`
`Filed: October 4, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––––––––––
`
`THE MANGROVE PARTNERS MASTER FUND, LTD., APPLE INC., and
`BLACK SWAMP IP, LLC,
`Petitioners,
`
`v.
`
`VIRNETX INC.,
`Patent Owner.
`
`––––––––––––––––––
`
`Case Nos. IPR2015-01046,1 -010472
`U.S. Patent Nos. 6,502,135 & 7,490,151
`
`––––––––––––––––––
`
`PETITIONER MANGROVE’S RESPONSES TO
`PATENT OWNER’S NOTICE OF DEPOSITION OF
`THE MANGROVE PARTNERS MASTER FUND, LTD.
`
`
`
`
`
`
`
`1 Apple Inc., who filed a petition in IPR2016-00062, has been joined as a Petitioner
`in IPR2015-01046.
`
` Apple Inc. and Black Swamp IP, LLC, which filed a petitions in IPR2016-00063
`and IPR2016-00167, respectively, have been joined as Petitioners in IPR2015-
`01047.
`
` 2
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, p. Cover
`
`
`
`IPR2015-01046, -01047
`
`U.S. Patent Nos. 6,502,135, 7,490,151
`
`Patent Owner VirnetX Inc.’s (“VirnetX”) Notice of Deposition of Petitioner
`
`The Mangrove Partners Master Fund, Ltd. (“Mangrove”) requests a deposition
`
`with a designated person “with sufficient knowledge and preparation to testify on
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`all information known or reasonably available” to Petitioner Mangrove on four
`
`deposition topics. Paper 81 (“Mot.”), Appx. C at 1. As explained in Petitioners’
`
`concurrently filed Partial Opposition to VirnetX’s Motion, and consistent with
`
`VirnetX’s Request for Deposition of Apple Inc. in IPR2014-00171, Petitioner
`
`Mangrove has responded “to [these] topic[s] in writing instead of providing a
`
`witness, effectively treating the topic[s] as … an interrogatory.” See RPX Corp. v.
`
`VirnetX Inc., IPR2014-00171, Ex. 2026, 1.
`
`VIRNETX’S MANGROVE DEPOSITION TOPIC NO. 1
`
`Communications concerning RPX and VirnetX or VirnetX patents,
`
`including communications between Mangrove Partners and RPX concerning
`
`VirnetX or VirnetX patents. (Mot. Appx. C at 3.)
`
`MANGROVE’S RESPONSE TO MANGROVE DEPOSITION TOPIC NO. 1
`
`Petitioner Mangrove objects to this deposition topic for lacking clarity as to
`
`whether it should be read “RPX and (VirnetX or VirnetX patents)” or “(RPX and
`
`VirnetX) or VirnetX Patents.” See Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC,
`
`IPR2012-00001, Paper 26 at 6–7 (PTAB Mar. 5, 2013) (“Garmin”) (Factor 4). For
`
`the purposes of responding to this deposition topic, and in light of the Federal
`
`1
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 1
`
`
`
`IPR2015-01046, -01047
`
`U.S. Patent Nos. 6,502,135, 7,490,151
`
`Circuit’s mandate, Petitioner Mangrove presumes the former interpretation, i.e.,
`
`“… RPX and (VirnetX or VirnetX patents) ….” Petitioner Mangrove further
`
`objects to this deposition topic as overbroad and unduly burdensome for requesting
`
`information known or reasonably available about communications dated on or after
`
`the date of institution in this proceeding, i.e., October 7, 2015. See Garmin at 6–7
`
`(Factors 1 & 5); Power Integrations, Inc. v. Semiconductor Components Indus.,
`
`LLC, 926 F.3d 1306, 1314–15 (Fed. Cir. 2019) (“The focus of § 315(b) is on
`
`institution.”); Wi-Fi One, LLC v. Broadcom Corp., 878 F.3d 1364, 1373 (Fed. Cir.
`
`2018) (en banc) (“[T]he time-bar determination may be decided fully and finally at
`
`the institution stage.”).
`
`Subject to the foregoing objection(s), Petitioner Mangrove has undertaken a
`
`reasonable search for communications prior to October 7, 2015, and has identified
`
`no communications concerning RPX and VirnetX or VirnetX patents, including
`
`communications between Mangrove Partners and RPX concerning VirnetX or
`
`VirnetX patents.
`
`VIRNETX’S MANGROVE DEPOSITION TOPIC NO. 2
`
`Communications concerning RPX and patent office proceedings, including
`
`communications between Mangrove Partners and RPX concerning patent office
`
`proceedings, such as any agreements or discussions between RPX and Mangrove
`
`Partners with respect to patent office proceedings, such as IPR2015-01046 or
`
`2
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 2
`
`
`
`IPR2015-01046, -01047
`
` U.S. Patent Nos. 6,502,135, 7,490,151
`
`IPR2015-01047, prior art, filing, funding, compensation, and/or preparation of any
`
`papers. (Mot. Appx. C at 3.)
`
`MANGROVE’S RESPONSE TO MANGROVE DEPOSITION TOPIC NO. 2
`
`Petitioner Mangrove objects to this RFP as overbroad and unduly
`
`burdensome for requesting information about communications dated on or after the
`
`date of institution in this proceeding. See Garmin at 6–7 (Factors 1 & 5); Power
`
`Integrations, 926 F.3d at 1314–15; Wi-Fi One, 878 F.3d at 1373. Petitioner
`
`Mangrove further objects to this RFP as overbroad and unduly burdensome for
`
`requesting production of “[c]ommunications, documents, or things concerning
`
`RPX and patent office proceedings” that are not “communications between
`
`Mangrove Partners and RPX, or any documents or things concerning such
`
`communications, concerning patent office proceedings ….” The former language
`
`would encompass, for example, purely internal-to-Mangrove documents describing
`
`RPX’s business model that mention post-grant proceedings generically, which
`
`would not be relevant to show any relationship between Mangrove and RPX.
`
`Subject to the foregoing objection(s), Petitioner Mangrove has undertaken a
`
`reasonable search for communications prior to October 7, 2015, and has identified
`
`no communications between Mangrove Partners and RPX concerning patent office
`
`proceedings, such as any agreements or discussions between RPX and Mangrove
`
`Partners with respect to patent office proceedings, such as IPR2015-01046 or
`
`3
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 3
`
`
`
`IPR2015-01046, -01047
`
` U.S. Patent Nos. 6,502,135, 7,490,151
`
`IPR2015-01047, prior art, filing, funding, compensation, and/or preparation of any
`
`papers.
`
`VIRNETX’S MANGROVE DEPOSITION TOPIC NO. 3
`
`Mangrove Partners’ acquisition of RPX stock, including Mangrove Partners’
`
`reasons for acquiring RPX stock and any underlying agreements surrounding
`
`Mangrove Partners’ acquisition of RPX stock. (Mot. Appx. C at 3.)
`
`MANGROVE’S RESPONSE TO MANGROVE DEPOSITION TOPIC NO. 3
`
`Petitioner Mangrove objects to this deposition topic as overbroad and unduly
`
`burdensome for requesting information about communications dated on or after the
`
`date of institution in this proceeding. See Garmin at 6–7 (Factors 1 & 5); Power
`
`Integrations, 926 F.3d at 1314–15; Wi-Fi One, 878 F.3d at 1373. Petitioner
`
`Mangrove further objects to this deposition topic as overbroad and unduly
`
`burdensome for requesting the production of all information about “Mangrove
`
`Partners’ acquisition of RPX stock,” rather than information sufficient to show
`
`“Mangrove Partners’ reasons for acquiring RPX stock and any underlying
`
`agreements surrounding Mangrove Partners’ acquisition of RPX stock.” See
`
`Garmin at 6–7 (Factor 5). The former language would encompass, for example,
`
`needlessly duplicative information which is not relevant to show any relationship
`
`between Mangrove and RPX.
`
`4
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 4
`
`
`
`IPR2015-01046, -01047
`
` U.S. Patent Nos. 6,502,135, 7,490,151
`
`Subject to the foregoing objection(s) and with respect to RPX stock that was
`
`acquired by Mangrove Partners prior to October 7, 2015, Petitioner Mangrove has
`
`undertaken a reasonable search and has produced or identified communications,
`
`documents, or things sufficient to show Mangrove Partners’ reasons for acquiring
`
`RPX stock and any underlying agreements surrounding Mangrove Partners’
`
`acquisition of RPX stock. See Ex. 1049; Ex. 1051; Ex. 1052; Ex. 1055; Ex. 1056;
`
`IPR2015-01046, Ex. 2058; IPR2015-01047, Ex. 2055. Mangrove’s reasons for
`
`acquiring publicly-traded stock in RPX (NASDAQ: RPXC) were based on an
`
`investment strategy that was unrelated to its VirnetX investment strategy.
`
`Specifically,
`
`
`
`
`
`
`
`
`
` Ex. 1051, 2; see also Ex.
`
`1055; Ex. 1056. Before October 7, 2015, Mangrove Partners was a passive
`
`investor in RPX, had acquired its RPX stock via public trades, and had entered no
`
`agreements with RPX regarding its acquisition of RPX stock. See Ex. 1051, 2–3;
`
`Ex. 1052.
`
`5
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 5
`
`
`
`IPR2015-01046, -01047
`
`U.S. Patent Nos. 6,502,135, 7,490,151
`
`VIRNETX’S MANGROVE DEPOSITION TOPIC NO. 4
`
`Mangrove Partners’ decision to pursue and initiate IPR2015-01046 and
`
`IPR2015-01047. (Mot. Appx. C at 3.)
`
`MANGROVE’S RESPONSE TO MANGROVE DEPOSITION TOPIC NO. 4
`
`Petitioner Mangrove objects to this RFP as overbroad and unduly
`
`burdensome for requesting all information relating to “Mangrove Partners’
`
`decision to pursue and initiate IPR2015-01046 and IPR2015-01047,” rather than
`
`information relating to both RPX and “Mangrove Partners’ decision to pursue and
`
`initiate IPR2015-01046 and IPR2015-01047.” See Garmin at 6–7 (Factor 5). The
`
`breadth of this request is unduly burdensome due to VirnetX’s threat of separate
`
`litigation against Mangrove regarding the filing of these IPRs (see Paper 9, 12–15
`
`(citing Ex. 2021)), and also conflicts with VirnetX’s representation that its requests
`
`would “narrowly focus on the relationship between Mangrove and RPX” (Mot. 6).
`
`Subject to the foregoing objection(s), Petitioner Mangrove has undertaken a
`
`reasonable search for information that existed prior to October 7, 2015, and has
`
`identified no information relating to both RPX and Mangrove Partners’ decision to
`
`pursue and initiate IPR2015-01046 and IPR2015-01047. Mangrove’s reasons for
`
`pursuing and initiating IPR2015-01046 and IPR2015-01047 were based on an
`
`investment strategy that was unrelated to its RPX investment strategy. Specifically,
`
`Mangrove pursued and initiated IPR2015-01046 and IPR2015-01047 “to increase
`
`6
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 6
`
`
`
`IPR2015-01046, -01047
`
`U.S. Patent Nos. 6,502,135, 7,490,151
`
`the value of the Mangrove Partners Hedge Fund’s short position in VHC stock.”
`
`See Paper 9, 13; Ex. 2004, 2; Ex. 2006, 2; Ex. 1053 (“Mangrove apparently
`
`followed a model pioneered by [Kyle] Bass, who set up a subsidiary of his
`
`Hayman Credes Master Fund LP to challenge numerous drug patents. Bass
`
`reportedly took a short position in the stock of the companies whose patents he
`
`targeted and stood to gain if the price dropped.”); Ex. 1054.
`
`Dated: October 4, 2019
`
`Respectfully Submitted,
`
`/James T. Bailey/
`James T. Bailey
`Reg. No. 44,518
`The Law Office of James. T. Bailey
`504 W. 136th St. #1B
`New York, NY 10031
`T: 917-626-1356
`Attorney for Petitioner Mangrove
`
`7
`
`IPR2015-01046
`Mangrove Partners Master Fund Ltd. & Apple Inc. v. VirnetX Inc.
`IPR2015-01047
`Mangrove Partners Master Fund, Ltd., Apple Inc., and Black Swamp IP, LLC v. VirnetX Inc.
`Exhibit 1050, page 7
`
`
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