TELEPHONIC HEARING 1/19/2018
`
`Page 1
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` APPLE, INC.,
` Petitioner,
` vs.
` VOIP-PAL.COM, INC.,
` Patent Owner
`
` CASE: IPR2016-01198
` PATENT: 9,179,005 B2
` and
` CASE: IPR2016-01201
` PATENT: 8,542,815 B2
`
` TELEPHONIC HEARING BEFORE THE
` ADMINISTRATIVE PATENT JUDGES:
` JOSIAH C. COCKS,
` JENNIFER MEYER CHAGNON
` JOHN A. HUDALLA
`
` JANUARY 19TH, 2018
` HELD AT
` ERISE IP
` 7015 College Boulevard
` Suite 700
` Overland Park, Kansas 66211
`
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`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 1
`
`

`

` TELEPHONIC HEARING 1/19/2018
`
`Page 2
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` A P P E A R A N C E S
` For the Petitioner:
` Adam P. Seitz
` ERISE IP
` 7015 College Boulevard
` Suite 700
` Overland Park, Kansas 66211
` (913)777-5600
` adam.seitz@eriseip.com
` and
` Paul R. Hart (telephonically)
` ERISE IP
` 5600 Greenwood Plaza Blvd.
` Suite 200
` Greenwood Village, Colorado 80111
` (913)777-5600
` paul.hart@eriseip.com
` Appearing telephonically for the
` Patent Owner:
` Kevin N. Malek
` Malek Moss, PLLC
` 340 Madison Avenue
` New York, New York, 10173
` (212)812-1491
` kevin.malek@malekmoss.com
`
`Mary Lynn Cushing
`Missouri CCR #1077
`Alaris Litigation Services
`1608 Locust Street
`Kansas City, Missouri 64108
`(816) 221-1160
`1-800-280-3376
`
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`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 2
`
`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 3
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` JUDGE COCKS: So this is a conference
`call for IPR2016-01198 and 01201. Mr. Malek, I think
`you requested the call so.
` MR. MALEK: Your Honor, just quickly
`here. Probably the most contentious request for a
`motion to withdraw, but in any event, the patent
`owner respectfully requests authorization from the
`board to file a motion for withdrawal of counsel by
`Knobbe, Martens and that withdrawal is mandated by
`the rules, and Apple indicated they oppose or would
`oppose the motion, so that's I think what
`precipitated this call. I just submit that my firm
`would become lead counsel and so patent owner would
`continue to be represented by what I would submit is
`confident counsel and that would be the basis of the
`motion.
` JUDGE COCKS: Okay. And before I hear
`from Mr. Seitz, I just want to verify that there is
`no other counsel on this call for patent owner, is
`that correct? So none of the counsel that are
`seeking to withdraw are on this call or that you are
`seeking to have withdrawn are on this call?
` MR. MALEK: Not that I'm aware of.
`When I dialed in I got a message that said there were
`seven participants and that's all I know, but not to
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 3
`
`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 4
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`my knowledge.
` JUDGE COCKS: Okay. So let me ask, is
`there any counsel on the call for Knobbe, Martens?
`Okay.
` Mr. Seitz, go ahead, you oppose?
` MR. SEITZ: Yes, Your Honor. Let me
`clarify our position. Apple has no objection to
`Viop-Pal hiring whoever it wants to represent itself
`in these proceedings and does not object per se to
`Knobbe's withdraw. We're not trying to interfere
`with the party's right to select counsel, but there
`are many issues and factual questions that remain
`about the course of this proceeding in which Knobbe
`is implicated that give rise to a concern on our end.
` And to explain briefly, in our last
`conference call, Voip-Pal's position was that it had
`no involvement with Dr. Sawyer, the author of the
`letters, the ex parte letters, and that he was
`essentially nothing more than a concerned third party
`shareholder. Of course, as we discussed last time,
`Dr. Sawyer's October 23 letter admitted that he had
`been meeting with and working with both Voip-Pal and
`its attorneys. Since the filing of our motion and in
`the opposition that came in last week, Voip-Pal has
`now reversed course and admitted that it was involved
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 4
`
`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 5
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`with Dr. Sawyer from the very beginning and was
`working with him on each and every letter. But it
`is, however, still unclear as to which of Voip-Pal's
`attorneys were involved in these meetings and
`essentially who knew what and when. Presumably it
`would have been lead counsel, which was Knobbe at
`that time, and throughout the course of this
`proceeding.
` Now there are certainly questions
`about the waiver of the attorney/client privilege in
`the meetings between Sawyer, Voip-Pal and Voip-Pal's
`attorneys, but more importantly, we don't know where
`this proceeding is going to go. There are scenarios
`here that could implicate significant ethical issues.
`We want to make sure that Voip-Pal's attorneys, the
`ones who were counsel of record during the time Dr.
`Sawyer and Voip-Pal were writing these letters,
`remain involved and subject to the board's
`jurisdiction. The board doesn't have third party
`subpoena power and that's essentially my concern. In
`the event it becomes necessary to determine which
`particular attorneys were involved with Dr. Sawyer in
`his campaign or to conduct other discovery into who,
`what and when, we simply think Knobbe should remain
`in this case and subject to the board's jurisdiction
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 5
`
`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 6
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`and discovery. And while this concern may seem
`unwarranted or perhaps unusual, Knobbe has simply
`disappeared from this proceeding. Our last
`communication with anyonr from Knobbe, Martens was on
`December 22, two days after we filed our motion for
`sanctions, indicating that they wanted to withdraw as
`counsel, and that's the last we've heard of them. As
`Your Honor just asked and became clear, they aren't
`even on this call today discussing their withdrawal.
` So our position is if the board should
`grant Knobbe's request to withdraw, we believe the
`board should also require Knobbe to remain part of
`this proceeding in some way, shape or form so that
`they would be subject to the board's jurisdictional
`power and authority. Voip-Pal simply shouldn't be
`allowed to escape inquiry into the historical facts
`of this case by having its counsel withdraw.
` JUDGE COCKS: Thank you, Mr. Seitz.
`Mr. Malek, do you have any last thoughts before I
`discuss?
` MR. MALEK: Just to jump to the first
`thing that Mr. Seitz said, the statement that
`Voip-Pal took the position that it didn't have any
`involvement in the Sawyer letters is a significant
`overstatement and, you know, that has been clarified
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 6
`
`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 7
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`and well expressed in Voip-Pal's opposition which was
`filed on January 12th, and I'll just leave it to the
`board to read what is there.
` But in follow-up just to get to the
`crux of the inquiry, I'd have to hear from Apple as
`to what basis they feel that they have the right to
`prevent withdrawal because the rules mandate
`withdrawal. It's not permissive, it's obligatory,
`and I'm not sure what position Apple or what law
`Apple is relying on to prevent that. That being
`said, I also would submit that Knobbe's retained
`appearance or not, that Apple does have mechanisms to
`seek discovery by United States Code and so I would
`leave it to that as an appropriate mechanism set by
`Congress for Apple to take its discovery, but, again,
`very hard to figure out how to respond to Apple's
`position without knowing what basis in the law
`they're relying on for that position.
` JUDGE COCKS: Okay. Thank you, Mr.
`Malek. I'm going to confer with my colleagues, but I
`want to make two points before I do so. One, our
`rules require authorization from the panel of the
`board to withdraw as counsel, so that's the reason
`why we're having this call.
` The second is, I want to make sure the
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 7
`
`

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` TELEPHONIC HEARING 1/19/2018
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`Page 8
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`parties are clear, Mr. Malek, you can become lead
`counsel for Voip-Pal without the counsel from Knobbe
`withdrawing. I want to make sure the parties
`understand that.
` MR. MALEK: Yes, I appreciate that,
`Your Honor. I think the issue that Voip-Pal and
`Knobbe are having is the fact of the discharge of
`Knobbe and the fact that the rules require
`withdrawal. I think Knobbe is just trying to make,
`and Voip-Pal for that matter, are trying to make sure
`that they comply with the rules.
` JUDGE COCKS: Okay. Thank you. Would
`both parties please stay on the call? I'm going to
`confer briefly will my colleagues. Thank you.
` (Off the record.)
` JUDGE COCKS: Hello, it's Judge Cocks
`again. I'm joined again with the remaining panel
`members. Do we still have -- Mr. Seitz, are you
`still on the call?
` MR. SEITZ: Yes, Your Honor.
` JUDGE COCKS: And Mr. Malek, are you
`still on the call?
` MR. MALEK: Yes, Your Honor.
` JUDGE COCKS: Okay. So we have
`conferred and for the time being given that there are
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 8
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`

`

` TELEPHONIC HEARING 1/19/2018
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`Page 9
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`motion for sanctions pending in two proceedings,
`pending the resolution of those motions we're not
`going to permit, authorize a withdraw of any counsel
`at this time.
` MR. MALEK: Okay. This is Kevin
`Malek. We'll respect that decision. So in line with
`what you suggested previously, I think that we would
`make a submission in order to substitute my firm as
`lead counsel and Knobbe as backup counsel. Would
`that be acceptable?
` JUDGE COCKS: Yes. That sounds fine.
`Just to double check, Mr. Seitz, do you have any
`objection in that respect?
` MR. SEITZ: To the swapping of lead
`counsel and backup, no, Your Honor, we do not.
` JUDGE COCKS: Okay. So, Mr. Malek,
`that will be fine. Go ahead and take the necessary
`steps to do that.
` MR. MALEK: Okay. Thank you, Your
`Honors.
` JUDGE COCKS: Okay. Is there anything
`else the parties want to talk about today?
` MR. SEITZ: Nothing further from
`petitioner, Your Honor.
` MR. MALEK: One thing, Mr. Seitz, if
`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 9
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`

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` TELEPHONIC HEARING 1/19/2018
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`Page 10
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`you wouldn't mind handling the filing of the
`transcript, that would alleviate the obligation for
`me to do that. Is that okay?
` JUDGE COCKS: So we now have the
`potential for two transcripts. The record only needs
`one, so if either side doesn't have any objection,
`then I don't think that the panel has any concern
`with just filing one copy of the transcript. Is that
`-- Mr. Seitz, do you have any objection to that?
` MR. SEITZ: No. If Mr. Malek is okay
`with that approach, I will get our transcript and
`file that and that can be the official transcript for
`both parties then, Your Honor. That's fine with me.
` MR. MALEK: That's acceptable to the
`patent owner as well.
` JUDGE COCKS: Okay. Thank you very
`much. If the parties don't have anything further,
`the panel doesn't either and this call is adjourned.
` MR. SEITZ: Thank you for your time.
` MR. MALEK: Thank you.
`
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`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 10
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`

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` TELEPHONIC HEARING 1/19/2018
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` CERTIFICATE OF REPORTER
`STATE OF MISSOURI )
` ) ss.
`CITY OF KANSAS CITY )
` I, Mary Lynn Cushing, a Certified
`Court Reporter (MO), and a Notary Public within and
`for the State of Missouri, do hereby certify that the
`telephonic hearing was taken by me to the best of my
`ability and thereafter reduced to typewriting under
`my direction; that I am neither counsel for, related
`to, nor employed by any of the parties to the action
`in which this deposition was taken, and further that
`I am not a relative or employee of any attorney or
`counsel employed by the parties thereto, nor
`financially or otherwise interested in the outcome of
`the action.
`
` ____________________________
` Mary Lynn Cushing, CCR #1077
`
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`www.alaris.us
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`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 11
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`www.alaris.uswww.alaris.us
`
`
`ALARIS LITIGATION SERVICESALARIS LITIGATION SERVICES
`
`Phone: 1.800.280.3376Phone: 1.800.280.3376
`
`
`
`Fax: 314.644.1334Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 12
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` TELEPHONIC HEARING 1/19/2018
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`M
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`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 13
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`

`

` TELEPHONIC HEARING 1/19/2018
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`9
`9,179,005 1:9
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`
`www.alaris.us
`
`ALARIS LITIGATION SERVICES
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
`
`IPR2016-01198
`Apple EX1022 Page 14
`
`