`
`February 14, 2017
`
`VIA E-MAIL
`
`Chris J. Coulson
`Andrews Kurth Kenyon LLP
`One Broadway
`New York, NY 10004-1007
`
`Evan S. Day
`EDay@perkinscoie.com
`D. +1.858.720.5743
`
`Re: Microsoft Corp. v. Bradium Technologies LLC, Inter Partes Review Proceeding
`IPR2016-00448 (United States Patent 7,908,343) Exhibit 1017
`
`Counsel:
`
`This letter responds to your letter of February 9, 2017 to my colleague Chun Ng regarding the
`service of Exhibit 1017, the Declaration of Yonatan Lavi, in the subject inter partes review.
`Again, and as previously stated, we are willing to work with you on sealing the exhibit if there is
`a legitimate need to do so, although we note Bradium still has not articulated any such reason.
`
`As an initial matter, we are concerned whether Bradium fully complied with its disclosure
`obligations both to the U.S. Patent and Trademark Office (“PTO”) and in the related litigation in
`the U.S. District Court for the District of Delaware (Bradium Technologies, LLC v. Microsoft
`Corp., No. 15-0031-RGA, the “Delaware Litigation”) as to Mr. Lavi. For example, prior to the
`stay of the Delaware Litigation, Bradium did not disclose Mr. Lavi or his contact information in
`its February 25, 2016 Initial Disclosures or in any subsequent disclosures prior to the stay of the
`case. Yet Microsoft has subsequently learned that you personally had been in email and
`telephone contact with Mr. Lavi after the filing of the Complaint in the Delaware Litigation.
`Additionally, Bradium has filed Substitute Statements in Lieu of an Oath or Declaration to the
`PTO on at least two occasions, after you had contacted Mr. Lavi, stating that Mr. Lavi could not
`“be found or reached after diligent effort.” Bradium has apparently endeavored to avoid
`disclosing Mr. Lavi either to Microsoft or to the PTO, and we are concerned that your February 9
`letter and your letter yesterday are just another attempt to keep the Court, the PTO, and the
`public from hearing from a co-inventor on the Bradium patents.
`
`While your concern that Mr. Lavi’s declaration “reveals confidential corporate information” is
`obviously an issue that Microsoft takes seriously, your letter (filed three days after Mr. Lavi’s
`declaration was filed in IPR2016-00448) does not state any basis for this assertion, and you still
`have not articulated any basis for this assertion in your letter yesterday. Moreover, while
`Microsoft promptly requested additional information regarding the basis of your request that
`Microsoft immediately seek to seal Exhibit 1017 and have the public version expunged, you
`
`134445969.1
`
`Microsoft, Ex. 1044
`Microsoft v. Bradium, IPR2016-00448
`
`

`

`Chris J. Coulson
`February 14, 2017
`Page 2
`
`have not yet provided this information. Bradium’s inability to articulate the basis of its assertion
`that confidential material was disclosed, despite the fact that more than a week has now passed
`since Microsoft filed Exhibit 1017, is inconsistent with your assertion that the public filing of
`Exhibit 1017 creates a risk of “prejudice” to Bradium, or any other entity.
`
`As I noted in my February 9 email response to your February 9 letter to Mr. Ng, you stated in
`your letter that you wrote “on behalf of Bradium Technologies, LLC and Mr. Isaac Levanon,”
`yet your letter does not even assert that Exhibit 1017 reveals any material about which Mr. Lavi
`may have owed a duty of confidentiality to either Bradium or Mr. Levanon. You stated instead
`that the allegedly confidential information relates to Mr. Lavi’s employment with
`“GACentral.com, 3DVU, Ltd., and 3DVU, Inc.” However, you have provided no indication that
`your firm represents any of these business entities, or that these business entities even still exist.
`As we noted previously, 3DVU, Inc. (formerly GACentral.com, Inc. and FlyOver Technologies,
`Inc.) is no longer in good standing with the Delaware Secretary of State, and consequently has no
`legal standing to challenge any breach of any alleged nondisclosure agreement (which you still
`have not provided, despite my immediate request on February 9).
`
`You also have not indicated whether Andrews Kurth Kenyon represents any of the 3DVU
`entities, as I requested in my February 9 email response to your letter. Please state affirmatively
`whether these entities still legally exist and whether Andrews Kurth Kenyon represents them and
`is able to accept service of process on their behalf.
`
`Your new assertion regarding alleged confidential Denso information in Paragraphs 20 and 22 of
`Exhibit 1017 is also unsupported and is not plausible. You do not actually identify the allegedly
`confidential information contained within these paragraphs, and large portions of the paragraphs
`of Mr. Levanon’s declaration discussing the same subject matter at length are unredacted in the
`public version. See, e.g. Exhibit 2072, ¶¶ 43-47, 50-61. It is hard to see how Mr. Levanon’s
`assertion that Denso products incorporated technology covered by the asserted patents (implying,
`although not showing, that the technical operation of such products practiced each claimed
`feature) does not disclose confidential information, but Mr. Lavi’s testimony that they did not
`does disclose such confidential information. Mr. Lavi’s testimony on this point also has nothing
`to do with Ex. 2029, which is a general licensing agreement that Microsoft never provided to Mr.
`Lavi.
`
`If Bradium identifies the specific portions of Exhibit 1017 that supposedly contain confidential
`material and provides the information requested above and in my February 9 email, Microsoft is
`willing to consider re-filing the exhibit under seal and concurrently filing a redacted public
`version. This would not, of course, be an admission by Microsoft that any redacted information
`is actually confidential, but should alleviate Bradium’s short-term concerns.
`
`134445969.1
`
`Microsoft, Ex. 1044
`Microsoft v. Bradium, IPR2016-00448
`
`

`

`Chris J. Coulson
`February 14, 2017
`Page 3
`
`Again, we are willing to work with you on these issues. But given the above, most notably
`Bradium hiding Mr. Lavi from us, the court, and the PTO, we are concerned about whether
`Bradium is motivated by legitimate confidentiality concerns (that it still has not identified) as
`opposed to Bradium’s concerns regarding Mr. Lavi providing testimony that rebuts Bradium’s
`positions in the litigation and IPRs.
`
`Finally, we are working on the date and location of Mr. Lavi’s deposition and will advise you
`when we have additional information. However, in view of Bradium’s refusal to make its own
`witnesses available for more than one day, and its rejection of mutual compromises proposed by
`Microsoft,1 Mr. Lavi will not be made available for more than a single seven-hour day.
`
`
`
`Best regards,
`
`Evan S. Day
`
`
`
`ESD
`
`
`
`1 See, e.g. C. Coulson to E. Day email dated December 27, 2016 (limiting depositions of Bradium witnesses to one
`7-hour day and rejecting Microsoft proposed 10-hour compromise).
`
`134445969.1
`
`Microsoft, Ex. 1044
`Microsoft v. Bradium, IPR2016-00448
`
`