Patent No. 8,648,717
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` Paper No.
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SIERRA WIRELESS AMERICA, INC., SIERRA WIRELESS, INC. AND RPX
`CORP.
`
`Petitioners
`v.
`
`M2M SOLUTIONS LLC
`Patent Owner
`
`Patent No. 8,648,717
`Issue Date: February 11, 2014
`Title: PROGRAMMABLE COMMUNICATOR
`
`Inter Partes Review No. Unassigned
`
`MOTION FOR JOINDER TO RELATED INSTITUTED INTER PARTES
`REVIEW (37 C.F.R. § 42.122(b))
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`

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`I. 
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`II. 
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`TABLE OF CONTENTS
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`Page
`Statement of Relief Requested ........................................................................ 1 
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`Statement of Material Facts ............................................................................. 1 
`
`III.  Legal Standards and Applicable Rules ............................................................ 4 
`
`IV.  Argument ......................................................................................................... 5 
`
`This Motion for Joinder is Timely ........................................................ 5 
`A. 
`B.  Multiple Reasons Show that Joinder Is Appropriate ............................ 6 
`1. 
`Considerations of Efficiency Support Joinder ............................ 6 
`2. 
`No New Grounds Are Presented ................................................. 8 
`3. 
`Public Policy Considerations Support Joinder ........................... 8 
`Joinder Will Not Result in Unnecessary Delay..................................... 9 
`C. 
`D.  Discovery and Briefing Can Be Simplified ........................................ 10 
`V.  Conclusion .................................................................................................... 12 
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`i
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`
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`TABLE OF AUTHORITIES
`
`
`FEDERAL CASES
`ABB Inc. v. Roy-G-Biv Corp., IPR2013-00286 ...................................................................4
`
`Page(s)
`
`Ariosa Diagnostics v. ISIS Innovation Limited, IPR2012-00022 ...................................4
`
`Cisco Systems, Inc. and Avaya Inc. v. Straight Path IP Group, Inc.,
`IPR2015-01397 ..................................................................................................... 7
`
`Cisco Systems, Inc. and Avaya Inc. v. Straight Path IP Group, Inc.,
`IPR2015-01006, Paper 11 at p. 2-3 ...................................................................... 7
`
`Dell Inc. v. Network-1 Sec. Solutions, Inc. IPR2013-00385 ............................................4
`
`Hyundai Motor Co. v. Am. Vehicular Sciences LLC, IPR2014-01543 ..................10,11
`
`Kyocera Corp. v. Softview LLC, IPR2013-00004 ...............................................................4
`
`Lear, Inc. v. Adkins,
`395 U.S. 653 (1969) .........................................................................................................6, 9
`
`M2M SOLUTIONS LLC v. SIERRA WIRELESS AMERICA, INC., et al.,
`C.A. No. 1:14-cv-01102-RGA ...........................................................................................2
`
`Medtronic, Inc. v. Mirowski Family Ventures,
`LLC, 143 S.Ct. 843 (2014) .............................................................................................6, 9
`
`Microsoft Corp. v. Proxyconn, Inc., IPR2013-00109 ........................................................4
`
`Motorola Mobility LLC v. Softview LLC, IPR2013-00256 ......................................10, 11
`
`Samsung Electronics Co., Ltd. v. Virginia Innovation Sciences, Inc.,
`IPR2014-00557 ......................................................................................................................4
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`Sierra Wireless America Inc., Sierra Wireless Inc. and RPX Corp. v. M2M
`Solutions LLC,
`IPR2015-01823 (“IPR2015-01823”) ...............................................................................2
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`Sony Corp. of Am. V. Network-1 Sec. Solutions, Inc., IPR2013-00495 ......................10
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`ii
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`Sony Corp. v. Yissum Res. & Dev. Co. of the Hebrew Univ. of Jerusalem,
`IPR2013-00326 ......................................................................................................................4
`
`Target Corp. v. Destination Maternity Corp., IPR2014-00508 ......................................4
`
`Verizon Services Corp. and Verizon Business Network Services Inc. v.
`Straight Path IP Group, Inc., IPR2015-01407 ..............................................................4
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`FEDERAL STATUTES
`
`35 U.S.C. § 315(c) ..................................................................................................................1, 4
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`35 U.S.C. § 316(a)(11) ............................................................................................................10
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`35 U.S.C. § 316(b) ..........................................................................................................8, 10, 11
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`REGULATIONS
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`37 C.F.R. § 1.56(a) .....................................................................................................................8
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`37 C.F.R. § 41.1(b) ...................................................................................................................10
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`37 C.F.R. §§ 42.20(c) .................................................................................................................5
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`37 C.F.R. § 42.100(c) ...............................................................................................................10
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`37 C.F.R. § 42.101(b) ................................................................................................................4
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`37 C.F.R. § 42.122(b) .................................................................................. 1, 4, 5, 11
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`OTHER AUTHORITIES
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`U.S. Patent No. 8,648,717 .................................................................................passim
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`iii
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`

`
`U.S. Patent No. 8,648,717
`Motion for Joinder
`
`I.
`Statement of Relief Requested
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`Pursuant to 35 U.S.C. § 315(c) and 37 C.F.R. § 42.122(b), Petitioners Sierra
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`Wireless America Inc., Sierra Wireless Inc. and RPX Corp. seek with this Motion
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`to have its petition for inter partes review of U.S. Patent No. 8,648,717 (“the ‘717
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`patent”) (the “third ‘717 Petition”), filed contemporaneously herewith, joined with
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`the Telit Wireless Solutions, Inc. v. M2M Solutions LLC, Case No. IPR2016-
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`00055 (the “Telit IPR”), inter partes review, which was instituted on April 22,
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`2016. The third ‘717 petition is narrowly tailored to the identical grounds of
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`unpatentability that are subject of the Telit IPR, and is practically a copy of the
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`petition in the Telit IPR with respect to the adopted grounds, including the same
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`analyses, prior art references, exhibits, and expert testimony as in the Telit IPR.
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`The grounds not instituted in the Telit IPR – with the exception of the grounds on
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`which Telit filed a Request for Rehearing – have been removed from the third ‘717
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`Petition. Thus, the third ‘717 Petition raises no issues beyond the instituted
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`grounds of the Telit IPR or the grounds on which Telit has requested rehearing.
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`Petitioners note that they agree to be bound by the Board’s decision on the Request
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`for Rehearing. IPR2016-00055, Paper 11.
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`II.
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`Statement of Material Facts
`1.
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`On August 26, 2014, Patent Owner, M2M Solutions LLC (“M2M”),
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`filed a presently co-pending lawsuit against Sierra Wireless America, Inc. and
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`1
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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`Sierra Wireless, Inc., involving the ‘717 patent (M2M SOLUTIONS LLC v.
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`SIERRA WIRELESS AMERICA, INC., et al., C.A. No. 1:14-cv-01102-RGA) in the
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`United States District Court for the District of Delaware (“the ‘717 District Court
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`Action”). The ‘717 District Court Action is currently stayed.
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`2.
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`On August 26, 2015, Petitioners filed a petition seeking inter partes
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`review of claims 1-3, 5-7, 10-24, and 29-30 of the ‘717 Patent. Sierra Wireless
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`America Inc., Sierra Wireless Inc. and RPX Corp. v. M2M Solutions LLC, Case
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`No. IPR2015-01823 (“IPR2015-01823”), Paper 1.
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`3.
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`On March 8, 2016, the Patent Trial and Appeal Board instituted inter
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`partes review of claims 1, 3, 5, 6, 10-13, 15-24, and 29 of the ‘717 patent, and
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`denied institution of claims 2, 7, 14 and 30. IPR2015-01823, Paper 16, pp. 30, 25-
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`26.
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`4.
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`On April 8, 2016, Petitioners filed a second ‘717 Petition, challenging
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`claims 2, 7, 14 and 30, on new grounds – i.e., Whitley in view of the SIM+ME
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`Spec., Whitley in view of the SIM+ME Spec. and the SIM Application Toolkit,
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`and Whitley in view of the SIM+ME Spec., the SIM Application Toolkit and the
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`SIM API Spec. See IPR2016-00853, Paper 1, p. 8-9, 19-60. The second ‘717
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`Petition was accompanied by a motion for joinder to join the second ‘717 Petition
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`with the first ‘717 Petition in IPR2015-01823. IPR2016-00853, Paper 4. The
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`Board has not yet issued its decision on institution of the second ‘717 Petition.
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`2
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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`5.
`On October 21, 2015, Telit filed a petition (the “Telit petition”)
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`challenging claims 1-30. IPR2016-00055, Paper 1. On April 22, 2016, the Patent
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`Trial and Appeal Board instituted inter partes review of claims 1-24 and 29 of the
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`‘717 patent, and denied institution of claims 25-28 and 30. IPR2016-00055, Paper
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`9, pp. 2, 14-49.
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`6.
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`On May 5, 2016, Telit filed a Request for Rehearing, challenging the
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`Board’s denial of review of claims 25-28 and 30 of the ‘717 patent. IPR2016-
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`00055, Paper 11.
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`7.
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`Petitioners are concurrently filing the third ‘717 Petition, challenging
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`claims 1-30 on the ‘717 Patent. The third ‘717 Petition proposes the same grounds
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`of rejection that were proposed in the Telit IPR and that were instituted by the
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`Board in the Telit IPR, and is practically a copy of the Telit petition with respect to
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`the adopted grounds, including the same analysis, prior art, exhibits and expert
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`testimony. The third ‘717 Petition also includes the grounds on which Telit has
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`requested rehearing, including the same analysis, prior art, exhibits and expert
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`testimony. Petitioners agree to be bound by the Board’s decision on Telit’s Request
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`for Rehearing.
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`8.
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`The present Motion and Petitioners’ third ‘717 Petition are being filed
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`just over six weeks before the Patent Owner’s first deadline, July 6, 2016, under
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`the Board’s Scheduling Order. IPR2016-00055, Paper 10.
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`3
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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`III. Legal Standards and Applicable Rules
`The Board has discretion to join a properly filed IPR petition to a previously
`
`instituted IPR proceeding. 35 U.S.C. § 315(c); 37 C.F.R. § 42.122(b); see also Dell
`
`Inc. v. Network-1 Sec. Solutions, Inc., IPR2013-00385, Paper 17, at 4-6; Sony
`
`Corp. v. Yissum Res. & Dev. Co. of the Hebrew Univ. of Jerusalem, IPR2013-
`
`00326, Paper 15, at 3-4; Microsoft Corp. v. Proxyconn, Inc., IPR2013-00109,
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`Paper 15, at 3-4; Target Corp. v. Destination Maternity Corp., IPR2014-00508,
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`Paper 28 at 5-19, Ariosa Diagnostics v. ISIS Innovation Limited, IPR2012-00022,
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`Paper 16 at 18-22, Samsung Electronics Co., Ltd. v. Virginia Innovation Sciences,
`
`Inc., IPR2014-00557, Paper 10 at 18, ABB Inc. v. Roy-G-Biv Corp., IPR2013-
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`00286, Paper 14 at 4, Verizon Services Corp. and Verizon Business Network
`
`Services Inc. v. Straight Path IP Group, Inc., IPR2015-01407, Paper 41 at 3-5, and
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`Kyocera Corp. v. Softview LLC, IPR2013-00004, Paper No. 15 at 4 (Apr. 24,
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`2013).
`
`This request for joinder is timely, and the time periods set forth in 37 C.F.R.
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`§42.101(b) do not apply to Petitioners’ third ‘717 Petition because it is
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`accompanied by this request for joinder. 35 U.S.C. § 315(c); 37 C.F.R. §
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`42.122(b). “The Board will determine whether to grant joinder on a case-by-case
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`basis, taking into account the particular facts of each case, substantive and
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`procedural issues, and other considerations.” Dell, IPR2013-0385, Paper 17, at 3.
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`4
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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`As the moving party, Petitioners have the burden of proof in establishing
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`entitlement to the requested relief. 37 C.F.R. §§ 42.20(c), 42.122(b).
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`A motion for joinder should: (1) set forth the reasons why
`joinder is appropriate; (2) identify any new grounds of
`unpatentability asserted in the petition; (3) explains what
`impact (if any) joinder would have on the trial schedule for the
`existing review; and (4) address specifically how briefing and
`discovery may be simplified.
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`Dell, IPR2013-0385, Paper 19, at 4.
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`IV. Argument
`The Board should exercise its discretion and grant this Motion for Joinder of
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`the third ‘717 Petition with the already instituted IPR2016-00055 proceeding
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`because joinder provides a vehicle to efficiently all asserted claims with respect to
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`the art presented by the Petitioners and avoid wasteful litigation of the issues on a
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`claim by claim basis in both the PTAB and the district court. Each of the four
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`factors considered by the Board weighs in favor of joinder. Thus, joinder is
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`appropriate and warranted.
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`A. This Motion for Joinder is Timely
`This motion is made within one month of the date the trial was instituted in
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`IPR2016-00055 as required by Rule 42.122(b). Trial was instituted on April 22,
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`2016 and the instant motion has been filed on or before May 23, 2016.
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`5
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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`B. Multiple Reasons Show that Joinder Is Appropriate
`Joinder is appropriate here for reasons including efficiency, fairness, equity
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`and public policy. Joining the third ‘717 Petition with IPR2016-00055 will allow
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`for numerous efficiencies in these proceedings. Petitioners’ third ‘717 Petition
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`challenges claims 1-24 and 29 based on the same grounds adopted by the Board in
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`the Telit IPR, and also relies on the same analysis, prior art, exhibits, and expert
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`testimony submitted by Telit. The third ‘717 Petition also challenges claims 25-28
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`and 30 on the same grounds addressed in Telit’s Request for Rehearing (Paper 11),
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`and relies on the same analysis, prior art, exhibits, and expert testimony submitted
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`by Telit. As set forth above, Petitioners agree to be bound by the Board’s decision
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`on Telit’s Request for Hearing.
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`Moreover, the Supreme Court has made clear that there is a strong public
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`policy in favor of rooting out invalid patents. See Medtronic, Inc. v. Mirowski
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`Family Ventures, LLC, 143 S.Ct. 843, 851-52 (2014); Lear, Inc. v. Adkins, 395
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`U.S. 653, 656, 670 (1969). For these reasons, further discussed below, good cause
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`exists for joinder.
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`1. Considerations of Efficiency Support Joinder
`Joinder is also appropriate because it will promote the efficient
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`determination of validity of the challenged claims of the ‘717 Patent. For example,
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`a final written decision on the validity of the ‘717 Patent has the potential to
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`6
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`

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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`minimize issues in the underlying litigations, and potentially resolve the litigations
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`altogether with respect to the ‘717 Patent. Both the Telit IPR and Petitioners’ third
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`‘717 Petition arise out of the parallel litigations where Telit and Sierra Wireless are
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`defendants. The joinder would promote efficiency in resolving the invalidity
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`issues in the ‘717 patent at both the Board and the court. Absent joinder, if Patent
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`Owner and Telit settle, Petitioners may be forced to start over in district court with
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`the same or similar arguments on which Telit has already shown it reasonably
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`likely to prevail, which would be a waste of judicial resources. This is especially
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`true since the Telit IPR includes claims that are not covered by either of
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`Petitioners’ first and second ‘717 Petitions (claims 4 and 8-9) or, if Petitioners’
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`second ‘717 Petition is denied, by Petitioners’ first ‘717 Petition (claims 2, 4, 7-9,
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`14 and, possibly, claims 25-28 and 301). Accordingly, to avoid duplicate efforts
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`and promote judicial efficiency, joinder is appropriate. Dell, IPR2013-0385, Paper
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`17, at 4-10, Verizon, IPR2015-01407, Paper 41 at 3-5.2
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`1 Petitioners note that claims 25-28 and 30 are subject to Telit’s Request for
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`Rehearing.
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`2 Petitioners further note that the Board has previously instituted IPRs where there
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`is already an existing instituted petition. See, e.g., Cisco Systems, Inc. and
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`Avaya Inc. v. Straight Path IP Group, Inc., IPR2015-01397, Paper 9 at p. 2-3
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`and IPR2015-01006, Paper 11 at p. 2-3.
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`7
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`

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`U.S. Patent No. 8,648,717
`Motion for Joinder
`
`Moreover, granting joinder will not prejudice Patent Owner or Telit, while
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`Petitioners could be prejudiced if joinder is denied. As mentioned above, the third
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`‘717 Petition does not raise any issue that is not already before the Board.
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`Therefore, joinder should not affect the timing of the Telit IPR or the content of
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`Patent Owner’s response. Also, there should not be an additional cost to Patent
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`Owner or Telit given the overlap in the petitions. On the other hand, Petitioners
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`would be potentially prejudiced if joinder is denied. For example, absent joinder,
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`Patent Owner may attempt to use aspects of the Telit IPR against Sierra Wireless
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`in district court, even though Sierra Wireless was not able to participate in the Telit
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`IPR to protect its interests.
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`Thus, joinder is appropriate for all these reasons and due to the efficiencies
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`resulting from the substantial overlap between the third ‘717 Petition and the
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`instituted proceedings.
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`2. No New Grounds Are Presented
`The third ‘717 Petition does not present any new ground of unpatentability.
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`As mentioned above, the third ‘717 Petition presents only the grounds already
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`adopted by the Board in the Telit IPR or Telit’s Request for Rehearing, and is
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`based on the same analyses and expert testimony submitted by Telit.
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`3. Public Policy Considerations Support Joinder
`Joinder is further supported by public policy considerations and the public
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`8
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`

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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`interest in seeing invalid patents formally invalidated. The Board is charged with
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`considering the “effect… on the economy” and “the integrity of the patent system”
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`among other considerations, when implementing and applying its rules, including
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`those relating to joinder. See 35 U.S.C. § 316(b); see also 37 C.F.R. § 1.56(a) (“A
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`patent by its very nature is affected with a public interest. The public interest is
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`best served… when, at the time an application is being examined, the Office is
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`aware of and evaluates the teachings of all information material to patentability.”).
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`There is an “important public interest in permitting full and free competition in the
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`use of ideas which are in reality a part of the public domain” and a corresponding
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`“strong federal policy favoring free competition in ideas which do not merit patent
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`protection.” Lear, 395 U.S. at 656, 670. The Supreme Court recently confirmed
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`these policies, stating that although the “public interest… favors the maintenance
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`of a well-functioning patent system,” “the ‘public’ also has a ‘paramount interest in
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`seeing that patent monopolies … are kept within their legitimate scope.’”
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`Medtronic, 134 S.Ct. at 851 (quoting Precision Instrument Mfg. Co. v. Auto.
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`Maint. Mach. Co., 324 U.S. 806, 816 (1945). These important public policy
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`considerations further support joinder.
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`Joinder Will Not Result in Unnecessary Delay
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`C.
`Permitting joinder will not unduly affect the IPR2016-00055 proceedings.
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`As discussed above, the third ‘717 Petition presents the same grounds of invalidity
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`9
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`

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`U.S. Patent No. 8,648,717
`Motion for Joinder
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`as presented in the Telit IPR, including the same analyses, prior art, exhibits, and
`
`expert testimony. Joinder will not impact the Board’s ability to complete its
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`review in a timely manner, as it will not introduce any additional arguments,
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`briefing, or need for discovery. In such circumstances, the Board has routinely
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`granted joinder. See, e.g., Hyundai Motor Co. v. Am. Vehicular Sciences LLC,
`
`IPR2014-01543, Paper No. 11 at 2-4 (Oct. 24, 2014); Sony Corp. of Am. V.
`
`Network-1 Sec. Solutions, Inc., IPR2013-00495, Paper No. 13 at 5-9 (Sep. 16,
`
`2013); Dell, IPR2013-00385, Paper No. 17 at 6-10 (Jul. 29, 2013); Motorola
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`Mobility LLC v. Softview LLC, IPR2013-00256, Paper 10 at 4-10 (June 20, 2013).
`
`Further, Petitioners will do their part to minimize any extension of deadlines
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`and will do everything within its power to facilitate completion of the requested
`
`joined proceeding within one year under 35 U.S.C. §316(a)(11) and 37 C.F.R.
`
`§42.100(c). Thus, joining the third ‘717 Petition with IPR2016-00055 will not
`
`unduly delay resolution of these proceedings and will help “secure the just, speedy,
`
`and inexpensive resolution” of the proceedings. See 37 C.F.R. § 41.1(b); see also
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`35 U.S.C. § 316(b).
`
`D. Discovery and Briefing Can Be Simplified
`Since the third ‘717 Petition is practically identical to Telit’s IPR with
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`respect to the instituted grounds of unpatentability, the Board may order
`
`procedures similar to those used in related cases to simplify briefing and discovery.
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`10
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`

`
`U.S. Patent No. 8,648,717
`Motion for Joinder
`
`Hyundai, IPR2014-01543, Paper No. 11 at 5; Dell, IPR2013-00385, Paper No. 17
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`at 8-10; Motorola, IPR2013-00256, Paper 10 at 8-10. Specifically, the Board may
`
`order petitions to consolidate filings, and Petitioners Sierra Wireless and RPX are
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`willing to be limited to separate filings, if any, of a reasonable number of pages
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`(e.g., seven pages) directed only to points of disagreement with Telit with the
`
`understanding that it will not be permitted any separate arguments in furtherance of
`
`those advanced in Telit’s consolidated filings. See, e.g., Hyundai, IPR2014-01543,
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`Paper No. 11 at 5.
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`The Board may also limit oral arguments such that Sierra Wireless and RPX
`
`will be able to present arguments at the oral hearing only after Telit has completed
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`its arguments, and only if there is any remaining time available.
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`In addition, Petitioners Sierra Wireless and RPX hereby agree not to conduct
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`additional depositions or other discovery so that all discovery in the joined
`
`proceeding will be completed within ordinary time limits of the original Telit IPR
`
`proceeding. Id.
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`Furthermore, Petitioners Sierra Wireless and RPX will coordinate with Telit
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`to consolidate filings, manage questioning at depositions, manage presentations at
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`the hearing, ensure that briefing and discovery occur within the time normally
`
`allotted, and avoid redundancies. These procedures should simplify briefing and
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`discovery.
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`11
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`

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`U.S. Patent No. 8,648,717
`Motion for Joinder
`
`V. Conclusion
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`For the foregoing reasons, Petitioners respectfully request that the Board
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`grant the present Motion and join Petitioners’ third ‘717 Petition with IPR2016-
`
`00055 under Rule 42.122(b).
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`Respectfully submitted,
`
`Dated: May 19, 2016
`
`
`By:
`
`
`/Jennifer Hayes/
`Reg. No. 50,845
`Nixon Peabody LLP
`P.O. Box 60610
`Palo Alto, CA 94306
`Tel. (650) 320-7763
`Fax (650) 320-7701
`
`12
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`U.S. Patent No. 8,648,717
`Motion for Joinder
`
`
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a copy of the foregoing Motion for Joinder
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`to Related Instituted Inter Partes Review was served on May 19, 2016 by placing a
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`copy into FEDERAL EXPRESS directed to the attorneys of record for the patent at
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`the following address:
`
`Jonathan Lovely
`Sunstein Kann Murphy & Timbers LLP
`125 Summer Street
`Boston MA 02110-1618
`and upon the attorney of record in the related litigations:
`
`Marc N. Henschke Foley & Lardner LLP
`111 Huntington Avenue, Suite 2600
`Boston, MA 02199
`A courtesy copy of the Motion for Joinder to Related Instituted Inter Partes Review
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`was served in its entirety on May 19, 2016 by e-mail on the following individuals:
`
`Jeffrey Costakos
`jcostakos@foley.com
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`Michelle Moran
`mmoran@foley.com
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`
`
`
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`By: /Jennifer Hayes/
`Counsel for Petitioner
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`13