U.S. Patent No. 8,894,066
`Opposition to Motion to List
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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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`RUBICON COMMUNICATIONS, LP
`Petitioner,
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`v.
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`LEGO A/S
`Patent Owner.
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`Case IPR2016-01187
`Patent 8,894,066
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S
`MOTION TO LIST ADDITIONAL PARTIES AS REAL
`PARTIES-IN-INTEREST
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`Opposition to Motion to List
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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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`RUBICON COMMUNICATIONS, LP
`Petitioner,
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`v.
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`LEGO A/S
`Patent Owner.
`____________
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`Case IPR2016-01187
`Patent 8,894,066
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S
`MOTION TO LIST ADDITIONAL PARTIES AS REAL
`PARTIES-IN-INTEREST
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`Under the Board’s February 24, 2017 authorization, Patent Owner
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`respectfully submits its Opposition to Petitioner’s Motion to List Additional Parties
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`as Real Parties-in-Interest. Paper 53 (“Motion to List”). For the reasons set forth
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`below, Patent Owner requests the Board deny the Motion to List.
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`I.
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`Responses to Petitioner’s Statement of Material Facts:
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`1. Paragraph 1 cannot be admitted or denied by Patent Owner.
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`2. Paragraph 2 is admitted to the extent that Patent Owner was aware of
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`“the existence” only of the entities, but deny any implication that
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`Patent Owner was aware of the missing real parties-in-interest’s direct
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`role in this proceeding and the related litigation.
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`3. Paragraph 3 cannot be admitted or denied by Patent Owner.
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`4. Paragraph 4 is admitted.
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`5. Paragraph 5 cannot be admitted or denied by Patent Owner.
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`6. Paragraph 6 is admitted to the extent that Patent Owner received the
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`document.
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`7. Paragraph 7 is admitted. Patent Owner commenced the related
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`litigation on May 29, 2015 and moved to add SmallWorks, LLC as a
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`defendant on October 14, 2015.
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`8. Paragraph 8 is admitted.
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`9. Paragraph 9 is admitted.
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`10. Paragraph 10 is admitted.
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`11. Paragraph 11 is admitted.
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`II. ARGUMENT
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`Rubicon Communications, LP and SmallWorks, LLC (collectively,
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`“Petitioners”) continue to argue in bad faith that Rubicon Communications, LLC,
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`Jamie Thompson, and James Thompson are not real parties-in-interest (“RPIs”) in
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`this proceeding. Instead, they claim the missing non-parties are mere privies of
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`Petitioners who did not need to be identified under 35 U.S.C. § 312(a)(2).
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`Petitioners then attempt to hedge by belatedly seeking the Board’s permission to
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`retroactively correct the Petition for a second time. In doing so, Petitioners
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`continue to trivialize the RPI issue as “procedural” and engage in gamesmanship.
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`Patent Owner respectfully requests the denial of the Motion to List.
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`1. Rubicon Communications, LLC, Jamie Thompson, and James
`Thompson Are Real Parties-in-Interest
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`Petitioners continue to argue in bad faith that Rubicon Communications,
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`LLC, Jamie Thompson, and James Thompson are not RPIs. As Patent Owner
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`previously noted, a common consideration in determining RPIs is whether a non-
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`party exercised or could have exercised control over a party’s participation in a
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`proceeding. Motion to Vacate Institution Decision and Terminate Proceeding at 7
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`(Papers 56, 57) (“Motion to Terminate”) (quoting Office Patent Trial Practice
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`Guide, 77 Fed. Reg. 48,756, 48,759–48,760 (Aug. 14, 2012)); see also Atlanta
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`Gas Light Co. v. Bennett Regulator Guards, Inc., Case IPR2013-00453, slip op. at
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`9 (PTAB Jan. 6, 2015) (Paper 88). Here, Jamie and James Thompson exercised
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`control over Petitioners in this proceeding as owners/directors through corporate
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`transactions
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`. Motion to Terminate at 4–6. Moreover, Rubicon
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`Communications, LLC exercised control over Petitioners in this proceeding
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`through blurred corporate boundaries, shared corporate leadership, employees and
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`resources,
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`. Id. at 5–6. As a result, Petitioners failed to
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`satisfy the statutory requirement when they omitted these RPIs in the Petition.
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`Petitioners’ arguments regarding each non-party are not only irrelevant, but
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`also erroneous. They falsely argue Rubicon Communications, LLC “divested itself
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`of any interest in the matters at issue here” under the Bill of Sale and Assignment
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`and Assumption Agreement (Ex. 1033) (“Agreement”). Motion to List at 8. As
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`Patent Owner noted, it is unclear what Jamie and James Thompson transferred with
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`the Agreement. Motion to Terminate at 5. Petitioners initially state that “Rubicon
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`Communications, LLC assigned all assets and liabilities to SmallWorks, LLC.”
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`Motion to List at 8 (emphasis added). They then state “SmallWorks, LLC stood
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`alone as the successor in interest to Rubicon Communications, LLC with respect to
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`the issues raised in this proceeding . . . .” Id. (emphasis added). This
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`inconsistency is emblematic of Petitioners’ concealment regarding their corporate
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`structure and transactions. As discussed previously, the Agreement on its face
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`indicates all assets and liabilities were transferred. Motion to Terminate at 5. Yet,
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`Regardless of the transfer under the Agreement, Rubicon Communications,
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`LLC has unceasingly provided employees and resources to SmallWorks, LLC for
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`conduct accused of infringing Patent Owner’s patents and
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` Id. at 80:9–16, 100:19–101:12, 178:20–23.
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`Consequently, SmallWorks, LLC appears to be nothing more than a storefront and
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`a corporate shell, while Rubicon Communications, LLC is the entity currently
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`making, offering for sale, and selling the infringing products. If SmallWorks, LLC
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`is not a mere corporate shell, then it is at least inextricably intertwined with
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`Rubicon Communications, LLC. Where a corporate relationship has been blurred
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`to such a point that it is not possible to determine where one entity ends and the
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`other begins, the Board has found the non-party to be an RPI despite the
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`appearance of separation. See Zhejiang Yankon Group, Ltd. v. Cordelia Lighting,
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`Inc., Case IPR2015-01420, slip op. at 11–16 (PTAB Nov. 25, 2015) (Paper 9)
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`(rejecting the petitioner’s contention that the non-party subsidiary had “no real
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`-5-
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`interest in the [p]etition because it allegedly has not made or sold the products
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`accused of infringement.”). Therefore, Petitioners’ argument that Rubicon
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`Communications, LLC divested itself of interest must be rejected as untrue.
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`Similarly, Petitioners falsely argue that Jamie and James Thompson are not
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`RPIs. While owners or directors are not RPIs merely because of their status, the
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`facts here demonstrate that Jamie and James Thompson are indeed RPIs with overt
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`control in this proceeding. They directed the corporate entities to engage in
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`conduct accused of infringing Patent Owner’s patents. They then orchestrated,
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`after the commencement of the related litigation, the corporate shell game to create
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`SmallWorks, LLC and transfer assets and liabilities from Rubicon
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`Communications, LLC. They are currently channeling Rubicon Communications,
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`LLC’s employees and resources to SmallWorks, LLC to continue to infringe
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`Patent Owner’s patents. Indeed, the blurring is so complete that James Thompson,
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`as the corporate representative of Petitioners,
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`Instead of discussing these facts, Petitioners misquote or cherry-pick
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`portions of distinguishable cases. First, Petitioners cite Enovate Medical, LLC v.
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`Intermetro Industries Corp., Case IPR2015-00301 (May 11, 2016) (Paper 50) for
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`the notion that an owner of a corporation, without more, is not an RPI. Motion to
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`List at 8. Petitioners omit that the Board did not find the non-party parent to have
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`had control in the proceeding or opportunity to control through blurred corporate
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`boundaries. Enovate Medical, Case IPR2015-00301, slip op. at 10–12 (Paper 50).
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`Second, Petitioners cite Zero Gravity Inside, Inc. v. Footblance System Oy, Case
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`IPR2015-01769 (Feb. 12, 2016) (Paper 17) for the notion that executives or board
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`members are not RPIs by default. Motion to List at 8. Again, Petitioners omit that
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`the executives were not found to have exercised control or had opportunities to
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`control the proceeding. Zero Gravity Inside, Case IPR2015-01769, slip op. at 25–
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`26 (Paper 17).
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`Lastly, Petitioners cite 1964 Ears, LLC v. Jerry Harvey Audio Holding, LLC,
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`Case IPR2016-00494 (July 20, 2016) (Paper 21) and state “the owner of a single-
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`member LLC that was treated as a disregarded entity for tax purposes, who paid
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`for the petition out of personal expenses, and conducted communications with the
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`patent owner from a personal email address, was nevertheless not an RPI.” Motion
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`to List at 8–9. This, however, is a gross mischaracterization of the case. The non-
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`party owner in 1964 Ears did not pay for the petition out of personal expenses; the
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`named LLC petitioner did. 1964 Ears, Case IPR2016-00494, slip op. at 1 (April
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`29, 2016) (Paper 16). As the Board noted, the patent owner there did not have any
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`evidence that the non-party owner funded the proceeding and, instead, relied on a
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`flawed interpretation of the tax code to equate “by default” the LLC petitioner with
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`the non-party owner. 1964 Ears, Case IPR2016-00494, slip op. at 4 (April 22,
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`2016) (Paper 14).1 Petitioners misleadingly omit these details and also the
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`discussion of the “central question to be resolved” in the RPI inquiry — the
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`existence of control or opportunity to control the proceeding. 1964 Ears, LLC,
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`Case IPR2016-00494, slip op. at 9–10 (July 20, 2016) (Paper 21).
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`Indeed, Petitioners do not address the issue of control or opportunity to
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`control in their Motion to List. Petitioners do not explain
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`which entity currently engages in conduct accused of infringing
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`the ’066 and other patents. It is telling that Petitioners do not address these points,
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`first raised in Patent Owner’s Opposition to Petitioner’s Motion to Correct Clerical
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`Mistake under 37 CFR § 42.104(c). Paper 32 at 4–6. It is also telling that
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`Petitioners cite three cases and the Office Patent Trial Practice Guide for support,
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`but curiously omit the central discussions of control in the RPI inquiry. The
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`totality of the evidence here indicates that Rubicon Communications, LLC, Jamie
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`Thompson, and James Thompson have exercised or could have exercised control
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`in this proceeding. While Petitioners claim they had “good faith” belief and
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`1 The Board also noted that the non-party owner used his personal email address,
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`but included a signature block and telephone number belonging to the petitioner.
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`1964 Ears, Case IPR2016-00494, slip op. at 7 (July 20, 2016) (Paper 21).
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`attempt to divert attention to privity, the missing non-parties are RPIs under the
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`very decisions and documents Petitioners cite for support. 2 Accordingly, Patent
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`Owner respectfully requests the Board terminate the proceeding for Petitioners’
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`failure to satisfy 35 U.S.C. § 312(a)(2).
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`2. Petitioners Should Not Be Allowed to Correct the Petition Again
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`The facts of this case do not warrant Petitioners a second chance to
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`retroactively correct the Petition. In some instances, the Board has exercised its
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`discretion under 37 C.F.R. § 42.5 to permit a correction of RPI disclosures. See
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`Lumentum Holdings, Inc. v. Capella Photonics, Inc., Case IPR2015-00739, slip op.
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`at 5 (PTAB Mar. 4, 2016) (Paper 38). The precedential case involved a post-
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`petition corporate change that was disclosed in the petitioner’s updated mandatory
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`2 Petitioners argue that Rubicon Communications, LLC is only a privy of Rubicon
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`Communications, LP through the conversion (Ex. 1031). Motion to List at 9–10.
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`Of course, Jamie and James Thompson purported to transfer all or some assets and
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`liabilities from Rubicon Communications, LLC to SmallWorks, LLC with the
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`Agreement, effectively hiding the only corporate entity with employees from this
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`proceeding and the related litigation.
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`notice 25 days after its due date. Id. at 2. Accordingly, the petitioner there had
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`proactively informed the Board of new RPIs, and the petition had, “when filed,
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`identified all real parties in interest.” Id. at 6. Similarly, the Board allowed
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`retroactive corrections,3 when petitioners had promptly acted, “as soon as” the RPI
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`issues were raised. See Aerospace Commc’ns Holdings Co. v. Armor All/Step
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`Prods. Co., Case IPR2016-00441 (June 3, 2016) (Ex. 1021) (the petitioner sought
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`authorization to amend its mandatory notice 20 days after the RPI issue was raised);
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`Elekta, Inc. v. Varian Medical Systems, Inc., Case IPR2015-01401, slip op. at 9
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`(December 31, 2015) (Paper 19) (the petitioner filed an updated mandatory notice
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`18 days after the RPI issue was raised).
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`In contrast, the Board denied retroactive corrections of RPI disclosures,
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`when petitioners delayed in bad faith and sought such relief only as a last resort. In
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`GEA Process Engineering, Inc. v. Steuben Foods, Inc., the Board rejected a post-
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`institution request to correct the identification of the RPIs, because in part, the
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`petitioner continued to dispute the RPI issue long after it was raised and only
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`sought a retroactive correction at the last moment. Case IPR2014-00041, slip op.
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`at 25–26 (PTAB. Dec. 23, 2014) (Paper 140); see also Atlanta Gas Light, Case
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`3 In these two cases, the Board permitted corrections of petitions before or at
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`institution of trials. Therefore, Petitioners have not cited any case, where a petition
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`that did not identify all RPIs was allowed to be corrected after trial institution.
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`IPR2013-00453, slip op. at 13–14 (Paper 88). Petitioners here did not seek to add
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`Rubicon Communications, LLC, Jamie Thompson, and James Thompson, “as
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`soon as” the RPI issue was raised. Instead, they ignored the issue, after Patent
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`Owner discussed it on December 5, 2016 (Paper 32) and the Board expressly urged
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`them to act proactively and promptly on December 16, 2016 (Paper 40). In fact,
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`they continue to dispute that the missing non-parties are not RPIs. Motion to List
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`at 7–10. Following months of willful silence coupled with misdirection,
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`Petitioners belatedly ask the Board’s permission to list the non-parties only to
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`hedge and bypass Patent Owner’s Motion to Terminate.
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`More importantly, Petitioners’ delay is not a result of any “good faith”
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`reasoning, but of continued effort to intentionally conceal Rubicon
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`Communications, LLC, Jamie Thompson, and James Thompson. Petitioners have
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`consistently misled Patent Owner, the District Court, and the Board regarding the
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`non-parties. See Motion to Terminate at 11–13. While the “existence” and
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`“identities” of Rubicon Communications, LLC, Jamie Thompson, and James
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`Thompson were known to Patent Owner at some point (see Motion to List at 3, 7),
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`Petitioners have intentionally concealed the scope of their activities throughout the
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`related litigation and this proceeding. See Motion to Terminate at 11–13. It was
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`only after extensive depositions in December of 2016 that Patent Owner learned of
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`Petitioners’ concerted effort to conceal the missing non-parties. In particular,
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`Jamie and James Thompson orchestrated what appears to be a corporate shell game
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`after the commencement of the related litigation. Id. at 4–6, 14–15. They then
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`executed a sham Agreement assigning unlisted assets and liabilities from Rubicon
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`Communications, LLC and felt free to ignore the terms of that Agreement, if and
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`when convenient. Id. at 5, 14–15; Ex. 1033. Petitioners have represented in
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`multiple pleadings that “SmallWorks[, LLC] should be the only defendant” and
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`that Rubicon Communications, LLC is not a necessary defendant in the related
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`litigation. Motion to Terminate at 4; Ex. 2011 ¶ 2; Ex. 2021. Petitioners have
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`equivocated in discovery about the corporate transactions and structure and
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`provided responses that are semi-factual at best. Motion to Terminate at 11–13;
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`Exs. 2022, 2024 at 87:14–88:18. Petitioners ignored the Board’s urging on
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`December 16, 2016 to address the RPI issue promptly and proactively, and
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`continued to state in the conference call and briefs that Rubicon Communications,
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`LLC, Jamie Thompson, and James Thompson are not RPIs despite the totality of
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`the evidence. Motion to List at 7–10.
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`Petitioners’ consistent effort to intentionally conceal the non-parties and
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`refusal to address the RPI issue until the last possible moment perhaps fit the
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`textbook definition of “gamesmanship.” Petitioners state “at no time in this
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`proceeding has it engaged in intentional concealment or other forms of
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`‘gamesmanship’” (Motion to List at 12), but they have ignored for months Patent
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`Owner’s discussion regarding Rubicon Communications, LLC, Jamie Thompson,
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`and James Thompson (Paper 32 at 5–6) and the Board’s subsequent express urging
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`(Paper 40). Other than affirmatively stating that Rubicon Communications, LLC,
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`Jamie Thompson, and James Thompson are not RPIs,4 Petitioners could not have
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`done more to intentionally conceal the non-parties in this proceeding. Petitioners’
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`silence is especially egregious considering that they could have requested the
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`Board’s permission to submit the Motion to List on December 17, 2016. Such
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`prompt and proactive action by Petitioners would not have adversely affected
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`Rubicon Communications, LLC, Jamie Thompson, and James Thompson, as they
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`are allegedly “privies” bound by the estoppel effect. Motion to List at 9–10.
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`Petitioners omitted Rubicon Communications, LLC, Jamie Thompson, and
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`James Thompson from the Petition, despite their overt control
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` Months after the Board’s urging and institution of trial, they belatedly
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`seek permission to correct the Petition only after Patent Owner requested
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`permission to submit the Motion to Terminate. Petitioners still dispute that the
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`missing non-parties are not RPIs, when the totality of the evidence and the very
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`cases and publication they rely on contradict their position. Granting the Motion to
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`List here will invite unfortunate consequences of which the Elekta dissent warned.
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`Future petitioners will simply assert their alleged “good faith” belief that is
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`4 Petitioners, of course, do state this now. Motion to List at 6–8.
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`contrary to the Board’s decisions and the Office Patent Trial Practice Guide, and
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`attempt to subvert the statutory requirement under 35 U.S.C. § 312(a)(2) through
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`retroactive corrections. While Jamie and James Thompson are free to organize and
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`change their business ventures into a variety of corporate entities, they and the
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`entities as Petitioners owe a duty of candor and good faith to the Office. 37 C.F.R.
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`§ 42.11; see also id. § 11.18. The “gamesmanship” took place, and continues,
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`when Petitioners refused to identify the missing RPIs and attempted to bypass the
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`issue with a late retroactive correction. Accordingly, Patent Owner respectfully
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`requests the Board deny the Petitioners’ Motion to List to penalize and deter
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`gamesmanship.
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`3. Denial of Motion to List Would Promote the Just, Speedy, and
`Inexpensive Resolution of the Proceeding
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`Lastly, denying retroactive correction of the Petition here would promote the
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`just, speedy, and inexpensive resolution of the proceeding. See 77 Fed. Reg. at
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`48,759. In light of Petitioners’ bad faith, intentional concealment, and
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`gamesmanship discussed above, denial of the Motion to List and grant of the
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`Motion to Terminate will quickly and inexpensively ensure the just outcome.
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`Furthermore, such a result will not unduly prejudice Petitioners or increase their
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`costs. While it is unclear why Petitioners chose to challenge only one of four
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`patents asserted against them in the related litigation (Motion to Terminate at 1–
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`U.S. Patent No. 8,894,066
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`2),5 they have not agreed to be bound by the estoppel effect of this proceeding
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`under 35 U.S.C. § 315(e)(2) in connection with the other patents.6 Presumably,
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`they plan to litigate about the validity of the other patents before the District Court
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`regardless of this proceeding’s outcome. Petitioners’ costs, thus, will not
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`materially change whether they challenge the validity of the ‘066 patent before the
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`Board, or before the District Court along with the other three patents in the family.
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`Therefore, Patent Owner respectfully requests the Board deny the Motion to List to
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`promote the just outcome of the proceeding.
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`III. CONCLUSION
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` For the foregoing reasons, Patent Owner respectfully requests that the
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`Board deny Petitioners’ Motion to List and grant Patent Owner’s Motion to
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`Terminate.
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`5 The challenged ‘066 patent is a continuation of the ‘085 patent, which is a
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`continuation of the ‘892 patent, which is a continuation of the ‘191 patent.
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`6 While avoiding the risk of the estoppel effect and payment of fees for challenging
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`the other three patents through inter partes reviews, Petitioners have at least tried
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`to apply the benefit of this proceeding to the three patents with regard to claim
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`construction in a failed attempt to stay the related litigation. See Defendants’
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`Notice in Response to the Court’s Order at 1–2 (Ex. 2025).
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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` Respectfully submitted,
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`/ Elizabeth A. Alquist/
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`Andrew M. Riddles
`Registration No. 31,657
`ariddles@daypitney.com
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`Elizabeth A. Alquist
`Admitted Pro Hac Vice
`eaalquist@daypitney.com
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`
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`Day Pitney LLP
`7 Times Square
`New York, NY 10036
`Tel: (212) 297-5855
`Fax: (203) 202-3896
`Counsel for Patent Owner
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`Dated: March 10, 2017
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`U.S. Patent No. 8,894,066
`Opposition to Motion to List
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on March 10,
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`2017, a true and correct copy of the foregoing, via UPS Overnight, was served on
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`/ Elizabeth A. Alquist/
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`Andrew M. Riddles
`Registration No. 31,657
`ariddles@daypitney.com
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`Elizabeth A. Alquist
`Admitted Pro Hac Vice
`eaalquist@daypitney.com
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`Day Pitney LLP
`7 Times Square
`New York, NY 10036
`Tel: (212) 297-5855
`Fax: (203) 202-3896
`Counsel for Patent Owner
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`the following counsel of record:
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`Dean M. Munyon
`Anthony M. Petro
`Ryan T. Beard
`Geoffrey W. Heaven
`1120 S. Capital of Texas Hwy.
`Building 2, Suite 300
`Austin, Texas 78746
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