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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
`US Patent No. 8,484,111
`Case IPR2015-01751
`Case IPR2015-01752
`Patent 7,356,482 B21
`____________________
`
`________________________________________________________________
`PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO STAY
`
`
`1 This paper addresses issues common to all three cases. As required by the Board’s
`May 5, 2020 order in each, the word-for-word identical paper is filed in each
`proceeding identified in the heading. Paper 116 at 3. Paper and exhibit numbers used
`herein are from IPR2015-01750.
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`
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`TABLE OF CONTENTS
`I.
`INTRODUCTION ....................................................................... 1
`II.
`IPRS SHOULD BE SPEEDY, SO THE BURDEN FOR A
`STAY IS HIGH .......................................................................... 1
`III. RPX HAS NOT MET THE STANDARD FOR A STAY .......... 2
`IV. A STAY WOULD UNDULY PREJUDICE AIT; THE PROXY
`QUESTION IS RIPE FOR THE BOARD’S DECISION .......... 3
`V. AIT HAS SUBSTANTIAL DUE PROCESS CONCERNS ....... 4
`VI. CONCLUSION ........................................................................... 5
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`i
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`TABLE OF AUTHORITIES
`Cases
`Applications in Internet Time, LLC v. RPX Corp., 897 F. 3d 1336 (2018) .... 4
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`Mercedes-Benz USA, LLC v. Velocity Patent, LLC, Case No. IPR2015-
`00290, Paper 9 (January 21, 2015) ...................................................... 1, 2, 3
`Samsung Electronics Co., Ltd. v. STC.UNM, Case IPR2020-00009,
`Paper 6 (December 23, 2019) ......................................................................... 2
`SAS Institute, Inc. v, ComplementSoft, LLC, Case IPR2013-00226,
`Paper 48 (December 15, 2016) ....................................................................... 2
`Thryv, Inc. v. Click-To-Call Techs., LP, 140 S. Ct. 1367 (2020) ................... 5
`
`Ventex Co., Ltd. v. Columbia Sportswear North America, Inc., Case
`IPR2017-00789, Paper 148 (PTAB January 24, 2019) ............................... 5
`Rules
`37 C.F.R. § 42.1 .............................................................................................. 1
`37 CFR § 42.5 ................................................................................................. 1
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`ii
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`
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`I. INTRODUCTION
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`Patent Owner Applications in Internet Time, LLC hereby opposes the motion
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`for stay by Petitioner RPX Corporation. The Board should deny RPX’s motion, and
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`should instead promptly terminate these proceedings as necessitated by due process.
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`II. IPRS SHOULD BE SPEEDY, SO THE BURDEN FOR A STAY IS HIGH
`
`“37 C.F.R. § 42.1(b) provides that the rules ‘shall be construed to secure the
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`just, speedy, and inexpensive resolution of every proceeding.’” Mercedes-Benz USA,
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`LLC v. Velocity Patent, LLC, Case No. IPR2015-00290, Paper 9, p. 3 (January 21,
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`2015) (emphasis in original). Thus, a stay of an IPR proceeding generally is
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`undesirable because it lengthens pendency. See 37 CFR § 42.5(c)(1) (“Any
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`modification of times will take any applicable statutory pendency goal into
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`account.”). In light of this “need for speed,” the Board’s Standard Operating
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`Procedure 9 (“SOP 9”) explains, “The Board has established a goal to issue decisions
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`on remanded cases within six months of the Board’s receipt of the Federal Circuit’s
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`mandate.” SOP 9, p. 1. In particular, a stay for an indefinite period affects the
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`applicable statutory pendency goals in a significant way. Mercedes-Benz USA, p. 4.
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`SOP 9 further states, “In all cases, absent good cause, proceedings on remand
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`generally will not be stayed once the Federal Circuit has issued its mandate, even
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`when a party has petitioned the Supreme Court for a writ of certiorari.” SOP 9, pp.
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`16-17. This recognizes that the grant of a petition for writ of certiorari is very rare.
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`1
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`The Board should not enter a stay when there are issues that would not be “directly
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`impacted” by upper court proceedings. SAS Institute, Inc. v, ComplementSoft, LLC,
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`Case IPR2013-00226, Paper 48, p. 3 (December 15, 2016) (cited in SOP 9).
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`The Board has explained: “First, speculation and conjecture do not support a
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`stay of proceeding. . . Second, a stay only would obviate an obstacle for Petitioner,
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`to the sole detriment of Patent Owner. . . Third, Petitioner does not adequately
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`explain why its Petition in this proceeding would be of value to Petitioner.”
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`Mercedes-Benz USA, p. 4. The Board also should consider the impact of a stay on a
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`copending infringement action. Samsung Electronics Co., Ltd. v. STC.UNM, Case
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`IPR2020-00009, Paper 6, p. 4 (December 23, 2019).
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`III. RPX HAS NOT MET THE STANDARD FOR A STAY
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`RPX today would have the Board stay these cases for an indeterminate time
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`on speculative grounds. This is not good cause.
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`RPX’s arguments amount to “speculation and conjecture.” Mercedes-Benz
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`USA, LLC, p. 4. First, RPX speculates about whether the Federal Circuit will even
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`consider its highly unusual motion. Ex. 1103 at 1 (“recalling the mandate and
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`vacating a previous decision are unusual steps”). Second, RPX speculates that if the
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`Federal Circuit considers its motion, the Federal Circuit will grant its request for
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`extraordinary relief. Indeed, RPX cites scant authority supporting its position. Third,
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`RPX speculates that, even if the Federal Circuit considers its motion, and the Federal
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`2
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`Circuit grants its motion, the relief it obtains will even impact these proceedings. In
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`other words, there is a near-zero chance that RPX’s efforts will impact these
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`proceedings.
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`RPX does not even try to speculate as to when the Federal Circuit will decide
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`its motion. Thus, RPX is essentially asking for a stay of undetermined length. Nor
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`does RPX explain why it has such a great need for the extreme remedy it seeks. If
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`these proceedings are terminated, there will be no change to RPX’s legal interests
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`because RPX has no liability for infringement of the AIT patents. Except for helping
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`its client Salesforce, RPX has not articulated a credible reason why it filed and
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`pursued these cases. This does not justify the extreme relief RPX seeks from either
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`the Board or the Federal Circuit.
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`Indeed, RPX would suffer no prejudice from the Board completing the
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`proceeding on remand as the Federal Circuit instructed it to do. If the Board finds,
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`as it should, that the petitions are time-barred, the Board will terminate these
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`proceedings. RPX would have nothing to complain about, as the Board would be
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`applying the correct legal standard as articulated by the Federal Circuit. If the Board,
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`on the other hand, finds that the petitions were not time-barred, AIT will again
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`appeal, which is substantially the same outcome that RPX seeks in its motion to the
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`Federal Circuit. Thus, under either scenario, RPX is not prejudiced.
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`IV. A STAY WOULD UNDULY PREJUDICE AIT; THE PROXY
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`3
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`QUESTION IS RIPE FOR THE BOARD’S DECISION
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`AIT has already been prejudiced by an extraordinary delay in the enforcement
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`of its patent rights, and a stay would further aggravate the prejudice to AIT. After
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`the Federal Circuit mandate more than 18 months ago, these cases have been pending
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`longer than the Congressional 18-month mandate for the entirety of an IPR.
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`Reflecting the “need for speed” discussed above, Board policy is to decide
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`remands within 6 months. Yet, even after the fact record closed and all argument
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`was complete in these proceedings, more than 12 more months have passed.
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`Meanwhile, the district court case remains stayed pending the outcome of these
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`cases. A stay here means a further stay of the district court case.
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`As the clock ticks on these proceedings, the term of AIT’s patents while away.
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`AIT's '111 patent expired in January 2019 during the remand. AIT’s '482 patent will
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`expire in November 2021 – about 19 months from now. This is almost the same span
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`of time from AIT’s notices of appeal from the FWDs here until the Federal Circuit
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`mandate. Thus, by the time the Federal Circuit decides RPX’s motion, if at all, both
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`of AIT’s patents will have expired. This is simply not fair.
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`V. AIT HAS SUBSTANTIAL DUE PROCESS CONCERNS
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`Staying these cases would be a further denial of AIT’s due process rights, as
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`already articulated by Judge Reyna. Applications in Internet Time, LLC v. RPX
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`Corp., 897 F. 3d 1336, 1358-1359, 1365 (2018) (using the term four times). The
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`4
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`Supreme Court’s Thryv decision did not eliminate the right to due process. Thryv,
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`Inc. v. Click-To-Call Techs., LP, 140 S. Ct. 1367 (2020). In fact, Thryv does not
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`touch on due process. Neither Justice Ginsberg nor Justice Gorsuch mentioned due
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`process in their respective opinions. AIT is owed due process – which includes a
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`decision from the Board which is both prompt and correct.
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`On remand, the burden of proof fell squarely on RPX to show that it was not
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`Salesforce’s proxy. The Board gave RPX six months to prove that it was not
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`Salesforce’s proxy. RPX’s evidence fell short of the evidentiary standard. “The lack
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`of evidence . . . cuts against the party bearing the burden of proof . . .” Ventex Co.,
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`Ltd. v. Columbia Sportswear North America, Inc., Case IPR2017-00789, Paper 148
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`(PTAB January 24, 2019).
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`The lack of process in these cases is a denial of due process. Adding a stay
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`here to a preexisting 12-month delay would be a further denial of due process.
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`VI. CONCLUSION
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`The Board should deny the motion for stay. Due process compels that the
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`Board should terminate these cases as time barred, and not stay them for an indefinite
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`time as RPX requests.
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`Date: May 19, 2020
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`Respectfully submitted,
`
`By: /Steven C. Sereboff/
`Steven C. Sereboff (Reg. No. 37,035)
`ssereboff@socalip.com
`Jonathan P. Pearce (Reg. No. 43,649)
`5
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`jpearce@socalip.com
`SoCal IP Law Group LLP
`310 N. Westlake Boulevard, Suite 120
`Westlake Village, CA 91362
`Telephone: (805) 230-1350
`Fax: (805) 230-1355
`Attorneys for Applications in Internet Time
`LLC
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`6
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a copy of the PATENT OWNER’S
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`OPPOSITION TO MOTION TO STAY has been served upon Petitioner’s attorneys
`of record via their email addresses of record.
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`Dated: May 19, 2020
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`By:/Anneliese Lomonaco/
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`Anneliese Lomonaco
`
`SoCal IP Law Group LLP
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`7
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