IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`QUALCOMM INCORPORATED,
`Petitioner
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`v.
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`BANDSPEED, INC.,
`Patent Owner
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`Case IPR2015-01581
`Patent No. 7,477,624
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`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`QUALCOMM INCORPORATED,
`Petitioner
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`v.
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`BANDSPEED, INC.,
`Patent Owner
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`Case IPR2015-01581
`Patent No. 7,477,624
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`PATENT OWNER’S PRELIMINARY RESPONSE
`UNDER 37 C.F.R. § 42.107
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`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`Case IPR2015-01581
`Patent No. 7,477,624
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`BACKGROUND
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`On May 14, 2014, Qualcomm Incorporated (“Qualcomm”) was served with
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`I.
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`a complaint captioned Bandspeed, Inc. v. Qualcomm Incorporated et al., 1:14-cv-
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`00436, alleging infringement of U.S. Patent No. 7,477,624 (“’624 Patent”).1
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`1 U.S. Patent Nos. 7,027,418, 7,477,624, 7,570,614, 7,903,608, 8,542,643,
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`and 8,873,500 are currently asserted in this district court litigation. All of these
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`patents, except for U.S. Patent No. 8,873,500, were asserted in the original
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`complaint against Qualcomm. U.S. Patent Nos. 7,027,418 and 7,570,614 are
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`subject to inter partes reexamination proceedings. See Control Nos. 95/000,648-
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`95/002,108 and Control Nos. 95/000,647-95/002,111. U.S. Patent Nos. 7,477,624
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`and 8,542,643 are involved in inter partes review proceedings that have been
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`terminated with respect to all petitioners and that Qualcomm is seeking to join to
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`avoid a time-bar on its petitions for inter partes review. See IPR2015-00314-
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`IPR2015-00315-IPR2015-00316 and IPR2015-00531. U.S. Patent Nos. 7,903,608
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`and 8,873,500 are not currently subject to any post-grant patent proceeding. The
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`inter partes review of U.S. Patent No. 7,903,608 that previously existed was
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`terminated after the original parties settled and no other party, including
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`Qualcomm, sought to join that proceeding. See IPR2015-00237.
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`Patent No. 7,477,624
`Despite service of this complaint, Qualcomm elected not to file an inter partes
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`review (“IPR”) related to the ‘624 Patent during the twelve (12) month window
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`after service provided under 35 U.S.C. § 315(b).
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`On November 26, 2014, Marvell Semiconductor, Inc. (“Marvell”) and
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`MediaTek, Inc. and MediaTek USA, Inc. (“MediaTek”), entities that also were
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`served with complaints for infringement of the same patents asserted against
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`Qualcomm on or around the same date Qualcomm was served its complaint, filed
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`their Petition for inter partes review of the ‘624 Patent in IPR2015-00316.
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`On June 11, 2015, the Patent Trial and Appeal Board (“PTAB”) instituted
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`trial in IPR2015-00316. On June 10, 2015, one day prior to institution, the PTAB
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`granted Marvell and Bandspeed’s joint request to terminate the proceedings with
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`respect to Marvell only. On July 13, 2015, nearly eight (8) months after the
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`Petition was filed in IPR2015-00316 and on the last possible day to request joinder
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`under 37 C.F.R. § 42.122(b), Petitioner Qualcomm filed its motion for joinder of
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`the instant petition with IPR2015-00316. On August 5, 2015, MediaTek and
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`Bandspeed filed their joint motion to terminate IPR2015-00316 after settlement of
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`the litigation involving the ‘624 Patent.
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`II. QUALCOMM’S PETITION IS UNTIMELY UNDER 35 U.S.C. §
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`315(B) ABSENT JOINDER.
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`35 U.S.C. § 315(b) states:
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`Case IPR2015-01581
`Patent No. 7,477,624
`(b) Patent Owner’s Action. —An inter partes review may not be
`instituted if the petition requesting the proceeding is filed more than 1
`year after the date on which the petitioner, real party in interest, or
`privy of
`the petitioner
`is served with a complaint alleging
`infringement of the patent. The time limitation set forth in the
`preceding sentence shall not apply to a request for joinder under
`subsection (c).
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`Qualcomm’s Petition was filed on July 13, 2015, almost fourteen (14)
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`months after service of the complaint asserting the ‘624 Patent, meaning its
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`Petition is time-barred absent joinder. Indeed, the Board has previously indicated
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`that “[i]f the [Qualcomm] joinder motions are not granted, the related proceedings
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`are barred under 35 U.S.C. § 315(b).” IPR2015-00316, Paper 20 at 2. Because
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`Qualcomm has failed to establish that its joinder motion should be granted, the
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`instant petition is time-barred and no trial should be instituted.
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`III. JOINDER IS INAPPROPRIATE UNDER THESE CIRCUMSTANCES.
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`A.
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`Joinder Is Discretionary.
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`The decision whether to join two IPR proceedings is entirely discretionary,
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`and the Petitioner, as the moving party in this instance, bears the burden to show
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`that joinder is appropriate. See ZTE Corporation, ZTE (USA) Inc. and T-Mobile
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`USA Inc. v. Adaptix, Inc., Case IPR2015-01184, Paper 10 at 4; see also 35 U.S.C.
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`§ 315(c) and 37 C.F.R. § 42.20(c). 35 U.S.C. § 315 provides in pertinent part:
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`Joinder.—If the Director institutes an inter partes review, the
`(c)
`Director, in his or her discretion, may join as a party to that inter
`partes review any person who properly files a petition under section
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`Patent No. 7,477,624
`311 that the Director, after receiving a preliminary response under
`section 313 or the expiration of the time for filing such a response,
`determines warrants the institution of an inter partes review under
`section 314.
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`When exercising its discretion on joinder, the PTAB “is mindful that patent
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`trial regulations, including the rules of joinder, must be construed to secure the
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`just, speedy, and inexpensive resolution of every proceeding . . . [a]s indicated in
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`the legislative history, the Board will determine whether to grant joinder on a case-
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`by-case basis, taking into account the particular facts of each case.” See ZTE
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`Corporation, ZTE (USA) Inc. and T-Mobile USA Inc. v. Adaptix, Inc., Case
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`IPR2015-01184, Paper 10 at 6. Both policy and scheduling considerations favor
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`denial of joinder. Accordingly, the Board should deny Qualcomm’s request for
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`joinder and should deny the instant Petition as time-barred. See also IPR2015-
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`01581, Paper 8.
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`B. Allowing Joinder in this Matter Would Undermine the Estoppel
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`Provisions of the AIA and the Public Policies Favoring Settlement
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`and Speedy Resolution of Disputes.
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`1. Allowing Joinder After the Filing of a Motion to Terminate
`Undermines the Estoppel Provisions of the AIA.
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`Title 35, section 315(e) of the United States Code provides that any
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`petitioner, or the real party in interest or privy of the petitioner, is estopped from
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`asserting in civil actions or proceedings before the United States Patent and
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`Trademark Office (“USPTO”) that a claim is invalid on any ground that the
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`Patent No. 7,477,624
`petitioner raised or reasonably could have raised during that inter partes review.
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`In multi-defendant cases, allowing joinder to be perfected after a filing of a motion
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`to terminate encourages defendants to delay joining a pending IPR of another
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`defendant for as long as possible. If a defendant that filed an IPR does not settle,
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`the other defendants would be allowed to “free ride” on the IPR, unfairly obtaining
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`any benefits of the IPR decision without incurring any of the attendant estoppel
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`risks. If the defendant that filed the IPR settles and the parties to the IPR are about
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`to file or have filed a motion to terminate, the other defendants would be free to
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`file motions to join the IPR any time up to one month after institution even if it is
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`beyond one year after service of a complaint. In summary, permitting joinder after
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`a motion to terminate has been filed would encourage evasion of the estoppel
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`provisions of the America Invents Act (“AIA”).
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`If, however, joinder after the filing of a motion to terminate is not allowed,
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`any defendant that had not filed an IPR but desired the benefit of decision in a
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`pending IPR would be encouraged to join that IPR proceeding as soon as possible,
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`thereby incurring the same estoppel obligations as the original petitioner. This
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`policy would prevent non-petitioning defendants from evading the estoppel
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`provisions of 35 U.S.C. § 315(e) by free-riding on pending IPRs.2
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`2 The problem of a free-riding IPR petitioner is not solved by using a
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`chronological approach to determining whether to grant joinder motions filed
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`Patent No. 7,477,624
`2. Allowing Joinder After the Filing of a Motion to Terminate
`Undermines
`the Policies Favoring Settlement and Speedy
`Resolution of Disputes.
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`Patent Owner previously argued that the PTAB should exercise its discretion
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`to deny joinder of the instant petition with IPR2015-00316 due to public policy
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`reasons and the advanced stage of IPR2015-00316 (i.e. almost five months have
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`now passed since the institution decision of IPR2015-00316). See IPR2015-
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`001581, Paper 8. In particular, Patent Owner explained that permitting joinder
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`under these circumstances would undermine the public policy favoring settlement
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`before termination motions. Even in cases in which a motion to join is filed prior
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`to a motion to terminate, a risk exists that the petitioner seeking to join learns of an
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`impending settlement between the parties to the original IPR and only then decided
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`to file its copy-cat petition and motion to join prior to a motion to terminate being
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`filed in the original IPR. Indeed, this could have occurred in this very case. It is
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`curious that Qualcomm did not seek to join MediaTek’s pending IPR on U.S.
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`Patent No. 7,903,608 that had a joinder deadline of June 4, 2015, but did seek to
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`join the present IPR which had a joinder deadline of July 13, 2015, a mere three (3)
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`weeks prior to the date of the settlement agreement between MediaTek and
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`Bandspeed.
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`Patent No. 7,477,624
`by discouraging future settlements—particularly early settlements prior to the
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`joinder deadline elapsing.
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`If joinder is permitted even after a motion for termination has been filed, a
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`patent owner would have little incentive to enter into a settlement in a multi-
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`defendant case until at least one month after institution of the last IPR filed. The
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`patent owner will be concerned that even if it settles with the original petitioner,
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`another defendant will seek to join or be permitted to join the instituted IPR that
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`would otherwise likely be terminated, depriving the patent owner of much of the
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`value of its settlement with the original petitioner and delaying resolution of the
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`IPR contrary to the PTAB’s directive of insuring a just, speedy and inexpensive
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`resolution to IPRs.
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`Conversely, a decision that the filing of a motion to terminate with an
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`accompanying settlement agreement between all parties to an existing IPR before a
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`second petitioner’s perfecting joinder (not just filing a motion for joinder) prevents
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`joinder would be consistent with the PTAB’s existing precedent and would
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`encourage settlement. The rules of joinder must be construed to secure the just,
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`speedy and inexpensive resolution of every proceeding, and the PTAB trial rules
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`explicitly state that strong public policy reasons exist to favor settlement between
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`parties to an IPR. See Kyocera Corporation v. Softview LLC, IPR2013-00004,
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`Paper 15 at 3; see also The Office Patent Trial Practice Guide, 77 Fed. Reg. 48756,
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`Patent No. 7,477,624
`48768 (Aug. 14, 2012). Further, such a decision would encourage a petitioner to
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`file its motion for joinder as soon as possible (instead of waiting until the last
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`possible day to file) and to be diligent in perfecting joinder. An early joinder also
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`would prevent the scheduling difficulties being experienced in this case from
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`arising as discussed further in Section III.C. supra.
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`Denying joinder has the additional benefit of preventing a situation in which
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`an unscrupulous patent owner could take advantage of a time period in which there
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`is no interested petitioner involved in an IPR proceeding. After settlement, the
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`original petitioner has little incentive to defend a deposition of an expert declarant
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`or to even file a reply brief to a patent owner response. However, prior to joinder
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`being perfected, the petitioner attempting to join has no authority to perform those
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`tasks for the original petitioner. A patent owner, for example, could take the
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`deposition of an expert declarant used to support a petition, and the original
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`petitioner could elect not to prepare the witness for the deposition or defend the
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`deposition vigorously because it has no incentive to do so after settlement.
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`This very situation could have arisen in this case if Patent Owner had
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`insisted on moving forward based on the original due dates set in the Scheduling
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`Order for IPR2015-00316. See IPR2015-00316, Paper 13. The original due date
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`for Patent Owner’s response was September 8, 2015, meaning the deposition of the
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`original petitioner’s expert declarant would presumably have occurred by late
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`Patent No. 7,477,624
`August 2015 under the original schedule. Id. at 6. If Patent Owner had elected to
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`push forward with the deposition of the original petitioner’s expert, Dr. Ding, in
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`IPR2015-00316, MediaTek would have had little incentive to prepare Dr. Ding or
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`defend him (and would have been unjustly forced to bear the attorney fees and
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`experts costs associated with that deposition) while Qualcomm was obviously not
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`joined to the proceeding and available to do so. After MediaTek’s settlement and
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`before Qualcomm’s joinder, the IPR proceeding was not truly inter partes. In
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`another IPR, a patent owner could attempt to leverage that situation to its
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`advantage if it believes joinder will eventually be permitted but has not yet
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`occurred.3
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`3 This is yet another reason why the present fact pattern is distinguishable
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`from Nintendo of America, Inc. and Nintendo Co., Ltd. v Babbage Holdings, LLC,
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`Case IPR2015-00568 (Paper 12). In Nintendo, a patent owner and original
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`petitioner settled and intended to file a motion to terminate the original IPR in the
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`near future, but had not done so yet, and a second petitioner had already filed a
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`motion for joinder of a subsequently filed petition with the original IPR and this
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`motion was ripe for the PTAB to act upon. Nintendo of America, Inc. and
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`Nintendo Co., Ltd. v Babbage Holdings, LLC, Case IPR2015-00568 (Paper 12).
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`Because the proceeding always had an interested petitioner and could truly be
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`considered inter partes, the PTAB could simply join the later filing petitioner to
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`Patent No. 7,477,624
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`the existing IPR without worrying about the perverse incentives discussed herein
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`during a period of time between settlement of the original IPR/filing of a motion to
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`terminate and the date the preliminary response was due in the joining IPR (i.e. the
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`earliest date the Board could actually join the two proceedings under 35 U.S.C. §
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`315(c)). In other words, in Nintendo, the motion to join was ripe for action and
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`perfection of joinder prior to the motion for termination being filed in the original
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`proceeding. That is not the case in the present proceeding wherein a motion to
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`terminate the original IPR was filed on August 5, 2015 and the preliminary
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`response in the second filed IPR was not due until October 28, 2015, meaning a
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`significant period of time would elapse and certain critical Due Dates would pass
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`without an interested petitioner. Indeed, the originally scheduled Due Date 1
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`related to patent owner’s response, and deposition of petitioner’s declarant, would
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`have passed prior to the Board’s order vacating scheduling dates issued on
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`September 17, 2015. In situations in which joinder can be perfected prior to a
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`motion for termination being filed, the PTAB need not worry about the
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`proceedings becoming ex parte due to the original petitioner’s indifference or
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`being forced to disrupt the schedule entirely by vacating all of the dates in the
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`original scheduling order as occurred herein.
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`Patent No. 7,477,624
`If joinder of two IPRs has not been perfected prior to a motion for
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`termination being filed by all of the original parties to an instituted IPR, it should
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`not be permitted. If the petitioner attempting to join the instituted IPR is not time-
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`barred under 35 U.S.C. § 315(b), then its petition should simply proceed on its own
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`timeline without the need to be joined with the previously filed IPR. If the
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`petitioner is time-barred, then it only has itself to blame for not filing an IPR until
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`well over a year after being served with a complaint and attempting to rely on an
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`IPR that it has no role in until after joinder is perfected and that is filed by another
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`entity that it does not control.
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`C.
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`Joinder Will Require Significant Modification of the Scheduling
`Order and Would Risk Compromising the Board’s Deadline for a
`Final Written Decision.
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`Because the rules of joinder must be construed to secure the just, speedy,
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`and inexpensive resolution of every proceeding, scheduling concerns that may
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`arise are of paramount importance in determining whether joinder is appropriate.
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`See Kyocera Corporation v. Softview LLC, Case IPR2013-00004, Paper 15 at 3.
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`As Patent Owner previously predicted, IPR2015-00316 could not proceed without
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`significant adjustments to the scheduling order if joinder were permitted or even
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`contemplated and any such joinder will compromise the PTAB’s statutorily
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`mandated deadline for a final written decision under 35 U.S.C. § 316(a)(11) and 37
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`C.F.R. § 42.100.
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`Patent No. 7,477,624
`The Board, recognizing this issue, took the extraordinary measure of
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`vacating all existing scheduling dates in IPR2015-00316. “Because no petitioner
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`remains in these proceedings, we vacate the Scheduling Order in each proceeding
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`(Paper 13 in IPR2015-00314, IPR2015-00316, and IPR2015-00531; and Paper 15
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`in IPR2015-00315). If necessary, we will revisit scheduling for these proceedings
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`after decisions on the joinder motions are made in the related proceedings.”
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`IPR2015-00316, Paper 20 at 3. Any revisiting of the scheduling dates would
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`require the PTAB to take another unusual step of exercising its right to extend the
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`pendency of the proceeding by up to six (6) months.
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`37 C.F.R. § 42.100(c) states:
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`(c) An inter partes review proceeding shall be administered such that
`pendency before the Board after institution is normally no more than
`one year. The time can be extended by up to six months for good
`cause by the Chief Administrative Patent Judge, or adjusted by the
`Board in the case of joinder.
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`While 37 C.F.R. § 42.100 permits an extension to the twelve (12) month
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`
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`pendency of an instituted IPR proceeding, the PTAB has shown a reluctance to
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`exercise this right except in rare cases because, presumably, it recognizes that its
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`primary statutory mandate is to provide a just, speedy, and inexpensive resolution
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`of every proceeding and routinely granting six month extensions is contrary to this
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`goal. The PTAB should avoid setting precedent that would encourage late joinder
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`Patent No. 7,477,624
`and the attendant major adjustments to existing scheduling orders such late joinder
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`causes.
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`IV. CONCLUSION
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`Qualcomm elected not to file an IPR related to the ‘624 Patent during the
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`twelve (12) month period after service provided under 35 U.S.C. § 315(b).
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`Qualcomm further decided not to request to join MediaTek’s IPR2015-00316 until
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`the last possible day permissible under 37 C.F.R. § 42.122(b) which was fourteen
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`(14) months after Qualcomm was served a complaint related to the ‘624 Patent and
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`eight (8) months after IPR2015-00316 was filed. Qualcomm’s dilatory behavior
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`and attempt to game the estoppel provisions of the AIA should not be rewarded
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`with joinder that would deprive Patent Owner of the benefit of its bargain with the
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`original IPR petitioners and delay resolution of the originally filed IPR by many
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`months. The PTAB also should be wary of creating dangerous precedent that not
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`only would discourage future settlements and/or delay resolution of pending IPR
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`proceedings, but perhaps also create incentives for patent owners to take advantage
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`of the transition period between a settlement with an original petitioner and the
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`perfection of joinder of another petitioner to a proceeding.
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`Because joinder should not be granted, Qualcomm’s Petition is untimely
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`under 35 U.S.C. § 315(b). Bandspeed’s Motion to Terminate in IPR2015-00316
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`should be granted, Qualcomm’s Motion for Joinder in IPR2014-01581 should be
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`Patent No. 7,477,624
`denied, and the instant Petition should not be instituted because it is time-barred.
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`See IPR2015-00316, Paper 17 and IPR2015-01581, Paper 2.
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`
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`Date: October 28, 2015
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`Respectfully submitted,
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` /s/ Gregory S. Donahue
`Gregory S. Donahue, Registration No. 47,531
`DiNOVO PRICE ELLWANGER & HARDY LLP
`7000 North MoPac Expressway
`Suite 350
`Austin, Texas 78731
`(512) 539-2626
`Attorney for Patent Owner
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`Case IPR2015-01581
`Patent No. 7,477,624
`
`Appendix A - Exhibit List
`
`Description
`U.S. Patent No. 7,477,624 to Gan et al., issued January 13,
`2009 (“The ’624 Patent”)
`Declaration of Dr. Zhi Ding in Support of Petition for Inter
`Partes Review of U.S. Patent No. 7,477,624 November 24,
`2014 (“Ding Decl.”)
`
`U.S. Patent No. 6,760,319 to Gerten et al., issued July 6, 2004
`(“Gerten”)
`U.S. Patent No. 6,418,317 to Cuffaro et al., issued July 9, 2002
`(“Cuffaro”)
`U.S. Patent No. 6,115,407 to Gendel et al., issued September 5,
`2000 (“Gendel”)
`U.S. Patent No. 7,280,580 to Haartsen, issued October 9, 2007
`(“Haartsen”)
`U.S. Patent No. 5,781,582 to Sage et al., issued July 14, 1998
`(“Sage”)
`Non-Final Office Action mailed January 12, 2012, Inter Partes
`Reexamination of U.S. Patent No. 7,027,418, Control No.
`95/000648 (“Non-Final Office Action”)
`Patent Owner’s Housekeeping Amendment, filed February 11,
`2013 in Inter Partes Reexamination of U.S. Patent No.
`7,027,418, Control No. 95/000648 (“Housekeeping
`Amendment”)
`Patent Owner’s Comments after Action Closing Prosecution,
`filed December 3, 2013 in Inter Partes Reexamination of U.S.
`Patent No. 7,027,418, Control No. 95/000648 (“Comments
`After ACP”)
`Definition of “vote,” The American Heritage Dictionary,
`Second College Edition, Boston: Houghton Mifflin Company,
`1985; p. 1356
`Definition of “while,” The American Heritage Dictionary,
`Second College Edition, Boston: Houghton Mifflin Company,
`1985; p. 1376
`Definition of “Register,”– Microsoft Press Computer
`Dictionary, 3rd Edition, Redmond, WA: Microsoft, 1997; p.
`402
`Curriculum Vitae of Zhi Ding, Ph.D.
`
` Exhibit No.
`1001
`
`1002
`
`1003
`
`1004
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`1005
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`1006
`
`1007
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`1008
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`1009
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`1010
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`1011
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`1012
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`1013
`
`1014
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`
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`- 16 -
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`
`
`Case IPR2015-01581
`Patent No. 7,477,624
`U.S. Patent No. 7,027,418 to Gan et al., issued April 11,
`2006
`Specification of the Bluetooth System, Version 1.0B,
`December 1, 1999
`
`1015
`
`1016
`
`
`
`
`
`
`
`- 17 -
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`
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`CERTIFICATION OF SERVICE (37 C.F.R. §§ 42.6(e), 42.105(a))
`
`The undersigned hereby certifies that the above-captioned PATENT
`
`OWNER’S PRELIMINARY RESPONSE UNDER 37 C.F.R. §42.107 was
`
`served in its entirety on October 28, 2015 on the following parties via electronic
`
`mail:
`
`NORTON ROSE FULBRIGHT US LLP
`2200 Ross Avenue, Suite 3600
`Dallas, Texas 75201-7932
`nate.rees@nortonrosefulbright.com
`richard.zembek@nortonrosefulbright.com
`eric.hall@nortonrosefulbright.com
`ross.viguet@nortonrosefublright.com
`
`
` /s/ Gregory S. Donahue
`
`
`
`
`
`
`
`
` Gregory S. Donahue
` DINOVO PRICE ELLWANGER & HARDY, LLP
`Attorney for Patent Owner
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