00172, Paper No. 55 at 5–7 (redacted) (Mar. 6, 2014). Despite these
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`efforts, the Board found that Apple was a real party-in-interest for both of RPX’s
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`petitions, and accordingly denied institution given Apple’s time-barred status.
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`IPR2014-00171, Paper No. 57 at 3 (redacted) (June 5, 2014); IPR2014-00172,
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`Paper No. 57 at 3 (redacted) (June 5, 2014).
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`Microsoft then filed a sixth IPR petition in IPR2014-00558 on March 31,
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`2014, challenging the ’135 patent. The Board denied the petition because
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`Microsoft was time-barred under 35 U.S.C. § 315(b). IPR2013-00558, Paper No.
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`13 at 8 (July 23, 2014), reh’g denied Paper No. 16 (Sep. 5, 2014).
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`B. Current Challenge to the ’135 Patent
`Petitioner Mangrove filed the seventh IPR petition against the ’135 patent in
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`IPR2015-01046, which the Board subsequently allowed Apple to join. Petitioner
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`Mangrove is part of a complex web of entities linked to a hedge fund registered in
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`the Cayman Islands that goes by a similar name, Mangrove Partners (the
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`“Mangrove Partners Hedge Fund”). Ex. 2001 at 3–4; Ex. 2002 at 1–2; Ex. 2003 at
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`1; Response at 46. These Mangrove entities are one of RPX’s largest shareholders,
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`having an equity position in the tens of millions of dollars. Ex. 2057 at 14–15;
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`Response at 52.
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`The Mangrove Partners Hedge Fund is “the investment manager” for
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`Petitioner Mangrove, as well as The Mangrove Partners Fund, L.P. (“the US
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`4
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`Feeder”) and The Mangrove Partners Fund (Cayman), Ltd. (“the Cayman Feeder”).
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`Ex. 2001 at 3; see also id. at 4; Ex. 2041 at 6–7 (listing Petitioner Mangrove as a
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`master fund in a master-feeder arrangement controlled by the Mangrove Partners
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`Hedge Fund); Ex. 2015 at 34 (describing the structure of a master-feeder
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`arrangement); Response at 47. All of the funds have a “shared investment
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`objective . . . [to] compound their net worth while minimizing the chances of a
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`permanent loss of capital.” Ex. 2001 at 4; Response at 47.
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`In order to achieve this objective, the Mangrove Partners Hedge Fund has
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`“complete discretion regarding the investment of [the US Feeder’s, the Cayman
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`Feeder’s, and Petitioner Mangrove’s] assets in accordance with the investment
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`objectives, policies and parameters set forth in the applicable offering documents
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`of each Fund.” Ex. 2001 at 3, 17 (emphasis added); Response at 47–48. Petitioner
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`Mangrove exists for the purpose of receiving funding from investors via the US
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`Feeder and Cayman Feeder, making investments directed by the Mangrove
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`Partners Hedge Fund, and paying out profits to investors via the US Feeder and
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`Cayman Feeder. See Ex. 2041 at 6–11; Response at 47–48.
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`The Mangrove Partners Hedge Fund’s complete discretionary control over
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`Petitioner Mangrove is not merely theoretical. For example, Ward Dietrich, Chief
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`Operating Officer of the Mangrove Partners Hedge Fund (see Ex. 2002 at 2), held
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`himself out as an “authorized person” to sign the Power of Attorney on behalf of
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`Petitioner Mangrove, despite having no formal role in Petitioner Mangrove, and no
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`evidence in the record identifying such a role. See Paper No. 2 at 2; Response at
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`48. Indeed, in light of this evidence, the Board previously “grant[ed] Patent
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`Owner’s motion for additional discovery for the limited purpose of providing
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`communications and/or agreements pertaining to Ward Dietrich’s involvement in
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`the preparation and filing of the Petition and/or control or ability to control the
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`preparation and filing of the Petition.” Paper No. 37 at 3. The additional
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`discovery, and other statements made by the Mangrove entities to the SEC,
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`revealed that several unnamed entities had, in fact, been improperly omitted as
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`RPIs, including at least the Mangrove Partners Hedge Fund. See infra Section
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`IV.A. The additional discovery also revealed that the expert declaration submitted
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`in this proceeding had been improperly altered by executives of the Mangrove
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`Partners Hedge Fund, including at least Ward Dietrich, after being signed by
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`Petitioner’s expert. See infra Section IV.B.
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`III. LEGAL STANDARD
`“A party dissatisfied with a decision may file a request for rehearing.”
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`37 C.F.R. § 42.71(d). “The request must specifically identify all matters the party
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`believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” Id.
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`IV. STATEMENT OF REASONS FOR RELIEF REQUESTED
`A. The Board Should Have Found at Least the Mangrove Partners
`Hedge Fund, a Company That Provided Funding for the IPR
`Petition, and Whose Executives Dictated the Contents of the
`Petition and Corresponding Expert Declaration, to be an RPI
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`As explained in Patent Owner’s Response, a number of RPIs were
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`improperly omitted, such as the Mangrove Partners Hedge Fund. Response at 46–
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`52 (also identifying other improperly omitted RPIs, such as Nathaniel August, The
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`Mangrove Partners Fund, L.P. (“the US Feeder”), The Mangrove Partners Fund
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`(Cayman), Ltd. (“the Cayman Feeder”), Mangrove Capital, the unnamed investors
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`that provided funding for the Petition, and RPX Corporation); see also infra
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`Section IV.B (discussing the Mangrove Partners Hedge Fund and Nathaniel
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`August in the context of changes made to Dr. Guerin’s declaration).
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`The Decision stated that “Patent Owner re-iterates arguments that were
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`previously raised and addressed in the record,” and that the Board “remain[ed]
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`unpersuaded by Patent Owner’s arguments.” Decision at 25. The Decision
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`misapprehended or overlooked that a number of new arguments were presented in
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`Patent Owner’s Response, including those based on discovery that was not
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`available earlier in the record. For example, the Decision misapprehended or
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`overlooked at least the following evidence of improperly omitted RPIs:
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`• In a form filed with the SEC on March 17, 2016, Petitioner Mangrove
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`7
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`admitted that the US Feeder and the Cayman Feeder are “controlling
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`shareholders” of the Mangrove Petitioner and, because of this
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`relationship, shares of RPX Corporation owned by the Mangrove
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`Petitioner “may be deemed to be beneficially owned by the US Feeder
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`and the Cayman Feeder.” Ex. 2057 at 14; Response at 52.
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`• The SEC filing explained that by virtue of the relationship between
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`Nathaniel August, the Mangrove Partners Hedge Fund, Mangrove
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`Capital, and the Mangrove Petitioner, “each of [the] Mangrove
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`Partners [Hedge Fund], Mangrove Capital, and Mr. August may be
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`deemed to beneficially own the Shares owned by the [Mangrove
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`Petitioner].” Ex. 2057 at 14; Response at 52.
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`• Ward Dietrich, who, as discussed above, is Chief Operating Office of
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`the Mangrove Partners Hedge Fund, wired $46,000 to Petitioner
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`Mangrove’s attorneys for the filing of IPR2015-01046 and IPR2015-
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`01047.
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` Ex. 2061 at 24, 25, 29
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`(showing emails
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`from
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`); Response at 55; see also Paper
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`No. 50 at 23 (Petitioners admitting that Ward Dietrich provided
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`“payment of the IPR filing fees,” and only asserting, without
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`supporting evidence, that this was subject to an agreement to
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`reimburse such fees).
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`• Nathaniel August, Ward Dietrich, and Jeff Kalicka (who, as discussed
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`above, work for the Mangrove Partners Hedge Fund), also commented
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`extensively on the petitions and expert declarations in IPR2015-01046
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`and IPR2015-01047, even asking for changes to be made after
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`Petitioner Mangrove’s attorneys thought the papers “were ready to
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`file.” Ex. 2061 at 12–18, 20–23, 28, 29; see also Ex. 2062 at 3 (“It is
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`likely that Mr. Dietrich had one or more oral conversations that were
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`not immediately reduced to writing with Nathanial August and/or Jeff
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`Kalicka pertaining to Mr. Dietrich’s involvement in the preparation
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`and filing of the Petitions.”); Response at 55.
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`• Petitioner Mangrove and the Mangrove Partners Hedge Fund in fact
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`had a pre-established plan as to the hiring of “intellectual property
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`advisors and attorneys,” and fees that the Mangrove Partners Hedge
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`Fund would receive based on the success of Petitioner Mangrove. Ex.
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`2049 at 9, 10; Response at 56.
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`• An agreement between Mangrove Partners Hedge Fund and Petitioner
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`Mangrove shows that the former, as investment manager in its “sole
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`and absolute discretion,” has the authority to “effect all necessary
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`registrations, notices or other filings with governmental or similar
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`agencies” (Ex. 2049 at 2–3), which would include the Patent Office.
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`See also Ex. 2061 at 7 (providing Ward Dietrich with authorization to
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`execute the power of attorney in this proceeding); Response at 56.3
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`The Decision did not address any of the above evidence, let alone address it
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`in the context of all of the other evidence presented in the Patent Owner’s
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`Response showing that RPIs were improperly omitted. Decision at 25–28;
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`Response at 46–57. This evidence, however, convincingly shows that the
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`unnamed parties “exercised or could have exercised control over a party’s
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`participation” in this proceeding, Office Patent Trial Practice Guide, 77 Fed. Reg.
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`157 at 48,761 (Aug. 14, 2012) (citations omitted), which cannot be reconciled with
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`the Decision’s finding that the unnamed parties are not RPIs, Decision at 25–28.
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`See also Galderma S.A. v. Allergan Industrie, SAS, IPR2014-01422, Paper No. 14
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`at 6-7, 12 (Mar. 5, 2015). For instance, the evidence shows that at least the
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`Mangrove Partners Hedge Fund not only had “complete discretion” over Petitioner
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`Mangrove (see Ex. 2001 at 17; Response at 47), but actually exercised this control
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`by way of funding and dictating the contents of papers being filed with the Board
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`(going so far as to request changes to an already-signed declaration, infra Section
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`3 The Board only granted limited discovery on the RPI issues in this case. See
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`Paper No. 37 at 3. If the Board had granted further discovery, additional evidence
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`as to omitted RPIs would have been obtained.
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`IV.B). Indeed, even Petitioners concede the Mangrove Partners Hedge Fund made
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`decisions as to “the filing of IPRs,” and only quibble that such decisions were
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`“made for the benefit of Petitioner Mangrove,” an argument that is unsupported by
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`the evidence and irrelevant to an RPI determination. Paper No. 50 at 22.
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`As it has done in other cases with similar facts, the Board should terminate
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`this proceeding given the failure to name all RPIs. Response at 56–57 (citing
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`Atlanta Gas Light Co. v. Bennett Regulator Guards, Inc., IPR2013-00453, Paper
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`No. 88 at 13 (Jan. 6, 2015); Aceto Agricultural Chems. Corp. v. Gowan Co.,
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`IPR2015-01016, Paper No. 15 at 11 (Oct. 2, 2015)).
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`B.
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`The Board Should Not Have Given Any Weight to Dr. Guerin’s
`Declaration Given That It Was Altered, After Being Signed, by an
`Executive of a Company Involved in Preparing the IPR Petition
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`The Decision relied on Exhibit 1003, the purported declaration of
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`Petitioner’s expert, Dr. Guerin. See Decision at 5, 19, 22–23. In doing so, the
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`Decision failed to address evidence and argument presented in Patent Owner’s
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`Response that Exhibit 1003 should not be given any weight because it is an altered
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`document that was not reviewed and signed by Dr. Guerin. Response at 39–41.4
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`4 The Decision asserted that it “did not rely on Dr. Guerin’s testimony in
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`determining whether ‘claim features are disclosed in asserted references’” in
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`rejecting Patent Owner’s separate argument that Dr. Guerin failed to properly
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`Email communications produced by Petitioner Mangrove leave little doubt
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`that Exhibit 1003 was altered by another after being signed by Dr. Guerin:
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`• On April 10, 2015, a person named Jeff Kalicka, a senior analyst for
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`Mangrove Partners (see Ex. 2002 at 2) (which is a different entity than
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`the similarly named Petitioner Mangrove) sent an email to Petitioner
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`Mangrove’s attorneys, asking “[c]an we get the clean versions that
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`you thought were ready to file so we could do one more review.” Ex.
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`2061 at 18. One of Petitioner Mangrove’s attorneys responded: “Sure.
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`Here are clean versions of the ’151 and ’135 Petitions and
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`Declarations. We have signature pages on the Declarations from
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`Roch Guerin. . . . There may be a nit here and there, but these should
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`be just about final.” Id. (emphasis added). See Response at 39–40.
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`• On April 13, 2015, three days after Dr. Guerin provided a signature
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`page, Ward Dietrich, the Mangrove Partners Hedge Fund’s Chief
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`Operating Officer (see Ex. 2002 at 2), sent a string of emails about
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`analyze the claims. Decision at 24. This assertion is belied by the Decision’s
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`repeated invocation of Dr. Guerin’s declaration in its analysis. See supra. In any
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`event, the Board found that “Dr. Guerin’s testimony is helpful in the other respects
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`to which he testified and entitled to due weight.” Decision at 24.
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`petitions and declarations on the patents-at-issue in this proceeding
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`and in IPR2015-01047, including “comments and changes” as to a
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`declaration on the patent-at-issue in IPR2015-01047. Ex. 2061 at 14
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`(email with the subject line “151 IPR 2015 04 10 Guerin Decl
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`(EXECUTION) (CLEAN) (2).docx”); see also id. at 12, 13, 15, 16.
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`See Response at 40.
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`• Nathaniel August (President of the Mangrove Partners Hedge Fund,
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`see Ex. 2002 at 2) and Jeff Kalicka also apparently provided changes,
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`as indicated in an email from Nathaniel August stating, “You’ve got
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`all of my comments and all of Jeff’s.” Ex. 2061 at 12. See Response
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`at 40–41.
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`Petitioners do not dispute that Dr. Guerin’s declaration was altered in this
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`proceeding. Instead, Petitioners characterize the changes as “minor copy edits
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`made with Dr. Guerin’s knowledge and approval before filing but after he executed
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`the signature page.” Paper No. 50 at 21 (emphasis removed). But this attorney
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`argument, while constituting an admission that changes were made, is unsupported
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`by any evidence whatsoever as to the scope of the alterations or Dr. Guerin’s
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`purported “knowledge and approval” of the alterations. The record only includes
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`evidence that Exhibit 1003 was changed after being signed by Dr. Guerin. The
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`Board was left to guess as to what portions of Exhibit 1003 reflect Dr. Guerin’s
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`13
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`testimony and what portions reflect the opinions of non-expert corporate
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`Case No. IPR2015-01046
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`executives involved in preparing the Petition here.
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`The Board overlooked undisputed evidence that Exhibit 1003 does not
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`reflect Dr. Guerin’s direct testimony alone. The Board should find that Exhibit
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`1003 is entitled to no weight and reverse its findings of unpatentability that
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`improperly rely on Exhibit 1003. See Response at 39–41.
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`V.
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`PATENT OWNER SUGGESTS REHEARING BY AN EXPANDED
`PANEL THAT INCLUDES THE CHIEF JUDGE
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`Patent Owner suggests that an expanded panel that includes the Chief Judge
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`consider this request for rehearing. See Standard Operating Procedure 1, Rev. 14
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`(May 8, 2015), Section III.C; see also id., Section III.D. An expanded panel is
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`necessary to consider at least the RPI issues raised in this request “to secure and
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`maintain uniformity of the Board’s decisions.” See Standard Operating Procedure
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`1, Rev. 14, Section III.A.
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`Specifically, failure to consider evidence showing control and funding of a
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`proceeding in an RPI determination contradicts the Board’s own Trial Practice
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`Guide. See Office Patent Trial Practice Guide, 77 Fed. Reg. 157 at 48,760. The
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`Decision also opined that VirnetX failed to “demonstrate persuasively” that the
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`unnamed parties “exercised control over the preparation or filing of the present
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`Petition.” Decision at 25–28. Patent Owner respectfully disagrees because the
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`14
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`evidence does show such control. In any event, this is in conflict with past Board
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`Case No. IPR2015-01046
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`decisions that a patent owner only needs to present “evidence that reasonably
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`brings into question the accuracy” of the RPI identification, and that the Board
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`need not find an actual exercise of control—it is sufficient that the party had “‘the
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`power … to call the shots.’” Galderma, IPR2014-01422, Paper No. 14 at 6-7, 12
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`(citation omitted). And if the Board were to permit this proceeding to move
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`forward, despite the RPI defect, that would be inconsistent with past Board
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`determinations that the failure to disclose all RPIs is a substantive defect that
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`should prohibit review. See Atlanta Gas Light Co., IPR2013-00453, Paper No. 88
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`at 13; Aceto Agricultural Chems. Corp., IPR2015-01016, Paper No. 15 at 11.
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`VI. CONCLUSION
`For at
`least
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`these
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`reasons, Patent Owner
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`respectfully
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`requests
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`reconsideration of the Decision and reversal of the Board’s unpatentability finding
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`or termination of this proceeding.
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`Dated: October 11, 2016
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`Respectfully submitted,
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`By: /Joseph E. Palys/
`Joseph E. Palys
`Registration No. 46,508
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`Counsel for VirnetX Inc.
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`15
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`Case No. IPR2015-01046
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), I certify that I caused to be served on the
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`counsel for Petitioner a true and correct copy of the foregoing Patent Owner’s
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`Request for Rehearing by electronic means on the date below at the following
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`addresses of record:
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`Abraham Kasdan (akasdan@wiggin.com)
`James T. Bailey (jtb@jtbaileylaw.com)
`IP@wiggin.com
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`Jeffrey P. Kushan
`Scott Border
`Thomas A. Broughan III
`iprnotices@sidley.com
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`By: /Joseph E. Palys/
`Joseph E. Palys
`Registration No. 46,508
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`Counsel for VirnetX Inc.
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`Dated: October 11, 2016