Date: November 10, 2015
`
`Case: Mangrove Partners Master Fund v. VirnetX, Inc.
`
`Ace-Federal Reporters, Inc.
`Phone: 202-347-3700
`Fax: 202-737-3638
`Email: info@acefederal.com
`Internet: www.acefederal.com
`
`VIRNETX EXHIBIT 2032
`Mangrove v. VirnetX
`Trial IPR2015-01047
`
`Page i
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` _________________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _________________________
` THE MANGROVE PARTNERS MASTER FUND, LTD.,
` Petitioner
` vs.
` VIRNETX INC.
` Patent Owner
` _________________
` Case IPR2015-01046
` Patent No. 6,502,135
` and
` Case IPR2015-01047
` Patent No. 7,490,151
`
` Oral Argument on Proposed Motions
`
` Tuesday, November 10, 2015 (2:34 p.m.)
`
`Before: HON. STEPHEN SIU and HON. KARL D. EASTHOM
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 1
`
`

`
`Page 2
`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`APPEARANCES:
` JOSEPH E. PALYS, ESQ.
` NAVEEN MODI, ESQ.
` DANIEL ZEILBERGER, ESQ.
` Paul Hastings LLP
` 875 15th Street, Northwest
` Washington, DC 20005
` 202.551.1996 FAX: 202.551.0496
` josephpalys@paulhastings.com
` On behalf of VirnetX Inc.
`
` ABRAHAM KASDAN, ESQ.
` Wiggin and Dana LLP
` 450 Lexington Avenue
` New York, NY 10017
` Akasdan@wiggin.com
` and
` JAMES T. BAILEY
` 504 W. 136th St. #1B
` New York, NY 10031
` Jtb@baileylaw.com
` On behalf of Petitioner
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 2
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` P R O C E E D I N G S
` JUDGE SIU: Hello, everyone. This is Judge
`Siu. We have Judge Easthom on the line as well. Is
`everybody present? Who from the Petitioner do we
`have?
` MR. BAILEY: Yes, Your Honor. This is
`James Bailey on behalf of Petitioner.
` JUDGE SIU: Okay. Anyone else?
` MR. KASDAN: Yes, Your Honor. This is Abe
`Kasdan on behalf of Petitioner.
` JUDGE SIU: Okay, is that it for
`Petitioner?
` I guess so. So who do we have for the
`Patent Owner?
` MR. PALYS: Good afternoon, Your Honor.
`This is Joseph Palys for Patent Owner. I'm joined
`with Naveen Modi and Daniel Zeilberger. And we have
`a court reporter on the line, Your Honor.
` JUDGE SIU: Okay.
` COURT REPORTER: Your Honor, my name is
`Donald Thacker. I'm the court reporter.
` JUDGE SIU: Okay, thank you.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 3
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` Since the Petitioner requested this
`conference first, why don't we hear from the
`Petitioner first.
` MR. BAILEY: Thank you, Your Honor. This
`is Jim Bailey. The two issues that we wanted to
`bring up which we put in our list of proposed
`motions; (1), you know, the Patent Owner has filed a
`Motion for Reconsideration on the RPI issue, we
`still feel confident that we have named the correct
`RPI, Mangrove Partners Master Fund, Limited, but
`would like the opportunity to respond if necessary.
` And then the second motion, we've gone
`there, Your Honor, it was just kind of responding to
`what was in the Institution's interest, while we
`don't think any of these other entities that have
`been pointed out are properly RPIs, as the Board
`admitted it wouldn't matter if they were, there's
`nothing that would stop us from adding them.
` If you look at the rehearing, they just
`say the main issue is conflict of interest which you
`already know these people's names and you probably
`could have found them yourself if you needed it.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 4
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`But those are the two issues that we had for the
`initial conference which may impact schedule.
` JUDGE SIU: Okay. VirnetX, does VirnetX
`have anything to add to that?
` MR. PALYS: Yes, Your Honor. Joseph
`Palys. I think just to start off, we believe that
`the reason for, or the fact that we are even having
`this call regarding RPI issue kind of raises to us
`that there is an RPI issue that should have been
`addressed in the Petition, and we kind of set that
`out in our preliminary response and obviously in our
`request for rehearing.
` We think it would be inappropriate for the
`Petitioner to get an opportunity to get a response
`to the Request for Rehearing. One, as we
`understand, the Board generally does not grant
`responses to rehearing requests, and we see this
`case as no different. We believe that the Board can
`decide the issues and requests without any input
`from the Petitioner.
` And also, allowing Petitioner to file a
`response would be prejudicial to VirnetX, especially
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 5
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`given the history involved with these patents. I'm
`sure His Honor and the rest of the panel is familiar
`with the patents at issue, or at least VirnetX, and
`the serial challenges that seem to keep popping up
`before the Board, and we see this case as no
`different, in fact, we see it as a pattern of
`conduct that we think that should be taken into
`consideration as the Board decides these types of
`issues.
` You know, giving Mangrove an opportunity
`to respond to our request for rehearing is really
`giving them an opportunity to respond to our
`preliminary response and not only positions in our
`request for rehearing on an issue that should have
`been frankly taken care of when they filed their
`petition, it was their burden to do the due
`diligence to identify the real parties of interest
`issues. And we believe there is a real RPI issue
`here, and it could extend even beyond the entities
`that are identified in the preliminary response to
`entities where there is actual statutory bar
`ramifications.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 6
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` JUDGE SIU: Okay. Do you want to go on
`and discuss your proposed motion?
` MR. PALYS: Yes, Your Honor. In fact,
`this is a segue.
` So we were asking for leave to file a
`motion for additional discovery regarding RPI. Now
`our request extends to -- it relates to facts that
`we came across after we filed our preliminary
`response. We believe that there is a relationship
`between Mangrove, the Petitioner here, and RPIs, and
`there is facts that have, we have basically gathered
`some facts as best we could that definitely in our
`view suggests that there is enough here for us to
`move for additional discovery regarding the RPI
`issue, between RPIs and the Petitioner.
` Some of these include -- well, just to set
`the stage, Mangrove filed its petition back in April
`of 2015. Interestingly around the same time period
`between April and June we found out through public
`records that Mangrove obtained $3.5, or thereabouts,
`million worth of shares, or an equity stake in RPS
`Corporation, that's, you know, the coincidence --
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 7
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` JUDGE SIU: Did you bring up this RPI, I
`thought it was all these other Mangrove entities in
`your preliminary response, did you mention RPX in
`your preliminary response?
` MR. PALYS: No, Your Honor, that's a
`separate issue, and that's why I was trying to make
`the point that these are facts that came out after
`our preliminary response.
` So the RPI issue relating to the Mangrove
`entities, we think we have briefed that in our
`request for rehearing, we think there's an RPI issue
`that exists with those entities, and we think that,
`frankly, the Board should find that and grant our
`request for rehearing and not institute based on
`that position.
` What we're asking for here now given the
`state of the proceedings is for leave to file a
`motion for additional discovery regarding RPI issues
`that involve an entity that has a statutory bar
`ramifications to this case.
` So, continuing on, you know, on top of the
`issues with the timing of Mangrove getting an equity
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 8
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`stake in RPX in around April or June, as best we can
`tell, Mangrove's backup counsel, who's on the phone
`here, Mr. Bailey, he also represents RPX
`Corporation, and, in fact, as far as we can tell
`from our research, other than this proceeding he's
`only ever represented RPX in these other
`proceedings, and in those other proceedings there
`was RPI issues that involved statutory bar issues.
` And there was additional discovery that
`was granted on RPI in the ParkerVision cases, I
`think it was the ParkerVision cases, and the IPR
`numbers that Mr. Bailey was involved with respect to
`RPS in those is IPR2014-946, 947, 948, and
`IPR2014-01107.
` And then another, well, there's some other
`public information in there that we think that
`supports our position that there's enough here to
`move for additional discovery, including some of the
`public documentation about the relationship between
`RPX and Mangrove, in fact RPX, there's documentation
`showing how RPX is aggressively looking to partner
`with hedge funds such as Mangrove.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 9
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 10
` And given the history of these cases, Your
`Honor, again just to take a trip back on the long
`trail of attacks that VirnetX has had to endure, and
`all of the resources that our client has had to put
`up with, petitioners coming out of the woodwork, so
`to speak, on filing petitions, finding statutory bar
`issues, and more coming up, started way back with,
`notwithstanding any re-exam requests, when Apple
`started the first round of attacks on these patents,
`while 315(b) issues prevented them from pursuing
`these, the next in line was this company called
`Newbay. I don't know if the panel remembers the
`issues that were involved with that case, but the
`company was formed maybe 30 days or so before the
`petitions were filed, and they were on the heels of
`Apple getting ready to lose the 315(b) issues.
` Well, the second VirnetX started to push
`on discovery in the related litigation on who was
`behind them, they gave up their hand, and they said,
`you know what, we want to terminate. Lo and behold,
`right after that RPX came along, and I don't know if
`this panel remembers what happened there where they
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 10
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 11
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`didn't name Apple, and it was found out that there
`was a link between Apple and RPX, and having an
`unnamed relationship in terms of real party of
`interest, 315(b) applied there.
` Microsoft soon filed, and keep in mind,
`all of these petitions the Board is familiar with, I
`know you are, Your Honor, you've seen the arguments,
`you've seen the prior art, they're all the same, I
`mean, they are very similar, same prior art, same
`type of positions, same type of experts, et cetera.
` And after Microsoft was denied on a 315(b)
`now we have Mangrove. They come out of the woodwork
`and filing very similar types of petitions, and
`frankly, our client is kind of frustrated, Your
`Honor, with all the serial attacks that they have to
`endure on this. There has to be a time or something
`that has to be done to prevent these attacks, and I
`think this is one of those issues that a party is
`trying to play fast and loose with the rules on real
`party in interest.
` I think discovery is definitely something
`that the Board should consider here on this issue so
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 11
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 12
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`that we can find out if there are some issues,
`especially with the relationship and the facts
`relating to RPX here.
` JUDGE SIU: So how do you believe RPX is
`controlling this proceeding?
` MR. PALYS: I kind of raised some of the
`facts that we can glean from the public arena, Your
`Honor. There is the relationship, again the timing,
`the fact that, you know, about the same time frame
`that Mangrove filed these petitions they get an
`equity stake in RPX. Do we know what's behind that?
`They got a certain amount of shares. We don't know
`what type of agreement was there, but we know that
`they obtained some equity stake in RPX.
` And then, again, the relationship with
`Mr. Bailey who, as far as we can tell, solely
`represents RPX outside of this proceeding. And
`again, in those proceedings, those involved RPI
`issues, again. And then again, the public
`documentation that's out there that we would like
`the opportunity to put into our motion to show that
`we can meet the Garmin factors for additional
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 12
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 13
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`discovery, we would like that opportunity to do so.
` JUDGE SIU: And are you -- I remember
`Apple was involved with the last RPX set of cases;
`is it your belief that Apple is also controlling in
`some way, are they involved?
` MR. PALYS: Well, that's a question that
`remains unanswered. You know, I'm not going to
`misrepresent, but I certainly think so, Your Honor.
`But, you know, you remember the relationship between
`RPX and Apple, that was established in the public,
`in terms of a real party of interest link there.
` So now that we have -- it's not just that
`we have RPX involved or have this relationship with
`Mangrove, as we kind of mentioned that we can glean
`from the public eye, it's the whole context we think
`this Board has to take into consideration. This
`pattern of filing of companies that are coming out
`of nowhere, challenging these patents from our
`client, yet they have no relationship other than
`relationships with other companies that seem to have
`statutory bar issues.
` And just to be clear, Your Honor, just to
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 13
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 14
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`wrap it up, we think you should dismiss the
`Petitioner's petition right now, we think there is
`just in RPI issue alone with the Mangrove of
`entities that exists right now, what we're asking
`here today is additional discovery with respect to
`RPX based on information that we obtained following
`our preliminary response.
` JUDGE SIU: Okay, let's hear from the
`Petitioner.
` MR. BAILEY: Your Honor, this is Jim
`Bailey. Like Your Honor, I'm hearing about this RPX
`issue for the first time right now, so this has
`never been raised with me. My own name is being
`bandied about, and for the record, I'm a sole
`practitioner, I've been doing this on my own for
`about two and a half years and haven't gotten around
`to putting up a website, but, quite frankly, the
`notion that I have one client is ridiculous.
` So, and if you want to talk about the IPRs
`and what I did against ParkerVision whose back was
`against the wall, that's finished up and all the
`claims that have been instituted on them have all
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 14
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 15
`been cancelled because the Patent Owner realized and
`consented to it, they asked for it, because the
`patents were invalid.
` Everything Mr. Palys says seems to echo
`the points he made in his patent owner statement
`which he doesn't like my client's motivations in
`filing these IPRs which the Board correctly decided
`are irrelevant. And, you know, often the issue that
`they are raising now with the Mangrove entities, I
`think we did our due diligence clearly, we clearly
`believe we named the correct entity and the only
`entity, there are other entities that are related.
`We could explain that because quite frankly what you
`have right now, which we've had no opportunity under
`the rules to respond to, is very confusing in the
`way they have laid it out. We think we could clear
`it up, we think it would be helpful.
` And, you know, Mr. Palys suggesting that
`Apple could be a real party in interest, that's just
`rank speculation which I think is probably what most
`of the RPX stuff is as well. Mangrove is an
`investment fund. I mean, the fact that they own --
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 15
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`they probably own a lot of companies, I don't know
`how many they do own stock in, but I'm sure they own
`at least stakes in a huge number of companies.
` So, we would like to have the opportunity
`to respond to their motion for rehearing because we
`think we could clear issues up for you, but we don't
`think there is anything there, and clearly there is
`nothing there with this RPX issue that they are
`raising.
` JUDGE SIU: Okay, I'm going to put you on
`hold, put everyone on hold for a minute or so while
`the panel confers. I'll be back.
` (2:47 p.m. -- recess -- 2:48 p.m.)
` JUDGE SIU: Okay, we are back.
` Regarding Petitioner's motion for a
`response to the request for a hearing, we feel that
`the information on the record is sufficient, we
`don't need that, so that motion is denied.
` Regarding the contention motion to add
`RPI, we are going to defer that motion pending what
`we determine on our decision, on the decision on the
`motion for rehearing, you'll get more instructions
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 16
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 17
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`on that later.
` And regarding the Patent Owner's petition
`for, or motion for additional discovery, we are
`going to consider the matter and we will issue an
`order in the next few days.
` Any questions?
` MR. PALYS: This is Joe Palys for Patent
`Owner. No, Your Honor.
` JUDGE SIU: Petitioner?
` MR. BAILEY: The only question, this is
`not regarding the issues that we really discussed,
`but just as scheduling going forward, there is a
`motion from Apple to join, and there's another
`motion to join one of the two petitions that I think
`was served yesterday or the day before, someone
`called Black Swamp IP.
` In terms of thinking about schedule, do
`Your Honors have any idea on when we would hear on
`that, when I know whether I have to cooperate with
`those people or not?
` JUDGE SIU: Schedule of what, you mean
`when we are going to get the order out?
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 17
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 18
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` MR. BAILEY: Yes, I don't know -- quite
`frankly, I've done IPRs but I've never had anybody
`try and join one, so I just don't know how that
`impacts our schedule, if at all.
` JUDGE SIU: So did you say Apple is going
`to, is intending on joining one or both of these
`matters?
` MR. BAILEY: Apple has filed petitions and
`motions to join both of these matters.
` JUDGE SIU: Did they? Do you know what
`numbers those are offhand?
` MR. BAILEY: Joe Palys, if you have a
`quicker computer you can get it for me, but I'll
`look, Your Honor.
` MR. PALYS: Yeah, you're talking about the
`joiner motions from Apple?
` MR. BAILEY: Yes.
` MR. PALYS: Hold on, I'll have my team
`look it up. So it's IPR 2016-62 and 63, I think, or
`180 -- no, that's not it -- yes, 62 and 63, Your
`Honor.
` JUDGE SIU: Okay.
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 18
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 19
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` MR. BAILEY: And then, Your Honor, the
`other one that Mr. Kasdan received in Fed-Ex this
`morning I believe, it is, oh, it doesn't have a
`number on it. We received one from someone called
`Black Swamp IP.
` JUDGE SIU: So Black Swamp is also
`planning on joining; is that right?
` MR. BAILEY: Yeah, they filed papers and a
`Motion to Join.
` MR. PALYS: Your Honor, if I may, if I can
`have a couple minutes?
` JUDGE SIU: Yes.
` MR. PALYS: Thank you. I just want to put
`this all into context here, and I think Mr. Bailey
`has said it all for us, I mean, he's acting
`basically as a proxy for Apple right here, asking
`when they can join in on these conversations, and it
`brings me back a few years ago, I don't know, you
`may recall, you may have been on the panel when the
`decisions were, where Apple was trying to join the
`New Bay decisions but they wanted in through their
`315(b) issues, and then there were problems with
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 19
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 20
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`that.
` And then when New Bay decided, like I
`mentioned, when discovery was being pressed against
`them they decided to terminate, and that's when RPX
`came up and filed the almost identical type of
`petitions.
` And here we have Apple filing motions
`trying to join these petitions, and this Black Swamp
`entity, which by the way was formed six days before
`Mangrove's IPRs were filed, you know, I just want to
`put it all in context. I really believe that the
`Board should consider this when they're making their
`decisions on all these types of issues of where we
`stand in terms of what our client has had to endure
`with the serial continued attacks on the same patent
`with the same types of petitions with RPI issues
`somewhere in the background hidden behind these
`other companies that are accompanying.
` And last I'll say, if anything, Your
`Honor, all of these new Apple petitions and the
`Black Swamp, they should just be held in abeyance
`while we are trying to figure out what is going on
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 20
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`with these issues. Thank you.
` JUDGE SIU: Okay, so what was your
`original question, Mr. Bailey?
` MR. BAILEY: Mine was just on schedule.
`The Apple petition, they hired the same expert that
`I had used, so if they're going to be joining these
`depositions that's something that I would want to
`know with the schedule on that, how that impacts
`setting up things as we go forward with the VirnetX
`case.
` The Black Swamp one, I haven't even
`finished reading it, to tell you the truth, but I
`don't think it raises new technical issues.
` JUDGE SIU: Well, I haven't actually seen
`any of these other petitions that Apple supposedly
`filed, the 62, 63, or the Black Swamp. I don't know
`how many they filed, two, I'm assuming, but in any
`event --
` MR. BAILEY: It's one, Your Honor, that
`I've been served with that I know of, and it's on
`the 151 Patent.
` JUDGE SIU: Okay. So I, you know, so they
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 21
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`would be joining, I don't know if there is a
`timetable, I mean they would probably want to do it
`as soon as possible, but I wouldn't really, it's
`really up to them. It's not -- I mean, I'm not
`doing anything on them at the moment, but I wasn't
`even aware of it until just now.
` MR. BAILEY: Okay.
` JUDGE SIU: Okay. And the transcript,
`will that be filed to be part of this record?
` MR. PALYS: Yes, Your Honor. The Patent
`Owner will file that as an exhibit.
` JUDGE SIU: And when do you think you can
`get that filed?
` (Discussion off the record.)
` MR. PALYS: Your Honors, if you want it
`quickly we can certainly do that. If you want to
`wait for it, we can certainly do that as well. So
`we'll follow your lead.
` JUDGE SIU: Well, the sooner the better.
` MR. PALYS: Okay, Don, why don't you put
`it on rush.
` THE COURT REPORTER: Okay, we'll have it
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 22
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 23
`
`to you Thursday morning.
` MR. PALYS: I appreciate that.
` THE COURT REPORTER: Yes, sir.
` JUDGE SIU: Okay, unless there are any
`other questions, I guess that concludes this
`conference.
` Any questions?
` MR. PALYS: No, Your Honor.
` MR. BAILEY: No, Your Honor.
` JUDGE SIU: Okay, thank you very much.
` (Whereupon, at 2:57 p.m., the hearing was
`concluded.)
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`
`Page 23
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`November 10, 2015
`
`Page 24
`
`A
`
`abe 3:9
`abeyance 20:21
`abraham 2:12
`accompanying
`20:18
`acting 19:15
`actual 6:21
`add 5:4 16:19
`adding 4:18
`additional 7:6,14
`8:18 9:9,18 12:22
`14:5 17:3
`addressed 5:10
`admitted 4:17
`afternoon 3:15
`aggressively 9:21
`ago 19:18
`agreement 12:13
`akasdan 2:16
`allowing 5:21
`amount 12:12
`anybody 18:2
`appeal 1:3
`appearances 2:1
`apple 10:8,16 11:1
`11:2 13:3,4,10
`15:19 17:13 18:5
`18:8,16 19:16,20
`20:7,20 21:5,15
`applied 11:4
`appreciate 23:2
`april 7:17,19 9:1
`arena 12:7
`argument 1:17
`arguments 11:7
`art 11:8,9
`asked 15:2
`asking 7:5 8:16
`14:4 19:16
`assuming 21:17
`attacks 10:3,9
`11:15,17 20:15
`avenue 2:14
`aware 22:6
`
`B
`b 10:10,16 11:4,11
`19:22
`back 7:17 10:2,7
`14:20 16:12,14
`19:18
`background 20:17
`backup 9:2
`bailey 2:18 3:6,7
`4:4,5 9:3,12 12:16
`
`14:10,11 17:10
`18:1,8,12,17 19:1
`19:8,14 21:3,4,19
`22:7 23:9
`baileylaw 2:21
`bandied 14:14
`bar 6:21 8:19 9:8
`10:6 13:21
`based 8:14 14:6
`basically 7:11 19:16
`bay 19:21 20:2
`behalf 2:10,22 3:7
`3:10
`behold 10:20
`belief 13:4
`believe 5:6,18 6:18
`7:9 12:4 15:11
`19:3 20:11
`best 7:12 9:1
`better 22:19
`beyond 6:19
`black 17:16 19:5,6
`20:8,21 21:11,16
`board 1:3 4:16 5:16
`5:18 6:5,8 8:13
`11:6,22 13:16
`15:7 20:12
`briefed 8:10
`bring 4:6 8:1
`brings 19:18
`burden 6:16
`
`C
`
`c 3:1
`call 5:8
`called 10:11 17:16
`19:4
`cancelled 15:1
`care 6:15
`case 1:11,14 5:18
`6:5 8:20 10:13
`21:10
`cases 9:10,11 10:1
`13:3
`certain 12:12
`certainly 13:8 22:16
`22:17
`cetera 11:10
`challenges 6:4
`challenging 13:18
`claims 14:22
`clear 13:22 15:16
`16:6
`clearly 15:10,10
`16:7
`client 10:4 11:14
`
`13:19 14:18 20:14
`clients 15:6
`coincidence 7:22
`com 2:9,16,21
`come 11:12
`coming 10:5,7
`13:17
`companies 13:17,20
`16:1,3 20:18
`company 10:11,14
`computer 18:13
`concluded 23:12
`concludes 23:5
`conduct 6:7
`conference 4:2 5:2
`23:6
`confers 16:12
`confident 4:9
`conflict 4:20
`confusing 15:15
`consented 15:2
`consider 11:22 17:4
`20:12
`consideration 6:8
`13:16
`contention 16:19
`context 13:15 19:14
`20:11
`continued 20:15
`continuing 8:21
`controlling 12:5
`13:4
`conversations
`19:17
`cooperate 17:19
`corporation 7:22
`9:4
`correct 4:9 15:11
`correctly 15:7
`counsel 9:2
`couple 19:11
`court 3:18,20,21
`22:22 23:3
`
`D
`d 1:21 3:1
`dana 2:13
`daniel 2:4 3:17
`day 17:15
`days 10:14 17:5
`20:9
`dc 2:7
`decide 5:19
`decided 15:7 20:2,4
`decides 6:8
`decision 16:21,21
`
`decisions 19:20,21
`20:13
`defer 16:20
`definitely 7:12
`11:21
`denied 11:11 16:18
`depositions 21:7
`determine 16:21
`didnt 11:1
`different 5:18 6:6
`diligence 6:17 15:10
`discovery 7:6,14
`8:18 9:9,18 10:18
`11:21 13:1 14:5
`17:3 20:3
`discuss 7:2
`discussed 17:11
`discussion 22:14
`dismiss 14:1
`documentation
`9:19,20 12:20
`doesnt 15:6 19:3
`doing 14:15 22:5
`don 22:20
`donald 3:21
`dont 4:2,15 10:12
`10:21 12:12 16:1
`16:6,18 18:1,3
`19:18 21:13,16
`22:1,20
`due 6:16 15:10
`
`E
`e 2:2 3:1,1
`easthom 1:21 3:3
`echo 15:4
`endure 10:3 11:16
`20:14
`entities 4:15 6:19
`6:21 8:2,10,12
`14:4 15:9,12
`entity 8:19 15:11,12
`20:9
`equity 7:21 8:22
`12:11,14
`especially 5:22 12:2
`esq 2:2,3,4,12
`established 13:10
`et 11:10
`event 21:18
`everybody 3:4
`exhibit 22:11
`exists 8:12 14:4
`expert 21:5
`experts 11:10
`explain 15:13
`
`extend 6:19
`extends 7:7
`eye 13:15
`
`F
`fact 5:7 6:6 7:3 9:4
`9:20 12:9 15:22
`factors 12:22
`facts 7:7,11,12 8:7
`12:2,7
`familiar 6:2 11:6
`far 9:4 12:16
`fast 11:19
`fax 2:8
`fedex 19:2
`feel 4:9 16:16
`figure 20:22
`file 5:21 7:5 8:17
`22:11
`filed 4:7 6:15 7:8,17
`10:15 11:5 12:10
`18:8 19:8 20:5,10
`21:16,17 22:9,13
`filing 10:6 11:13
`13:17 15:7 20:7
`find 8:13 12:1
`finding 10:6
`finished 14:21
`21:12
`first 4:2,3 10:9
`14:12
`follow 22:18
`following 14:6
`formed 10:14 20:9
`forward 17:12 21:9
`found 4:22 7:19
`11:1
`frame 12:9
`frankly 6:15 8:13
`11:14 14:17 15:13
`18:2
`frustrated 11:14
`fund 1:5 4:10 15:22
`funds 9:22
`
`G
`
`g 3:1
`garmin 12:22
`gathered 7:11
`generally 5:16
`getting 8:22 10:16
`given 6:1 8:16 10:1
`giving 6:10,12
`glean 12:7 13:14
`go 7:1 21:9
`going 13:7 16:10,20
`
`202-347-3700
`202-347-3700
`
`Ace-Federal Reporters, Inc.
`Ace-Federal Reporters, Inc.
`
`866-928-6509
`866-928-6509
`
`Page 24
`
`

`
`Mangrove Partners Master Fund v. VirnetX, Inc.
`November 10, 2015
`
`Page 25
`
`17:4,12,22 18:5
`20:22 21:6
`good 3:15
`gotten 14:16
`grant 5:16 8:13
`granted 9:10
`guess 3:13 23:5
`
`H
`half 14:16
`hand 10:19
`happened 10:22
`hastings 2:5
`havent 14:16 21:11
`21:14
`hear 4:2 14:8 17:18
`hearing 14:11 16:16
`23:11
`hedge 9:22
`heels 10:15
`held 20:21
`hello 3:2
`helpful 15:17
`hes 9:5 19:15
`hidden 20:17
`hired 21:5
`history 6:1 10:1
`hold 16:11,11 18:18
`hon 1:21,21
`honor 3:6,9,15,18
`3:20 4:4,13 5:5
`6:2 7:3 8:5 10:2
`11:7,15 12:8 13:8
`13:22 14:10,11
`17:8 18:14,21
`19:1,10 20:20
`21:19 22:10 23:8
`23:9
`honors 17:18 22:15
`huge 16:3
`
`I
`idea 17:18
`identical 20:5
`identified 6:20
`identify 6:17
`ill 16:12 18:13,18
`20:19
`im 3:16,21 6:1 13:7
`14:11,14 16:2,10
`21:17 22:4
`impact 5:2
`impacts 18:4 21:8
`inappropriate 5:13
`include 7:16
`including 9:18
`
`information 9:16
`14:6 16:17
`initial 5:2
`input 5:19
`institute 8:14
`instituted 14:22
`institutions 4:14
`instructions 16:22
`intending 18:6
`interest 4:14,20
`6:17 11:4,20
`13:11 15:19
`interestingly 7:18
`invalid 15:3
`investment 15:22
`involve 8:19
`involved 6:1 9:8,12
`10:13 12:18 13:3
`13:5,13
`ip 17:16 19:5
`ipr 9:11 18:19
`ipr201401107 9:14
`ipr2014946 9:13
`ipr201501046 1:11
`ipr201501047 1:14
`iprs 14:19 15:7 18:2
`20:10
`irrelevant 15:8
`issue 4:8,20 5:8,9
`6:3,14,18 7:15 8:6
`8:9,11 11:22 14:3
`14:12 15:8 16:8
`17:4
`issues 4:5 5:1,19 6:9
`6:18 8:18,22 9:8,8
`10:7,10,13,16
`11:18 12:1,19
`13:21 16:6 17:11
`19:22 20:13,16
`21:1,13
`ive 14:15 18:2,2
`21:20
`
`J
`james 2:18 3:7
`jim 4:5 14:10
`joe 17:7 18:12
`join 17:13,14 18:3,9
`