Telephone Conference
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`July 14, 2017
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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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` - - - - - - - - - - - - - - - )
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` APPLE, INC. and )
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` LG ELECTRONICS, INC., )
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` Petitioners, ) Case No.
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` v. ) IPR2016-01203
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` FASTVDO, LLC, )
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` Patent Owner. )
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` Friday, July 14, 2017
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` Telephone Conference before Judge Jeffrey
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`S. Smith, Judge Patrick M. Boucher, and Judge Karl
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`D. Easthorn in the above-entitled matter, commencing
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`at 1:30 p.m., the proceedings taken down by
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`stenotype by ANN L. BLAZEJEWSKI, RMR, CRR, and
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`transcribed under her direction.
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 1 of 14
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`
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`July 14, 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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` - - - - - - - - - - - - - - - )
`
` APPLE, INC. and )
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` LG ELECTRONICS, INC., )
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` Petitioners, ) Case No.
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` v. ) IPR2016-01203
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` FASTVDO, LLC, )
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` Patent Owner. )
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` - - - - - - - - - - - - - - )
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` Friday, July 14, 2017
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` Telephone Conference before Judge Jeffrey
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`S. Smith, Judge Patrick M. Boucher, and Judge Karl
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`D. Easthorn in the above-entitled matter, commencing
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`at 1:30 p.m., the proceedings taken down by
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`stenotype by ANN L. BLAZEJEWSKI, RMR, CRR, and
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`transcribed under her direction.
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 1 of 14
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`
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`Telephone Conference
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`July 14, 2017
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`Page 2
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`APPEARANCES:
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` On behalf of the Petitioner:
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` RYAN J. MALLOY, ESQ.
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` Morrison & Foerster, LLP
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` 707 Wilshire Boulevard
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` Los Angeles, CA 90017-3543
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` (213) 892-5482
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` Rmalloy@mofo.com
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` On behalf of the Patent Holder:
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` WAYNE M. HELGE, ESQ.
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` Davidson Berquist Jackson & Gowdey, LLP
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` 8300 Greensboro Drive, Suite 500
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` McLean, VA 22102
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` (571) 765-7700
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` Whelge@dbjg.com
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 2 of 14
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`Telephone Conference
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`Page 3
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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
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`Judge Smith of the Patent Trial and Appeal Board.
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`With me on the line are Judges Easthorn and Boucher.
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`We are here for a conference call in IPR2016-01203,
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`Apple versus FastVDO.
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` Would counsel for Petitioner please state
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`your appearance.
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` MR. MALLOY: Hello, this is Ryan Malloy
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`from Morrison & Foerster.
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` JUDGE SMITH: Thank you, Mr. Malloy. Is
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`there anyone else on the line for Petitioner?
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` MR. MALLOY: I will be the only one
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`speaking. I believe I will be joined by a partner
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`at Morrison & Foerster, Mehran Arjomand, who is not
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`counsel of record.
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` JUDGE SMITH: Thank you. Would counsel
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`for Patent Owner please state your appearance.
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` MR. HELGE: Good afternoon, Your Honor.
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`This is Wayne Helge for Patent Owner FastVDO.
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` JUDGE SMITH: Thank you, Mr. Helge. Is
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`there anyone else on the line for Patent Owner?
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
`
`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 3 of 14
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`Telephone Conference
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` MR. HELGE: No, Your Honor, I will be the
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`only one speaking. The only other person that we
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`have on the line, Your Honor, is a court reporter
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`that we have coordinated for this call.
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` JUDGE SMITH: Oh, good. And you'll
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`submit a transcript of this call?
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` MR. HELGE: Yes, Your Honor. I believe
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`the standard turnaround is around 2 weeks, Your
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`Honor, so I think, you know, around July 28th we'll
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`have a copy of that. Certainly in advance of the
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`oral hearing.
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` JUDGE SMITH: Okay, thank you. Okay. So
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`Patent Owner requested this call to discuss what it
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`contends are new issues in evidence raised in
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`Petitioner's reply. The parties have conferred, and
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`Petitioner intends to oppose Patent Owner's request.
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` Patent Owner, you've requested this call.
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`Please proceed with your position on the issue.
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` MR. HELGE: Thank you, Your Honor. Thank
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`Your Honors for taking some time to talk about this.
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`As we've noted in our request, our email request
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`seeking this call, we believe that the Petitioner's
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
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`Alderson Court Reporting
`
`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 4 of 14
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`Telephone Conference
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`reply raises new theories of obviousness, really one
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`specific new theory of obviousness, and the
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`sentences that we wanted to bring the Board's
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`attention to occur on page 11 and page 12 of the
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`reply, and these really, these sentences bookend, I
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`believe, what I would call the new theory of
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`obviousness.
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` On page 11, the sentence reads
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`specifically: Furthermore, Kato, K-a-t-o, indicates
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`that storage of data in the hard drive is an
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`alternative to transmitting the data. And then
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`concluding that point on the top of page 12,
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`Petitioner concludes that paragraph by stating:
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`Thus, the hard drive replacing the transmitter would
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`contain data encoded with unequal error protection,
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`satisfying the storage claims.
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` Your Honors, we believe this is a new
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`theory of obviousness. We do not disagree that
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`Petitioners cited to column 33, lines 2-7, as they
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`stated in their position in the email. There's a
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`few places, page 20 of the petition, page 32, pages
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`47-48, and they also refer to paragraph 80 of Dr.
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 5 of 14
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`Telephone Conference
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`Lippman's declaration; Lippman, L-i-p-p-m-a-n.
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` Your Honors, what we don't see in any of
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`these portions that the Petitioners have pointed to
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`is this idea that Kato discloses an express
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`suggestion to store data rather than to transmit it.
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`Figure 6a, in particular, shows us a transmitter,
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`according to Kato, and this figure shows an output
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`terminal 605. Figure 6b is then the receiver, and
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`what we interpret Petitioner's position here to be
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`is that Kato is expressly suggesting that instead of
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`transmitting to the receiver, figure 6b, the
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`transmitter simply outputs to a storage. So instead
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`of output terminal 605, there would be, as they say
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`here, a hard drive.
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` Again, we don't see that theory anywhere
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`in the petition. We believe it's a new theory of
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`obviousness directed to what they call the storage
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`claims. I believe that's claims 5, 16, 28, and then
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`there are two means-plus-function claims as well in
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`this case that deal with storage.
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` But, again, Your Honors, we believe this
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`is a new theory, a new reliance on something they
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 6 of 14
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`Telephone Conference
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`now contend is expressly suggested by Kato, and we
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`do not see that discussion of such an express
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`suggestion in their earlier filings.
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` One last point, Your Honor, on this issue
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`here is we do have a substantive response to this,
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`but because of the Board's rules here, 37 CFR
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`42.23(b) and the Office Patent Trial Practice Guide
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`page 48767, we wanted to bring this to the Board's
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`attention what we contend are new theories and to
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`seek a permission to file a motion to strike this
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`new theory, or other relief as the Board deems
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`worthy.
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` JUDGE SMITH: Okay, thank you. Counsel
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`for Petitioner, what is your position?
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` MR. MALLOY: Good afternoon. I would
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`like to start with page 47 of the petition, and
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`there is a paragraph on page 47 that begins: Claims
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`5, 10, 16, 25, and 28, and those are the claims at
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`issue. This paragraph here that starts on page 47
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`follows our detailed claim charts for Kato, and the
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`context here is that we're stepping through the
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`claims one by one and addressing specific issues of
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 7 of 14
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`Telephone Conference
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`Page 8
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`obviousness that are relevant to those particular
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`claims.
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` In this paragraph at the bottom of page
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`47 we have a sentence that says: It would have been
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`apparent to one of skill in the art that the first
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`and second compressed data portions in Kato would be
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`stored or transmitted in different channels (storage
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`areas or data links) in view of the unequal error
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`protections applied to the different portions.
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` Now, at the end of that paragraph,
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`there's a sentence that says: In addition -- and
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`this is on page 48. We say, quote: Kato discloses
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`that the first and second portions can be in
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`separate data store regions and that data store
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`regions can be in a transmission or storage wheel.
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`And then we cite the portion of Kato, 33:1-7, that
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`is at issue here.
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` We think from at least this paragraph
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`that it's clear that we're contending that Kato
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`discloses that storage is an alternative to
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`transmission. That's what the word "or" in those
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`sentences mean. I don't see how it can be
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 8 of 14
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`Telephone Conference
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`interpreted otherwise. And when we asked Patent
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`Owner for their position on why this disclosure was
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`insufficient, they provided no response to us during
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`a meet and confer.
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` JUDGE SMITH: Your position on this,
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`Petitioner, is that it's not a new argument, it was
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`initially filed in the petition?
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` MR. MALLOY: Absolutely. So that's one
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`place. And I would note that one of the sentences
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`that I've just read to you cites to Lippman
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`paragraphs 78-80. If I could refer you to paragraph
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`80 of Dr. Lippman's declaration -- let me know if
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`you would like me to wait for you to get there.
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`It's also in Patent Owner's email to the Board. But
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`paragraph 80 of Dr. Lippman's declaration --
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` JUDGE SMITH: What exhibit number is
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`this?
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` MR. MALLOY: Excuse me.
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` MR. HELGE: 1002, Your Honor. This is
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`Wayne Helge again.
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` JUDGE SMITH: 1002?
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` MR. HELGE: Yes, Your Honor.
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 9 of 14
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` MR. MALLOY: 1002, and paragraph 80 is on
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`page 32. This is Dr. Lippman supporting the
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`statements in the petition that I just read to you.
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` Again, he's talking about these storage
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`claims and addressing issues of obviousness that are
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`specific to them in claims 5, 10, 16, 25, and 28,
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`and he says: Kato uses the terms data store region
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`to refer to both recording media and transmission
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`media.
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` And then at the end of this paragraph,
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`summarizing his opinion about what Kato discloses,
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`Dr. Lippman states, quote: Kato discloses to one of
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`skill in the art that the first portion's PI are
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`stored in a higher error-protected data block or
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`transmitted -- so stored or transmitted -- via a
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`higher error-protected data link than the second
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`portion's RI.
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` So my understanding of Patent Owner's
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`position is that we didn't disclose originally that
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`Kato discloses that storage is an alternative to
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`transmission. But I think the word "or" in these
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`sentences that I'm reading to you clearly means that
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`1-800-FOR-DEPO
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`www.aldersonreporting.com
`
`Alderson Court Reporting
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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 10 of 14
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`Telephone Conference
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`Page 11
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`storage is an alternative to transmission.
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` There are many other places in the
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`petition where we make this point as well, but I
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`think that those portions that I just read are
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`sufficient to resolve this dispute.
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` JUDGE SMITH: Counsel for Patent Owner,
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`do you have anything to add?
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` MR. HELGE: Your Honor, I would simply
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`note in here the portions that Mr. Malloy cited to,
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`specifically pages 47 and 48 of the petition in
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`particular, he read one sentence that began: It
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`would have been apparent to one of skill in the art,
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`and goes on to make a position about the portions,
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`the data portions in Kato being stored or
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`transmitted in different channels in view of the
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`unequal error protection applied to the different
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`portions.
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` What they have not pointed to, in
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`particular, in that conclusion sentence is an
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`express indication that Kato indicates, as they say
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`here in the reply, that storage of data in the hard
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`drive is an alternative to transmitting the data, in
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 11 of 14
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`Page 12
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`particular as we look also into the sentence they
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`read from that portion of the petition where they
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`cited to 33, column 33, lines 1 to 7, where they
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`present this position that data store regions can be
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`in a transmission or storage medium.
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` Once again, what they're not pointing to
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`is any theory that Kato is expressly suggesting,
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`with respect to figure 6a replacing the output of a
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`transmitter with a storage device or, as they say in
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`here, a hard drive.
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` Now, our issue isn't particularly with
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`the storage versus the hard drive. Our issue is
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`that they're not suggesting here in their petition
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`or in Dr. Lippman's declaration that a modification
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`to Kato, that Kato expressly suggests, as they state
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`here in the reply, is getting rid of that output
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`terminal 605 in the transmitter, having the
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`transmitter output simply to a storage device, and
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`removing the receivers from figure 6b.
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` We maintain that, in our view, that this
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`is a new theory of obviousness, a new modification
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`to Kato that hasn't been provided in these portions
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 12 of 14
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`Page 13
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`of either the declaration or their petition.
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` JUDGE SMITH: Okay, thank you.
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` Petitioner, do you have anything to add?
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` MR. MALLOY: I would just reiterate that
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`the word "or" in the English language implies an
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`alternative. I think it expressly discloses what is
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`now being challenged, that storage is an alternative
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`to transmission in Kato. I don't understand what
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`alternative reading Patent Owner is proposing for
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`these sentences.
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` JUDGE SMITH: Okay, thank you.
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` Patent Owner, the Board has decided not
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`to authorize filing a Motion to Strike. If you want
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`to raise this issue at the hearing, you can. That's
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`the Board's decision on this issue.
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` MR. HELGE: Thank you, Your Honor.
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` JUDGE SMITH: Thank you. Thanks to
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`everyone for participating. This call is adjourned.
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`Good afternoon.
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` (Whereupon, at 1:46 p.m., the conference
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`call was concluded.)
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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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`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 13 of 14
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`grazirrgarr
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`I, ANN L. BLAZEJEWSKI,
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`a Certified
`
`Shorthand Reporter for the State of Iowa,
`
`the
`
`officer before whom the foregoing proceedings were
`
`taken, do hereby certify that the foregoing
`
`transcript is a true and correct record of the
`
`proceedings;
`
`that said proceedings were taken by me
`
`stenographically to the best of my ability and
`
`thereafter reduced to typewriting under my
`
`supervision, and that I am neither counsel for,
`
`related to nor employed by any of the parties to
`
`this case, and that
`
`I have no interest, financial or
`
`otherwise,
`
`in its outcome.
`
`Dated this
`
`26th
`26th
`
`day of
`
`July
`July
`
`, 2017.
`
`
`
`CERTIFIED SHORTHAND REPORTER
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16
`
`18
`
`19
`
`20
`
`21
`
`22
`
`IPR2016-01203
`
`Patent Owner's Exhibit 2015
`
`Page 14 of 14
`
`IPR2016-01203
`Patent Owner's Exhibit 2015
`Page 14 of 14
`
`
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