UNITED STATES PATENT AND TRADEMARK OFFICE
` ----------------
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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` APPLE INC.
`
` Petitioner
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` v.
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` VIRNETX INC. AND APPLICATION
` INNTERNATIONAL CORPORATION
` Patent Owner
`
` ----------------
`
` Case No. IPR2015-01047
`
` TRANSCRIPT OF PROCEEDINGS
` Thursday, April 14, 2016
`
`BEFORE:
` HON. MICHAEL TIERNEY
` HON. STEPHEN SIU
` HON. KARL EASTHOM
`
`Reported by:
`FRANCIS X. FREDERICK, CSR, RPR, RMR
`JOB NO. 106359
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`VIRNETX EXHIBIT 2060
`Mangrove v. VirnetX
`Trial IPR2015-01047
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Page 1
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` APPLE INC.
`
` Petitioner
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` v.
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` VIRNETX INC. AND APPLICATION
` INNTERNATIONAL CORPORATION
` Patent Owner
`
` ----------------
`
` Case No. IPR2015-01047
`
` TRANSCRIPT OF PROCEEDINGS
` Thursday, April 14, 2016
`
`BEFORE:
` HON. MICHAEL TIERNEY
` HON. STEPHEN SIU
` HON. KARL EASTHOM
`
`Reported by:
`FRANCIS X. FREDERICK, CSR, RPR, RMR
`JOB NO. 106359
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`(877) 702-9580
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`VIRNETX EXHIBIT 2060
`Mangrove v. VirnetX
`Trial IPR2015-01047
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`A P P E A R A N C E S:
`
` SIDLEY AUSTIN
` Attorneys for Petitioner, Apple Inc.
` 1501 K Street, N.W.
` Washington, D.C. 20005
` BY: JEFFREY KUSHAN, ESQ.
` SCOTT BORDER, ESQ.
` THOMAS BROUGHAN III, ESQ.
`
` PAUL HASTINGS
` Attorneys for Patent Owner, VirnetX Inc.
` 875 15th Street, N.W.
` Washington, D.C. 20005
` BY: DANIEL ZEILBERGER, ESQ.
` JOSEPH PALYS, ESQ.
`
` ALSO PRESENT:
` THOMAS MARTIN, ESQ., Blackswamp
` JAMES BAILEY, ESQ., Mangrove
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` JUDGE TIERNEY: Welcome everyone
` to the conference call today regarding
` IPR2015-01047. This is Judge Tierney.
` My understanding is that the joint
` petitioners had requested a call with the
` Board to request additional discovery for
` cross-examination of a declarant, Dr.
` Short.
` Petitioner, if you would begin the
` call by giving a summary of what your
` request is today and then we'll turn it
` over to the patent owner after you've
` given your summary.
` MR. KUSHAN: Thank you, Your
` Honor. It's Jeff Kushan. I can provide
` the issue from Apple's perspective and I
` would invite my other petitioner
` colleagues to provide their own views.
` We have seen filed with the patent
` owner response, Exhibit 2050, which is
` the declaration by Dr. Robert Short that
` had been prepared during the proceeding
` in the patent owner response which is
` Paper 48 at pages 29 to 35. The patent
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` owner is relying on that testimony from
` Dr. Short to contend send there has been
` a number of secondary considerations
` established, failure of others,
` commercial success, et cetera.
` And we went through the
` petition -- I'm sorry -- the patent owner
` response and saw that the bulk of that
` argument has been supported by reliance
` on the declaration from Dr. Short. So we
` reached out to the patent owner to see if
` they would produce Dr. Short for
` cross-examination and the patent owner
` declined.
` We've had a couple rounds of back
` and forth to see if there are alternative
` ways of addressing the concerns we had.
` We suggested that if they were not
` prepared to produce Dr. Short for
` deposition, they should perhaps withdraw
` the declaration from the record and make
` their reliance on it.
` The patent owner also proposed to
` allow us to rely on trial testimony from
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` Dr. Short in a case against Apple. We
` had looked -- and they provided us with a
` copy of the trial testimony of Dr. Short.
` We went through that and found
` that it did not address the topics that
` are corresponding to the testimony he's
` offering in the -- in this proceeding,
` particularly the cross-examination of Dr.
` Short by Apple at that trial. I note
` that at the trial -- and we were not the
` counsel for Apple in the trial -- we --
` Apple did not go after the ground of
` obviousness in the trial. They went
` after anticipation.
` There was not much of a
` cross-examination of Dr. Short on the
` factors relating to secondary
` considerations or obviousness.
` And so we've I think reached an
` impasse unfortunately, Your Honor, that
` we're unable to get either a deposition
` of Dr. Short so that we can test his
` testimony that's been presented to
` support the secondary considerations
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` arguments and equivalently the patent
` owner has not suggested they are prepared
` to withdraw the declaration from Dr.
` Short.
` So we feel like we're in an
` unfortunate situation where we cannot
` test that testimony. We believe this is
` the kind of situation where additional
` discover is warranted because there has
` been such a direct reliance on the
` testimony of Dr. Short for -- in the
` proceeding and we have no real
` alternative for testing that testimony
` other than by conducting a
` cross-examination of him.
` We believe there's a little bit of
` concern we have as well because we don't
` have a lot of time remaining before our
` replies are due in the proceeding. And
` that's another variable which we tried to
` work, as I said, with patent owners to
` see if there's a solution to this but we
` feel like we have reached an impasse
` unfortunately. And that's what has
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` prompted the request for additional
` discovery today.
` JUDGE TIERNEY: I do have a couple
` questions. Is now the time or do you
` have another comment you'd like to make
` before I ask my questions?
` MR. KUSHAN: I'm happy to take any
` questions you have, Your Honor.
` JUDGE TIERNEY: This is Judge
` Tierney.
` The question we have, I think,
` would be why do you need to cross? If
` it's just hearsay, then why don't you
` have a motion to exclude and seek to
` exclude it through that?
` MR. KUSHAN: We'd be prepared to
` pursue that as an option. I think the
` concern we have is whether that motion
` would be granted as somewhat contingent.
` It leaves us in a situation where we
` would be replying and the motion to
` exclude would be taken up and considered
` only after the oral hearing.
` JUDGE TIERNEY: And let me -- I
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` don't want to put words in your mouth but
` what it seems to me you're telling the
` Board today is that they submitted this
` declaration EX2050 and that it's an
` out-of-court statement that's been
` submitted for the truth of the matter
` asserted, which would be the classic
` definition of hearsay.
` MR. KUSHAN: Yes, Your Honor. We
` believe there is a motion to exclude
` that's warranted. But my concern is
` simply that we would -- we're going to
` need to address the testimony in our
` reply. If there was some way we could
` get the motion to accelerate before the
` motion to exclude would be considered.
` The motion to exclude evidence would be
` raised only after the oral hearing and
` wouldn't be decided before that.
` Is there an option where we could
` pursue that?
` JUDGE TIERNEY: Well, your
` argument and your reply is that it's not
` a credible declaration at this point and
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` you'd point out that it's hearsay and
` then say we filed a motion to exclude on
` this point. I mean, if there's no cross
` that's pertinent, that's a factor to
` consider why don't we decide the motion
` to exclude.
` MR. KUSHAN: Okay.
` JUDGE TIERNEY: I mean, what is it
` you want? You want the deposition so
` it's not hearsay or do you want the
` motion to exclude? I'm trying to
` understand the point here. They don't
` want to provide the person for a
` deposition. You can't cross. You're
` telling us there's no cross in the past
` that's on point.
` But, yet, so we have hearsay and
` they seem to me comfortable with having
` the hearsay on the record and not
` providing for cross. Why should we grant
` a motion for discovery on this point?
` You have a remedy available.
` MR. KUSHAN: Right. Well, we can
` proceed with the remedy of the motion to
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` exclude. As I said, the only concern
` we've had is just the uncertainty between
` the time now we have before we -- if we
` go and substantively address the
` assertions in the testimony and the
` motion to exclude is not granted, then
` we're somewhat in the unfortunate
` situation of not having put on contrary
` evidence that's not going to excluded.
` And that's the only concern that we've
` had about the timing relating to the --
` to that declaration they've offered.
` So I'm happy to proceed in moving
` as we would with a motion to exclude for
` hearsay. But we were hoping that there
` might be an alternative path where we can
` test that testimony and that's obviously
` a different path.
` But maybe I'll let my other
` petitioner colleagues offer their own
` views on that.
` MR. MARTIN: Counsel for
` Blackswamp here. This is Tom Martin. I
` don't really have anything to add. I
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` think that Jeff has stated our position
` perfectly.
` MR. BAILEY: And this is Jim
` Bailey for Mangrove. I'll second that.
` I have nothing to add.
` JUDGE TIERNEY: Okay. Let's hear
` from patent owner at this point. Patent
` owner, you've heard the discussion of the
` summary. Would you provide your view of
` the current situation.
` MR. PALYS: Yes, Your Honor. This
` is Joseph Palys. I'll let Dan Zeilberger
` handle the call.
` JUDGE TIERNEY: Thank you.
` MR. ZEILBERGER: Good afternoon,
` Your Honor. Dan Zeilberger. We don't
` think that the petitioners are entitled
` to additional discovery here for a few
` reasons.
` For one, as Your Honor noted, this
` is a declaration submitted nearly four
` years ago in an interparty reexamination.
` And it's our view that the petitioners
` have had a fair opportunity to
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` cross-examine him at trial as to the
` facts in the declaration.
` And we, in fact -- as counsel for
` Apple noted, we provided petitioners with
` a transcript of that trial where Dr.
` Short was questioned. But that
` apparently wasn't good enough for
` petitioners so we actually went a step
` further and we offered to replace the
` citations to the declaration with
` citations to that transcript. But that
` also wasn't good enough. Even though
` it's your understanding that this issue
` wouldn't even be before the Board if
` that's what we had done in the first
` place.
` Lastly, I would just note that
` it's our understanding that we've
` preliminarily checked and we don't
` believe that Dr. Short could be made
` available under the current schedule.
` But we would note that as the Board has
` done in the past, the Board can merely
` give the declaration the appropriate
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` weight they it believes it should be
` given under these circumstances.
` JUDGE TIERNEY: All right. So let
` me make sure I heard this right. So you
` offered to file a -- I don't know if I'd
` call it a revised patent owner response
` with citations to a different part of the
` record?
` MR. ZEILBERGER: So we offered to
` essentially remove our reliance on the
` declaration and replace the citations to
` that declaration with the transcript
` because it's our belief that the
` transcript does support the same facts
` that are contained in the declaration.
` JUDGE TIERNEY: I'd like to hear
` from petitioner at this point why that
` would not appropriate to allow for the
` replacement with the citations to the
` underlying transcript.
` MR. KUSHAN: Thank you, Your
` Honor. It's Jeff Kushan. I see two
` problems. One it has the same hearsay
` problem as the declaration does. That is
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` testing the record in a district court
` proceeding in Texas and, as I mentioned
` earlier, that actually is not in the
` record at this point, that trial
` testimony that they've offered us an
` opportunity to inspect it, which they
` gave us a copy of the trial testimony.
` So it's not an exhibit that's already in
` evidence right now.
` JUDGE TIERNEY: So just help me
` understand. Was Apple a party to the
` case where the cross-examination
` occurred?
` MR. KUSHAN: They were. They were
` in the proceeding in Texas. They were
` the defendant in that action. When we
` reviewed the testimony, we observed that
` it did not address the issues, you know,
` from a cross-examination perspective that
` were being advanced by the patent owner
` in their response.
` So in that trial, at the trial the
` issue of obviousness was not advanced at
` trial by Apple. So there was no
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` cross-examination of Dr. Short on the
` topics. There was only secondary
` considerations. And that's why we had
` conveyed to them that would not be a
` sufficient surrogate for a deposition of
` Dr. Short.
` JUDGE TIERNEY: Back to patent
` owner. Patent owner, is there another
` option on the table? Is there something
` else you can rely upon for your secondary
` considerations given the alleged hearsay
` problems that occur with the evidence
` you've identified or that have been
` identified?
` MR. ZEILBERGER: So, Your Honor,
` is your question whether there would be
` essentially a third option other than
` relying on --
` JUDGE TIERNEY: Yes. Is there a
` third option? Is there another option
` which maybe would resolve this problem
` which we could take into account. The
` two solutions provided, the deposition of
` your expert seems to have problems with
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` it. The transcript that you've proffered
` seems to, at least according to
` petitioner, again have a problem. I'm
` just trying to find out if there's any
` other options we can discuss today or
` whether we're left with the two options
` we've already discussed.
` MR. ZEILBERGER: I think those are
` the only two options. We would certainly
` consider a third option if Your Honor can
` provide one.
` MR. MARTIN: Excuse me, Your
` Honor?
` JUDGE TIERNEY: Yes.
` MR. MARTIN: This is Tom Martin on
` behalf of Blackswamp. I would just like
` to add that in response to patent owner
` noting that I believe you said
` petitioners have had a chance to
` cross-examine Dr. Short four years ago,
` that was only Apple in somewhat unrelated
` circumstances, as I understand it. But
` Blackswamp and Mangrove as petitioners
` had no such opportunity to cross-examine
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` Dr. Short.
` And so I at least question the
` validity of patent owner's statement that
` petitioners have had the opportunity to
` cross-examine Dr. Short because we
` certainly don't accept that Apple four
` years ago asked everything that would be
` we believe material to representing our
` client in a meaningful way in this IPR.
` JUDGE TIERNEY: Understood. And
` that is a factor that we intend to
` analyze in the case.
` Is there any additional
` information that petitioner would like to
` provide? And then I'll turn it over to
` patent owner after which I'll confer with
` my colleagues.
` So, petitioner, any additional
` information at this point?
` MR. KUSHAN: We don't have any
` other information to provide at this
` point.
` JUDGE TIERNEY: And Mangrove or
` Blackswamp, anything additional you wish
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` to add before I turn it over to patent
` owner?
` MR. MARTIN: Nothing on behalf of
` Blackswamp.
` MR. BAILEY: On behalf of Mangrove
` we have nothing else either.
` JUDGE TIERNEY: Okay. Going over
` to patent owner, before I confer with my
` colleagues, do you have anything further
` you'd like to add before I confer?
` MR. KUSHAN: No, Your Honor.
` JUDGE TIERNEY: Okay. At this
` point I'm going to take a brief recess.
` I'm going to confer with my colleagues
` and I'll come back on line after we
` finish conferring. Please stay on the
` line. Thank you.
` (Recess taken.)
` JUDGE TIERNEY: Patent owner, are
` the counsel still on the line?
` MR. ZEILBERGER: Yes, Your Honor.
` JUDGE TIERNEY: Do we have counsel
` for petitioner, starting with Apple?
` MR. KUSHAN: Yes, Your Honor.
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` JUDGE TIERNEY: Blackswamp?
` MR. MARTIN: Yes, Your Honor.
` JUDGE TIERNEY: Counsel for
` Mangrove still on line?
` MR. BAILEY: Yes, Your Honor.
` JUDGE TIERNEY: All right. Thank
` you for all staying on the line. The
` Board has conferred and we have come up
` with the following decision: At this
` point in time we are not requesting
` the -- sorry -- we're not authorizing the
` requested discovery at this time.
` Petitioner may of course file a motion to
` exclude to the extent they believe such a
` motion is warranted.
` Keep in mind, and we want to
` remind the parties, that little or no
` weight may be given to a declaration
` where cross-examination was not provided.
` The Board would encourage the
` parties to try and resolve this issue
` should they come up with an alternative
` that would be satisfactory to both.
` We did discuss two issues today,
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` or two alternatives, neither of which
` were satisfactory to the parties. But --
` and, therefore, we are left to the
` following ruling which is we're not
` authorizing the request for discovery at
` this time.
` But should there be a third
` alternative which whey wish to discuss
` the Board is always willing to have
` another conference call and discuss the
` alternative should it be amenable to the
` parties.
` Any questions? I'm going to start
` with patent owner.
` MR. ZEILBERGER: No, Your Honor.
` JUDGE TIERNEY: I'm going to turn
` it over to the petitioners and go through
` the three petitions. First to Apple.
` MS. KUSHAN: No. I have one
` question about the order and that's
` simply to confirm that the motion to
` exclude would be filed in the normal
` authorized period for that.
` JUDGE TIERNEY: That is correct.
`
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` MR. KUSHAN: Okay. And then I
` have one housekeeping issue when you're
` done with this issue.
` JUDGE TIERNEY: And just for the
` record, I'm going alphabetically with A,
` then B and then I guess M. So Apple went
` first. Then Blackswamp. Any further
` questions, Blackswamp?
` MR. MARTIN: No, Your Honor.
` JUDGE TIERNEY: And then last but
` not least, but just by the alphabetical,
` Mangrove, anything to add?
` MR. BAILEY: No, Your Honor.
` JUDGE TIERNEY: All right. Thank
` you.
` I believe we had one housekeeping
` matter that Apple wished to discuss.
` Apple?
` MR. KUSHAN: Yes, Your Honor. The
` deadline for filing petitioner's replies
` falls on a Sunday so if we're following
` the rule that means that the replies are
` due on the following Monday and I just
` want to confirm that is the case.
`
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` JUDGE TIERNEY: That is the case.
` MR. KUSHAN: All right. Thank
` you.
` JUDGE TIERNEY: Do the parties
` need to have any dates moved? Or wish to
` discuss moving dates around? I'm open to
` hearing that now. Any of the parties
` wish to discuss that?
` (No response.)
` JUDGE TIERNEY: Hearing nothing --
` MR. KUSHAN: I think we're fine.
` JUDGE TIERNEY: All right. And
` then is there anything left to discuss
` that the parties wish to bring up? And
` I'll start again about patent owners.
` Anything, housekeeping or
` otherwise, that you wish to discuss
` today?
` MR. ZEILBERGER: No, Your Honor.
` MR. MARTIN: All right. And we'll
` go reverse alphabet this time. So,
` Mangrove, you're up first. Anything to
` discuss?
` MR. BAILEY: No, Your Honor.
`
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` JUDGE TIERNEY: And Blackswamp,
` anything further?
` MR. MARTIN: No, Your Honor.
` JUDGE TIERNEY: Last but not
` least, Apple, anything further to
` discuss?
` MR. KUSHAN: No, Your Honor.
` JUDGE TIERNEY: All right. Thank
` you, everyone. And, as always, since we
` did have a court reporter today, the
` party requesting the reporter, if you
` could provide a copy of the transcript as
` an exhibit in the record we would
` appreciate it.
` All right. With that we are
` adjourned. Thank you everyone.
` MR. KUSHAN: Thank you, Your
` Honor.
` MR. ZEILBERGER: Thank you, Your
` Honor.
` MR. MARTIN: Thank you, Your
` Honor.
` (Time Noted: 4:23 p.m.)
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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, FRANCIS X. FREDERICK, a
` Notary Public within and for the State
` of New York, do hereby certify:
` That the statement hereinbefore
` set forth, is a true record of the
` proceedings.
` I further certify 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 26th day of
` April, 2016.
`
` _____________________
` FRANCIS X. FREDERICK
`
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