throbber
4/20/2016
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`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ARUBA NETWORKS, INC., HEWLETT PACKARD ENTERPRISE
` COMPANY, AND HP INC.,
` Petitioner,
` V.
` MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC,
` Patent Owner
`
` Case IPR2016-00768
` Patent 5,659,891
` -----------------------------------
` CONFERENCE CALL HEARING ON MOTIONS
` -----------------------------------
` April 20, 2016
`
` On the 20th day of April, 2016, the following
`telephonic proceedings came on to be heard in the
`above-entitled and numbered cause before Honorable Board
`Judges Scott A. Daniels, Meredith C. Petravick, and
`Miriam L. Quinn.
` Proceedings reported telephonically by machine
`shorthand.
`
`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 1
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`

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`4/20/2016
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`2
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`1 A P P E A R A N C E S
`2
`FOR ARUBA NETWORKS, INC., HEWLETT PACKARD ENTERPRISE
`3 COMPANY and HP INC.:
` Mr. James M. Heintz (By telephone)
`4 Mr. David Knudson (By telephone)
` DLA PIPER LLP (US)
`5 11911 Freedom Drive, Suite 300
` Reston, VA 20190
`6 703-773-4000
` jim.heintz@dlapiper.com
`7
`FOR THE PATENT OWNER:
`8 Mr. John Kasha (By telephone)
` 14532 Dufief Mill Road
`9 North Potomac, MD 20878
` 703-867-1886
`10 john.kasha@kashalaw.com
`11 - and -
`12 Mr. Henning Schmidt (By telephone)
` REED & SCARDINO LLP
`13 301 Congress Avenue, Suite 1250
` Austin, TX 78701
`14 512-474-2449
`15 FOR SAMSUNG:
` Mr. Heath Briggs (By telephone)
`16 GREENBERG TRAURIG LLP
` 1200 17th Street
`17 Suite 2400
` Denver, CO 80202
`18 303-572-6500
`19 FOR ARRIS:
` Mr. Dan R. Gresham (By telephone)
`20 Mr. Charles W. Griggers (By telephone)
` THOMAS HORSTEMEYER LLP
`21 400 Interstate North Parkway SE
` Suite 1500
`22 Atlanta, GA 30339
` 770-933-9500
`23 dan.gresham@thomashorstemeyer.com
`24
`25
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 2
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`4/20/2016
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`3
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`1 (The following proceedings commenced at 9:31 a.m., CST,
`2 April 19, 2016, to wit:)
`3 JUDGE DANIELS: This conference call is
`4 in regard to IPRs, and I'm going to list the IPRs here
`5 for the sake of formality. We have IPR2015-01724,
`6 2015-01726, IPR2016-00765, IPR2016-00766, IPR2016-00768,
`7 and IPR2016-00769.
`8 As I said, this is Judge Daniels. I also
`9 have on the line with me today Judges Petravick and
`10 Quinn. Let's start by having a roll call for -- It
`11 sounds like we have quite a few people, and if you could
`12 identify your clients as well, please. Thank you. We
`13 can start with -- let's start with Samsung's counsel.
`14 MR. BRIGGS: Hi, Your Honor. This is
`15 Heath Briggs, counsel for Samsung.
`16 JUDGE DANIELS: And for Aruba?
`17 MR. HEINTZ: Your Honor, James Heintz from
`18 DLA Piper, and that's for Aruba, Hewlett Packard
`19 Enterprise Company, and HP Inc. in the 768 and 769 IPRs.
`20 MR. KNUDSON: And also for HP and Aruba
`21 is David Knudson, Your Honor.
`22 JUDGE DANIELS: Mr. Heintz, are you going
`23 to be doing most any discussion?
`24 MR. HEINTZ: I will, Your Honor.
`25 JUDGE DANIELS: Thank you. And for
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`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 3
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`4
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`1 Arris?
`2 MR. GRESHAM: Dan Gresham and Charles
`3 Griggers with Thomas Horstemeyer, LLP.
`4 JUDGE DANIELS: Thank you. Thank you all
`5 for attending this morning.
`6 Oh, and I'm sorry, for Patent Owner?
`7 MR. KASHA: Thank you, Your Honor. Good
`8 morning. This is John Kasha, K-A-S-H-A, of Kasha Law
`9 for Mobile Telecommunications Technologies. And on the
`10 line is Henning Schmidt of Reed & Scardino. Henning is
`11 litigation counsel. He's not of record in the IPRs yet.
`12 We're going to pro hac him in. If the Petitioner has no
`13 objection to him listening in on the call?
`14 JUDGE DANIELS: Okay. As far as I'm
`15 concerned, as long as there's no other objection,
`16 there's no objections, he's more than welcome to listen
`17 to the call.
`18 MR. KASHA: Thank you, Your Honor.
`19 JUDGE DANIELS: The Panel has reviewed
`20 the Motions for Joinder. Well, let me just -- before I
`21 say that, let's just -- if we talk about -- if I say
`22 Petitioners in general, I'm meaning the newer
`23 Petitioners, Aruba and Arris, since they're the ones
`24 that are requesting the authorization for the Motion for
`25 Joinder. We'll just leave the old Petitioner as
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 4
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`1 Samsung. We can refer to them that way, if we want.
`2 The Panel's read the Motion for Joinder
`3 from Petitioners. And we've identified the timing
`4 issues, and we've actually discussed them a bit
`5 ourselves already. And we haven't really determined a
`6 course of action, which is why we wanted to have this
`7 call.
`8 So I think, without anything more from me,
`9 what we'd like to do is hear from the parties on the
`10 issue, and since the Petitioners requested the
`11 authorization for the Motion, I'd like to hear from
`12 Petitioners first.
`13 MR. KASHA: Your Honor, this is John
`14 Kasha for the Patent Owner. I do have one question
`15 regarding this conference call. May I ask that
`16 question?
`17 JUDGE DANIELS: Sure.
`18 MR. KASHA: As we stand in the schedule
`19 right now, the Petitioner has the right to file a reply.
`20 They have one month to file a reply to the opposition.
`21 Is that now -- is this taking the place of that reply,
`22 or will that reply still be -- still happen? What is
`23 the status of the reply?
`24 JUDGE DANIELS: Well, the motion at this
`25 point -- at this point, this is not taking the place of
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 5
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`1 that reply, as far as we're concerned today. This is --
`2 this call is basically to try and discern -- There's a
`3 timing issue here. Obviously, we've taken this matter
`4 up out of turn if we were to grant authorization and
`5 pick these motions up early, before -- before the -- all
`6 the motion work is done. So, no, it's not taking the
`7 place of that. So let's just leave it at that for the
`8 moment.
`9 MR. KASHA: Okay. Thank you, Your Honor.
`10 JUDGE DANIELS: Sure. All right.
`11 Petitioner?
`12 MR. HEINTZ: Thank you, Your Honor. This
`13 is Jim Heintz, and I'll be speaking on behalf of both
`14 the Aruba and the Arris Petitioners.
`15 Obviously, there's been some changes since
`16 we filed our Motions for Joinder, and chief among them
`17 is the settlement that's come up. We also understand,
`18 through Patent Owner's opposition, that they have a
`19 desire to file a preliminary response, at least in one
`20 of the IPRs concerning the '891 patent. It's not clear
`21 to us what the story with the '210 patent is. But in
`22 light of that, we believe that there's still more than
`23 enough time in the schedule to allow a preliminary
`24 response by Patent Owner in one or both of the patents,
`25 as long as that's done on an expedited basis, and we
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 6
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`1 think we can do that and leave Due Dates 5 to 7 intact.
`2 So let me first address the Board's authority.
`3 The Board has the authority to order a
`4 Patent Owner to file a preliminary response on an
`5 expedited basis. That authority is under 37 CFR
`6 42.5(c)(1), and that section states that time set by
`7 rule or default may be modified by order.
`8 I'll note the Board has done this on a
`9 number of occasions, and I'll briefly address three of
`10 those. They did it in IPR2014-01144, Paper No. 9. In
`11 that case the Board set a 20-day deadline for the Patent
`12 Owner to file a preliminary response when, similar to
`13 the situation here, the petition was filed exactly one
`14 month after the institution and challenged the same
`15 claims on the same references. The Board did that, took
`16 that action in that case, even though there was a
`17 different expert declarant. Here, of course, we have
`18 the same expert declarant, so even that concern is not
`19 present.
`20 The second time I'll note the Board has
`21 done this is in IPR2015-00580, Paper 16. In that case
`22 the Board set a deadline of a little more than a month
`23 for a preliminary response when the petition that was
`24 sought to be joined was largely the same but actually
`25 included a new reference, which, again, is not the case
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 7
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`1 here. In our case, we have exactly the same references,
`2 exactly the same declarant, and the same claims.
`3 And the third case I'll note for the Board
`4 is IPR2015-00520, Paper No. 8. In that case the same
`5 thing: the Board set a deadline of about five weeks for
`6 a preliminary Patent Owner response, and they did that
`7 largely to give the Patent Owner time to raise a new RPI
`8 issue that was potentially an issue in that indication.
`9 JUDGE DANIELS: Mr. Heintz, in any of
`10 these cases were there -- was the Patent Owner
`11 objecting?
`12 MR. HEINTZ: Yes, sir, Your Honor. I
`13 believe in both the 2015-580 Paper 16 case and the
`14 2015-520 Paper 8 case.
`15 The first case I mentioned, the Board just
`16 did this, from what it appears to respondent, they
`17 didn't even order a conference call. They just did it,
`18 apparently, without consulting either party, although
`19 I'm not sure of that. But certainly in 580 and 520 the
`20 Patent Owner objected to that or took the position that
`21 they didn't want to expedite the response.
`22 JUDGE DANIELS: Thank you.
`23 MR. HEINTZ: Okay. So in light of that,
`24 we'd ask that the Board exercise its authority, order an
`25 expedited response, and we would suggest one month from
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 8
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`1 today; so an expedited Patent Owner response due on May
`2 20th. We then think, in light of that, that we can
`3 adjust the schedule as follows:
`4 Due Date 1 is currently scheduled for June
`5 18th. We were thinking that if we moved that to July
`6 20, 2016, that should be acceptable. We would then
`7 suggest moving Due Dates 2 and 3, which are both
`8 currently scheduled for September 10th, to September
`9 20th. And, finally, Due Date 4, which is now currently
`10 scheduled for September 28th, to October 5th. And we
`11 would then leave Due Dates 5, 6 and 7 as they are now.
`12 In addition, we would note the following:
`13 Arris -- the Petitioners in the Aruba and the Arris IPRs
`14 have agreed amongst themselves, in light of these
`15 developments, that we will file consolidated filings and
`16 do consolidated discovery, and that includes both
`17 offense and defense. So, for instance, both Petitioners
`18 are using the same expert, so there would only be a need
`19 to depose that expert once in both cases and the
`20 transcript could be used in both cases.
`21 Similarly, if the time comes when there's
`22 a declarant on behalf of Patent Owner, the parties will
`23 not seek any additional deposition time, one party will
`24 do the questioning on behalf of both, and the
`25 transcripts from that deposition cross-examination will
`
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 9
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`1 be used in both proceedings.
`2 We will also agree, then, to a single
`3 point of contact for Patent Owner to communicate with
`4 both parties. And the point here is that we will
`5 eliminate any additional burden that Patent Owner may
`6 have from joining two petitions in an IPR. And from
`7 Patent Owner's perspective, with these changes, we think
`8 it'll be as if Patent Owner was only dealing with one
`9 other party.
`10 So that's our proposal in light of the new
`11 developments that have occurred. I would -- I could go
`12 ahead, if the Board wants to hear it at this point, and
`13 discuss our response to their opposition, or I could
`14 also stop if the Board so chooses.
`15 JUDGE DANIELS: Yeah, why don't we -- at
`16 this point let's hear from the Patent Owner's counsel,
`17 and then you can have a chance to respond.
`18 MR. KASHA: Thank you, Your Honor. This
`19 is John Kasha for the Patent Owner. Thank you for
`20 having this call. It is quite an interesting situation
`21 here which I'm not sure has happened before.
`22 First of all, I think the Petitioner had
`23 asked for a conference call to talk about expediting the
`24 process, and the Board asked us to discuss the legal
`25 basis for joinder prior to Patent Owner's preliminary
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 10
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`1 response due date. I don't think the Petitioner
`2 addressed that because the Petitioner is essentially
`3 conceding that the Board cannot join until Patent
`4 Owner's preliminary response. Petitioner has made no
`5 claim that it can, and the Petitioner is only trying to
`6 reduce the time that the Patent Owner has to respond.
`7 Secondly, I wanted to talk about the
`8 schedule. I think the Petitioner is also admitting that
`9 the joinder will affect the schedule, and I want to
`10 point out that the Petitioner bears the burden of proof
`11 in establishing its entitlement joinder. And one of the
`12 things a petitioner must do is they must explain the
`13 impact, if any, joinder will have on the trial schedule
`14 for the existing review.
`15 I want to point out that in their Motion
`16 for Joinder, first of all, it is true that the
`17 petitioner did not know that settlement would occur
`18 before the preliminary response. However, both Arris
`19 and Aruba anticipated settlement. In fact, Arris -- and
`20 I can give you the passage which describes that Intel
`21 will have to consider the presence of an additional
`22 party in winning settlement of the IPR proceeding.
`23 That's at Page 5 of Paper 11 in the 1726 -- sorry -- in
`24 the Arris '891 and -- yes, in the Arris '891.
`25 In Aruba it's even more clear. Aruba
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 11
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`1 declared that Petitioners are filing this petition and
`2 joinder motion to ensure that the instituted trial is
`3 completed in the event that Petitioner in the Samsung
`4 IPR reaches settlement with the Patent Owner.
`5 Therefore, the Petitioner clearly
`6 anticipated settlement of Samsung, therefore it should
`7 be no surprise. And one of the requirements for their
`8 Motion for Joinder was to anticipate how that would
`9 affect the schedule, and they did not. Therefore, their
`10 petition for -- their Motion for Joinder is insufficient
`11 by their own admission.
`12 And, finally, one of the things that --
`13 one of the reasons to deny a motion for joinder is undue
`14 burden on any of the parties. Well, clearly there's an
`15 undue burden on the Patent Owner in this case. The
`16 Petitioner has just outlined how the -- first of all,
`17 that they want to increase -- decrease the time for a
`18 preliminary response by a month. The Patent Owner
`19 therefore is clearly burdened by that change. And in
`20 the cases the Petitioner cited, the Petitioner didn't
`21 describe if those cases also involved an early
`22 settlement on the part of the earlier petitioner.
`23 So, clearly, in this case the Petitioner,
`24 first of all, did not take into account the schedule and
`25 certainly is now suggesting an undue burden on the
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 12
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`1 Patent Owner. So therefore --
`2 JUDGE DANIELS: Mr. Kasha, are you-all
`3 contemplating a different -- are you-all contemplating
`4 using -- with the new rules in place, are you-all
`5 contemplating having testimonial evidence in the --
`6 understanding that you have -- if I'm looking at the
`7 schedule correctly, in these new petitions you have
`8 until the end of June, June 27th or so, to file your
`9 preliminary response. Are you contemplating preliminary
`10 responses then in the previous case and potentially with
`11 testimonial evidence, as the new rules allow?
`12 MR. KASHA: Possibly, Your Honor, but
`13 definitely different preliminary responses. And let me
`14 give you an example.
`15 Along with these patents, there was the
`16 '401 patent that I'm sure some of the Judges on this
`17 Panel are aware of. In that case, Clearwater brought an
`18 IPR with the '403 patent. It was instituted. We were
`19 able to file a -- that case settled. We -- Apple
`20 brought another IPR against and we filed a different
`21 preliminary response and it was not instituted. Every
`22 time the Board gives us a decision on institution, we
`23 learn more about how the Board looks at these patents.
`24 So clearly we're going to change our preliminary
`25 response, and that's why we need more time.
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`IPR2016-00768
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`1 And I should also point out that in the
`2 case of if -- if joinder is not granted and these IPRs
`3 go forward, we're essentially talking about a difference
`4 of only four months. If the -- if the Board institutes
`5 the trials within, say, 15 days, there's only a four-
`6 month difference there, and we're going through all
`7 these contortions to try to maintain this current IPR
`8 when we're not talking about a huge amount of time.
`9 So, you know, the schedule's clearly
`10 impacted, where the Petitioner said it would not be,
`11 there's an undue burden on the Patent Owner, and there's
`12 not that much difference in time. So I'm not sure, you
`13 know, what the problem is here. This joinder should
`14 clearly be denied.
`15 JUDGE DANIELS: What's the -- do you have
`16 a -- I think what you're telling me is that you feel,
`17 from your perspective, that the burden of having to file
`18 this preliminary response early outweighs the burden of
`19 the parties, you know, holding separate proceedings. Is
`20 that fair?
`21 MR. KASHA: Well, it's not only the --
`22 There are a couple of points here. First of all, the
`23 Petitioner filed at the last possible moment. The
`24 Petitioner, all they did was copy the petition. They
`25 could have filed that a month earlier, and then the
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 14
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`1 preliminary response would have been a month earlier.
`2 Now they're saying, Well, we didn't do that, but we want
`3 you to have a shortened period of time.
`4 So their argument that they're in such a
`5 hurry, their actions are not in a hurry. In fact,
`6 asking for this expedited call didn't come until a month
`7 after they filed the Motion for Joinder. That's another
`8 month they waited. They're not showing you a pattern of
`9 wanting to proceed expeditiously.
`10 JUDGE DANIELS: Yeah, we understand. We
`11 noted that in the timeline in our discussions.
`12 Let me -- well, let me get you to finish
`13 up whatever else you had to say, because I think we have
`14 a couple of questions for Petitioners after you're done.
`15 MR. KASHA: Okay. Thank you, Your Honor.
`16 I mean, basically the statute contemplates joinder after
`17 preliminary response, and the statute also contemplates
`18 settlement and termination if no petitioner remains in
`19 the IPR. What the statute and the rules do not
`20 contemplate is joinder when the parties have settled and
`21 they've settled before the preliminary response. Once
`22 the parties have settled, there's no petitioner, which
`23 leaves us in this no man's land of, you know, what can
`24 we do.
`25 So basically we think the statute and the
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`1 rules clearly show that in cases like this, that the
`2 Board should -- should not grant joinder. And as I
`3 said, you know, based on what Petitioner has done, based
`4 on the change in the schedule, and based on the undue
`5 burden, we think the petition should be denied. And we
`6 thank you.
`7 JUDGE DANIELS: Thank you. Let me go
`8 ahead -- Petitioner, you can respond. Let me ask --
`9 let me preface that with two questions. One is -- well,
`10 I guess one of the biggest ones I have is, what's the
`11 hurry here? You know, these proceedings are proceeding
`12 pretty quickly anyway. We did note the issue that these
`13 could have been filed sooner. These proceedings do --
`14 are fairly speedy anyway. I don't know why we have to
`15 settle that. I'm not sure we're clear on why we need to
`16 step on the accelerator here. So that's our first
`17 question.
`18 The second is if you could address the
`19 issue of whether or not, if we were not to join them
`20 with Samsung, could we consolidate them? Would you-all
`21 be open to the possibility of consolidating the cases in
`22 any event? Thanks.
`23 MR. HEINTZ: Sure. Let me address first
`24 a couple of the points Patent Owner made, and one of
`25 them has to do with this idea that we were delaying and
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`IPR2016-00768
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`1 wasting time in, first, filing our petitions, and,
`2 second, taking almost a month to ask for this expedited
`3 action. The reason for this is quite clear. We,
`4 neither Arris nor Aruba, had any idea that the
`5 settlement was in the offing as close as it was.
`6 It's true of course, Your Honor, that we
`7 anticipated the possibility of settlement somewhere, but
`8 the timing was a complete surprise to this. And Patent
`9 Owner admits in its opposition to the Motion for Joinder
`10 that they kept this a secret from us. I'm not
`11 suggesting that there's anything wrong with that, but
`12 the simple answer is we had no idea.
`13 Once the settlement became known to us, we
`14 moved quite expeditiously in seeking this relief from
`15 the Board. So this idea that we've been dilatory I
`16 think is unfounded.
`17 I'll also note that in both
`18 IPR2014-001144 and a second IPR that's actually cited in
`19 their opposition, IPR2015-00568, Paper No. 12, both of
`20 those instances involve petitions and motions for
`21 joinders filed either on the last day of the one-month
`22 period or the day prior to last month period -- to the
`23 last day of the one-month period, which is exactly the
`24 situation we have here.
`25 Now let me try to address the Board's
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`IPR2016-00768
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`1 questions. The first question I think essentially was,
`2 what's the hurry? If these motions are not granted and
`3 if the -- if there's no joinder, there will be a fairly
`4 long delay. The petitions were filed only about a month
`5 ago, which leaves, in the normal course, about five
`6 months to institution, another five months to
`7 institution, and then up to a year after that for a
`8 final decision, whereas in this case we have gotten past
`9 all of the preliminaries, the case is instituted, and,
`10 you know, we would get a date much earlier final
`11 resolution of this case if the things were joined.
`12 One of the primary points of these
`13 proceedings is the speedy resolution of these disputes.
`14 And I'll note, Your Honor, that there's also a public
`15 interest point of this that's been ignored by Patent
`16 Owner. These patents have been asserted, I believe, in
`17 13 different lawsuits now, including seven that are
`18 pending, or maybe it's six due to the Samsung
`19 settlement; but they've been asserted many times. The
`20 public has an interest in the speedy resolution of these
`21 cases, and for that reason I think there is a reason and
`22 a good reason to hurry.
`23 Patent Owners characterized this as an
`24 undue burden. We're asking for simply one month less
`25 than the currently scheduled time they would have to
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`IPR2016-00768
`Petitioner, Ex. 1017 - Page 18
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`19
`1 file their preliminary response. They're obviously very
`2 familiar with the patent, not only through these
`3 proceedings, but, as you saw in their opposition, they
`4 were getting ready to go to trial in the very near
`5 future. Any extra burden that's going to have to be
`6 addressed here because they wish to discuss the
`7 deposition of our expert that occurred in the Samsung
`8 litigation, I note the firm that took that deposition,
`9 Reed & Scardino, is one of the people who I believe was
`10 present at the deposition and is on the phone now. So I
`11 don't think that there's a lot of extra work that needs
`12 to be done to discuss anything they want to about
`13 Dr. Kakaes' deposition.
`14 With respect to the second question the
`15 Board put to us, whether we would consent to joinder
`16 among the Arris and Aruba IPRs even if they weren't
`17 joined to the Samsung, I apologize, Your Honor, I
`18 haven't -- I did not anticipate that question, so I
`19 don't have any position yet from my clients on that. I
`20 would have to confer with them.
`21 JUDGE DANIELS: All right. Thank you.
`22 Let me ask if -- As best I understand this, Mr. Briggs,
`23 Samsung's position is that they have -- they don't
`24 oppose the joinder. Is that correct?
`25 MR. BRIGGS: Hi, Your Honor. This is
`
`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 19
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`
`20
`1 Heath Briggs. Samsung's not able to take a position on
`2 this case, Your Honor, due to the settlement.
`3 JUDGE DANIELS: Okay, thank you.
`4 MR. KASHA: Your Honor, this is John
`5 Kasha for the Patent Owner. May I respond?
`6 JUDGE DANIELS: Yes. Yes, go ahead.
`7 MR. KASHA: First, I want to ask a
`8 question. With regard to your second question to
`9 consolidate in any event, did the Petitioner just say
`10 they haven't spoken with each other to determine whether
`11 they would consolidate?
`12 JUDGE DANIELS: I think he just said he
`13 hadn't spoken with his client, so he couldn't take a
`14 position on it.
`15 MR. HEINTZ: And if I may, what I was
`16 trying to say was I hadn't spoken to the client about
`17 the possibility of joinder of the two proceedings, the
`18 Aruba and the Arris IPRs in -- separately from joinder
`19 with the Samsung. In other words, our intention and
`20 thought pattern so far has been the joinder of the two
`21 Aruba and Arris IPRs with Samsung. I hadn't anticipated
`22 the separate question if there's no joinder of anything
`23 with Samsung, would our client have any issue with
`24 joinder of the Arris and Aruba IPRs separately.
`25 MR. KASHA: Well, then the -- This is
`
`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 20
`
`

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`4/20/2016
`
`21
`
`1 John Kasha for the Patent Owner. Sorry. I mean, with
`2 respect, I'm not sure that makes sense, because in order
`3 for you to join with Samsung, you have to show that you
`4 will consolidate the papers with -- with the other
`5 petitioners in the Samsung IPR.
`6 JUDGE DANIELS: Yeah, we don't have to --
`7 Mr. Kasha, we don't have to get into -- we don't have to
`8 spend a lot of time on that issue. I just asked the
`9 question because consolidation of issues before the
`10 Board is always somewhere helpful. You know, I'm trying
`11 to distinguish what we might do in the future. So
`12 don't be --
`13 MR. KASHA: I know. But my point is it's
`14 directly related to the Samsung IPR, because for joinder
`15 to occur with Samsung, they have to show that there's
`16 consolidation of the papers on the Samsung IPR. Now,
`17 they said they would consolidate with Samsung, but
`18 they've never said they would consolidate with each
`19 other, which we pointed out in our brief. And now, even
`20 at this late date, Petitioner's saying, Well, we haven't
`21 even thought about that.
`22 MR. HEINTZ: I'm sorry, that's incorrect.
`23 I stated earlier -- This is Mr. Heintz again. I stated
`24 earlier that in the event joinder is granted with the
`25 Arris and Aruba IPRs to the Samsung IPRs -- let me just
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`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 21
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`

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`4/20/2016
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`22
`1 be perfectly clear. We've already stated in both of our
`2 oppositions -- both of our Motions for Joinder that we
`3 would consolidate with Samsung. We will continue to
`4 take that position. If Samsung is now released from the
`5 Samsung IPR, and Arris and Aruba are joined, I stated
`6 earlier on the call that we will do consolidated
`7 filings. So in no event will there be any multiple
`8 proceedings if in -- if the IPRs for Aruba and Arris are
`9 joined to the Samsung IPR.
`10 JUDGE DANIELS: Okay. Thank you.
`11 All right. Mr. Kasha, let's briefly
`12 finish up with you here. I want to go offline for a
`13 minute or two with the Judges, and then get back and see
`14 if we can finish up this conference call.
`15 MR. KASHA: Sure, sure. No problem.
`16 Just two quick points. And what is the hurry? I
`17 believe that the Petitioner mentioned the '568 case,
`18 which was a Babbage (phonetic) case in which joinder was
`19 granted. I mean, that's distinguishable in our brief,
`20 plus also remember they filed the preliminary response
`21 early in that case on their own, not because they were
`22 told to. The Petitioner keeps saying
`23 there's going to be a long delay. Again, it's
`24 completely within the Board's power. This was
`25 instituted -- since the IPR was instituted on
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`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 22
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`23
`
`1 February 16th -- or February -- yes, February 16th,
`2 the -- our preliminary response in these IPRs is due on
`3 June 16th. That's four months. If the Board wanted to
`4 speed things up and institute it by July 1st,
`5 essentially that's a four-month difference. That's all
`6 there is. There is no long delay.
`7 And certainly there is an undue burden and
`8 Petitioner has said there was no undue burden. And
`9 certainly the schedule's changed as they want to shorten
`10 the time for the Patent Owner. So what the
`11 Petitioners's saying is just not true. Thank you very
`12 much, Your Honor.
`13 JUDGE DANIELS: Let me ask one follow-up
`14 question: Were there any depositions taken in the
`15 Samsung IPRs?
`16 MR. KASHA: No. No, Your Honor.
`17 JUDGE DANIELS: Okay. All right. Thank
`18 you all very much. That's helpful. Let me just stand
`19 by -- let me ask you to stand by for one minute while I
`20 discuss this with the Panel, and we should back in a
`21 moment. I'm going to put you on hold. Thank you.
`22 (Recess)
`23 JUDGE DANIELS: Thanks for your patience,
`24 everyone. Let me ask one question.
`25 If we were to join these, Mr. Kasha, is
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`U.S. LEGAL SUPPORT - AUSTIN, TEXAS
`(800) 734-4995
`
`IPR2016-00768
`Petitioner, Ex. 1017 - Page 23
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`24
`
`1 your -- were you contemplating in any respects filing a
`2 motion to amend?
`3 MR. KASHA: No, Your Honor. The patents
`4 are expired.
`5 JUDGE DANIELS: Ah, okay. Thank you

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