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`Paper No. __
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`RPX CORPORATION,
`Petitioner,
`
`v.
`
`APPLICATIONS IN INTERNET TIME, LLC,
`Patent Owner.
`_____________
`
`Case IPR2015-01750
`Patent No. 8,484,111 B2
`
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B21
`_____________
`
`PETITIONER’S REPLY BRIEF
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`
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`1 The word-for-word identical paper is filed in each proceeding identified in the
`heading.
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`I.
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................. 1
`A. The Undisputed Facts Establish Salesforce Is Neither an RPI Nor
`RPX’s Privy ................................................................................................. 1
`B. AIT Misstates the Law on RPI .................................................................... 3
`C. AIT Misstates the Law on Privity ............................................................... 4
`D. AIT Makes Repeated Blatant Misrepresentations ....................................... 5
`II. THE EVIDENCE ESTABLISHES SALESFORCE IS NOT AN RPI
`OR RPX’S PRIVY ............................................................................................ 7
`A. Undisputed Facts ......................................................................................... 7
`1. RPX’s Business Model .......................................................................... 7
`2. RPX/Salesforce Relationship ................................................................ 7
`3. RPX’s Reasons for Filing These IPRs .................................................. 8
`B. Disputed Facts ............................................................................................. 9
`1. RPX’s Services to Salesforce Do Not Include IPRs ............................. 9
`2. Salesforce Never Authorized RPX To Pursue IPRs for
`Salesforce ............................................................................................ 12
`3. RPX Did Not File These IPRs To Benefit Salesforce ........................ 14
`4. Mr. Robertson’s Board Memberships Are Irrelevant ......................... 16
`III. AIT’S ATTACKS ON RPX’S WITNESSES ARE BASELESS .................... 16
`IV. AIT’S ANALOGIES TO VENTEX FAIL ...................................................... 18
`V. SALESFORCE IS NOT AN RPI .................................................................... 19
`A. “Benefits-Plus-Relationship” Is Not the Law ........................................... 19
`1. AIT Ignores Contrary Authority ......................................................... 19
`2. AIT Ignores the Federal Circuit’s Instruction That the Board
`Probe Whether RPX Was Representing Salesforce’s Interests .......... 20
`3. AIT Ignores RPX’s Showing That RPX Is Not Representing
`Salesforce’s Interests ........................................................................... 23
`B. AIT Misreads Wright & Miller § 1552 ..................................................... 24
`C. AIT’s Acquiescence Theory Fails ............................................................. 24
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`VI. RPX IS NOT IN PRIVITY WITH SALESFORCE IN THESE IPRS ............ 24
`A. RPX Is Not Salesforce’s Proxy ................................................................. 25
`1. RPX Is Not Salesforce’s Attorney-In-Fact or Agent .......................... 27
`2. AIT’s Acquiescence Theory Fails ....................................................... 28
`B. RPX’s Contractual Relationship with Salesforce Does Not
`Establish Privity ......................................................................................... 30
`C. AIT’s Amorphous Privity Test Is Contrary to Law .................................. 33
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`ii
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`TABLE OF AUTHORITIES
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`
`CASES
`Applications in Internet Time, LLC v. RPX Corp.,
`897 F.3d 1336 (Fed. Cir. 2018) (“AIT”) ....................................................... passim
`ARRIS Int’l PLC v. ChanBond, LLC,
`IPR2018-00570, Paper 21 (PTAB July 20, 2018) (“ARRIS”) .............................. 32
`Google LLC v. Seven Networks, LLC,
`IPR2018-01051, Paper 28 (PTAB Jan. 14, 2019)
`(“Google v. Seven Networks”) .............................................................................. 13
`Hybrigenics SA. v. Forma Therapeutics, Inc.,
`PGR2018-00098, Paper 10 (PTAB Mar. 20, 2019) ............................................. 19
`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995), aff’d, 517 U.S. 370 (1996) ................................... 31
`O’Neill v. Dep’t of Hous. & Urban Dev.,
`220 F.3d 1354 (Fed. Cir. 2000) (“O’Neil”) .......................................................... 27
`Pac. Gas & Elec. Co. v. United States,
`838 F.3d 1341 (Fed. Cir. 2016) (“Pac. Gas”) ...................................................... 27
`Puzhen Life USA, LLC v. ESIP Series 2, LLC,
`IPR2017-02197, Paper 24 (PTAB Feb. 27, 2019) ............................................... 29
`Taylor v. Sturgell,
`553 U.S. 880 (2008) (“Taylor”) ................................................................... passim
`Unified Patents Inc. v. Barkan Wireless IP Holdings, L.P.,
`IPR2018-01186, Paper 24 (PTAB Dec. 7, 2018) (“Barkan”) ....................... 20, 22
`Ventex Co., Ltd. v. Columbia Sportswear North America, Inc.,
`IPR2017-00651, Paper 148 (PTAB Jan. 24, 2019) (“Ventex”) ..................... 18, 19
`WesternGeco LLC v. ION Geophysical Corp.,
`889 F.3d 1308 (Fed. Cir. 2018) (“WesternGeco”) ....................................... passim
`Wi-Fi One, LLC v. Broadcom Corporation,
`887 F.3d 1329 (Fed. Cir. 2018) (“Wi-Fi Remand”) ..................................... passim
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`iii
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`Worlds Inc. v. Bungie, Inc.,
`903 F.3d 1237 (Fed. Cir. 2018) (“Worlds”) .................................................... 3, 29
`OTHER AUTHORITIES
`18A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
`Federal Practice & Procedure (2d ed. 2018)
` (“Wright, Miller & Cooper”) .................................................................. 27, 29, 30
`6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
`Federal Practice & Procedure (3d ed. 2018) (“Wright & Miller”) ............... 24, 27
`77 Fed. Reg. 48,756 (“TPG”) .................................................................................. 21
`Black’s Law Dictionary (10th ed. 2014) .......................................................... 20, 25
`Restatement (Third) of Agency (2006) .................................................................... 27
`Restatement (Third) of Trusts § 48 (2003) .............................................................. 20
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`iv
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`I.
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`INTRODUCTION
`The Federal Circuit did not reverse the Board’s finding that Salesforce is not
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`an RPI. That would have been the result if—as AIT alleges—the Federal Circuit’s
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`RPI test required nothing more than that Salesforce have a relationship with RPX
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`and “benefit” from these IPRs because Salesforce is accused of infringement. The
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`record before the Federal Circuit established those undisputed facts. The Federal
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`Circuit did not reverse, because the law requires more for Salesforce to be an RPI.
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`Instead, it remanded for the Board to examine the evidence to determine whether
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`there is anything more. There is not.
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`A. The Undisputed Facts Establish Salesforce Is Neither an
`RPI Nor RPX’s Privy
`RPX’s Paper 982 (“Brief”) cited overwhelming evidence that Salesforce is
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`neither an RPI nor RPX’s privy because:
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` RPX had no involvement in the AIT-Salesforce Litigation or CBMs;
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`
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`Salesforce did not fund, direct, control, suggest, or have any
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`involvement whatsoever in these IPRs;
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` RPX has no corporate relationship with Salesforce;
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` RPX’s relationship with Salesforce is unrelated to these IPRs;
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`2 Paper and Exhibit numbers herein are from IPR2015-01750.
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`1
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`
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`Salesforce did not appoint RPX to represent Salesforce’s interests in
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`these IPRs, RPX never agreed to do so, RPX has not done so, and
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`Salesforce has no ability to control RPX’s actions in these IPRs;
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` RPX filed these IPRs to pursue its own interests.
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`AIT’s Opposition (Paper 100) does not meaningfully dispute any of these
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`facts.
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`RPX’s Brief demonstrated that AIT’s pre-institution argument disputing that
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`RPX’s relationship with Salesforce is unrelated to these IPRs was based on
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`mischaracterized snippets cobbled from different public documents describing
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`different things, all unrelated to IPRs. Brief, 17-23. AIT’s Opposition does not
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`even attempt to refute this. Instead, AIT brazenly places quotation marks around
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`its own argument from AIT’s pre-institution brief and misrepresents it as a
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`statement by RPX. See §§ I.D, II.B.1 below.
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`AIT’s mischaracterization of RPX’s business and its relationship with
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`Salesforce is clear from RPX’s underlying public documents that AIT cites, from
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`Messrs. Chuang’s and Chiang’s sworn testimony, and from extensive corroborative
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`documentary evidence. Brief, 17-23. That evidence includes Salesforce’s
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`membership agreement—the “most important documents” (Opposition, 32)—
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`which makes clear that RPX
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` Salesforce defensive patent aggregation
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`services—not IPRs. Brief, 23-25. Undaunted, AIT nonsensically asserts that the
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`2
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`membership agreement “readily cover[s] services… such as IPRs … even though
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`not specified in those [membership agreement] documents.” Opposition, 32.
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`Overwhelming evidence demonstrates that RPX’s relationship with Salesforce is
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`unrelated to these IPRs. AIT’s arguments to the contrary mischaracterize the
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`evidence and are frivolous.
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`While RPX carries the burden of persuasion on issues AIT properly put in
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`dispute, there is no “presumption” (Opposition, 8) against RPX. RPX’s
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`evidentiary showing overwhelmingly meets its burden of persuasion in establishing
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`by a preponderance of the evidence that Salesforce is not an RPI or RPX’s privy.
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`B. AIT Misstates the Law on RPI
`AIT’s assertion that AIT 3 established a broad “benefits-plus-relationship”
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`test (Opposition, 8) is refuted by authority AIT ignores, including Wi-Fi Remand
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`and numerous post-AIT Board decisions expressly rejecting that very argument.
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`Brief, 51-52.
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` AIT requires the Board to consider not only whether “Salesforce has an
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`interest in and will benefit from RPX’s actions,” but also “whether RPX can be
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`said to be representing that interest after examining its relationship with
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`3 Full case cites provided in Table of Authorities.
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`3
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`Salesforce.” Brief, 52-53, citing AIT, 1353.4 The law of representation and agency
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`imposes clear requirements not met here. Brief, 52-57. RPX cannot be said to be
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`representing Salesforce’s interests when Salesforce did not appoint RPX to do so,
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`RPX did not assent to do so, RPX has not done so, and Salesforce had zero control
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`over RPX’s IPRs. Id. AIT does not dispute the authority RPX cited. Instead, AIT
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`futilely attempts to hide from the law by ignoring it.
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`AIT shifts to a new theory that Salesforce is somehow an RPI because it was
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`“happy” the IPRs were filed and “acquiesced” in their “taking place.” Opposition,
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`1, 17-19. These new arguments were waived and should not be considered. They
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`are also unsupported by evidence and legally groundless. See §§ V.C, VI.A.2
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`below.
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`C. AIT Misstates the Law on Privity
`AIT’s pre-institution argument that RPX allegedly has “no interest” in these
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`IPRs and therefore must have filed them as Salesforce’s “proxy” fails because
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`RPX filed these IPRs to pursue its own interests—not Salesforce’s. Brief, 36-48,
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`52-57.
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`4 Emphasis added unless otherwise indicated.
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`4
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`Recognizing this, AIT changes course and boldly alleges that Salesforce’s
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`membership agreement itself “is the very definition of privity.” Opposition, 37.
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`AIT is wrong as a matter of law.
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`AIT relies on AIT’s non-binding concurrence (id., 4-5, 35-36), and ignores
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`Wi-Fi Remand and WesternGeco that control. In both cases, the Federal Circuit
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`affirmed a finding of no privity between a petitioner and a time-barred litigant who
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`(1) shared a common desire to invalidate the patent and (2) had a contractual
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`business relationship, because the relationship was not “sufficiently close that it
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`can be fairly said that the petitioner had a full and fair opportunity to litigate the
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`validity of the patent in that lawsuit.” WesternGeco, 1319, 1322; see Wi-Fi
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`Remand, 1340-41 (same). The AIT concurrence echoes views expressed in Wi-Fi
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`Remand’s dissent, which is not law. It is WesternGeco and the majority opinion in
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`Wi-Fi Remand that control.
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`As with RPI, AIT got the law wrong on privity. Given that it is undisputed
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`that RPX had no control of the AIT-Salesforce Litigation or CBMs (Brief, 27, 61-
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`63), RPX’s business relationship with Salesforce does not put RPX in privity with
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`Salesforce in these IPRs.
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`D. AIT Makes Repeated Blatant Misrepresentations
`AIT has misrepresented the facts before (see Paper 51 (“Decision-
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`Institution”), 9-10; Paper 28, 15), and is at it again:
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` alleging “Chiang admitted” RPX’s primary motivation for filing the
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`petitions “per se… leaves room for other motivations” (Opposition,
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`11), when Mr. Chiang said the exact opposite: “I wouldn’t say it
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`leaves room for – per se it leaves room for other motivations.”
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`Ex. 1094, 51:9-10.
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` alleging an “utter lack of reliability” of Mr. Chuang and RPX’s
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`discovery responses because an email allegedly was “not disclosed in
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`discovery” (Opposition, 34, citing Ex. 1095, 47:16-24), even though it
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`was produced as RPX000047-RPX000067 and filed as Ex. 1025.
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` alleging RPX’s petition for certiorari sought review of whether “the
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`Federal Circuit’s ‘benefits-plus-relationship’ test is incorrect”
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`(Opposition, 8), when the only question presented was “[w]hether 35
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`U.S.C. § 314(d) bars judicial review.” Cert. Pet., 2019 WL 697664, i.
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` alleging RPX made a “public statement” characterizing itself as
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`“attacking patents” “as [its clients’] proxy” when RPX made no such
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`statement. Opposition, 15 (citing Exs. 2006-2008). AIT falsely
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`attributed to RPX attorney argument quoted from AIT’s pre-
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`institution briefing. Id., quoting Paper 8, 1-2 (without attribution).
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`Given AIT’s recklessness with the facts, RPX respectfully requests the
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`Board’s vigilance in scrutinizing AIT’s representations.
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`II. THE EVIDENCE ESTABLISHES SALESFORCE IS NOT AN RPI OR
`RPX’S PRIVY
`A. Undisputed Facts
`RPX’s Brief and accompanying evidence established the following facts,
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`none of which AIT meaningfully disputes:
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`RPX’s Business Model
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`1.
` RPX’s core business is defensive patent aggregation by acquisition of
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`patent rights—this is how RPX clears liability for members, as it has
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`done in over 1,200 cases. Brief, 8-10, 19-20, 42.
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` A typical client’s membership agreement and annual fee cover only
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`RPX’s patent aggregation service, which is the primary reason clients
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`join RPX. Brief, 9, 23.
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` RPX clients sued by NPEs have seen RPX file a related IPR less than
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`2% of the time, corroborating that the prospect of an RPX-filed IPR is
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`not a key reason clients join RPX. Brief, 20.
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`RPX/Salesforce Relationship
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`2.
` Salesforce’s membership agreement granted Salesforce licenses to
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`RPX’s portfolio of thousands of patents. Brief, 23.
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` Salesforce
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`Salesforce’s annual fee
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`, and
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`. Brief, 24-26.
`7
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` RPX and Salesforce have no corporate relationship. Brief, 35.
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` RPX had no involvement in Salesforce’s litigation or CBMs. Brief,
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`27.
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`RPX’s Reasons for Filing These IPRs
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`3.
` Competitors criticize RPX as “too close to NPEs” and rewarding
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`NPEs by paying for “worthless” patents RPX “didn’t have the
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`stomach” to challenge—allegations RPX sought to refute with these
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`IPRs to achieve reputational benefits. Brief, 7, 11, 41.
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` RPX also filed these IPRs to establish a credible validity challenge
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`threat for future cases, reinforce RPX’s expertise in valuing patent
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`assets, and decrease public questioning of the value of patents and
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`RPX’s acquisitions—by invalidating worthless patents. Brief, 37, 42.
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` Invalidating the AIT Patents offered significant reputational benefits
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`because their claims are “astonishingly broad” and would likely be
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`asserted in “multiple future lawsuits” against the software industry.
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`Brief, 37-41, 46-47. RPX mapped the patents to
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` companies AIT
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`might target. Brief, 40.
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` RPX repeatedly rebuffed AIT’s settlement overtures because RPX
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`was not seeking to extricate Salesforce from litigation. Brief, 10, 29,
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`42, 47.
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` RPX was concerned Salesforce might have adverse interests in an
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`RPX-filed IPR, but pursued its own interests without acting on
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`Salesforce’s. Brief, 44-47.
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`B. Disputed Facts
`For the few facts it disputes, AIT’s only basis for doing so is either
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`(1) ignoring the testimony and documentary evidence establishing those facts, or
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`(2) misrepresenting the evidence.
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`1.
`RPX’s Services to Salesforce Do Not Include IPRs
`AIT admits Salesforce’s membership agreements are “[t]he most important
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`documents,” and nowhere include IPRs. Opposition, 32. Yet, AIT incredibly
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`alleges “RPX identified no [non-IPR] services
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` to Salesforce” and
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`“produced no evidence on” “the services [Salesforce] received from RPX”
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`(Opposition, 19, 36, emphasis original), ignoring Salesforce’s membership
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`agreement (Ex. 1020) detailing Salesforce’s license and defensive rights to RPX-
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`acquired patent assets. Brief, 23-26. Ex. 1079 alone
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` (Opposition, 24), and Ex. 1077 (at 1) explicitly
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`.
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`AIT’s allegation that RPX “provided little evidence of the value it has provided to
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`9
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`Salesforce … and none with respect to the
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` after RPX filed the
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`petitions” (id.) is patently false.
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`Additional documentary evidence corroborating that RPX members pay for
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`patent licenses includes RPX’s Form Membership Agreement (Exs. 1074-1075)
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`and the public documents AIT itself cites, including, e.g., Ex. 2007 (RPX clears
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`clients from suit by “acquir[ing] a license to the litigated patent”), Ex. 2015
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`(“RPX’s interests are 100% aligned” with clients’ because “RPX acquisitions”
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`ensure clients avoid legal costs). Brief, 8-10, 17-23, also citing Exs. 2006, 2008.
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`The Board correctly found AIT “mischaracterize[d]” the above evidence by
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`selective quotation. Decision-Institution, 9. AIT relies on the same
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`mischaracterization again, but compounds it by quoting its own brief and
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`misattributing it to RPX. RPX never made a “public statement that it ‘represent[s]
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`clients… as their proxy to selectively clear liability for infringement… including
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`attacking patents that are or will likely be asserted against its clients.’” Opposition,
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`15. Those are AIT’s words (from Paper 8, 1-2) that AIT falsely attributes to “Exs.
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`2006-2008.”
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`Overwhelming documentary evidence AIT ignores (Exs. 1020-1022, 1019
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`(Attachments A-B), 1074-1079) or mischaracterizes (Exs. 2006-2008, 2015, 2019,
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`1081) corroborates RPX’s witnesses’ sworn testimony that RPX’s services to
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`Salesforce include license and defensive rights to thousands of RPX-acquired
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`10
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`patent assets, and have never included IPRs. Brief, 8-10, 17-27. AIT’s allegation
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`that Messrs. Chuang’s and Chiang’s sworn factual testimony is “mere opinion and
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`conjecture” because “[t]hey do not cite any documentary evidence in support”
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`(Opposition, 32) is blatantly false.
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`AIT makes much of RPX gathering and sharing market intelligence with its
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`clients without explicitly describing this in the membership agreement.
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`Opposition, 14. But “reaching out” to patent owners and gathering information are
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`“an inherent” and “necessary part” of RPX’s core “transactional acquisition”
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`service, because RPX cannot acquire/license patent rights without “reaching out”
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`to patent owners, and must gather information from clients and others to
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`understand the market and identify acquisition targets. Ex. 1095, 65:9-16, 116:7-
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`117:9; see also Brief, 9, citing Ex. 2008, 1-4.
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`AIT’s allegation that “[t]hese IPRs fall neatly within” the “services
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` to Salesforce under [its] contract” (Opposition, 2) is unsupported by
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`citation and refuted by the evidence. Brief, 8-27. The allegation that IPRs must be
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`part of Salesforce’s membership by “[t]he same logic” as information gathering
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`and “reaching out” (Opposition, 16) is baseless. AIT’s suggestion that RPX would
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`have to file IPRs for a client like Salesforce as an inherent part of providing
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`Salesforce with rights under RPX’s patent portfolio fails on its face.
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`11
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`AIT’s argument that “[t]here is no credible evidence that these IPRs are
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`carved out of” Salesforce’s membership (Opposition, 15) is nonsensical. IPRs
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`cannot be “carved out” because they were never part of Salesforce’s membership.
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`Brief, 23-27. Sworn testimony is unequivocal that clients have no reasonable
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`expectation of RPX filing IPRs on their behalf unless they explicitly and separately
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`contract to co-file an IPR (Brief, 12-14), and that testimony is corroborated by
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`extensive documentary evidence. Brief, 8-22.
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`2.
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`Salesforce Never Authorized RPX To Pursue IPRs for
`Salesforce
`AIT’s speculation that Salesforce might have authorized RPX to pursue
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`these IPRs on Salesforce’s behalf (Opposition, 17-26) is unsupported and
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`contradicted by evidence AIT misrepresents.
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`AIT recycles the “timelines” the Board recognized as composed of irrelevant
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`communications. Decision-Institution, 13-14. Ex. 2022 (RPX000077-
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`RPX000090) identifies primarily communications unrelated to AIT;
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`communications related to AIT were separately produced. Ex. 1096, 4. AIT’s
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`speculation that there “could have been more communications” (Opposition, 22) is
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`unsupported. While Mr. Chuang, as VP of Client Relations, did not have personal
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`knowledge of every irrelevant communication in Ex. 2022, he has a “high level of
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`confidence that any discussion with Salesforce that involved the AIT litigation or
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`12
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`the AIT patents and… the AIT IPRs, I would have known about that.” Ex. 1095,
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`33:14-34:9. Salesforce never authorized these IPRs. Brief, 27-33.
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`AIT’s suggestion that by “ask[ing] RPX to contact AIT” in two 2014
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`communications, Salesforce was “ask[ing] RPX to help eliminate the Salesforce
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`Litigation” by any means, including IPR, is wrong. Opposition, 25. RPX
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`understood Salesforce to be suggesting RPX consider a potential acquisition, and
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`not on Salesforce’s behalf. Brief, 28-29. AIT defies logic by relying on RPX’s
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`witnesses’ testimony as purportedly providing evidence that Salesforce suggested
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`something that the same witnesses’ testimony unequivocally said is not what
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`Salesforce suggested. Ex. 1095, 39:17-40:23; see also Ex. 1090, ¶¶ 32-35.
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`The limited communication between RPX and Salesforce about the AIT
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`litigation is far less relevant than communications the Federal Circuit and the
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`Board have found do not make an unnamed party an RPI or privy. Wi-Fi Remand,
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`1337 (petitioner Broadcom indemnified defendants and filed amicus brief in appeal
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`from district court); WesternGeco, 1322 (petitioner communicated with litigation
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`defendants about whether prior art status of reference was disputed at trial);
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`Google v. Seven Networks, 22 (petitioner cooperated with unnamed party “to file
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`joint proposed claim constructions and joint validity contentions” in litigation).
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`13
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`3.
`RPX Did Not File These IPRs To Benefit Salesforce
`AIT’s allegation that RPX has a “practice” of filing IPRs for clients is based
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`on quotes from RPX public materials discussing acquisition/licensing and having
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`nothing to do with IPRs. Opposition, 26-28; compare Brief, 17-23. The only
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`quote related to challenging patents is Ex. 2008’s “facilitation of challenges to
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`patent validity,” which means aiding a client’s validity challenge, not RPX filing
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`an IPR. Brief, 12-13, 19.
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`Mr. Chuang’s testimony that RPX membership gains clients rights to
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`thousands of patents and that RPX-filed IPRs are not a reason clients join is
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`corroborated by RPX’s membership agreements and the rarity of RPX-filed IPRs
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`compared to RPX’s 1,200+ license/acquisition-based settlements. Compare Brief,
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`8-10, 18-20 with Opposition, 12-13, 30. Of the 42 IPR petitions RPX has filed
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`since establishing its Best Practices Guide, half named co-petitioners under joint
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`filing agreements; the other half pursued only RPX’s interests. Compare Brief, 16;
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`Ex. 1073, ¶¶ 27-30 with Opposition, 27. Of the 21 RPX filed alone, ten (nearly
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`half) challenged patents being asserted against no RPX member, corroborating that
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`RPX files IPRs for its own interests. Brief, 41.
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`Messrs. Chuang and Chiang explain RPX’s motivations for filing these
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`IPRs. Brief, 36-47. The primary motivation was benefitting RPX’s reputation
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`(Brief, 10-11, 41-42), and two others were addressing public questioning of the
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`14
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`quality/value of poor patents and establishing a credible validity challenge threat
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`for future acquisition pricing. Brief, 37-42. AIT’s assertion that Mr. Chiang
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`“admitted” RPX’s “primary motivation” “leaves room for other motivations”
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`blatantly mischaracterizes his testimony, which said precisely the opposite.
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`Opposition, 11; see § I.D above. AIT’s speculation that phantom “other
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`motivations” included “helping Salesforce” (Opposition, 11-13) is refuted by
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`sworn testimony. Ex. 1090, ¶ 27 (“any potential ancillary benefit to Salesforce
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`was never… a positive motivating factor”); Ex. 1094, 55:20-22 (“I can’t think of
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`any motivation that falls outside… my declaration.”); Brief, 36-47.
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`Mr. Chuang’s testimony that the Best Practices Guide factors are not
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`“exclusive” (Ex. 1095, 80:6-19, cited Opposition, 13) is irrelevant, because
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`Messrs. Chuang and Chiang testified exhaustively about what factors were
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`considered in this case, and that benefitting Salesforce was not a motivation.
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`Brief, 36-47. Their testimony that “dismissal of [Salesforce’s] lawsuit” was not
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`“one of RPX’s goals” (Opposition, 16) is corroborated by RPX rebuffing AIT’s
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`settlement overtures. Brief, 42-43.
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`AIT harps on Salesforce being the only RPX client sued to date (Opposition,
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`10), but never disputes RPX’s prediction that AIT will sue others if its facially
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`invalid patents survive. Brief, 39-44. RPX’s witnesses testified that only
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`Salesforce is “in suit”—not that only Salesforce is “implicated.” Compare
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`15
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`Opposition, 12, with Ex. 1094, 138:15-139:9, Ex. 1095, 98:19-99:22. RPX
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`mapped the AIT Patents to
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` companies in technology areas “RPX believed
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`[AIT] might target.” Brief, 40. The mapping “has nothing to do with
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`infringement” because it is “a coarse filter,” and “you can’t infringe an invalid
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`patent.” Ex. 1094, 57:15-59:4, cited Opposition, 12. Nevertheless, the coarse filter
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`represented “who we believe AIT might target.” Ex. 1094, 58:1-12; Brief, 38-41.
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`4. Mr. Robertson’s Board Memberships Are Irrelevant
`Professor Lipshaw cites documentary evidence that, far from “unusual”
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`(Opposition, 34), “62.5% of independent directors of S&P 500 companies” serve
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`on multiple boards. Ex. 1066 ¶ 16, citing Ex. 1067, 17. AIT offers no basis to
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`question his expert opinion that Mr. Robertson’s board service suggests no RPX-
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`Salesforce relationship. Ex. 1066 ¶ 21; Brief, 35-36. AIT’s assertion that there is
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`no “direct evidence” “that Mr. Robertson had no involvement” (Opposition, 34-35)
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`ignores testimony from those involved in the IPRs that they received “no input
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`whatsoever” from Mr. Robertson (who is no longer affiliated with RPX), and were
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`not even aware he served on Salesforce’s board. Ex. 1090, ¶¶ 14-15; Brief, 36.
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`III. AIT’S ATTACKS ON RPX’S WITNESSES ARE BASELESS
`No authority supports ignoring witnesses’ sworn testimony on relevant facts
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`within their personal knowledge because those witnesses “are attorneys.”
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`Opposition, 31. AIT’s allegation that Messrs. Chuang’s and Chiang’s testimony is
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`16
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`“attorney argument, not recitation of facts” (id., 31, 11), is unsupported by a single
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`example. Compare Decision-Institution, 10-14 (crediting Mr. Chuang’s
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`declaration as establishing relevant facts). The Board should credit Messrs.
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`Chuang’s and Chiang’s testimony, which is corroborated by extensive
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`“documentary evidence” (Opposition, 32). See § II.B above.
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`AIT alleges Mr. Chuang is “unreliable” based on AIT’s false assertion that
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`he admitted “relevant [RPX-Salesforce] communications… were not disclosed in
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`discovery.” Opposition, 34. AIT cites Ex. 1095, 47:16-24, where Mr. Chuang was
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`asked whether “an e-mail” referenced in “paragraph 21 of [his] first declaration” is
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`listed in Exs. 2216-2218. The e-mail isn’t in Exs. 2216-2218 because it was
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`produced separately as RPX000047-RPX000067 (filed as Ex. 1025). Ex. 1096, 3
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`(producing “e-mail dated
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`”). This was explained in the same
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`sentence of the same paragraph 21 of Mr. Chuang’s declaration (Ex. 1019) AIT’s
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`counsel was referencing at deposition. It is AIT—not Mr. Chuang—that has
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`demonstrated an “utter lack of reliability.” Opposition, 34.
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`AIT also baselessly attacks Mr. Chiang, for stating, “All communications…
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`regarding AIT or any AIT patent [up to 12/7/15] were served on AIT.” Ex. 1090, ¶
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`5. It is AIT’s allegation that “[n]o such communications were ever served” that is
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`“entirely FALSE.” Opposition, 34. RPX served (see Ex. 1097) communication
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`RPX000224-RPX000271 (filed as Ex. 1023), and served (see Ex. 1096, 3)
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`17
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`communications RPX000038-RPX000067 (including the email filed as Ex. 1025).5
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`AIT’s assertion that Mr. Chiang gave “false” testimony and proved “unreliable”
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`(Opposition, 34) is outrageous.
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`IV. AIT’S ANALOGIES TO VENTEX FAIL
`Ventex involved facts absent here. The testimony of the petitioner’s
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`witnesses (“unable to answer key open questions”) was contradicted by
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`substantial evidence—the “timing, structure, and amounts” of the time-barred
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`litigant’s payments to petitioner suggested the payments were for the IPRs; “[a]n
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`internal Ventex email further link[ed]” the payments to the IPRs; an Exclusive
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`Manufacturing Agreement purportedly justifying a “large sum” payment appeared
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`to be a “sham” cover for the time-barred litigant to fund the IPRs because it
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`granted petitioner only “rights it appeared to already possess.” Ventex, 13-14.
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`Ventex was found in privity with the time-barred litigant because Ventex
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`served as the litigant’s “proxy” and there was an “inextricable link” between the
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`5 In addition, where documentary communications did not exist, RPX’s 11/3/15
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`Responses to AIT’s discovery requests produced Mr. Chuang’s declaration “that
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`summarizes oral communications.” Ex. 1096, 3. Neither AIT nor the Board
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`questioned RPX’s production—over three years ago—of oral communications via
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`sworn testimony summarizing them.
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`18
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`parties’ contractual relationships and funding the IPR. Id., 14-15. The Board
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`found Ventex “represent[ed]” the time-barred party’s “interests in [the] action,” so
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`the time-barred party also was an RPI. Id., 10. Unlike Ventex, RPX is not
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`Salesforce’s proxy, does not represent Salesforce’s interests, and Salesforce did not
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`fund these IPRs. Brief, 20-57; see § II above.
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`AIT’s assertion that “[b]oth Ventex and RPX have produced unreliable
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`witnesses” fails. Opposition, 40. That AIT had to resort to misrepresenting the
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`record to cast any doubt on the reliability of RPX’s witnesses buttresses those
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`witnesses’ credibility. And unlike in Ventex where documentary evidence
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`contradicted witness testimony, here it corroborates RPX’s sworn testimony. See
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`§§ II-III above.
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`V.
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`SALESFORCE IS NOT AN RPI
`A.
`“Benefits-Plus-Relationship” Is Not the Law
`1.
`AIT Ignores Contrary Authority
`AIT did not announce a broad “benefits-plus-relationship” test. AIT ignores
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`RPX’s contrary authority, including Wi-Fi Remand and numerous PTAB cases
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`expressly rejecti