Bright House Networks - Ex.1071
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`·1· · · · · ·UNITED STATES PATENT AND TRADEMARK OFFICE
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`·2· · · · · · BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`·3· · · · · · · · · · · · · · ·- - -
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`·6· ·CISCO SYSTEMS, INC.,· · · · · ·) Case IPR2016-01254
`· · · · · · · · · · ·Petitioner,· · ) Patent No. 8,457,113
`·7· · · · · · vs.· · · · · · · · · ·) Case IPR2016-01257
`· · ·FOCAL IP, LLC,· · · · · · · · ·) Patent No. 8,457,113
`·8· · · · · · · · · ·Patent Owner.· )
`· · · -· -· -· -· -· -· -· -· -· -· )
`·9· ·BRIGHTHOUSE NETWORKS, LLC,· · ·) Case IPR2016-01259
`· · ·WIDEOPENWEST FINANCE, LLC,· · ·) Patent No. 8,155,298
`10· ·KNOLOGY OF FLORIDA, INC.,· · · ) Case IPR2016-01261
`· · ·BIRCH COMMUNICATIONS, INC.,· · ) Patent No. 8,457,113
`11· · · · · · · · · ·Petitioners,· ·) Case IPR2016-01262
`· · · · · · · vs.· · · · · · · · · ·) Patent No. 7,764,777
`12· ·FOCAL IP, LLC,· · · · · · · · ·) Case IPR2016-01263
`· · · · · · · · · · ·Patent Owner.· ) Patent No. 8,155,298
`13· ·-· -· -· -· -· -· -· -· -· -· ·)
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`16· · · · · · · · TRANSCRIPT OF TELEPHONIC HEARING
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`17· · · · ·BEFORE BARBARA A. PARVIS AND SALLY C. MEDLEY,
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`18· · · · · · · · · ADMINISTRATIVE PATENT JUDGES
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`19· · · · · · · · · THURSDAY, SEPTEMBER 14, 2017
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`20· · · · · · · · · · · · · 2:31 P.M.
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`22· ·Job No: WDC-143563
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`23· ·Reported by:
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`24· · · · · · TERI J. NELSON
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`25· · · · · · CSR NO. 7682, RPR
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`·1· · · · · · Reporter's Transcript of Telephonic Hearing
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`·2· ·before Barbara A. Parvis and Sally C. Medley,
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`·3· ·Administrative Patent Judges, Thursday, September 14,
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`·4· ·2017, 2:31 P.M., before Teri J. Nelson, CSR No. 7682,
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`·5· ·RPR, pursuant to Notice.
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`·7· ·APPEARANCES (All Telephonic):
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`·9· ·ADMINISTRATIVE PATENT JUDGES:
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`10· · · · · · JUDGE BARBARA A. PARVIS
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`11· · · · · · JUDGE SALLY C. MEDLEY
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`13· ·FOR PETITIONER CISCO SYSTEMS, INC.:
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`14· · · · · · BAKER BOTTS
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`15· · · · · · BY:· WAYNE STACY, ESQ.
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`16· · · · · · 101 California Street
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`17· · · · · · Suite 3600
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`18· · · · · · San Francisco, California 94111
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`19· · · · · · 415-291-6200
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`·1· ·APPEARANCES (Continued)(All telephonic):
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`·2
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`·3· ·FOR PETITIONER BRIGHTHOUSE NETWORKS, LLC, WIDEOPENWEST
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`·4· ·FINANCE, LLC, KNOLOGY OF FLORIDA, INC. AND BIRCH
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`·5· ·COMMUNICATIONS, INC.
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`·6· · · · · · DUANE MORRIS LLP
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`·7· · · · · · BY:· CHRISTOPHER J. TYSON, ESQ.
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`·8· · · · · · · · ·PATRICK D. McPHERSON, ESQ.
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`·9· · · · · · 505 9th Street, N.W.
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`10· · · · · · Suite 1000
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`11· · · · · · Washington, DC 20004-2166
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`12· · · · · · 202-776-7800
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`14· ·FOR PATENT OWNER FOCAL IP, LLC:
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`15· · · · · · NELSON BUMGARDNER PC
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`16· · · · · · BY:· BRENT BUMGARDNER, ESQ.
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`17· · · · · · · · ·JOHN MURPHY, ESQ.
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`18· · · · · · 3131 West 7th Street
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`19· · · · · · Suite 300
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`20· · · · · · Fort Worth, Texas 76107
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`21· · · · · · 817-377-9111
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`·1· · · · · · · · THURSDAY, SEPTEMBER 14, 2017
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`·2· · · · · · · · · · · · 2:31 P.M.
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`·4· · · · · · JUDGE PARVIS:· Hello, everyone.
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`·5· · · · · · The call today pertains to six of nine cases
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`·6· ·involving challenges to patents owned by Focal IP, LLC.
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`·7· ·The cases are IPR2016-01254 and 01257, Petitioner is
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`·8· ·Cisco Systems, Incorporated for those cases, and cases
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`·9· ·IPR2016-01259, 01261, 01262 and 01263, Petitioner is
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`10· ·Brighthouse Networks, LLC, WideOpenWest Finance, LLC,
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`11· ·Knology of Florida, Incorporated, and Birch
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`12· ·Communications, Incorporated.
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`13· · · · · · I'm Administrative Patent Judge Parvis.
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`14· · · · · · Judge Medley's on the line.
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`15· · · · · · I'd like to take a roll call.
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`16· · · · · · Who's on this call today as representing
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`17· ·Petitioner Cisco Systems?
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`18· · · · · · MR. STACY:· Wayne Stacy.
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`19· · · · · · JUDGE PARVIS:· Who is representing Petitioner
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`20· ·Brighthouse Networks Group?
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`21· · · · · · MR. TYSON:· Good afternoon, Your Honor.
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`22· · · · · · Chris Tyson and Pat McPherson with Duane Morris.
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`23· · · · · · JUDGE PARVIS:· And who is representing Patent
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`24· ·Owner?
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`25· · · · · · MR. BUMGARDNER:· Good afternoon.
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`·1· · · · · · Brent Bumgardner and John Murphy.
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`·2· · · · · · JUDGE PARVIS:· Has anyone arranged for a court
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`·3· ·reporter?
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`·4· · · · · · MR. TYSON:· Yes, Your Honor, we have a court
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`·5· ·reporter on the line, Ms. Teri Nelson.
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`·6· · · · · · JUDGE PARVIS:· Is that Petitioner or Patent
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`·7· ·Owner?
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`·8· · · · · · MR. TYSON:· Yes, Your Honor, Petitioners.
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`·9· · · · · · JUDGE PARVIS:· Okay.· And will you please file
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`10· ·the transcript of the call after the call?
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`11· · · · · · MR. TYSON:· Yes, Your Honor, we'll do that.
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`12· · · · · · JUDGE PARVIS:· Okay.· To start, I'll ask the
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`13· ·Patent Owner -- the Patent Owner requested the call, so
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`14· ·I'll ask the Patent Owner to explain the reason, but I'd
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`15· ·like to start by confirming that our understanding is
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`16· ·that the -- that Petitioner YMax Corporation is not
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`17· ·needed on this call; is that correct?
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`18· · · · · · MR. BUMGARDNER:· That's correct, Your Honor.
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`19· · · · · · We have no objections to their demonstratives --
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`20· · · · · · JUDGE PARVIS:· Okay.
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`21· · · · · · MR. BUMGARDNER:· -- and they had no objections
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`22· ·to us.
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`23· · · · · · JUDGE PARVIS:· Okay.
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`24· · · · · · All right.· I'll let Patent Owner then explain
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`25· ·the reason for the call?
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`·1· · · · · · MR. BUMGARDNER:· Yeah.
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`·2· · · · · · Thank you, Your Honor.
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`·3· · · · · · So in the Panel's order, they cited us to a
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`·4· ·couple of cases, St. Jude and also the CBS case as
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`·5· ·basically guidance for how we were supposed to prepare
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`·6· ·our demonstratives for this case, and potentially those
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`·7· ·cases say that by the time the proceeding reaches final
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`·8· ·oral hearing, nothing new can be presented, no new
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`·9· ·evidence and argument.
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`10· · · · · · So quoting from CBS, it says "Whatever a party
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`11· ·desires to present for whatever record should have
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`12· ·already been presented in the party's petition, response,
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`13· ·opposition, motion," et cetera, and it particularly noted
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`14· ·that it's unfair for one party to bring a new twist or
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`15· ·new angle to a case at late stage of the proceedings when
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`16· ·the evidence should have already been closed.
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`17· · · · · · So following the guidance of CBS, we prepared
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`18· ·our demonstratives, and I would add that YMax prepared
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`19· ·their demonstratives largely in compliance with CBS, but
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`20· ·when we did our demonstratives, we would cut out of --
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`21· ·whether it be a deposition, a pleading, what have you,
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`22· ·and we would note, you know, at the top banner where that
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`23· ·came from.· For example, if it was a deponent's
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`24· ·testimony, we would say -- you know, list the deponent's
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`25· ·name, the exhibit number and where it came from.· We --
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`·1· ·we didn't introduce any new evidence.· We cited to things
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`·2· ·that were already in the record.· We didn't annotate the
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`·3· ·record in any new way, and we felt like that was the
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`·4· ·guidance that the Board told the parties to operate
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`·5· ·under, and we did that.
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`·6· · · · · · So when we received Cisco and BHN's slide decks,
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`·7· ·they were drastically different than the ones that we
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`·8· ·prepared and the ones that YMax prepared, and they don't
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`·9· ·at all comply with the Board's guidance to follow CBS in
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`10· ·the St. Jude case.
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`11· · · · · · So there are a number of objections that we have
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`12· ·to these slide decks, and -- and I can go through them
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`13· ·with the Board, if they would like --
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`14· · · · · · JUDGE PARVIS:· Yeah.
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`15· · · · · · Perhaps just for ease, I think Patent Owner has
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`16· ·filed listings of what Patent Owner contends is improper
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`17· ·replies, new argument and evidence, and each has the
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`18· ·Petitioners' replies, and those have been filed, I think,
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`19· ·in -- in various cases.
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`20· · · · · · I think there's a parallel in -- in the cases.
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`21· · · · · · So for example, the -- those listings have been
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`22· ·filed in the 1259, the 1261, the 1262 and the 1263 cases.
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`23· · · · · · To the extent that Patent Owner's objections to
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`24· ·the slides correspond or parallel the material that
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`25· ·Patent Owner has already identified as -- as, in Patent
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`·1· ·Owner's view, improper, I'm not sure -- we've looked
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`·2· ·through your listings, so you know, you can -- you can
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`·3· ·just say that, if that's helpful.
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`·4· · · · · · MR. BUMGARDNER:· Yeah.· Yes, Your Honor.
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`·5· · · · · · There are a bucket of exhibits that certainly
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`·6· ·fall into what we believe was new argument that was added
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`·7· ·at the reply phase of the petition, but you know, the --
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`·8· ·the objections go beyond that.
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`·9· · · · · · So starting with Cisco, you know, if you take a
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`10· ·look at their slide deck, for example, pages 33, there's
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`11· ·no citation at all to -- to the record for this slide, or
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`12· ·pages 36, 37 and 38, I believe they cite to a page in the
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`13· ·reply that doesn't exist, so we don't know where they're
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`14· ·trying to find support for these particular slides, and
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`15· ·as CBS states, it's not the opponent's burden to go
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`16· ·through and try to figure out whether it's supported or
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`17· ·not.
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`18· · · · · · So that's the objection on those particular
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`19· ·slides.
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`20· · · · · · For Cisco slide --
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`21· · · · · · JUDGE PARVIS:· Is this for IPR2016-01254?
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`22· · · · · · MR. BUMGARDNER:· Yes.
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`23· · · · · · JUDGE PARVIS:· And it's the same slide deck for
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`24· ·01257?
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`25· · · · · · MR. BUMGARDNER:· I -- I believe it is,
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`·1· ·Your Honor.
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`·2· · · · · · JUDGE PARVIS:· So it's pages 35, I think you
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`·3· ·said, 33 --
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`·4· · · · · · MR. BUMGARDNER:· Right.
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`·5· · · · · · So it's 33 --
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`·6· · · · · · JUDGE PARVIS:· And then are there others?
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`·7· · · · · · 'Cause it looks like the other slides have
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`·8· ·citations.
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`·9· · · · · · MR. BUMGARDNER:· Right.
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`10· · · · · · So for 36, for example, 37 and 38, you know, it
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`11· ·says "Reply at page 43," I don't believe there is a
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`12· ·reply, so we're not sure -- they're -- they're citing to
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`13· ·pages that -- in the record that don't exist.
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`14· · · · · · But it might be helpful to go through the
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`15· ·totality of the objections that we have, and then we can
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`16· ·answer any questions and -- and let them respond, of
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`17· ·course.
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`18· · · · · · JUDGE PARVIS:· Let me just hear from Petitioner
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`19· ·first before we go through all the --
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`20· · · · · · These are the slides -- just to clarify with
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`21· ·Patent Owner, these are the slides that have been filed,
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`22· ·not previous slides; is that correct?
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`23· · · · · · MR. BUMGARDNER:· Correct.
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`24· · · · · · We went through the previous slides.· We tried
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`25· ·to resolve objections.· A couple of nights ago, we got
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`·1· ·some, you know, pretty heavily changed slide decks as far
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`·2· ·as the citations go, but we're now talking about the
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`·3· ·slides that were filed I believe yesterday or the night
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`·4· ·before.
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`·5· · · · · · JUDGE PARVIS:· Okay.· We'll give -- I'd like to
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`·6· ·hear from Petitioners first before we go through all the
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`·7· ·objections.
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`·8· · · · · · MR. STACY:· So I'm just looking at slides 36, 37
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`·9· ·and 38 they mentioned.
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`10· · · · · · That's the first time I'd heard there was an
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`11· ·alleged wrong cite to the brief.
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`12· · · · · · I just need to -- to look at that.
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`13· · · · · · The -- I mean it's a little bit of a gotcha game
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`14· ·even if the cite's wrong, I'll fix the cite, there's no
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`15· ·question if it's wrong, the material there is the
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`16· ·material out of the Burger reference, and you can see 36,
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`17· ·37 and 38 are figures directly from the patents that were
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`18· ·actually in the brief, so you're not even required to
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`19· ·have the particular cites.· There's not something that
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`20· ·mandates that.
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`21· · · · · · If I've got a wrong number, I'll fix it.
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`22· · · · · · That's not a reason to shrug an entire slide
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`23· ·deck.
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`24· · · · · · MR. BUMGARDNER:· Well, if I could respond.
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`25· · · · · · It goes beyond that.
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`·1· · · · · · It's not -- it's not just the figure that's
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`·2· ·shown on the slide, but you also have these argumentative
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`·3· ·statements at the top of the slides.
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`·4· · · · · · So if you just take a look at 38, we can use
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`·5· ·that as an example, the figure on page 38 is not simply
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`·6· ·out of Burger.
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`·7· · · · · · It -- it's a figure that's -- has new
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`·8· ·annotations on it, and we don't believe any of these
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`·9· ·annotations have made -- been made before, and certainly
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`10· ·they were never made at reply page 45 because that
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`11· ·doesn't exist.
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`12· · · · · · So you know, what -- we're trying to figure out
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`13· ·where you say you got support for this, which was, you
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`14· ·know, one of the focus points of our call.
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`15· · · · · · And that -- I understand you may not have been
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`16· ·on that call, but -- but -- but you know, we -- we went
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`17· ·through this as being a standing objection.
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`18· · · · · · We don't know where to look for to -- to see if
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`19· ·this -- these annotations are in the record.
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`20· · · · · · I don't think they are in the record, and I'm
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`21· ·not sure where this statement that's made at the top, the
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`22· ·new argument that "Burger's figure 2 illustrates,"
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`23· ·et cetera, is in the record or not.
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`24· · · · · · It's certainly not in the record.
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`25· · · · · · So you know, it's more than a gotcha-type
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`·1· ·objection we have.
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`·2· · · · · · It goes to --
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`·3· · · · · · JUDGE PARVIS:· Is this Patent Owner?
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`·4· · · · · · MR. BUMGARDNER:· -- the title of the substance
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`·5· ·of the slides.
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`·6· · · · · · JUDGE PARVIS:· I'm sorry.
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`·7· · · · · · Is this Patent Owner speaking --
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`·8· · · · · · MR. BUMGARDNER:· Yes.
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`·9· · · · · · JUDGE PARVIS:· -- counsel for Patent Owner?
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`10· · · · · · Okay.· Can we give Petitioners a little bit of a
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`11· ·chance to respond?
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`12· · · · · · MR. STACY:· And this is Wayne Stacy for Cisco.
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`13· · · · · · The -- again, this is straight out of Burger.
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`14· · · · · · If you're looking at slide 38, the 1 and 2 I
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`15· ·added to ease the discussion with the Board.· It's the
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`16· ·exact same theory.· There's no new theory, no new angle,
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`17· ·no new twist.· It's to be able to talk about the
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`18· ·connection between caller and Telco 92, so 1 labels that.
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`19· ·It's just an ease.· If the complaint is that you have to
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`20· ·clip -- you know, take a screen capture of the document
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`21· ·and paste it in, I've never had a Board impose that
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`22· ·strict of a restriction on me in the past, but there's
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`23· ·absolutely no twist, no new angle, nothing to figure 38
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`24· ·other than an annotation to help ease the -- the verbal
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`25· ·discussion with the Board.
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`·1· · · · · · MR. TYSON:· And Your Honor, I don't --
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`·2· · · · · · If you want to hear from counsel for the other
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`·3· ·set of Petitioners as well, just let me know.· Otherwise,
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`·4· ·I'll let you just deal with the Cisco issue, but
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`·5· ·obviously we have some -- I kind of wanted to take this
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`·6· ·back to a little bit of a high level, and so if
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`·7· ·Your Honor would indulge us to talk at this time, that
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`·8· ·would be -- we would do so.
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`·9· · · · · · JUDGE PARVIS:· Let me just clarify first in the
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`10· ·Cisco -- the Cisco slides then do have -- there's been
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`11· ·some maybe marks with certain colors, one might consider
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`12· ·them to be slight alterations, annotations, so to speak,
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`13· ·that have been introduced in the slides that were not --
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`14· ·it's not identical to the brief.
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`15· · · · · · Is that a fair characterization of the Cisco
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`16· ·slides?
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`17· · · · · · MR. STACY:· For slide 38, that is correct.· Some
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`18· ·of the slides -- or the annotations are exactly copied
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`19· ·over.· Some of them are for discussion purposes.
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`20· · · · · · JUDGE PARVIS:· And for Brighthouse Networks
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`21· ·Group, I don't think the Patent Owner has actually
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`22· ·addressed your slides yet.
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`23· · · · · · I think they stopped at the Cisco slides.
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`24· · · · · · MR. TYSON:· Yes, Your Honor.
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`25· · · · · · I think that they're the same -- I think that
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`·1· ·they have the same objections.· They haven't specifically
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`·2· ·addressed our slides, but they are making the same
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`·3· ·objections to our slides.
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`·4· · · · · · JUDGE PARVIS:· And is it similar in -- is that
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`·5· ·correct, Patent Owner?
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`·6· · · · · · Are the objections somewhat similar to the two
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`·7· ·groups?
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`·8· · · · · · MR. BUMGARDNER:· Yes, Your Honor.
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`·9· · · · · · So for Cisco slides 11, 12, 18, 21, 24, 25, 36,
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`10· ·37 and 38 are figures that have new annotations that have
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`11· ·never been put in any briefing.
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`12· · · · · · And it's -- you know, it's unfair to us because
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`13· ·we read CBS for what it says, that whatever you desire to
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`14· ·present has to be in the record.
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`15· · · · · · These annotations on these slides are not in the
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`16· ·record.
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`17· · · · · · So you know, it's not a ticky-tack deal.
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`18· · · · · · We feel like the Board was pretty clear in
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`19· ·"Follow these cases," and now we have annotations with
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`20· ·new drawings.
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`21· · · · · · I can't tell you right now whether what counsel
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`22· ·says is correct, that this is in the briefing, that this
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`23· ·is going to be the same argument, but I can tell you that
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`24· ·there are a lot of slides in -- especially in the reply,
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`25· ·which we've already raised to the Board, where they are
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`·1· ·consistently raising new arguments, so we feel like they
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`·2· ·should be limited to what's in the record, which is what
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`·3· ·we did, what YMax did and what CBS says.
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`·4· · · · · · I could give you the Brighthouse Network slides
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`·5· ·that have new figures, or if you want to take them
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`·6· ·separately, we could do that.
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`·7· · · · · · JUDGE PARVIS:· Why don't I just give Brighthouse
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`·8· ·Network a chance to -- Brighthouse Network Group a chance
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`·9· ·to respond.
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`10· · · · · · MR. TYSON:· Yes.
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`11· · · · · · Thank you, Your Honor.
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`12· · · · · · To be clear, when -- when -- and I can't speak
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`13· ·for Cisco, but you know, I understand that they followed
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`14· ·the same practice.
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`15· · · · · · When Petitioner -- when Brighthouse prepared
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`16· ·these -- our slides, it was based on our reading of
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`17· ·St. Jude Medical, which is what -- the case that the
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`18· ·Board directed us to, and it was based on our reading of
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`19· ·other cases, and I have a list of other cases that
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`20· ·support our position that --
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`21· · · · · · JUDGE PARVIS:· Counsel, are these new
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`22· ·annotations --
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`23· · · · · · MR. TYSON:· Your Honor, we have --
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`24· · · · · · JUDGE PARVIS:· -- that respond to something in
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`25· ·the brief, or is it somewhat --
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`·1· · · · · · MR. TYSON:· So yeah, let me speak specifically
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`·2· ·to annotations.
`
`·3· · · · · · So I mean St. Jude specifically says that the
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`·4· ·exhibits are intended to be a visual aid to assist the
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`·5· ·party in making its presentation, it's for the Board's
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`·6· ·benefit, so on any slide where Petition- -- where
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`·7· ·Brighthouse added something that is not in the record, we
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`·8· ·identified that on the slide, we either said "Shading" or
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`·9· ·"Annotations added," and we're doing that purely as a
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`10· ·visual aid for the Board's benefit that when we're going
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`11· ·through and going to the slides that we're focusing the
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`12· ·Board and saying "This is what we're talking about here,"
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`13· ·so we're pointing the Board to what we're discussing
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`14· ·during the argument.· So we've identified that on every
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`15· ·slide that's been annotated.
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`16· · · · · · Additionally, we're not -- these are annotations
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`17· ·that are made when -- when we're talking about -- when
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`18· ·the Patent Owner's talking about that you simply -- that
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`19· ·their understanding of CBS Interactive is that you have
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`20· ·to cut something out of the brief and then simply label
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`21· ·what it is on the title, you know, that's not -- that
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`22· ·just isn't the reading of the law.
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`23· · · · · · When we have their -- Patent Owner, some of
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`24· ·their slides are --
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`25· · · · · · JUDGE PARVIS:· Sorry.
`
`
`
`·1· · · · · · Let me just interject real quickly here.
`
`·2· · · · · · It would be helpful just to understand a little
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`·3· ·bit more of the scope of the objections.
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`·4· · · · · · MR. TYSON:· Yeah.
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`·5· · · · · · JUDGE PARVIS:· So the objections are Patent
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`·6· ·Owner objects to Cisco Systems' and Brighthouse Networks
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`·7· ·Group's demonstrative slides.
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`·8· · · · · · Are there any objections to the Patent Owner's
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`·9· ·slides?
`
`10· · · · · · MR. TYSON:· Yes.· Yes, Your Honor, and -- but I
`
`11· ·think, as we've already discussed, if we can set aside
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`12· ·the category of the motion to exclude, motion to strike
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`13· ·slides, then we have no objections outside of that
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`14· ·category.
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`15· · · · · · JUDGE PARVIS:· So the motion to exclude --
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`16· ·Petitioners' motion to exclude cover certain material,
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`17· ·and that material is in Patent Owner's slides.
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`18· · · · · · With the exception of that, Petitioner does not
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`19· ·have any objection to the Patent Owner's slides; is that
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`20· ·correct?
`
`21· · · · · · MR. TYSON:· Yes -- yes, Your Honor.
`
`22· · · · · · What we did during the meet and confer is we --
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`23· ·we had raised our objections, and both parties shared
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`24· ·objections based on the motion -- that there was content
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`25· ·in the slides that was subject to a motion to exclude,
`
`
`
`·1· ·and so -- and -- and we tried to raise that and say "Hey,
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`·2· ·let's get rid of that dispute before the Board," and the
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`·3· ·Patent Owner still wanted to bring that to the Board's
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`·4· ·attention.
`
`·5· · · · · · So those are -- the objections that we're making
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`·6· ·to Patent Owner's slides fall into that category, and
`
`·7· ·we've actually -- I've actually identified what we think
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`·8· ·are the categories of Patent Owner's objections, and I'm
`
`·9· ·happy to kind of talk through those.
`
`10· · · · · · JUDGE PARVIS:· Well, it sounds like the Patent
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`11· ·Owner's objections, in part, are these new annotations.
`
`12· · · · · · Does Petitioner have any similar objections to
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`13· ·Patent Owner's slides?
`
`14· · · · · · MR. TYSON:· No -- I mean, Your Honor, there's
`
`15· ·highlighting on Patent Owner's slides that's not found in
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`16· ·the record, but we're -- we don't think -- we think that
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`17· ·that is -- again, it's a visual aid for the Board, so
`
`18· ·like our -- I mean we have shading.· They have shading.
`
`19· · · · · · We're not going -- I don't see how it's valuable
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`20· ·to have the Court's time in addressing something that is
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`21· ·just clearly a visual aid for the Board's benefit, but --
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`22· · · · · · JUDGE PARVIS:· I'm going to give Patent Owner
`
`23· ·just a quick chance to respond on this issue of the
`
`24· ·objections to Patent Owner's slides.
`
`25· · · · · · Is that Patent Owner's understanding?
`
`
`
`·1· · · · · · MR. BUMGARDNER:· It's our understanding that --
`
`·2· ·that there are no objections, but I want to clarify.
`
`·3· · · · · · We didn't add any shading that was not already
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`·4· ·in a paper, that -- so that's -- we did not annotate our
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`·5· ·slides in a manner that wasn't already done in a filing.
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`·6· · · · · · MR. TYSON:· Well -- and Your Honor, I just point
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`·7· ·you to the first six --
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`·8· · · · · · MR. BUMGARDNER:· With the --
`
`·9· · · · · · MR. TYSON:· -- slides --
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`10· · · · · · MR. BUMGARDNER:· You know, with the exception of
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`11· ·highlighting, I'm sorry about that, highlighting a part
`
`12· ·of a brief or a -- or a claim in a patent, we added some
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`13· ·highlighting to -- to illustrate, but we didn't annotate
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`14· ·the figures, you know, by drawing new arrows or adding
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`15· ·new labels or anything like that.· We simply have
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`16· ·highlighting on parts of a brief or parts of a patent
`
`17· ·claim.
`
`18· · · · · · MR. TYSON:· And Your Honor, for Petitioners,
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`19· ·they chose to use yellow highlighting, we chose to use
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`20· ·different -- other color highlighting, but for exactly
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`21· ·the same purpose.· It is not a new argument.· In a lot
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`22· ·of -- in the cases of shading, what we're talking about
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`23· ·is -- it's a visual aid.· When we're talking about an
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`24· ·issue, just like Patent Owners, when they're talking
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`25· ·about this issue, they want you to focus on this part of
`
`
`
`·1· ·the slide, and so there are different parts of the slide
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`·2· ·that we're going to focus on at different points in our
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`·3· ·discussion of a slide, and our intent was to
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`·4· ·differentiate those for the Board's benefit.· That's the
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`·5· ·reason for the shading.
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`·6· · · · · · And we -- I think that our use of shading is
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`·7· ·consistent.
`
`·8· · · · · · We didn't object to those because we don't -- we
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`·9· ·don't think we have a good basis to object to that based
`
`10· ·on the case law.· St. Jude's Medical, that's not -- I
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`11· ·mean they clearly state that this is intended to be a
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`12· ·visual aid, and that was our purpose with shading, and
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`13· ·I --
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`14· · · · · · JUDGE PARVIS:· I'd like to offer a couple
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`15· ·suggestions and then see what the part- -- how the
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`16· ·parties feel about them.
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`17· · · · · · So here's two possibilities.
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`18· · · · · · One is that the parties use the slides that you
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`19· ·have, that you filed, and then we expunge all the slides
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`20· ·from the record after the hearing.
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`21· · · · · · Another possibility is that no parties use
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`22· ·slides.
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`23· · · · · · And can the various parties then respond to
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`24· ·that?
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`25· · · · · · I'll start with Petitioner Cisco Systems?
`
`
`
`·1· · · · · · Do either of those two options work for you?
`
`·2· · · · · · MR. STACY:· Both of them are just fine.
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`·3· · · · · · I'm happy to do it without slides.· I think the
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`·4· ·Board would be served poorly by just oral argument
`
`·5· ·without visualization, without visuals, we'd have to end
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`·6· ·up shuffling through paper, and I think that might be
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`·7· ·terribly cumbersome, especially for the -- if we've got
`
`·8· ·any judges that will be attending by video conference.
`
`·9· · · · · · As for expunged from the record, I've always
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`10· ·assumed that these were never evidence and would never be
`
`11· ·available for an appellate record, so expungement is
`
`12· ·exactly what I thought -- thought we would always get to,
`
`13· ·so that's perfectly fine, and I think that would help,
`
`14· ·especially if we have any remotely attending judges.
`
`15· · · · · · JUDGE PARVIS:· Petitioner Brighthouse Networks
`
`16· ·Group, those two options, can you --
`
`17· · · · · · MR. TYSON:· Yes.
`
`18· · · · · · JUDGE PARVIS:· -- tell us your position on
`
`19· ·those?
`
`20· · · · · · MR. TYSON:· Yes, Your Honor.
`
`21· · · · · · We're in the same position with Mr. Stacy that
`
`22· ·we believe -- it was our understanding that the slides
`
`23· ·would be expunged after the hearing, that they're not
`
`24· ·evidence, and that's been our understanding, but -- so we
`
`25· ·would -- we would prefer and -- and request the -- the
`
`
`
`·1· ·first option, that the parties use the slides that we
`
`·2· ·have and that they be expunged from the record after the
`
`·3· ·hearing.
`
`·4· · · · · · JUDGE PARVIS:· And Patent Owner?
`
`·5· · · · · · MR. BUMGARDNER:· Yes, Your Honor.
`
`·6· · · · · · Our objections really go far beyond new
`
`·7· ·annotated drawings.
`
`·8· · · · · · They go to new arguments, they go to things like
`
`·9· ·Cisco relying on arguments from Brighthouse Network and
`
`10· ·comparing claims across the petitions and citations to
`
`11· ·the record that -- that aren't in papers and things like
`
`12· ·that.
`
`13· · · · · · So if our sole choice is should we go with
`
`14· ·expunging or just do it without demonstratives, we would
`
`15· ·say do it without demonstratives because we feel like the
`
`16· ·demonstratives that we're encountering here are way over
`
`17· ·the line in many respects, so that -- that -- if we had
`
`18· ·to choose the two, we would -- we would say that.
`
`19· · · · · · JUDGE PARVIS:· So Patent Owner, then, is fine
`
`20· ·without using any demonstrative slides; is that correct?
`
`21· · · · · · MR. BUMGARDNER:· That's -- that's correct.
`
`22· · · · · · MR. TYSON:· And Your Honor, if I may, this is
`
`23· ·just Chris Tyson for Petitioners Brighthouse again.
`
`24· · · · · · I think -- I mean if we're going -- if we're
`
`25· ·going to continue the conversation at a high level, which
`
`
`
`·1· ·I think is appropriate, I think what we're really finding
`
`·2· ·is that there's just really a fundamental
`
`·3· ·misunderstanding of -- in our opinion, of the law on
`
`·4· ·demonstratives by Patent Owner.
`
`·5· · · · · · And -- I mean part of our meet and confer
`
`·6· ·process, and the E-mail that was provided to the Board,
`
`·7· ·which is accusing us of sanctionable actions, which is
`
`·8· ·frankly largely offensive, the -- everything that we have
`
`·9· ·done as Petitioners to add citations was all out of
`
`10· ·matter of compromise.· We believe that our slides that we
`
`11· ·served on them initially were fully and compliant with
`
`12· ·St. Jude's.· There may have been some mistakes, and we
`
`13· ·attempted to correct those mistakes, but the other
`
`14· ·annotations that we added, the other citations that we
`
`15· ·added, the corrections that were made were simply because
`
`16· ·the Patent Owner asked us to do that, and we think that
`
`17· ·now, at this stage, we've already taken those steps, and
`
`18· ·now what they're really looking for is to say "Okay,
`
`19· ·well, we're not going to use any slides at all" and
`
`20· ·without really having an objection that is -- that is
`
`21· ·properly founded in the St. Jude Medical case and the
`
`22· ·progeny of -- of the CBS Interactive case.
`
`23· · · · · · MR. BUMGARDNER:· Your Honor -- Your Honor, this
`
`24· ·is Patent Owner.
`
`25· · · · · · I'd like to respond to that.
`
`
`
`·1· · · · · · A lot of our arguments, you know, go to the fact
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`·2· ·that they're adding new arguments in the slides
`
`·3· ·themselves that have not been in the record before, and
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`·4· ·you've got Cisco, for example, comparing claims that are
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`·5· ·at issue in its IPR with claims at issue in the
`
`·6· ·Brighthouse case when there's never been any comparison
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`·7· ·made in any briefing before, so we don't know what
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`·8· ·they're going to say on that.
`
`·9· · · · · · It looks like they're --
`
`10· · · · · · JUDGE PARVIS:· Yeah.
`
`11· · · · · · Perhaps I can just interject here a little bit.
`
`12· · · · · · So Petitioner, you have -- you have acknowledged
`
`13· ·that there are some new -- there's some new annotations,
`
`14· ·the highlighting's a little different --
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`15· · · · · · MR. TYSON:· Yes.
`
`16· · · · · · JUDGE PARVIS:· -- and that sort of thing, and
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`17· ·Patent Owner here is saying that they are fine with going
`
`18· ·with no demonstratives --
`
`19· · · · · · MR. BUMGARDNER:· Um-hum.
`
`20· · · · · · JUDGE PARVIS:· -- so I guess what I'm trying to
`
`21· ·figure out is is there anything else that -- you know,
`
`22· ·what is -- is there something else that you want to try
`
`23· ·to work through with the Patent Owner?· We'll take this
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`24· ·decision under advisement, but is there something else
`
`25· ·that you want to try to work through?
`
`
`
`·1· · · · · · Do the parties want to try to come to some other
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`·2· ·agreement in the next day or two?
`
`·3· · · · · · MR. TYSON:· I mean, Your Honor, we'd love some
`
`·4· ·guidance from the Board on -- because I think that what
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`·5· ·we're dealing -- I mean if I go to -- for example, you
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`·6· ·know, as far as -- we have -- for example, they're saying
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`·7· ·characterizations of arguments.
`
`·8· · · · · · If we go to, you know, slide 65, for example, of
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`·9· ·our slides, the Patent Owner's arguing that our title in
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`10· ·that slide is not consistent with the -- the record when
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`11· ·it is.
`
`12· · · · · · If we go to -- I mean --
`
`13· · · · · · JUDGE PARVIS:· So -- so some of the -- you know,
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`14· ·the cases, we've given you some of the cases, and
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`15· ·there's, you know, prior history, and you know, as you've
`
`16· ·acknowledged, some of these annotations, they're
`
`17· ·different.· They're not in the record.
`
`18· · · · · · We would allow the parties to use the ELMO, they
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`19· ·can present papers, but only papers from the record.
`
`20· · · · · · So that's a consideration, and Patent Owner's
`
`21· ·fine with it.
`
`22· · · · · · Sounded like Cisco also thought that was a
`
`23· ·reasonable option, maybe not their first choice, but they
`
`24· ·were okay with it as well.
`
`25· · · · · · So do you want more time to try to work through
`
`
`
`·1· ·things?
`
`·2· · · · · · We can just take it under advisement and issue
`
`·3· ·an order.
`
`·4· · · · · · MR. TYSON:· Your Honor, we --
`
`·5· · · · · · MR. STACY:· Your Honor, this is --
`
`·6· · · · · · Sorry.
`
`·7· · · · · · Your Honor, this is Wayne Stacy from Cisco.
`
`·8· · · · · · I do want to make sure that there's something
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`·9· ·that's understood here.
`
`10· · · · · · If you -- to give you an idea of the reality of
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`11· ·the annotations we're talking about, you know, they
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`12· ·raised 36, 37 and 38 in ours, and I do have a wrong cite
`
`13· ·to the reply brief, but a correct cite to the expert
`
`14· ·report.
`
`15· · · · · · You know, i
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