throbber
Telephone Conference
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`July 10, 2017
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`Page 1
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` UNITED STATES PATENT AND TRADEMARK OFFICE
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` BEFORE THE PATENT TRIAL AND APPEAL BOARD
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` - - - - - - - - - - - - - - - X
`
` MICROSOFT CORPORATION, :
`
` MICROSOFT MOBILE INC., :
`
` SAMSUNG ELECTRONICS AMERICA, : Case No.
`
` INC., and SAMSUNG : IPR2016-01179
`
` ELECTRONICS CO. LTD., :
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` Petitioners, :
`
` v. :
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` FASTVDO LLC, :
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` Patent Owner. :
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` - - - - - - - - - - - - - - - X
`
` Monday, July 10, 2017
`
` Telephone Conference before Judges Jeffrey S.
`
`Smith, Patrick M. Boucher, and Peter P. Chen in the
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`above-entitled matter, commencing at 3:00 p.m., the
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`proceedings taken down by Stenotype by JESSICA CROXFORD, RPR,
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`and transcribed under her direction.
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 1 of 18
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`

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`Telephone Conference
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`APPEARANCES:
`
` On behalf of the Petitioners:
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` DERRICK W. TODDY, ESQ.
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` GARTH A. WINN, ESQ.
`
` Klarquist Sparkman, LLP
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` 121 SW Salmon Street
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` Suite 1600
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` Portland, Oregon 97204
`
` (503) 473-0827
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` derrick.toddy@klarquist.com
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` garth.winn@klarquist.com
`
` On behalf of the Patent Owner:
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` WAYNE M. HELGE, ESQ.
`
` WALTER D. DAVIS, ESQ.
`
` Davidson, Berquist, Jackson & Gowdey, LLP
`
` 8300 Greensboro Drive
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` Suite 500
`
` McLean, Virginia 22102
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` (703) 894-6420
`
` whelge@dbjg.com
`
` wdavis@dbjg.com
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 2 of 18
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`

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`Telephone Conference
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` P R O C E E D I N G S
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` JUDGE SMITH: Good afternoon. This is Judge Smith
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`of the Patent Trial and Appeal Board. With me on the line
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`are Judges Chen and Boucher. We're here for a conference
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`call in an IPR2016-01179, Samsung Electronics v. FASTVDO,
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`LLC.
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` Would counsel for petitioner please state you
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`appearance.
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` MR. TODDY: Hello, Your Honor. This is
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`David Toddy, lead counsel for petitioners, Samsung
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`petitioners. On the phone with me also is Garth Winn, backup
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`counsel.
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` JUDGE SMITH: Thank you, Mr. Toddy. Is that it,
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`you and Mr. Winn?
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` MR. TODDY: That's correct, Your Honor.
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` THE REPORTER: And, also, the court reporter,
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`Jessica Croxford, from Alderson Court Reporting. I'm here as
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`well.
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` JUDGE SMITH: The court reporter. Okay. Could
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`you please spell your name and identify the court reporting
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`service?
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` THE REPORTER: Sure. It's Jessica Croxford.
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`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 3 of 18
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`

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`J-E-S-S-I-C-A, last name C-R-O-X-F-O-R-D with Alderson,
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`A-L-D-E-R-S-O-N, Court Reporting.
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` JUDGE SMITH: Thank you. Would counsel for patent
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`owner please state your appearance.
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` MR. HELGE: Good afternoon, Your Honor.
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`Wayne Helge here for the patent owner. And, Your Honor, with
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`me on the phone here is Walter Davis. Mr. Davis is the
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`backup counsel in this case as well.
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` JUDGE SMITH: Thank you. And that's it on your
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`end, patent owner?
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` MR. HELGE: Yes, Your Honor. And, Your Honor, we
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`coordinated the -- or scheduled the court reporter, so we
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`will have the transcript available for filing, if the Board
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`so desires.
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` JUDGE SMITH: Okay. Thank you.
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` Patent owner has requested this call to discuss
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`what it contends are new issues and evidence raised in the
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`petitioners' reply.
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` Oh, yeah. Just before we get started, we do want
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`the transcript filed.
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` MR. HELGE: Certainly, Your Honor.
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` JUDGE SMITH: Okay. The parties have conferred,
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`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 4 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`and petitioner intends to oppose patent owner's request.
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` Patent owner, you've requested this call. Please
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`tell us what your position is on this issue.
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` MR. HELGE: Thank you, Your Honor.
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` Your Honor, patent owner requested this call. As
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`we reviewed petitioners' reply, we saw items that we believe
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`constitutes new arguments, raised new issues. And -- and, in
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`particular, what I can point you to, I think more
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`specifically that may be the easiest for the Board to see, is
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`they're relying on new evidence.
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` The portion that we believe constitutes new
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`arguments and raises new issues begins -- it's the middle of
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`page 18. It's the paragraph beginning with the word
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`"additionally." And it runs -- the new arguments run through
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`the bottom of page 21. The points that I think are perhaps
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`the easiest for the Board to see occur on page 19 and 20 of
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`the reply.
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` Each of these pages, the petitioner points to
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`Exhibit 2006, pages 137, line 7 through 139, line 1.
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`Exhibit 2006 is the deposition testimony of Dr. Stevenson.
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`Now, that is petitioners' expert. I deposed him -- I believe
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`it was sometime back in March before our response was filed
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`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 5 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`in this case. And these specific page and line numbers
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`are directed to Dr. Stevenson's redirect testimony.
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`Petitioner acknowledges this on page 19 about two lines above
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`the citation that this has occurred during redirect
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`examination.
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` Your Honor, what happened after page 137 -- and we
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`point this out specifically at page -- beginning on page 55
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`of our response -- what happened after this testimony was
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`given was, I asked Dr. Stevenson -- and this begins around
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`line -- or, excuse me, on page 145, line 20, running through
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`about page 147, line 7. And, again, this is in our response
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`beginning around page 55.
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` But I asked Dr. Stevenson about the testimony
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`that's -- that's being pointed out, being cited to in
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`Exhibit 2006 here in the reply. And Dr. Stevenson admitted
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`that the testimony that he gave in this portion was not
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`contained -- it was not -- contained theories that were not
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`presented in his declaration. So, in other words, this
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`testimony is being presented for the first time on redirect
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`examination of Dr. Stevenson. And this is where he alleges
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`that a certain portion of the Kato reference, K-A-T-O,
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`discloses other examples of storage. And this relates to
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 6 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`column 33, I believe, of Kato.
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` Now, the fact that petitioner is citing to this
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`evidence -- citing to these portions of the deposition
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`indicate that, without question, they're relying on new
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`evidence and new evidence that relates to new theories that
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`were not contained in the petition or in Dr. Stevenson's
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`original declaration.
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` There's another instance here that I think is
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`perhaps very easy to draw the Board's attention to, and that
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`relates to the bottom of page 20 and the top -- or, excuse
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`me, all of page 21 of the reply, Your Honors. And here, what
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`you see is the petitioner looking now for the existence of
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`memory, and they're pointing to the decoder rather than the
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`encoder. Now, their entire petition was focused on the
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`encoder side. So, once again, this represents a new theory.
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` What I can represent to Your Honors is that, just
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`a few minutes ago, I opened the petition and I searched for
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`the word "decoder." And the only instance of the decoder
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`being discussed actually occurs with respect to the
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`petitioners' proposed claim construction for code word where
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`they talk about a codebook known by both the encoder and
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`decoder. But they have not discussed the decoder with
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 7 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`respect to the storage claims, which I direct Your Honors to
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`as being claims 5, 16, and 28.
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` In particular, I believe it's pages 50 to 51 of
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`the petition that point to claim 5. Page 57 deals with claim
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`28. And in none of these portions do they deal with the
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`decoder as a possible basis for obviousness of the storage
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`claims.
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` Your Honor, what -- what I wanted to do with this
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`call -- and I appreciate Your Honors taking some time to talk
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`about this -- is, I think, first and foremost, bring it to
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`the Board's attention that these are new theories.
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`Certainly, if the Board would like us to -- or would grant
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`permission for us to file a motion to strike, we think the
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`Office Patent Trial Guide supports the concept of striking
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`replies that have new arguments, raises new issues, includes
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`new evidence.
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` But in any event, I think that, first and
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`foremost, we were hoping to just bring this to the Board's
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`attention.
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` JUDGE SMITH: Okay. Thank you.
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` Counsel for petitioner, what is your position?
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` MR. TODDY: Thank you, Your Honor. Derrick Toddy,
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 8 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`counsel for petitioners.
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` Our initial position is that there has been no
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`change in petitioners' theory with regard to the obviousness
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`of -- in particular, as mentioned by Mr. Helge, the data
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`storage claims. I would refer to the petition and the
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`discussion beginning at page 50 of the petition, continuing
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`through page 52 of the petition as an example of that theory.
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`That is supported by the declaration of our expert,
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`Dr. Stevenson, at his declaration paragraphs 111 through 115.
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` And in particular, I would -- I would direct the
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`Board's attention to the two concluding paragraphs of that
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`section of the declaration where Dr. Stevenson lays out the
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`theory, basically, that it would have been -- and I'm
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`quoting, "It would have been obvious to provide unequal error
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`protection to the separate data store regions in which" --
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`and now I'm breaking from the quote -- Pi's and Ri's are
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`stored. And then the next paragraph ties that to similar
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`CJi's that are from the first embodiment and says it would
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`have been -- one would have been motivated to provide higher
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`levels of air protection.
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` That was and is our obviousness theory as it
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`relates to Kato. It is further laid out in some other
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 9 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`portions, but that's a good summary. And it was -- for the
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`first time in responsive papers, first in the preliminary
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`response and then later in patent owner's formal response,
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`raised that the data store region is patent owner's
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`contention, as I understand it, that the data store region is
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`limited to this RAM, which is located in Figure 6(a), and
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`that -- that the data store region is limited to there.
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` And our response to that was to -- both at
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`Dr. Stevenson's deposition and later in our reply, to explain
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`why that's not the case, why that theory of patent owner's
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`regarding the data store regions being limited to the RAM is
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`simply an error. It's not a change in theory. It is as
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`properly included in 37 CFR 42.23(b) an argument that's
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`raised in response to a patent owner assertion in this case
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`in both the preliminary response and the patent owner
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`response.
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` I would further note that, as was already raised
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`by Mr. Helge, patent owner was aware of this response at the
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`time -- sorry -- in our full use of language, was aware of
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`this position at the time it filed its response. So it spent
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`four pages talking about what it called in its response a new
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`theory that was raised during the deposition of
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 10 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`Dr. Stevenson.
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` Again, first, it is our position that that's not a
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`new theory. And second, our position is, patent owner
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`certainly had an opportunity to respond to it if it deemed it
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`to be a new theory, which we would dispute and, in fact, did
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`so in its response. It laid out its position regarding the
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`RAM, and it did so throughout section -- the section at pages
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`20 through 30 of its response, particularly at pages 22 and
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`23. And then it spent four pages of its response detailing
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`what it contended to be the new theory and why it was -- its
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`position that it was a new theory, which we dispute.
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` But there's nothing new in the reply. It's
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`interesting to talk about something in a reply being new that
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`was already addressed in the previous paper that patent owner
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`filed. So, you know, our contention is that while we did
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`provide examples of other places in the specification that
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`provided examples of the data store region or potential data
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`storage of unequally error protected data, that was solely
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`done to rebut patent owner's assertion that it was only
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`located in one place.
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` And our obviousness argument has not changed. And
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`to the extent there's any issue of whether the portions of
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 11 of 18
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`

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`Telephone Conference
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`July 10, 2017
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`the reply identified by patent owner are new or not, that
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`issue was already raised in their response, it was already
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`addressed in our reply, and certainly doesn't require more
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`briefing for the Board.
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` JUDGE SMITH: Patent owner, what would you say in
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`your motion other than point out now what you already said on
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`the transcript record? What would -- if we were to grant the
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`motion, what would it contain other than your statement that
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`you want the portions of the reply stricken?
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` MR. HELGE: Your Honor, I think we would obviously
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`detail that in some -- in some more time -- or, you know, I
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`think a little bit more argument, we would provide some
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`discussion of the Intelligent Bio-Systems Illumina Cambridge
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`case, the federal circuit. This was back from 2016. Now, we
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`did cite that in our response, so certainly the Board has
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`already been made aware of that case. But I would
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`anticipate, for the most part, it would -- it would be as we
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`already explained it to you here on this call.
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` JUDGE SMITH: Thank you.
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` MR. HELGE: And, Your Honor, I would just note
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`from -- from counsel's discussion a moment ago, he does point
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`to, I believe, page 50 to 52 of the petition, for example,
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
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`Alderson Court Reporting
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`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 12 of 18
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`Telephone Conference
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`that deals with claim 5. And if you go there, you would see
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`some discussion of Figure 7 from Kato. You would see some
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`discussion of what he contends or what petitioners contend
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`are what they call separate data store regions discussed in
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`Kato's column 32, lines 35 to 40, and discussion of claim 9
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`as well.
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` And, certainly, there is some appearance of those
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`portions in the reply. And we haven't identified those as
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`being allegedly new. But, again, what you won't see in the
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`petition is discussion of a decoder. You won't see a
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`discussion of these other examples that Dr. Stevenson first
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`presented during deposition.
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` JUDGE SMITH: Okay. Thank you.
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` MR. TODDY: Your Honor, if I could. This is
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`Derrick Toddy for petitioners.
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` JUDGE SMITH: Yes.
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` MR. TODDY: So as we stated, we believe this issue
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`has already been, you know, addressed and doesn't require a
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`separate briefing. But I just want to respond to the
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`citation on the call to Intelligent Bio-Systems and draw the
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`Board's attention to another federal circuit case that
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`essentially -- that did distinguish that case. If you go to
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`www.aldersonreporting.com
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`Alderson Court Reporting
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`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 13 of 18
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`Westlaw, the first thing that pops up that's distinguished,
`
`that's Intellectual Ventures versus Ericsson case. The
`
`citation is 2017 WL 1380616.
`
` And I think I would just point out there, in
`
`particular, the point that's made at star 7 where a
`
`distinction is drawn between a case like Bio-Systems where
`
`new evidence is offered and new theories are offered based on
`
`evidence that was not of record versus the case where the
`
`same obviousness theory was maintained and no additional
`
`references were offered. And I think this is more like that
`
`case, Intellectual Ventures, than it is
`
`Intelligent Bio-Systems. There was no supplemental
`
`declaration. There were no new additional exhibits other
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`than -- exhibits are always contained in -- in responses and
`
`replies that cites deposition testimony.
`
` And so petitioners would contend that
`
`Intelligent Bio-Systems is not an appropriate surrogate for
`
`this case, and a better case to look at would be
`
`Intellectual Ventures. And that highlights the idea, as
`
`here, that simply responding to a response argument by citing
`
`traditional examples is not -- is not introduction of new
`
`evidence and is not an improper reply.
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 14 of 18
`
`

`

`Telephone Conference
`
`July 10, 2017
`
`Page 15
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` MR. HELGE: Your Honors, this is Mr. Helge. May I
`
`make a quick point in response to Mr. Toddy's discussion a
`
`moment ago?
`
` JUDGE SMITH: Yes.
`
` MR. HELGE: Your Honor, I'd just like to note
`
`that, in fact, we do have introduction of new evidence here.
`
`We have Dr. Stevenson's deposition testimony, which occurred
`
`during redirect. And, in fact, Mr. Toddy's correct. There
`
`is no new declaration. But had there not been this
`
`deposition testimony, there would have, I believe, been a
`
`declaration.
`
` But in any event, we don't need to worry about
`
`hypotheticals because, in fact, there is citation to this
`
`deposition to the new theories that Dr. Stevenson was invited
`
`to give. And I'll note -- it's one last point here -- is at
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`the beginning of the deposition, I asked Dr. Stevenson if he
`
`found anything that he wanted to add during his review of his
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`declaration prior to deposition. He said there's nothing he
`
`needed to add. And then on redirect, he comes up with this
`
`new theory. It's simply inconsistent.
`
` JUDGE SMITH: Okay. Thank you.
`
` MR. TODDY: Sorry. One last -- this is
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 15 of 18
`
`

`

`Telephone Conference
`
`July 10, 2017
`
`Page 16
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`Derrick Toddy for petitioners. Again, I would just point out
`
`to the extent we're going to talk about the deposition in
`
`particular, there was a line of questioning from the
`
`beginning of page 60 -- I'm sorry -- 66, line 16 through 83,
`
`line 7. And I would direct the Board specifically to
`
`page 73, line 1 through 75, line 19 that we contend
`
`Dr. Stevenson was responding to in his redirect questioning.
`
`The questions on redirect were specifically directed as
`
`responsive to issues that were raised by patent owner during
`
`their cross-examination as is proper in a deposition where
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`issues are raised -- normally, you take up issues raised on
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`direct and then it's proper to raise those on cross.
`
` Here, the direct questioning, if you will, by
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`patent owner was considered cross-examination questioning.
`
`And we responded to that cross-examination questioning which
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`related to patent owner's theory that the data storage was
`
`limited to RAM. Patent owner had sought to limit data
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`storage to RAM in its questioning of Dr. Stevenson.
`
` He did not agree with that, as you will see from
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`patent owner's own questioning of him, repeatedly saying it
`
`was an example of a data storage region and then on redirect
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`questioning, cited other examples. So we think that was
`
`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 16 of 18
`
`

`

`Telephone Conference
`
`July 10, 2017
`
`Page 17
`
`completely proper and within the scope of -- proper scope of
`
`redirect as assessed as responding to cross-examination
`
`questioning.
`
` JUDGE SMITH: Okay. We have your -- we have your
`
`positions on the record.
`
` Patent owner, we're going to deny authorization
`
`for you to file your motion. If you'd like to raise this at
`
`the hearing, you can, and we will consider the issue when we
`
`prepare the final written decision.
`
` MR. HELGE: Thank you, Your Honor.
`
` JUDGE SMITH: Thanks to everyone for
`
`participating. This call is adjourned.
`
` MR. TODDY: Thank you, Your Honor.
`
` (Whereupon, at 3:20 p.m., the instant proceedings
`
`were adjourned.)
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`1-800-FOR-DEPO
`
`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 17 of 18
`
`

`

`CERTIF]CATE
`
`)
`
`)
`
`STATE OF UTAH
`COUNTY OF SALT LAKE
`the proceedings h¡ere taken
`THIS IS TO CERTIFY that
`before Írer Jessica Croxford, a Registered Professional
`Reporter in and for
`the State of Utah.
`That the said witness, before examinationr wâs duly
`the whole truth, and nothing
`shiorn to test.ify
`the truth,
`in said cause.
`but the truth
`That the testimony r^ras reported by me in Stenotype,
`and thereafter
`transcribed by computer under my
`supervision, and that a full,
`true, and correct
`is set forth
`in the foregoing pages.
`transcription
`I am not of kin or otherwise
`I further certify
`that
`associated with any of the parties
`to said cause of
`I am not interested
`action and that
`in the event thereof.
`19th
`July
`VIITNESS MY HAND this
`day of
`, 20L7
`3
`
`Jes
`
`ca
`
`or
`
`, RPR
`
`IPR2016-01179
`Patent Owner's Exhibit 2014
`Page 18 of 18
`
`

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