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` UNITED STATES PATENT AND TRADEMARK OFFICE
`----------------------------------)
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`TCL CORPORATION; TCL COMMUNICATION)
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`TECHNOLOGY HOLDINGS, LTD.; TCT )
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`MOBILE LIMITED; TCT MOBILE INC.; )
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`and TCT MOBILE (US) INC., )
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` Petitioners, )
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` vs. )
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`ERICSSON INC. )
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` Patent Owner. )
` )
`----------------------------------)
`
` TELEPHONE CONFERENCE
` March 2, 2016
` 2:00 P.M.
`
`BEFORE:
`Benjamin D. M. Wood
`Patrick R. Scanlon
`Barbara A. Benoit
`
`Reported by: BONNIE PRUSZYNSKI, RMR, RPR, CLR
`JOB NO. 103032
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`Ericsson Ex. 2002, pg. 1
`TCL et al v. Ericsson
`IPR2015-01605
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`----------------------------------)
` )
`TCL CORPORATION; TCL COMMUNICATION)
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`TECHNOLOGY HOLDINGS, LTD.; TCT )
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`MOBILE LIMITED; TCT MOBILE INC.; )
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`and TCT MOBILE (US) INC., )
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` Petitioners, )
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` vs. )
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`ERICSSON INC. )
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` Patent Owner. )
` )
`----------------------------------)
`
` TELEPHONE CONFERENCE
` March 2, 2016
` 2:00 P.M.
`
`BEFORE:
`Benjamin D. M. Wood
`Patrick R. Scanlon
`Barbara A. Benoit
`
`Reported by: BONNIE PRUSZYNSKI, RMR, RPR, CLR
`JOB NO. 103032
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`A P P E A R A N C E S:
`
`Sheppard, Mullin, Richter & Hampton
`Attorneys for Petitioner
` 12275 El Camino Real
` San Diego, CA 92130
`BY: Martin Bader, Esq.
` Stephen Korniczky, Esq.
` Daniel Yannuzzi, Esq.
` Eric Gill, Esq.
` Nam Kim, Esq.
` Hector Agdeppa, Esq.
` Jesse Salen, Esq.
`
`Oblon, McClelland, Maier & Neustadt
`Attorneys for Patent Owner
` 1940 Duke Street
` Alexandria, VA 22314
`BY: W. Todd Baker, Esq.
` Lisa Mandrusiak, Esq.
` Sameer Gokhale, Esq.
` Marc Weinstein, Esq.
` Alex Kuo, Esq.
` Alexander Englehart, Esq.
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`APPEARANCES (continued):
`HaynesBoone
`Attorneys for Patent Owner
` 2505 North Plano Road
` Suite 4000
` Richardson , TX 75082
`BY: J. Andrew Lowes, Esq.
` David O'Dell, Esq.
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` JUDGE WOOD: Good afternoon. This
`is Judge Wood. With me on the line are
`Judges Benoit and Scanlon.
` This call is regarding, this is the
`initial conference call for IPR2015-1583,
`1584, 1600, 1602, 1605, 1622, 1628, 1637,
`1641, 1646 and 1650.
` Do we have counsel for Petitioners
`on the phone?
` MR. BADER: Yes, your Honor, good
`afternoon. This is Martin Bader on
`behalf of Petitioners. With me is Steve
`Korniczky, Dan Yannuzzi, Eric Gill, Nam
`Kim, Hector Agdeppa and Jesse Salen.
` JUDGE WOOD: Okay. Thank you,
`Mr. Bader.
` Do we have counsel for patent owner
`on the phone?
` MR. BAKER: Yes. This is Todd
`Baker on behalf of the party, Ericsson.
`And I have on the line with me as well,
`Lisa Mandrusiak, both of the Oblon firm.
`And I also want to bring to your
`attention, we have on the phone as well,
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`Andrew Lowes and David O'Dell of Haynes
`Boone. You may be aware there is an
`unopposed motion pending for the IPR
`number 1584 and 1600, and those two IPR
`relates to the '052 patent, and there is
`a pending unopposed motion to switch
`counsel from counsel at Oblon to the
`attorneys at haynes Boone, so I have
`invited them to participate on this call
`as well. I am hoping that is okay.
` JUDGE WOOD: It is.
` Any objection from petitioner's
`counsel?
` MR. BADER: No objection.
` JUDGE WOOD: All right. That's
`fine.
` Okay. Well, thank you, all. Let
`me start by saying we don't, at the
`Board, we have moved away, in general,
`from having initial conference calls but
`in this case, because we are dealing with
`11 cases and several of which deal with
`the same patents, there are a couple of
`issues that we would like to raise with
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`with counsel.
` Before I begin, is this call being
`transcribed?
` MR. BAKER: Yes, your Honor.
` JUDGE WOOD: All right. Who has
`arranged for the court reporter?
` MR. BAKER: Party Ericsson.
` JUDGE WOOD: All right. If you
`will, it's Mr. Baker?
` MR. BAKER: Yes, sir.
` JUDGE WOOD: If you could file the
`transcript when it is available, please.
` MR. BAKER: Yes, we will do that.
` JUDGE WOOD: Thank you.
` Okay. So, there are a number of
`cases that deal with the same patent, for
`example 1605, 1622, and 1628 all concern
`patent 7,149,510; and the 1584, 1600 and
`1604 cases concern another patent,
`6,029,052; and then there are a number of
`other cases, I won't necessarily read out
`the numbers, that concern a reissued
`patent RE43931. It occurred to us that
`it might make sense to consolidate cases
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`that deal with the same patent, and we
`wanted to hear counsel's opinion of that
`possibility.
` So, beginning with Mr. Bader for
`petitioners, is that something that you
`had considered or have talked with patent
`owner's counsel about?
` MR. BADER: That's not something
`that we have fully considered, we
`haven't -- and we have not talked about
`it with the patent owner's counsel.
` JUDGE WOOD: All right. Mr. Baker,
`is that something that patent owner has
`considered?
` MR. BAKER: We considered it some.
`One concern that we would have would be
`with regard to page limits if we were to
`consolidate.
` JUDGE WOOD: Understood. It just
`impressed us that there was a great deal
`of duplication among those papers that
`dealt with the same patents and it might
`be more efficient to consolidate.
`Probably the best way to leave it would
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`be to request that counsel discuss that
`among themselves, and to the extent that
`you can come to some agreement about how
`best to proceed along the lines of
`consolidation, then we can schedule
`another conference call.
` Is that acceptable?
` MR. BAKER: Yes, your Honor. Todd
`Baker speaking.
` MR. BADER: On behalf of
`petitioners, that is acceptable as well.
` JUDGE WOOD: Okay. Thank you very
`much.
` The second topic I would like to
`discuss concerns specifically cases 1605,
`1622 and 1628, and those are the cases
`concerning the '510 patent.
` In our decisions to institute, we
`indicated that maybe the best way to
`construe some of the patent terms would
`be as means plus function claim terms,
`and it's probably the best way to proceed
`for the parties to provide some briefing
`on that issue and the question is how
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`best to do that. The two options that
`occur to us are: One, have a separate
`briefing schedule, and most likely before
`the patent owner files a response; and
`the other way to do it would be to have
`the briefing within the patent owner
`response and petitioner reply.
` So, I am just opening it up to
`counsel to suggest or, if there are
`preferences one way or the other, this
`would be a good time to talk about that.
` So, Mr. Bader, do you have any
`thoughts about that?
` MR. BADER: Sure. So my initial
`reaction is that I think it would
`probably be simpler to brief the issues
`separately. If there are specific terms
`that the Board would like us to brief, we
`are happy to do so, but I think from a
`simplicity standpoint, we should probably
`do it separately from the one position
`and reply.
` JUDGE WOOD: All right. Thank you.
` Mr. Baker, do you have thoughts?
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` MR. BAKER: Agreed. My initial
`thoughts are that a separate briefing
`schedule would be easiest implemented in
`this situation.
` I do wish to speak with the
`underlying client to confirm that, but
`that is my instinct, that we agree that
`separate briefing would make the most
`sense.
` JUDGE WOOD: I think we are leaning
`in that direction as well.
` Any thoughts about particulars, how
`long it would -- you would need for a
`initial paper and response?
` MR. BADER: Your Honor, would this
`involve the expert's declaration in
`support of any type of analysis under
`112, paragraph F, or would you anticipate
`only attorney argument?
` JUDGE WOOD: That's a good
`question. I don't have an answer at this
`point, and I think that we would not
`prohibit, I do not believe, and I can
`talk with my colleagues later, but we
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`would not, I believe, prohibit expert
`declarations if the parties feel that
`they are helpful.
` So, maybe the best way to proceed
`would be to have the panel talk about the
`best way to proceed.
` I think we will likely go forward
`with a separate briefing schedule; of
`course, the possibility of expert
`declarations and suggest the possibility
`of expert depositions, which, you know,
`also, you know, implicates the time it
`would take to complete this process, and
`we wouldn't want to do it in a way that
`overly interferes with the other
`substantive issues.
` So, why don't we table that for the
`moment, and we will be in touch with
`counsel in the future about the best way
`to go forward?
` MR. BADER: That sounds fine on
`behalf of petitioners. This is Martin
`Bader.
` One suggestion I might have, if the
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`Board were to identify the specific terms
`on which it was interested in having
`briefing, and then petitioners and other
`counsel could get together and consider
`whether or not expert testimony would be
`needed, and the possibility of the
`timeframe for submitting briefs and we
`could come back with a recommendation.
` JUDGE WOOD: That makes sense.
` All right. Thank you for that.
` I am now going to turn the call
`over to Judge Benoit, who would like to
`discuss issues specific to two of her
`cases.
` JUDGE BENOIT: Good afternoon,
`everyone, Judge Benoit.
` I wanted to talk about the patent
`owners list of proposed motions in
`IPR2015-01584, as well as IPR2015-01600,
`and both of those motions seem
`substantially similar to me, so let me
`know, Mr. Baker, if you would -- if I am
`missing some differences between the
`postures of the cases.
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` There was a proposed motion for --
`to require petitioner to provide an
`updated exhibit list, included served
`supplemental evidence, assigned exhibit
`numbers, and also a motion pursuant to 37
`CFR Section 42.104(b) to require
`petitioner to set forth the statutory
`ground under 35 USC 102 by which exhibit
`1010 qualifies as prior art, and file any
`supporting evidence for that statutory
`grounds.
` I thought it might be useful at
`this time to take a step back and review
`the objections to evidence process that
`the Board rules envision, and that is the
`first step. If there is any objection to
`evidence, the party objecting to the
`evidence must file the objection a year
`ago; and prior to that, such objections
`were served, and now the Board's rule
`prescribe those objections be filed and
`fall within the time periods prescribed
`by 37 CFR Section 42.64(b).
` After that, the party relying on
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`the evidence to which an objection has
`been lodged has ten days to serve, not
`file, the supplemental evidence to cure
`the objection. Afterwards, if the
`objecting party is not satisfied by the
`supplemental evidence, then the objecting
`party may file a motion to exclude the
`evidence under. Five due dates for in
`our case, and no authorization is needed
`from the Board to file that motion to
`exclude there authorization is given by
`the Board automatically in that case.
`Then the party relying on the evidence
`may file an opposition to that motion to
`exclude, and with their opposition file
`supplemental evidence in support of its
`opposition and that's by due date five.
`Then the objecting party may file a reply
`to any opposition and addressing
`supplemental evidenced by due date six.
` So, with that in mind, let me
`review what I understand to be the record
`in these two cases. Again, I believe
`they are similarly situated and that
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`patent owner filed an objection to a
`number of exhibits in early February,
`February 8th. I understand February 23
`petitioners served supplemental evidence
`to cure, purportedly cure those
`objections, and then March 1st, patent
`owner filed another objection to certain
`attachments, which I understand to be the
`attachment and descriptions of the
`supplemental evidence that was served.
`Is that correct?
` MR. BADER: Yes, your Honor.
` And I want to also point out that
`the parties had a brief conference call
`prior to this call to discuss a few of
`these topics, and as I pointed out
`earlier in the call, I have asked Andrew
`Lowes and David O'Dell of Haynes Boone to
`join this call as they will be taking
`over the two IPRs you have identified,
`1584 and 1600.
` So, if it's okay with you, I'm
`going to ask Mr. Lowes to address your
`question.
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` JUDGE BENOIT: Yes. Thank you.
` MR. LOWES: Yes, your Honor. This
`is Andrew Lowes on behalf of patent owner
`Ericsson in IPR 1584 and 1600.
` We did have a call with
`petitioner's counsel earlier today, and
`with respect to proposed motion one, the
`updated exhibit list and identifying the
`attachments by exhibit number, they have
`agreed to go ahead and re-label those and
`re-serve those on us. So I think that
`motion is taken care of by agreement.
` JUDGE BENOIT: Great, thank you for
`working that out. The panel appreciates
`that very much.
` MR. LOWES: You are welcome.
` Your Honor, with respect to motion
`number two, some of the supplemental
`evidence that was served appeared to
`indicate a different publication date for
`one of the references, Exhibit 110. In
`the petition, the grounds asserted were
`under 35 U.S.C. 102(b) Section 102(b),
`and those were the grounds asserted, and
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`now it appears based on the supplemental
`evidence that they are asserting 35
`U.S.C. 102(a), and today during the call,
`petitioner's counsel did confirm that
`they are also asserting, in addition to
`102(b), they are also now asserting
`102(a) arguments. And I will let
`Mr. Bader explain that.
` MR. BADER: Just one point of
`clarification. We believe the original
`petitions sufficiently set forth both of
`those grounds under 102(b) and 102(a),
`and we are continuing to assert that the
`prior art is prior art under 102(b) and
`102(a).
` MR. BAKER: Your Honor, if I may
`respond. No where in the petition do
`they assert 102(a).
` JUDGE BENOIT: All right. So, I
`understand both party's position, as I
`understand it, then, the motion pursuant
`to require petitioners to set forth the
`statutory grounds is moot at this point,
`because you have all agreed where that
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`lies in terms of what -- there is no need
`for a motion, because the petition says
`what the petition says. Is that correct?
` MR. LOWES: I believe that we came
`to an agreement prior to the call, as
`long as it was made clear on the record
`that the grounds were both under 102(b)
`and 102(a), whether by some sort of
`supplemental filing with the -- with the
`Board or by just clarification on this
`call where we have a recorded record of
`it, then that was fine.
` MR. BAKER: Your honor, that is not
`completely correct.
` We want to understand what are the
`statutory grounds of the petition, and
`what do we have to respond to, and if
`it's under 102(b), we want to note that
`and be able to respond accordingly; if
`it's under 102(a), we want to know the
`publication date because, frankly, we
`have evidence to antedate certain dates,
`and we want to know what -- what date we
`need to present, and what is that
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`Ericsson Ex. 2002, pg. 18
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`information. And it's unfair at this
`point for petitioner to have movable
`dates and movable grounds, whether it's
`under 102(b) or 102(a)). So, we would
`ask that the Board specify what those
`grounds are so that we have a fair
`opportunity to have a full record in our
`patent owner response.
` JUDGE BENOIT: All right. Thank
`you.
` Is there anything else on this
`topic we need to talk about about, other
`motions?
` MR. LOWES: Yes, your Honor. The
`only other point would be that if the
`Board is considering allowing them to
`proceed under 102(a), that they actually
`file their evidence so that we have a
`chance to a perform discovery, as well as
`address it in our patent owner response.
` MR. BADER: And, again, let me
`clarify. This is Martin Bader on behalf
`of petitioners.
` In the petition we identified the
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`Ericsson Ex. 2002, pg. 19
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`prior art as being prior art at least
`under Section 102(b), which necessarily
`also includes 102(a)); and for prior
`references, 102(b) and necessarily also
`102(a)); and the evidence that we
`submitted with the original petition
`supports both of those grounds.
` We also have, in response to the
`objection regarding that piece of prior
`art, we have also submitted supplemental
`evidence to further support both of those
`grounds under 102(b) and 102(a). So, I
`think the record is clear, and if -- I
`think that the proper procedure at this
`point is if the patent owner has a motion
`to strike they would like to file, then
`that would be the next step.
` MR. LOWES: Your Honor, if I may
`respond. This is Andy Lowes for patent
`owner.
` Our concern is more of what are the
`grounds in the petition. And what our
`defense is, we certainly, if it's under
`102(a), the defense of antedated the
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`TSG Reporting - Worldwide
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`Ericsson Ex. 2002, pg. 20
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`reference is available. The petition
`only alleges 102(b). If, in their
`petitioner reply, they were to allege
`evidence of 102(a), then we would have no
`opportunity to antedate their new date
`for that reference. And so we are asking
`that that be put on the record now so
`that we have that opportunity to provide
`a full record for the Board to make a
`decision.
` JUDGE BENOIT: Thank you. I think
`we understand both party's positions.
` Let me confer with the panel for
`just a minute and we will be back with
`you.
` MR. LOWES: Thank you, your Honor.
` (Pause while panel confers.)
` JUDGE BENOIT: Thank you. The
`panel is back. Thank you for waiting for
`us.
` We will take the issue of the
`statutory grounds that have been asserted
`and are at issue in the case under
`advisement, but we will issue an order
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`Ericsson Ex. 2002, pg. 21
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`shortly clarifying what procedure should
`follow from that.
` Are there any other issues that
`parties would like to discuss with the
`panel?
` MR. LOWES: Your Honor, this is
`Andrew Lowes. Nothing further from
`patent owner on these two IPRs.
` MR. BADER: Nothing further from
`petitioner.
` JUDGE BENOIT: And, Mr. Baker,
`nothing further on the other IPRs?
` MR. BAKER: That's correct.
`Nothing further on the other IPRs.
` JUDGE BENOIT: Great. Hearing
`nothing further, this call is adjourned.
`Thank you very much.
` MR. BADER: Thank you.
` MR. BAKER: Thank you, your Honors.
` oOo
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`Ericsson Ex. 2002, pg. 22
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`Page 23
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` Proceedings
` C E R T I F I C A T E
`STATE OF NEW YORK )
` : SS.
`COUNTY OF NEW YORK )
`
` I, BONNIE PRUSZYNSKI, a Notary
` Public with and for the State of New York,
` do hereby certify:
` That such telephonic conference is a true
` record of the proceedings.
` I further certify that I am not related
` to any of the parties to this action by
` blood or marriage, and that I am in no way
` interested in the outcome of this matter.
` IN WITNESS WHEREOF, I have hereunto
` set my hand this 14th of March, 2016.
`
` ________________________
` Bonnie Pruszynski
`
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`Ericsson Ex. 2002, pg. 23
`TCL et al v. Ericsson
`IPR2015-01605
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