From:
`To:
`Cc:
`
`Subject:
`Date:
`Attachments:
`
`Kushan, Jeffrey P.
`Trials
`Modi, Naveen; Palys, Joseph E.; "Wesley C. Meinerding"; "Thomas Martin"; jtb@jtbaileylaw.com; Border, Scott; Broughan III, Thomas A.; Plail, Ethan;
`Dillon, Samuel
`Request for Conference Call in IPR2015-01046/IPR2015-01047
`Monday, May 4, 2020 4:20:18 PM
`image001.png
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`Your Honors,
`
`Petitioners request a conference with the Board to obtain guidance (and authorization if required) on making a written request to
`withdraw application of the General Order issued by the Chief Judge on May 1 to these proceedings. Petitioners believe that these
`proceedings are not properly the subject of the order and should not be suspended, as any suspension will cause undue prejudice.
`Petitioners believe they are entitled to rehearing of the decision, but also recognize this is an unusual situation and that the Board
`may find that an alternative form of presenting Petitioners’ request is more appropriate. Petitioners believe a 10 page brief will be
`sufficient and will be prepared to file it this week. Petitioners do not oppose VirnetX being authorized to file a response provided it
`is timely filed (i.e., within one week of Petitioners’ brief). Petitioners also request expedited review of this request given the undue
`prejudice being caused by any further delay in the issuance of final written decisions in these proceedings.
`
`Patent Owner requested that its position be added to this email. Patent Owner’s position is as follows: Patent Owner opposes
`Petitioners’ request to seek rehearing of Chief Judge Boalick’s order exercising his discretion to hold the present IPRs in
`administrative abeyance “until the Supreme Court acts on a petition for certiorari or the time for filing such petitions expires.” The
`Chief Judge’s order was not a “decision” on any issue that entitles a party to seek rehearing under 37 C.F.R. 42.71(d), but rather a
`procedural mechanism employed to ensure judicial efficiency. Petitioners state that they will experience “undue prejudice”
`without explaining what it is or how such alleged prejudice would be different from that experienced by the many parties affected
`by the Chief Judge’s order. Patent Owner does not believe a call is necessary to discuss overriding the Chief Judge’s order as
`requested by Petitioners, but will be available at the proposed times if needed. Moreover, to the extent the Board grants
`Petitioners’ request without a conference call, Patent Owner believes that a 3-page brief should be sufficient and that Patent
`Owner be allowed an equal page limit to respond to Petitioners’ submission (with no further reply).
`
`The parties are available for a call with the Board on Thursday, May 7, between 10 am and 2 pm eastern, and on Friday, May 8,
`between 10 am and 2 pm eastern.
`
`Sincerely,
`
`Jeff Kushan
`JEFFREY P. KUSHAN
`
`SIDLEY AUSTIN LLP
`1501 K Street, N.W.
`Washington, DC 20005
`+1 202 736 8914
`jkushan@sidley.com
`www.sidley.com
`
`
`
`
`
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