Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _________________________
` APPLE, INC.
` 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 of Apple, Inc.
` November 24, 2015 (2:30 p.m.)
`
`Before: The Honorable Judge STEPHEN SIU
`
` The Honorable Judge KARL D. EASTHOM
` The Honorable Judge MICHAEL TIERNEY
`
`202-347-3700
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`Ace-Federal Reporters, Inc.
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`VIRNETX EXHIBIT 2037
`Mangrove v. VirnetX
`Trial IPR2015-1047
`
`Page 1 of 36
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`November 24, 2015
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _________________________
` APPLE, INC.
` 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 of Apple, Inc.
` November 24, 2015 (2:30 p.m.)
`
`Before: The Honorable Judge STEPHEN SIU
`
` The Honorable Judge KARL D. EASTHOM
` The Honorable Judge MICHAEL TIERNEY
`
`202-347-3700
`
`Ace-Federal Reporters, Inc.
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`VIRNETX EXHIBIT 2037
`Mangrove v. VirnetX
`Trial IPR2015-1047
`
`Page 1 of 36
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`Page 2
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`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.
` MICHAEL KASDAN, ESQ.
`
` Wiggin and Dana LLP
` 450 Lexington Avenue
` New York, NY 10017
` Akasdan@wiggin.com
`
` And
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`APPEARANCES (CONTINUED):
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`Page 3
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` JAMES T. BAILEY
` 504 W. 136th St. #1B
` New York, NY 10031
` Jtb@baileylaw.com
` On behalf of Petitioner in IPR2015-01047
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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` P R O C E E D I N G S
` (2:30 p.m.)
` JUDGE TIERNEY: Hi, this is Judge Tierney
`joining. I believe we have Judges Siu and Easthom on
`the line?
` JUDGE EASTHOM: Correct. This is Judge
`Easthom.
` JUDGE SIU: This is Judge Siu.
` JUDGE TIERNEY: Welcome to the call. And
`do we have a representative from the Patent Owner on
`the call?
` MR. PALYS: Yes, Your Honor, this is
`Joseph Palys. I'm joined with Naveen Modi and Dan
`Zeilberger. And I believe we have a court reporter
`for today's call.
` THE COURT REPORTER: Yes, you do. Gaynell
`Catherine from Ace Federal Reporters on the line.
` JUDGE TIERNEY: Okay. And for the court
`reporter, this is for IPR2015-01046 and IPR2015-01047
`Mangrove Partners Master Fund versus VIRNETX, Inc.
` And going back now is, do we have a
`representative from the Petitioner on the line?
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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` MR. BAILEY: Yes, Your Honor, this is Jim
`Bailey for the Petitioner.
` JUDGE TIERNEY: And is there anyone else
`joining you today?
` (SIMULTANEOUS CONVERSATION)
` We're here, Mike Kasdan and Abe Kasdan,
`also for Mangrove.
` JUDGE TIERNEY: And are there any other
`parties on the phone?
` (No response.)
` JUDGE TIERNEY: Hearing none, then we have
`representatives from Mangrove Partners Master Fund
`and representatives from VIRNETX, Inc.; is that
`correct as far as the parties now?
` MR. PALYS: Yes, this is Joseph Palys. As
`far as we know, Your Honor.
` JUDGE TIERNEY: Okay.
` MR. BAILEY: Same here, Your Honor, Jim
`Bailey here.
` JUDGE TIERNEY: And Patent Owner, I
`believe you requested the call today. If you could
`take a couple minutes and give us an overview of your
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`request?
` MR. PALYS: Thank you, Your Honor. So
`Patent Owner seeks leave from the Board to file a
`motion for additional discovery regarding the RPI
`issues with respect to Mangrove Entities identified
`in its preliminary response, Your Honor.
` We believe, based on the Board's decision
`with respect to the Patent Owner's request for a
`rehearing, it appears the Board believes that Patent
`Owner has not provided enough information or evidence
`to show that there was an RPI relationship. With all
`respect, Your Honor, obviously Patent Owner disagrees
`with those positions. But to get to the nature of
`this call is, we're simply asking for the opportunity
`to get the discovery so it can collect the additional
`information that supports the RPI issues that Patent
`Owner believes to exist. And there are several facts
`that we believe that suggests such a relationship
`exists.
` And, again, while the Board believes that
`more may be needed through its decisions, we believe
`the facts that do exist right now at a bare minimum
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`warrants and support granting leave for a Patent
`Owner to file this motion. And there are examples I
`can walk through, Your Honor, if you wish, but I'll
`stop there.
` JUDGE TIERNEY: No, go ahead and walk us
`through. I believe you spelled out certain positions
`in the preliminary response. For example, look at
`the 1046 case on page two. And walk us through.
`Highlight the key arguments that you're trying to
`present today.
` MR. PALYS: Yes, Your Honor. Thank you.
` It might be helpful, I don't know if it
`will be helpful. If you happen to have a preliminary
`response, there's a figure that we provided in our
`preliminary response.
` JUDGE TIERNEY: That was page 3?
` MR. PALYS: Yes.
` JUDGE TIERNEY: Of the 1046 case?
` MR. PALYS: Yes.
` JUDGE TIERNEY: Yes, it's right in front
`of me.
` MR. PALYS: I had to -- just so we could
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`see the parties that are involved here. So not to
`rehash all the argument that we have in terms of
`what's in the preliminary response, but I think it's
`important though just to point out some of the high
`level issues we think that show at the bare minimum,
`again, that there's enough here to warrant leave to,
`or to allow us to file this motion. One of them that
`jumps out, Your Honor, is you can see in the middle
`of the figure the Mangrove Partner Masters Fund.
` JUDGE TIERNEY: Uh-huh.
` MR. PALYS: Also known as the Cayman
`Masters, that's the Petitioner in this case.
` JUDGE TIERNEY: Okay.
` MR. PALYS: Okay? The entity above, the
`Mangrove Partners, that's the actual hedge fund that
`we identify in our preliminary response. There are
`several directors that are identified, and these
`aren't allegations, they're actual facts that are
`coming from SEC filings and things of that nature.
` One of the officers, the COO or the Chief
`Operating Officer is a gentleman by the name of Ward
`Deitrich. I believe it's spelled D-e-i-t-r-i-c-h.
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`November 24, 2015
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`He's a -- he's the CEO, as I mentioned of Mangrove
`Partners Hedge Fund, that top box.
` Now, according to -- or at least to our
`review, we can't find any record in the government
`SEC filings of Mr. Deitrich's being a person of
`authority for the Petitioner. But interestingly, Mr.
`Deitrich is the person who actually signed a power of
`attorney for these petitions. And that's -- that's
`in the power of attorney that was submitted by
`Mangrove. And, yet, in these proceedings -- and the
`title that he gave is, quote, "authorized person".
`So we believe just even that fact alone, but there's
`plenty -- plenty others which are highlighted in our
`preliminary response. That shows that there is a
`relationship and at least that there's a high
`likelihood that information that's going to be useful
`with respect to --
` (SIMULTANEOUS CONVERSATION)
` JUDGE TIERNEY: All right. Now, let's
`stop here. I understand you have all your boxes, but
`what I'm just not hearing is even if we all of a
`sudden agree with all the named identified boxes on
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`page 3 constitute real parties in interests -- is
`there any time bar on this? Or are you just saying
`that they're stopped from filing further cases later
`on should there be RPIs?
` MR. PALYS: I'm sorry, Your Honor, I don't
`quite understand.
` JUDGE TIERNEY: Well, I'm trying to --
` (SIMULTANEOUS CONVERSATION)
` JUDGE TIERNEY: Okay. Let's assume we
`agree with you and that they're all real parties in
`interest, now what?
` MR. PALYS: That, you know, is a statutory
`requirement.
` JUDGE TIERNEY: Yeah, and so we would go
`ahead, we would allow them to correct it, and then
`what?
` MR. PALYS: Well, we --
` JUDGE TIERNEY: I'm trying to understand
`how this is a necessary to take up right now?
` MR. PALYS: If we -- if I understand your
`scenario, Your Honor, if we're saying that let's
`suppose all the RPI entities were not identified by
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`November 24, 2015
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`the Petitioner in this matter, we think that that's
`-- they didn't meet the statutory requirements under
`Section 312(a)(2) and, you know, as the Board has
`mentioned in one of its decisions that they've held
`that petitions for enterprise rule may be considered
`only if the petition identifies the RPI.
` JUDGE TIERNEY: Okay. So --
` MR. PALYS: So --
` JUDGE TIERNEY: -- we're taking it the one
`step further --
` MR. PALYS: Yeah.
` JUDGE TIERNEY: -- they come forward and
`they say, oh, we made a mistake, we would like to
`update our mandatory notices and identify them as
`real parties in interest. Then what?
` MR. PALYS: With all respect, Your Honor,
`I don't believe that this would be something that you
`can just say, oops, this is a mistake. I mean, this
`is a statutory requirement that it's a matter of
`public policy too, and I think the Board could
`understand that and appreciate that.
` JUDGE TIERNEY: No, I'm just trying to --
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`I'm trying to get the issue fleshed out and
`understood better. Because the requirement of the
`petition is that they identify all real parties in
`interest, they go ahead and they amend their
`petition, which we provide in the rules where you can
`modify, you can amend your notice of real party
`interest through mandatory notices. Let's pretend
`the scenario hypothetical is they come back and they
`agree that we didn't identify all. They seek to
`modify, they give updated mandatory notices, then
`what does the Board do?
` MR. PALYS: Well, we think -- we think
`discovery is approp -- discovery is appropriate here,
`Your Honor. Let's say they agree that --
` JUDGE TIERNEY: Okay.
` MR. PALYS: -- that they being the
`Petitioner that, yes, should have identified these
`RPI issues. Or let's say, even our discovery gets us
`to that --
` JUDGE TIERNEY: Okay.
` MR. PALYS: -- there could be other
`entities involved here. I mean, that would show that
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`their first cut at identifying the RPIs clearly
`wasn't proper, and that there could be other entities
`involved and our discovery might lead us down that
`road. So we --
` JUDGE TIERNEY: Do we have -- do we have
`any allegation that anyone other than the people
`identified in those boxes is a real party in
`interest? Are we cabining in the discovery request
`to just those that are identified on page 3 of the
`preliminary pattern response in 1046?
` MR. PALYS: We're not -- what we're
`talking about, Your Honor, in terms of our request is
`for the Mangrove identities that we've identified in
`our -- you know, our preliminary response in what
`we're talking about here and as you can see on this
`page 3. But that doesn't preclude the fact that --
`or the possibility that there could be other entities
`involved that might be in relationship with these
`other entities.
` And I think it's important to point out --
`you know, we had a discussion with the Board earlier
`about another request for discovery in terms of RPS
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`and we understand the Board's decision on that. But
`during that discussion -- and I'm going off memory,
`and I apologize.
` (Laughter.)
` MR. PALYS: -- But I believe that the
`Board -- one of the reasons why that was being denied
`-- a recommendation not considered because some of
`the relationships involve entities not -- other than
`the Petitioner. So in this -- like Mangrove Hedge
`Fund. So under your scenario, Your Honor, if you're
`saying that all the other entities are now RPIs, that
`would lead us to that one step closer which makes it
`relevant to the next step of of some other -- other
`entity that could be involved.
` JUDGE TIERNEY: At this point, do we have
`any evidence or any indication that there is someone
`other than what you've identified in those boxes as
`being an RPI? Or is that more going along the lines
`of speculation?
` MR. PALYS: Well, Your Honor, we believe
`yes. We kind of raised those -- we did raise those
`oppositions and we don't believe that those were
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`alleged positions. They were based on facts, based
`on information that we provided related to the
`relationship of these Mangrove entities and RPS. So
`to answer your question on a high level, yes. But in
`terms of -- discovery that we're specifically asking
`for today is -- relates to these Mangrove entities
`which have not -- I mean, we're going under this
`assumption that these things exist. And we haven't
`gone there, we haven't heard from -- from Mangrove
`whether that's the case. So we still believe that we
`have enough here. We've shown enough and we
`certainly can walk through other examples of why we
`believe that discovery is warranted in this case.
` JUDGE TIERNEY: Okay. So what scope of
`discovery are you requesting today? I mean, we're
`going to -- you're requesting authorization of file
`most for discovery.
` MR. PALYS: That's correct, Your Honor.
` JUDGE TIERNEY: So the first question is,
`do we authorize such a motion? Then if we do, do we
`want to discuss what the scope of the motion would
`be, or do we just have it hashed out when you file
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`the motion? What are you wanting to do -- discuss
`today?
` MR. PALYS: We probably would prefer
`hashing it out, obviously, in our motion. I mean, at
`a high level we can talk about things, but we haven't
`obviously gone down that detailed road of specifics,
`but what we're certainly willing to do, and as the
`Board knows, it's been down this issue of additional
`discovery before with this -- with this panel. And
`knowing that the Board appreciates narrowly tailored
`discovery requests, and we certainly will work with
`the other side in getting that directed to the issues
`that are specific to RPI in relation to these
`Mangrove entities and any other entities that might
`be involved.
` JUDGE TIERNEY: But when I -- when I turn
`to my colleagues and discuss this with them later,
`about whether we authorize this motion or not, what
`am I to -- as a starting point it would just be, we'd
`accept a motion, wait and see what their motion is
`going to request in general? Or do we have specifics
`where we can actually discuss whether such a motion
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`is warranted. Because I'm not hearing a lot of
`specifics today.
` MR. PALYS: Well, I can certainly walk
`through some high level specifics for you if that's
`what you -- if the board wishes so.
` JUDGE TIERNEY: Again, we're going to have
`a discussion --
` MR. PALYS: Okay.
` JUDGE TIERNEY: -- about whether we
`authorize it and this is your chance to inform us
`what the discussion should focus on.
` MR. PALYS: Understood, Your Honor. So
`one of the areas that we would like to pursue is
`request for production of -- of documents. And these
`include requests for communications, documents and
`things of that nature and, of course, I'm
`paraphrasing the language. We'll tailor it as we
`need it in terms of the motion.
` But related to communications and
`information relating to the assistance and this
`includes the identification of prior art, the
`funding, the compensation, preparation of any papers
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`relating to these two IPR matters that we're talking
`about with Mangrove. So the request will be very
`narrowly tailored toward basically as information and
`documents and conditions relating to any assistance
`with preparation of these -- these petitions.
` Another request could be related to the
`expense not covered by the first request, agreements
`and proposals for agreements and things of that
`nature that concern challenging these VIRNETX patents
`and in particular these -- these IPR matters, 1046
`and 1047. There could also be documents sufficient
`to show compensation or consideration in terms of
`funding or stock options or things of that nature
`that would go directly to the RPI factors that we
`point out in our papers.
` Again, specifically tailored toward these
`specific -- these specific IPR matters. And
`discovery also, in terms of Mr. Deitrich's role and
`possibly Mr. August's role in relationship to the
`preparation and filing and assistance for these --
`petitions for this matter. And we might be -- I
`don't want to say we are, but we think we want to
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`Apple Inc. v. Virnetx Inc.
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`also consider the fact that there might be room in
`here for a deposition of a corporate witness with
`respect to some of these entities involved such as
`the Petitioner and/or the Mangrove partners hedge
`fund.
` JUDGE TIERNEY: Okay. Is there anything
`else you'd like to relate to this?
` MR. PALYS: Not at this time, Your Honor.
`I'll just wait to see the response.
` JUDGE TIERNEY: Okay. Thank you.
` All right. Now, I'd like to hear, does
`Petitioner have any comments or thoughts on the
`matter?
` MR. BAILEY: Yes, Your Honor. This is Jim
`Bailey for the Petitioner. I don't know that there's
`much I have to add to your questions, but I agree
`with the points you appeared to be making, that none
`of this will matter. They're -- what they came here
`seeking discovery of the various Mangrove entities.
`It's irrelevant. They've taken two shots at it
`already. Once in their response, once on
`reconsideration, and they're just hoping that there's
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`Page 20
`something more, but even if it were, it's no matter.
`And, you know, you asked Mr. Palys about the scope
`and content of what he was asking for. I've been
`asking him and his colleagues that for three days,
`since they first alerted me to this over a series of
`e-mails and got no answer.
` When he does answer you, which he has to,
`he doesn't have to answer me, he has to answer you.
`I mean, this is just vague stuff. It doesn't even
`appear to be tied to the Mangrove entities. It's a
`pure fishing expedition. He's coming in with no
`evidence, just hoping for something. Because quite
`frankly, you know, it's like his last fishing
`expedition. He said he wanted discovery for RPX
`because I've represented RPX in the past. And he
`doesn't know what else I do. Well, you know, Mr.
`Palys is coming in and telling this court -- he did
`on our last conference call, he had all these other
`things going on for VIRNETX and what he appears to do
`for a living is delay the ultimate finding of
`invalidity of VIRNETX's patents. And that's all I
`see this as, it's just caused delay for no purpose.
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` JUDGE TIERNEY: Okay. Mr. Palys, again
`for Patent Owner, could you identify -- have you
`asked for specific documents and specific requests
`from the Petitioner at this point or has it been more
`general discussions?
` MR. PALYS: No, we haven't, Your Honor.
`Well, we identified and let Mr. Bailey know that we
`wanted to have -- to get his availability. We told
`him that we wanted to seek discovery regarding the
`RPI issues identified in our preliminary response and
`that's -- that's what we're -- we're doing here. And
`what we did today was obviously respond to your
`specific request. And these are coming off -- off
`the cuff, so to speak in terms of the details of the
`type of production and discovery sought.
` One thing I'd like to -- I guess -- point
`out before I pass the baton back to His Honor is, you
`know, something I heard Mr. Bailey's discussion here,
`but you know, Your Honor, you raised the point of
`what we allow them to fix this. And in fact, I
`believe Mr. Bailey even submitted a document
`previously saying, as an alternative form of relief
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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`of -- in the RPI issues, he said it doesn't matter,
`but one thing I haven't heard is, is there an RPI
`issue? Are they actually saying that they -- that
`they're going to amend their RPI positions in their
`petitions?
` JUDGE TIERNEY: Okay. Well, generally,
`you've mentioned you've dealt with this panel before.
`I think you're aware that we do like the parties to
`try and discuss and settle their issues before they
`come to us.
` Here I'm hearing a lot of general
`discussion about you would like additional
`information regarding real parties in interest. I'm
`not hearing any specific requests that have actually
`been made and declined at this point. Is there any
`hope that the parties could have some discussions and
`try and resolve this before we have to make a ruling?
`Or whether it would take a motion in opposition and
`have to make a definitive ruling.
` I'm going to start with Patent Owners, any
`opportunity that you think that this could be
`resolved?
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`Apple Inc. v. Virnetx Inc.
`November 24, 2015
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` MR. PALYS: Yes, Your Honor, this is
`Joseph Palys again. Certainly. Obviously we worked
`with other parties in these petitions, or these
`matters before this panel. And, yes, the answer is
`yeah, there was certainly room for a discussion. And
`we just want to make sure that this moves along at a
`timely pace. So we're welcome -- we welcome a
`discussion with Mr. Bailey and have good faith
`discussions regarding discovery. So as long as we
`can move that along, we certainly will do that.
` JUDGE TIERNEY: And I agree, I would like
`this case moved along. And I want to see if the
`parties can resolve this. But going back to
`Petitioner, we've had some certain high-level
`requests, some indications that there may be some
`documents and some further information that would
`help the Patent Owner better understand the
`relationship between the different entities
`identified, at least as to page 3 of the 1046
`preliminary response.
` I look to Petitioner -- Petitioner, is
`there any room that we could have a fruitful
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`Apple Inc. v. Virnetx Inc.
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`Page 24
`discussion with the Patent Owner and possibly resolve
`some of these issues before we had to go the motion
`opposition route?
` MR. BAILEY: I would hope so, Your Honor.
`But I can tell you, since they told me they were
`going to make this motion, I don't think they know
`what they want and Mr. Palys just told you, he's
`coming off the cuff.
` (SIMULTANEOUS CONVERSATION)
` JUDGE TIERNEY: Well, but -- let's stop
`there. This is Judge Tierney let's stop there. If
`you're telling me that you don't think it's going to
`be fruitful to have these discussions offline,
`without the judges, tell me that now. If you think
`there's some way that you guys may be able to resolve
`this outside of us, that's what I want to know.
` MR. BAILEY: I think we could, but we
`haven't started that process, even though I've asked
`for it.
` JUDGE TIERNEY: I understand. I just want
`to find out, that you're willing to have the
`discussion with Mr. Palys for the -- he's
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`Apple Inc. v. Virnetx Inc.
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`representing Patent Owner and try and resolve this?
` MR. BAILEY: Absolutely, Your Honor.
` JUDGE TIERNEY: Okay. Given that the
`parties are at least willing to discuss the possible
`document production and identification, maybe a
`further explanation of the RPI issue, try and get
`some clarification for the Patent Owner, should we go
`ahead -- and I'm going to ask the parties, shall we
`go ahead and table this discussion for today and
`should the parties be unable to resolve it, have a
`further conference call?
` I'm going to start with Patent Owner. You
`were the one putting the new class, what are your
`thoughts?
` MR. PALYS: Yes, Your Honor. I think
`that's a good idea. And we'd like to at least have,
`if we could, maybe schedule the follow-up call in
`case there is no -- no agreement, so that way it puts
`us both on a timeline to try to get us to -- you
`know, we can -- may I suggest this, and then of
`course, I'm not telling the Board what to do, but
`maybe if we come to some reasonable agreement we can
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`Apple Inc. v. Virnetx Inc.
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`let the Board know it through an e-mail, so we don't
`need to have the call.
` But, I leave it to your discretion.
` JUDGE TIERNEY: All right. Petitioner,
`what's your take on the situation?
` MR. BAILEY: Yeah, we're willing to meet
`and go through them and see if we can resolve this.
` JUDGE TIERNEY: All right. Please hold
`for just a moment, I'm going to consult my colleagues
`to see -- get their guidance on the matter. We'll be
`back shortly.
` (Off-the-record discussion)
` JUDGE TIERNEY: This is Judge Tierney, are
`the representatives from the Patent Owners still on
`line?
` Are the Patent Owners still on the line?
` MR. PALYS: Yeah, yeah. Sorry, I missed
`--
` JUDGE TIERNEY: No problem. And is
`Petitioner still on the line?
` MR. BAILEY: Yes, Your Honor.
` JUDGE TIERNEY: And is the court reporter
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`Apple Inc. v. Virnetx Inc.
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`still on the line?
` THE COURT REPORTER: Yes, Your Honor.
` JUDGE TIERNEY: Okay. The Board has
`conferred and the panel has agreed that it would be
`beneficial for the parties to at least first attempt
`to resolve their issues on the RPI issue. And if
`unable to resolve them, we are willing to have a
`future conference call. We would like to know though
`about when a conference call would want to be
`scheduled. Patent Owner, you're the one who has
`pointed out that maybe we should schedule it today.
`Do you have a date in mind?
` MR. PALYS: Your Honor, maybe Monday if
`that works out with Mr. Bailey, Tuesday. Just
`throwing out ideas here, Your Honor. Maybe Tuesday,
`probably because of the holidays and give us the
`opportunity to --
` JUDGE TIERNEY: This is Judge Tierney.
`Tuesday would work better with my schedule.
` MR. PALYS: Oh, yes, sir. Well, then
`definitely that trumps everything.
` JUDGE TIERNEY: Not a problem. I just,
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`Apple Inc. v. Virnetx Inc.
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`again, if you have a better date, we're open. I'm
`going to consult with my colleagues. At least one of
`them is okay with a Tuesday?
` So, yes, we could have a call on Tuesday.
`Outside of -- I'm busy between 2 and 3 o'clock, but
`otherwise I'm available on Tuesday.
` Is there a time that the parties would
`like to try and arrange for?
` MR. PALYS: Do you want us to meet and
`confer on that while we talk and then get back to the
`--
` JUDGE TIERNEY: That would be great. And
`what we'll do is if the parties when they figure out
`what time, preferably, I would prefer between 10 and
`12, between 1 and 2, and again at 3 to let's say 5
`o'clock. Somewhere in that range. Just reserve
`myself a lunch break that day. If you can -- if you
`can pick a time, I'd appreciate it. Let the -- when
`you request a conference call, just say that the
`Board has already indicated this date and time is
`acceptable, and we will go ahead and accept whatever
`date and time is proposed as long as it's within that
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