TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
`
`Page 1
`
`AMIT AGARWAL, ) Case IPR2016-00807
` Petitioner, ) Patent No. 8,773,356
` vs. )
`IMMERSION CORPORATION, )
` Patent Owner. )
`- - - - - - - - - - )
`
` TRANSCRIPT OF TELEPHONIC HEARING
` FRIDAY, MAY 20, 2016
` 8:00 A.M.
`
`Reported by:
` TERI J. NELSON
` CSR NO. 7682
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`
`www.deposition.com
`
`Immersion Ex 2004-1
`Agarwal v Immersion
`IPR2016-00807
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` - - -
`
`Page 1
`
`AMIT AGARWAL, ) Case IPR2016-00807
` Petitioner, ) Patent No. 8,773,356
` vs. )
`IMMERSION CORPORATION, )
` Patent Owner. )
`- - - - - - - - - - )
`
` TRANSCRIPT OF TELEPHONIC HEARING
` FRIDAY, MAY 20, 2016
` 8:00 A.M.
`
`Reported by:
` TERI J. NELSON
` CSR NO. 7682
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`
`www.deposition.com
`
`Immersion Ex 2004-1
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
` Reporter's Transcript of Telephonic Hearing,
`Friday, May 20, 2016, 8:00 A.M., before
`Teri J. Nelson, CSR No. 7682, pursuant to Notice.
`
`Page 2
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`APPEARANCES (All Telephonic):
`
`ADMINISTRATIVE PATENT JUDGES:
` JUDGE MINN CHUNG
` JUDGE MICHAEL ZECHER
` JUDGE BEVERLY BUNTING
`
`FOR PETITIONER PRO SE:
` AMIT AGARWAL
` 14420 Edinburgh Moor Drive
` Wimaumu, Florida 33598
` 310-351-6596
`
`FOR PATENT OWNER IMMERSION CORPORATION:
` IRELL & MANELLA LLP
` BY: MICHAEL R. FLEMING, ESQ.
` JOSEPH M. LIPNER, ESQ.
` 1800 Avenue of the Stars
` Suite 900
` Los Angeles, California 90067-4276
` 310-277-1010
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`800-826-0277
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-2
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 3
`
` FRIDAY, MAY 20, 2016
` 8:00 A.M.
`
` JUDGE CHUNG: Good morning.
` This is a conference call in case IPR2016-00807.
` This is Judge Chung.
` Judge Zecher and Judge Bunting are also on the
`call.
` Who's appearing for Patent Owner?
` MR. FLEMING: Your Honor, it's Mike Fleming and
`Joe Lipner.
` JUDGE CHUNG: Oh, hello. Good morning.
` And is Mr. Agarwal on the call?
` MR. AGARWAL: Yes.
` JUDGE CHUNG: I'm not sure if I said your name
`correctly.
` I apologize if I didn't.
` Let's see.
` Has Petitioner or Patent Owner arranged a court
`reporter for today's call?
` MR. FLEMING: Yes, Your Honor, Patent Owner has
`arranged a court reporter, and she's on the line. Her
`name is Teri Nelson.
` Teri, can you speak up?
` THE COURT REPORTER: Yes, Your Honor.
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-3
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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` My name is Teri Nelson, and I'm with DTI.
` JUDGE CHUNG: Great.
` All right. Good morning, Ms. Nelson.
` Mr. Fleming, will you file a transcript as
`exhibit to this case in due -- when you -- when it's
`ready?
` MR. FLEMING: Yes, Your Honor.
` JUDGE CHUNG: Okay.
` All right. So let's get started.
` Since Patent Owner asked for this call, let's
`start with Patent Owner.
` Mr. Fleming, please tell us what Patent Owner is
`requesting and why.
` MR. FLEMING: Yes, Your Honor.
` If it please Your Honor, what I would like to do
`is have Joe Lipner speak on this issue. Joe is our
`expert on professional responsibility at our firm, and
`also there is a motion before you on these issues and
`that -- the Petitioner did not oppose that.
` JUDGE CHUNG: Sure. That's fine.
` MR. LIPNER: Very good.
` Good morning, Your Honor.
` This is Joseph Lipner from Irell, counsel for
`the Patent Owner Immersion.
` And what we're asking for is the termination of
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`800-826-0277
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
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`Immersion Ex 2004-4
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`the case as a function for ethical violations of
`Mr. Agarwal as the Pro Se Petitioner.
` And what I'd like to do is tell you the
`background facts of this matter and then get into the
`law, including the question that the Board asked in its
`E-mail to us about the support for termination in these
`circumstance.
` So the background facts are as follows:
` Mr. Agarwal, as I said, is the Pro Se Petitioner
`here, and he's been up front in his -- he has an
`investment website, and he's been an up front there and
`in correspondence with us that the purpose of this IPR
`that he filed is to harm Immersion by depressing its
`stock and in order to profit by shorting Immersion stock
`himself.
` Now, Mr. Agarwal, though he filed as a Pro Se
`Petitioner, is himself a licensed attorney who until very
`recently was working at our law firm, Irell & Manella,
`long-time counsel for Patent Owner Immersion, and while
`he was at Irell & Manella, he indisputably received
`privileged and confidential Immersion documents that are
`relevant to his IPR. There are other serious ethics
`issues that I'll touch on as we go through the facts, but
`that is the key fact, that he actually has Immersion --
`received, while at Immersion's law firm, confidential
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`800-826-0277
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
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`Immersion Ex 2004-5
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`Immersion information relevant to this lawsuit.
` We brought it up several weeks ago with
`Mr. Agarwal hoping to be able to resolve it without the
`Board getting involved, but have been unable to.
` So let me tell you the basic chronology, and I'm
`happy to answer any questions along the way, obviously.
` JUDGE CHUNG: Counsel?
` MR. LIPNER: Yes.
` JUDGE CHUNG: Before you go on, what rule -- you
`mentioned Section 42 -- I guess Mr. Fleming mentioned in
`his E-mail to the Board Section 42 as the basis for
`motion for termination, so what section or which rule are
`you relying on for your motion for termination --
` MR. LIPNER: Yes.
` JUDGE CHUNG: -- and you know, how does it
`indicate any alleged ethical violation?
` MR. LIPNER: Yes.
` So Your Honor, we're relying on
`Section 42(a)(1)(6) and (7) which allows the Board to
`impose sanctions on any failure to comply with an
`applicable rule or order in the proceeding for any abuse
`of process, and most broadly, number (7), any other
`improper use of the proceeding.
` We're also relying on 42.12(b)(8) which says
`that the sanctions can include termination.
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
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`Immersion Ex 2004-6
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`Page 7
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` You know, we're in an unusual situation here,
`Your Honor, because if Mr. Agarwal were simply
`representing a human being, we would be making a
`different motion, a motion for disqualification.
` And as I'll explain, Mr. Agarwal has violated
`37 CFR 11.109 which relates to duties to prior clients as
`well as ABA Model Rule 1.9, on which 11.109 is based, as
`well as he's a member of the California Bar, so he
`violated California Rule of Professional
`Responsibility 3-310(e) and --
` JUDGE CHUNG: But you know, Mr. Agarwal has
`filed Pro Se, so you know, his qualification as an
`attorney isn't really relevant; right?
` Is that right?
` MR. LIPNER: Well, I wouldn't agree with that,
`and if that's an issue that concerns Your Honor, we -- we
`would request the opportunity to brief that because it
`would be a terrible policy if what was allowed for the
`Pro Se rules was for a lawyer who has -- it's undeniable
`that he has ethical obligations to his former clients to
`be able to sidestep all rules of professional
`responsibility simply by filing Pro Se.
` Mr. Agarwal took the PTO Bar examination, but
`failed, he would presumably be taking it again in the
`future, and the notion that lawyers can sidestep the
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`800-826-0277
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`Immersion Ex 2004-7
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 8
`obligations of the ethical rules simply by filing Pro Se
`is not -- really can't be the rule. We haven't seen
`anything like that in any PTO case.
` He is -- does has an active California Bar
`membership and is of course subject to those rules.
` And you know, I'll go back to 42(a)(7), which
`broadly gives the Board the power for sanction for any
`other improper use of the proceeding. So if you have an
`attorney skirting the ethical rules simply by saying "Oh,
`look at me as a Pro Se plaintiff" and not -- "and
`therefore, I don't have to comply with any of my
`obligations as an attorney," we would submit, Your Honor,
`that at a minimum under the rules that it is an improper
`use of the proceeding.
` JUDGE CHUNG: Be that as it may be, you know,
`we're not, you know, attorneys for the State Bar or
`Office of Enrollment at the PTO, and it's really not our
`jurisdiction to resolve ethical violations, don't we have
`any expertise in doing -- or resolving ethical
`violations.
` But has Patent Owner or the Irell firm filed a
`complaint, ethics complaint with California Bar relating
`to this issue?
` MR. LIPNER: No, Your Honor, not at the present
`time.
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`www.deposition.com
`
`Immersion Ex 2004-8
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 9
`
` You know, the only effective remedy for the
`ethical violation is an action before the Board because
`that's where Mr. Agarwal is proceeding to file and
`prosecute this -- this matter even though he received
`confidential information of Immersion that is relevant to
`this matter. This is the place where we --
` JUDGE CHUNG: What are those confidential
`information?
` MR. LIPNER: Okay.
` So in April of 2015, Mr. Agarwal received a --
`while he was working at Irell, which is counsel for
`Immersion, he received a PowerPoint presentation between
`Irell and Immersion relating
`
` Let me break that down just a little bit.
` Mr. Agarwal is relying on a patent application,
`Application Number 9487737,
`
` The documents, the prior art document that
`Mr. Agarwal is relying on and
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`Immersion Ex 2004-9
`Agarwal v Immersion
`IPR2016-00807
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`
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`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`Page 10
`
`specification and the claims, and the PowerPoint
`presentation was privileged and confidential document at
`Irell for Immersion discussed a number of things that are
`relevant to this IPR. It discussed the priority date for
`the prior art, and it contained a privileged discussion
`of the significance of the role of the cursor, the
`computer cursor in the prior art specification and
`whether human intervention is part of the invention, and
`
` and
`those are the things that are most directly relevant to
`this IPR.
` At a higher level, and just stepping back, the
`PowerPoint presentation also contained
`
` The other issue --
` Yes, Your Honor.
` you
` JUDGE CHUNG: Isn't
`mentioned a public document, I mean it's available to the
`public?
` So I mean could Mr. Agarwal have, you know, find
`out about
` on his own from a
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`www.deposition.com
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`Immersion Ex 2004-10
`Agarwal v Immersion
`IPR2016-00807
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`
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`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`public source like -- such as patent website?
` is of
` MR. LIPNER: The
`course public, but that's not, respectfully, the relevant
`test under the ethics rule because what he has is not
`only the public document itself, but also
` that were
`exchanged between Immersion and Irell & Manella,
`Immersion's counsel, when he was essentially Immersion's
`attorney, and under the ethics rules, once you receive
`confidential information that is relevant to the later
`matter, you cannot be an attorney adverse to your former
`client, and that's what's going on now. It's not so much
`that he knows about this piece of prior art, although he
`may have learned about it in this document, as much as
`that he knows about the confidential information and
`analysis by Irell and Immersion.
` There's one other basic fact that I wanted to
`put out there, which is that Mr. Agarwal was also at
`Irell & Manella when Irell & Manella started working on
`its dispute with Apple, which is the related matter that
`Mr. Agarwal cites in his petition and --
` JUDGE CHUNG: Counsel, before you go on --
` MR. LIPNER: Yes.
` JUDGE CHUNG: -- so I -- are you telling us that
`Patent Owner has done a comparison of what's in the
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`Immersion Ex 2004-11
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`IPR2016-00807
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`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 12
`petition with the -- the PowerPoint that you mentioned on
`the call?
` MR. LIPNER: Oh, we have done that analysis to
`show that it is relevant to the issues that Mr. Agarwal
`is raising in his petition.
` JUDGE CHUNG: I see.
` Go ahead.
` MR. LIPNER: Okay.
` The other fact that I just wanted to be sure
`that the board is aware of is that Mr. Agarwal is -- was
`at Irell & Manella when Irell & Manella started working
`on behalf of Immersion in its case against -- its dispute
`with Apple that ultimately led to the related case that
`Mr. Agarwal cites in his petition and that spurred
`Mr. Agarwal to file this IPR for his own benefit in order
`to short the stock.
` Mr. Agarwal said on his blog that the lawsuit
`filed by Irell in which we asserted the patent at issue
`in this IPR, quote, "grabbed my eye because my former
`employer represents Immersion," end quote.
` So he was here and got a notice that we were
`working on behalf of Immersion against Apple, it's a
`small office in terms of the ability to learn about our
`thinking relating to the lawsuit, and then this first
`lawsuit that he -- that -- this first IPR that he filed
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-12
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`Page 13
`was an IPR on -- in connection with this related matter
`that started when he was at Irell & Manella, so that is
`also of great concern to us in terms of whether he had
`focused on this patent because of something he had
`learned about while he was at Irell & Manella.
` So those are the basic facts relating to the
`confidentiality issues.
` And we've had a lot of conversations with
`Mr. Agarwal where we brought this to his attention.
` He first denied it, denied that he knew that
`he'd be -- Irell represented Immersion, which is
`absolutely not -- not credible because we were long-time
`counsel for Immersion. We've got Immersion documents on
`our website. They're on our marketing material.
` Then later, he made accusations against
`Mr. Fleming and suggested that Mr. Fleming should be
`removed from the case and wrote a letter to the Board
`asking for a conference call on that and then changed his
`mind on that.
` And then he made a demand that Immersion pay
`$148,000 to public counsel, and he would dismiss his --
`the IPR, and then later that day he wrote that that was
`sort of extortionist, and he regretted doing it, so he
`revoked that, and then he said he would dismiss the IPR
`because of his mistake, then said he wouldn't.
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`800-826-0277
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-13
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
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`Page 14
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` So we've had a lot of back and forth with
`Mr. Agarwal, but none of this --
` JUDGE CHUNG: When --
` MR. LIPNER: -- gives us any confidence that the
`ethics rules will be complied with.
` I'm sorry, Your Honor.
` JUDGE CHUNG: When did Mr. Agarwal leave Irell?
` MR. LIPNER: In April 20 --
` JUDGE CHUNG: How long was he --
` I'm sorry.
` April 25th of this year?
` MR. LIPNER: No.
` He -- he was at Irell for the summer of 2011,
`April of 20 -- I'm sorry, fall of 2014 and through April
`of 2015.
` JUDGE CHUNG: Okay. All right.
` Okay. Let's see.
` Mr. Agarwal, are you still on the call?
` MR. AGARWAL: Yes, I'm still here.
` JUDGE CHUNG: Yeah.
` How do you respond?
` MR. AGARWAL: Okay. A lot of things to unpack
`there.
` A couple of things were mentioned that have no
`relevance to this call, one including my offer to
`
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`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 15
`Immersion to dismiss this IPR if they made a donation to
`public counsel, a non-profit.
` The reason that offer was made is because I am
`presently a hybrid. I am an investor and a public
`interest lawyer.
` In my offer, I have made very clear that I don't
`want money from -- I don't want a cent from Immersion for
`my personal gain, and the reason I did that was that they
`were throwing the book of ethics at me which surprised me
`because I had never known that Irell and Immersion have
`any connection.
` In fact, the first time I ever heard of
`Immersion the company was February of 2016. That is this
`year.
` So now I'm going to respond to why we're here
`today.
` The Federal Circuit has --
` JUDGE CHUNG: And you didn't know about
`Immersion -- you didn't know about Immersion as a company
`while you were at Irell.
` MR. AGARWAL: Not at all.
` I mean when I filed my IPR, I knew that --
`before I filed my IPR, I had done a lot of research on
`Immersion, and during that research, I learned that Irell
`and Immersion had a long history dating back to the '90s,
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-15
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 16
`but I -- Immersion the company first came to my radar in
`February of 2016 as a potential short sale investment and
`like --
` So let me go back to my prepared remarks here,
`and any questions whatsoever --
` JUDGE CHUNG: Well, before you go on --
` MR. AGARWAL: Yeah.
` JUDGE CHUNG: -- what about the PowerPoint that
`the Patent Owner mentioned --
` MR. AGARWAL: Yeah.
` JUDGE CHUNG: -- you received?
` MR. AGARWAL: So on that point, I attest, with
`no qualifications whatsoever, that I have never seen the
`slides before Immersion's lawyers brought them to my
`attention in relation to this complaint regarding an
`ethics violation.
` The Rosenberg application which I've cited in my
`IPR appears front and center in the file history of the
`challenged patent. It is the one and only reference
`about which the examiner and the applicant have a back
`
` Immersion held a special conference call with
`its investors which was open to the public in February of
`2016 where the CEO of Immersion endorsed the callers'
`categorization of the challenged patent as a foundational
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`800-826-0277
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`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-16
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 17
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`patent.
`
`
` And there are a handful of circumstances that
`are undisputable which compel an inference that I
`acquired no client confidences from Immersion, and they
`are as follows:
` I received this E-mail from -- on April 14, 2015
`in the afternoon.
` I sent in my letter of resignation on April 15
`of -- within 24 hours, I quit not only Irell, but the
`practice of law. I was not doing any legal work in the
`days before my departure because I knew I was going to
`quit. I had no incentive to do work. In my last few
`days, I billed exactly zero minutes, to the best of my
`recollection, really into this E-mail or any other matter
`I was on, and I had exactly zero correspondences with
`anybody about the E-mail and its attachments.
` Now, the intent and purpose of the E-mail is
`also interesting and relevant.
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` And the body of the E-mail itself -- now, we
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`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-17
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 18
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`don't need to go into all the stuff about the E-mail
`because Immersion -- we produced the E-mail and sent it
`to me very recently. The body of the E-mail -- the
`E-mail was sent by the marketing person at Irell, and she
`directed the recipients, and I was one of the recipients
`of the E-mail, the body of the E-mail directed us to
`portions of slides relating to two other clients that
`said "Go look at these slides. They relate to two other
`
` Of course I never even opened the slide show
`because I was going to quit the next day, and I did quit
`the next day.
` And so if I am charged with having acquired this
`information, that is a ridiculous conclusion from these
`facts and wrong.
` Immersion had an opportunity to present the law
`on this issue, and then I want to have similar
`opportunity.
` Here, I agree with Immersion about two points.
` One is that -- and I think the Board --
`Your Honor mentioned this, isn't this public information,
`isn't prior art reference public?
` In my opinion, that doesn't matter.
` I've researched the law on this issue, and the
`duty of confidentiality to your former client is not
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-18
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 19
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`limited to constantly secret information.
` It's stuff that could be in the public domain
`and still be within the domain of confidentiality.
` But the key requirement is whether or not I
`acquired any of Immersion's confidences, generally known
`or otherwise, during my time at Irell, and my basis for
`this representation of the law that the Board needs to
`have the inference that I acquired information is limited
`in the comments for the model rules for which the PTO has
`basically endorsed, and I've just got to find the right
`volume, 78, number 64, and those comments basically
`state, if I could just read them --
` JUDGE CHUNG: Mr. Agarwal --
` MR. AGARWAL: Yes.
` JUDGE CHUNG: -- before we go on, so you said
`you quit the practice of law in 2015.
` Are you still a member of the California Bar,
`and are you still --
` MR. AGARWAL: Yeah. Yeah.
` So I --
` JUDGE CHUNG: -- registered before the --
` MR. AGARWAL: Well, I --
` JUDGE CHUNG: -- yeah, how about PT -- Patent
`Office, are you still registered before the Patent
`Office?
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-19
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 20
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` MR. AGARWAL: Well, I -- I tried to register,
`but they have -- but I failed the -- I mean I'm not smart
`enough to be a member of the Patent Bar. I failed the
`test, and I'd like to take the test today.
` JUDGE CHUNG: So you don't have the
`registration --
` MR. AGARWAL: I got -- I got --
` JUDGE CHUNG: You still are --
` THE COURT REPORTER: I'm sorry.
` One at a time, please.
` Thank you.
` JUDGE CHUNG: Sure.
` Are you still a member of California Bar?
` MR. AGARWAL: I am. I'm a public interest
`lawyer.
` The only law I practice in California is
`whatever cases public counsel gives me on behalf of
`pro bono clients, but a majority of my work -- my work
`right now is as an investor, a private investor. I
`invest in stock and, you know, because of my background
`as a patent lawyer, I -- I prefer to invest in companies
`where the stock price is a function of undervalued patent
`claims or overvalued patent claims, and so that is why I
`filed my petition and -- you know.
` I -- so given the circumstances surrounding the
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-20
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 21
`E-mail, and given the law which requires that I obtain or
`acquire Immersion confidences, if I didn't obtain or
`acquire Immersion confidences under the circumstances,
`and the facts surrounding the situation don't lead to
`that inference, imposing, you know, an ethics violation
`sanction on me is such a serious measure that it would
`follow me for the rest of my life.
` And I've never represented -- there was one
`misrepresentation which -- and I don't think it was a
`misrepresentation because the use was "essentially."
`Mr. Lipner just said that "He was essentially Immersion's
`attorney."
` I don't know what he means by "essentially."
` I've never represented Immersion. I've never
`represented that -- and I never even knew of Immersion
`while I was at Irell.
` And so this was a very fleeting exposure to
`
` which I received the day before I quit, and I have
`zero recall of these slides.
` Irell has, you know, exclusive possession of all
`its records.
` And one final comment I'd like to make is the
`analysis in the IPR is all mine.
`
`
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`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-21
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 22
`
` I've asked Irell to give me the slides which
`they're basing this call on.
` They did give me redacted slides. The stuff
`they just told you about,
`
` They gave me redacted portions where
`everything was blacked out.
` But it doesn't matter because I have never
`acquired or obtained this confidential information in the
`first place.
` And finally, the patent.
` They have a patent number and priority date with
`a patent issued from the application which I cite in the
`Rosenberg IPR.
` Well, if that patent had never come out of that
`application, the application would still be in the public
`domain, and that is what I used.
` So the patent number which they're saying I
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`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-22
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 23
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` It's a ridiculous theory.
` I cannot believe I'm even defending myself here.
` And that concludes my argument.
` JUDGE CHUNG: You do recall receiving the
`slides, right, the day before you quit the firm; is that
`right?
` MR. AGARWAL: I -- when they gave me the E-mail,
`they sent me the E-mail in an exhibit, I recall the --
`vaguely the body of the E-mail because it was memorable
`because it was the last day before I quit.
` And also, I missed one point.
` The partner in charge of
`
` sent me and Hooman, the other associate on
`this case, an E-mail saying "Stop work on this case" in
`that one day with no -- I'm referring to.
` And I've asked Immersion to send me a time
`stamp.
` It's possible that he actually told us to stop
`work on the matter before these slides were sent to me,
`but I don't have a way to find out 'cause I have no
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-23
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 24
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`information at all.
` The only information I have about this case is
`whatever Irell has just sent me in the context of this
`particular dispute.
` JUDGE CHUNG: Okay. Thank you for that.
` The Patent Owner, do you have anything else to
`add or to respond to Mr. Agarwal's statement?
` MR. LIPNER: Yes, just a couple of things.
` We -- you know, the -- it really is indisputable
`that Mr. Agarwal received these slides, and we'd like the
`opportunity to provide the documentary evidence that
`shows that, including the E-mail which references the
`Immersion slides on the face of the E-mail.
` And Mr. Agarwal did do further work on this
`matter after receiving it, so before quitting Irell and
`after receiving the PowerPoint slides, he did do his own
`work product after receiving that information, and we
`would show that to Your Honor as well.
` In terms of -- in terms of the other arguments,
`the only thing I would point out to Your Honor that's
`helpful is that there are older cases relating to -- they
`predated 11.109, but there are older cases that provide
`guidance to the Patent Office about, you know, situations
`under which receipt of confidential information
`disqualifies someone from being involved in later cases.
`
`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-24
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 25
` There's a case called Halson v. Werbaugh, it's
`1980 Westlaw 39027, I think it's the 1980, where an
`attorney was disqualified because of -- he got from his
`former client information about the same technology at
`issue in the case.
` There's a decision in the reexam that goes by
`decision on Section 1.181 petition in reexam 95/000062
`from September of 2009 where they disqualified someone
`who -- who prosecuted the parent of a patent that was at
`issue in the case.
` And there's a case Anderson v. Epstein, 59 U.S.
`Patent Quarterly 2nd 1280 where they refused to
`disqualify, but importantly, they said that there was
`evidence that the person -- the attorney actually
`received confidential information, the results could
`possibly be different.
` So those are three disqualification cases.
` As I said, if Mr. Agarwal were representing
`another human being, that's what would provide the
`guidance.
` Because he is purporting to proceed Pro Se, that
`is why we're requesting termination.
` At a minimum, he should not be permitted to
`proceed himself in this case as the Pro Se person who is
`actually a licensed attorney who has confidential
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`800-826-0277
`
`DTI Court Reporting Solutions - Los Angeles
`www.deposition.com
`
`Immersion Ex 2004-25
`Agarwal v Immersion
`IPR2016-00807
`
`
`
`TRANSCRIPT OF TELEPHONIC HEARING - 5/20/2016
`
`Page 26
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`Immersion information.
` JUDGE CHUNG: So you -- it sounded like you're
`relying on rules for Section -- Section 42(12)(5) -- or
`(6) as issues
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