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` ROUGH DRAFT
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` JUDGE BRADEN: This is Judge Georgianna
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`Braden. The reason why we've asked for this
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`phone call with the parties is because, as I'm
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`sure you're aware, the Federal Circuit recently
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`issued an en banc decision in Aqua Products,
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`Inc. versus Matal. I believe that occurred on
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`October 4, 2017.
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` So we are contacting the parties now
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`because Patent Owner has filed a motion to
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`amend -- contingent motion to amend in both
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`proceedings. We are approximately six weeks
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`away from oral arguments that are scheduled for
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`November 30th, if the parties request them, and
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`I would like to hear from both parties, starting
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`with Patent Owner first, if you believe that
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`Aqua Products has any impact on your motion to
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`amend and if you believe any additional briefing
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`is warranted in these proceedings.
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` Patent Owner, we'll hear from you first
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`on behalf of Realtime.
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` MR. NOROOZI: Your Honor, I will begin.
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`This is Kayvan Noroozi, and I'll also let my
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`partner, William Rothwell, continue after I've
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`made a few initial remarks, because this subject
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`has sort of been raised with the Board a few
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`times before in various forms, both before Aqua
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`Products came down and since, and so I think
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`it's one that has largely been covered.
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` Before the Aqua Products decision was
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`issued, Patent Owner noted in its motion to
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`amend that the Federal Circuit would be deciding
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`Aqua Products en banc and that the decision
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`could shift the burden from Patent Owner to
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`Apple, and we preserve the right to have the
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`revised standard apply to our motion to amend
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`if, in fact, such a revised standard was handed
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`down by the Federal Circuit.
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` Apple sought additional briefing space
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`for its response before Aqua Products come down
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`on the basis that if Aqua Products were issued,
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`it would bear the burden -- sorry, that if Aqua
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`Products were issued in a manner that would
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`place the burden on Apple, Apple would now have
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`to say more and present more to the Board than
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`it otherwise would have in light of its new
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`burden. My partner William Rothwell can speak
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`more to the conversation because I was not
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`personally on the call.
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` But my understanding is that we
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`explained that -- we had 25 pages of briefing in
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`our affirmative motion when the burden was on
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`us, and Apple had 25 pages to respond when the
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`burden was not on them, and so there was no
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`reason to give additional briefing or space for
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`them to say more than we were able to say
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`regardless of any shifts in burden. In fact,
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`the Board denied additional pages on that basis,
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`is my understanding, and went on to sort of
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`defer the issue of what would happen if Aqua
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`Products changed the law.
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` Apple proceeded with the understanding
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`that Aqua Products could come out the way that
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`it did, and so they submitted very lengthy
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`declarations, I believe over a hundred pages
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`each, from their expert attempting to put down
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`what they thought they needed to put down in
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`light of the possibility that they would bear
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`the burden under a shift in law in Aqua
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`Products.
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` We took the deposition of Apple's
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`expert. We addressed their arguments. We
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`addressed the lengthy discussions and the
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`hundred-page-plus declarations and the reply
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`briefs that we submitted just this Wednesday,
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`and in our reply brief we addressed the import
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`of Aqua Products to this proceeding, and we did
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`all that within the 12-page limit of our reply.
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` We also agreed with Apple, in order to
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`get an extension, that Apple should be allowed
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`to submit a further brief, not to exceed
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`12 pages, to specifically and only discuss the
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`importance of Aqua Products onto these motions
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`to amend, but that Apple should not be
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`permitted -- of course this is a point that
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`Realtime made -- that Apple should not be
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`permitted to provide new evidence or submit new
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`expert testimony or make new arguments or
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`submit new prior art.
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` The record on those issues is now
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`closed. Apple had a full opportunity to do all
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`that in its response knowing that Aqua Products
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`could come out the way that it did. And there's
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`no reason to prejudice Realtime by sort of
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`opening the record back up for Apple.
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` So in short --
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` JUDGE BRADEN: Counsel, I want to make
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`sure that I understand, that Patent Owner would
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`agree to allow Petitioner 12 additional pages to
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`respond --
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` MR. NOROOZI: To specifically --
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` JUDGE BRADEN: Yeah, go ahead.
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` MR. NOROOZI: To specifically and only
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`discuss the Federal Circuit's decision in Aqua
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`Products and what impact it may have as a matter
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`of law to the motions to amend, but not to
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`introduce new arguments or evidence or facts or
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`go back over the prior art and so forth.
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` JUDGE BRADEN: Very good. Thank you.
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`And did your colleague, Mr. Rothwell, have
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`something additional to add?
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` MR. ROTHWELL: No, that covers what I
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`would have said.
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` JUDGE BRADEN: Very good. Then we'll
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`hear from Petitioner.
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` MR. RENNER: Thank you, Your Honor.
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`We'll start out by just noting that opposing
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`counsel is correct that Apple and opposing
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`counsel did discuss earlier the potential of
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`Aqua Products, and it was in light of the page
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`extension request that was earlier solicited.
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`Your Honors did decline to extend those pages.
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` But our request was premised on not one
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`thing. It was not just the ideas that could
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`potentially be an Aqua Products decision that
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`could change the burden. The request was
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`actually borne of the nature of the prior art
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`that was being applied, and it was a
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`combination -- a complex combination was set
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`forth -- to be set forth against the amended
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`claims.
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` And while the Patent Owner was able to
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`satisfy what they believed to be their
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`submission requirements at the time, they were
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`directed to the amendments in order to set forth
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`an entirely new combination of references and to
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`do so in a way that was adequate. To even
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`expect that combination and apply it was what we
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`were asking for pages for. In the event Aqua
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`Products might come down and change the burden
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`was an amplification of the problem that we
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`foresaw with the currently then imposed --
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`then-current-page limits that were in place.
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` So we think that our request was clear
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`on that point. And, Your Honors, when we talked
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`about that earlier in our last call, we'll
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`recollect that we even had a discussion during
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`that call, at the conclusion of that call that
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`the page limits were not being moved, but to the
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`extent that Aqua Products were to come down with
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`a decision that shifted the burden away from
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`Patent Owner, that there would be an opportunity
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`to revisit what kind of submission would be
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`appropriate. And it was not contemplated at
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`that time that the submission would be limited
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`to the legal argument about whether Aqua
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`Products had an impact and what kind of impact
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`it would have, but instead we were talking about
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`the submission of argument as it related to the
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`prior art against claims as amended and
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`evidence. We talked about that as well. So,
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`Your Honors, when we left that call as a parting
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`audience, we had understood that we would be
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`revisiting that issue to the extent there was a
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`change in the burdens.
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` Your Honor, I would like to note, at the
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`outset you've asked for where we are in terms
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`of: Do we think that Aqua Products has an
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`impact? And what do we think would be
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`appropriate as briefing? I'd like to address
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`those two points.
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` As to whether it has an impact, we think
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`the impact is rather monumental. To the extent
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`there is a shift in burden that goes over to
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`Petitioner for Aqua Products -- and there's over
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`150 pages of opinion, as you know, in that
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`decision -- but to the extent that's what is
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`meant by Aqua Products, we would note that all
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`of the prior submissions as it relates to the
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`motions to amend in this case, the opposition
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`that we put in and their rebuttal to it those
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`were --
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` THE REPORTER: I'm sorry, your words
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`were cut off.
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` Mr. Renner: Where I was heading was
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`that Aqua Products has an impact as we think
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`quite evident that the party who would own the
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`burden is now for the first time aware of the
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`fact that it owns the burden. And when we put
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`our prior submissions in, those were all
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`designed, those were all written with an eye
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`toward a party that did not then own the burden.
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` JUDGE BRADEN: I apologize for
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`interrupting you. I want to make sure that
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`I'm -- let's go ahead and jump to this. If
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`you're asking for additional briefing and you
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`clearly don't want it limited to just legal
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`arguments regarding Aqua Products, as Patent
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`Owner would agree to, would you be requesting
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`the addition of more evidence, or would you be
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`able to make your case using evidence that is
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`currently of record?
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` MR. RENNER: Thank you, Your Honor.
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`Your Honor, it's the former. We believe that
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`our earlier submission -- well, we don't
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`believe. Our earlier submission was made both
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`in argument and in evidence as a party that did
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`not own the burden of persuasion, Your Honor.
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`And so we would absolutely want to have the
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`opportunity to furnish evidence that would be
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`consistent with ownership of that burden. We
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`have ideas on how that might be accomplished,
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`but I want to make sure I'm answering your
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`question.
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` JUDGE BRADEN: Please tell me. In what
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`way would Petitioner propose? Would this
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`include new declarations, new depositions?
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` MR. RENNER: Yes. Yes, Your Honor, and
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`we were trying to think about how this could be
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`accomplished in an efficient way, and so there
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`were two ideas that we had, one of which we just
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`don't think is very efficient, but I'll mention
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`both just for the sake of giving you our
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`thoughts fully on the item.
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` Right now there is already an opposition
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`that was filed, and there is a response, as you
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`noted to that opposition on the record. Those
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`papers exist. As I was starting to go into,
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`they're written to the wrong standard, and so
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`they're not really probative of the issues that
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`come to a party that is owning that burden. So
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`we think they have limited value. We actually
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`think they might complicate.
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` But one process that could be put in
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`place might be that we furnish additional
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`briefing, and that would include argument and
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`evidence. So as to make sure that the Patent
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`Owner isn't prejudiced, our intent here is not
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`to prejudice the Patent Owner. They would have
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`an opportunity to respond in briefly and I
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`presume evidence in much the same way that they
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`do in a normal petition process. And then we
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`would as the party owning the burden go last
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`with a submission of a rebuttal. That's pretty
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`complex when laid over top of the existing
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`briefing. That ends up five papers. I'm going
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`to gather that you're not exited about five
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`papers on this issue.
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` So the alternative that we had come to
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`was warrant to some extent of that, but we
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`actually that think those papers being
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`misdirected, we would recommend expunging them
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`and acting in a way that is consistent with a
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`party owning the burden going first and last,
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`and we would put in what would be a renewed
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`opposition, one that is written and supportive
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`of evidence that is consistent with us having
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`the burden. The patient owner would follow and
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`we would have the final paper on the item. And
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`we think this is entirely consistent with the
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`way a petition process runs.
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` JUDGE BRADEN: Would you be to get this
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`done along with the other items that are
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`required under the scheduling order by
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`November 30th?
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` MR. RENNER: Your Honor, the issue we
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`think that the proceeding would have with that
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`is, if there's evidence going in there's going
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`to be a need almost certainly for -- someone is
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`going to want to depose other people's experts.
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`So I would expect the answer unfortunately is
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`no.
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` That said, I think that the rules
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`contemplate schedules that can extend certainly
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`beyond that date and even, if necessary,
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`extending beyond the one year under, of course,
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`exceptional circumstances. We actually would
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`think this is such a circumstance. I don't know
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`if that's a briefing schedule that would be
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`necessitated. We haven't talked to opposing
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`counsel. We would be happy to work with them on
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`what could be a briefing schedule. But I think
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`that schedule is probably an undoable one under
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`almost any circumstance we can imagine,
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`unfortunately. We're not happy about that. I
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`gather you probably aren't as well.
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` JUDGE BRADEN: Thank you Petitioner. I
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`want to hear very briefly from Patent Owner.
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` What I want you to address, Patent
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`Owner, is -- because I'm going to order
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`additional briefing. So give me your thoughts
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`about that additional briefing.
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` MR. NOROOZI: Yes, Your Honor. I have
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`two very important points that I would really
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`request that the board consider in how it
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`proceeds from here.
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` First of all, there will absolutely be
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`prejudice to Patent Owner if Petitioner is
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`allowed to submit new evidence and argument even
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`as to the existing prior art, that that will
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`happen in terms of the timing because there will
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`be timing constraints but more importantly the
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`prejudice will occur to Patent Owner because
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`Apple has already put forth its arguments. We
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`have had the opportunity to cross-examine its
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`18
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`experts and debunk those arguments and
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`demonstrate why they are wrong and why they
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`don't show unpatentability. And now Apple and
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`its experts having seen our positions and our
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`arguments and having sat through our
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`cross-examination want to be able to take an
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`entirely new bite of the Apple. In fact, they
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`are so concerned about the record as it exists
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`that they have asked you to expunge the existing
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`arguments and evidence including the
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`cross-examination testimony of their expert.
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`And I think that really speaks to the kind of
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`prejudice that they are trying to work here. I
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`find it very problematic and troubling.
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` Now, the reality is, Your Honor, very
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`quickly, that Apple has known about Aqua
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`Products for the entirety of this proceeding and
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`so they have been able to take it into account
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`12
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`in everything they have done. They stated that
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`their briefing and the way that this played out
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`14
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`is now sort of moot because Aqua Products
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`15
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`changed the standard. How so? How is that?
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`16
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`They don't explain that. And it's not at all
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`correct. The only thing that Aqua Products does
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`18
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`is it shifts the burden. We knew that it might
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`do that. And Apple had the same number of pages
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`for briefing for its argument as patent owner
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`21
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`did when we bore the burden, and Apple put forth
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`22
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`hundreds of pages of declaration testimony and
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`23
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`could have done anything it wanted in those
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`24
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`declarations. So now that its best argument at
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`25
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`that time have been debunk and is working at
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`losing and getting these claims amended in the
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`event that the motions to amend are even
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`relevant, Apple is coming back and trying to use
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`Aqua as a basis to do an entire do-over and
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`re-set. That's very prejudicial, Your Honor.
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` So I would ask that if you grant
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`additional briefing, that you please grant it in
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`the way that we've already agreed to, which is a
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`10
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`discussion of the legal aspects of Aqua Products
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`11
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`and its importance to the motions to amend, but
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`not to include any new evidence or argument as
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`to the prior art even the prior art of record.
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` MR. ROTHWELL: Your Honor, this is
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`William Rothwell, what I was going to say is, I
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`think the closest analog we have in terms of a
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`major decision coming up mid stream -- I think a
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`comparable situation is when the in re ellis
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`situation came out and and that had a similar
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`effect if there were pending proceedings, and
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`that decision affected how those proceedings
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`should be resolved.
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` And as far as I'm aware, the way the
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`Board handled that in that situation was to
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`allow each side or in some cases only one side
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`four or five extra pages to address the legal
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`issues and the ramifications of in re allis,
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`which is what we're proposing here. I'm not
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`aware of any situations in response to in re
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`allis where there was sort of the entire do-over
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`as being proposed here by Petitioner.
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` MR. NOROOZI: And more broadly, to the
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`extent that the Board has ever in any situation
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`once given substantive briefing on evidence and
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`argument after in re Alice, we don't think that
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`that sort of a scenario is warranted here in
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`light of Aqua Products, specifically because
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`Apple knew that Aqua Products would come down
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`and that it could come down the way it did.
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`They had every opportunity to put in every
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`argument and every piece of evidence that they
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`wanted to before this decision came down. And
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`so the premise that Aqua Products now triggers
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`some new knowledge and event and information
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`that requires Apple to get a do-over or even an
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`add-on is just incorrect.
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` MR. RENNER: Your Honor, if I may, I'd
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`like to have an opportunity to respond.
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` JUDGE BRADEN: You may have two minutes.
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` MR. RENNER: Thank you, Your Honor. I
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`would think it is simply not appropriate to
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`suggest there's weakness or otherwise to suggest
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`anything on the merits as it relates to this as
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`a consequence. The knowledge of a federal
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`circuit case impendency does not in any way
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`suggest that we know how a case will come down,
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`what its holding will be, nor does it
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`appropriately treat any kind of burden for a
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`party to bring evidence that is not aligned to
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`the currently applicable legal standard to the
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`table and nor would a party. It's expense
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`that's necessary to consequence, and we would be
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`constantly betting on things that are not
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`realities.
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` We're told that the arguments in
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`evidence would have been made -- we thought in
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`our last call that we had together that when we
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`were denied the page count, we were told this
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`would be something revisited, and even evidence
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`was discussed at the time. Clearly there was
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`limits on the number of pages we had and those
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`were stressing already the application of what
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`you now can see is a combination.
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` And as to Alice, it's a completely
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`different legal point. It wouldn't be
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`appropriate in any way at all for us to
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`analogize the Alice decision in what's going on,
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`as it didn't shift the burden among the parties.
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`So the notion in any way informs this issue, we
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`would absolutely take issue with.
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` And I guess the final point in terms of
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`prejudice, and our suggestion was an attempt to
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`make sure there was no prejudice to either
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`party. We're simply trying to have a proceeding
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`go forward in a way that both parties can be
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`heard on their proofs and those proofs be
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`aligned to the burdens that are allocated to
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`those parties.
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` So, Your Honor, I think we're seeking a
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`very fair opportunity for parties to be heard
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`and for Your Honors to have not an undue amount
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`of work nor an undo kind of extension in time
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`appropriate here. Thank you.
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` JUDGE BRADEN: Very good. The panel
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`will take a momentary recess. We will confer,
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`and then we will back on the line. So we ask
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`that both the parties and the court reporter
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`please stay on the line. Thank you.
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` - - -
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` (Whereupon, a recess was held.)
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` - - -
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` JUDGE BRADEN: Case IPR2016-01738.
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`Again, this is Judge Georgianna Braden, and
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`along with me are Judges Chung and Stephens.
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` Let me know, do I still have counsel for
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`Petitioner on the line?
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` MR. RENNER: You do, Your Honor. Thank
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`you.
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` JUDGE BRADEN: And do I still have
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`counsel for Patent Owner on the line?
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` MR. NOROOZI: Yes, Your Honor.
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` JUDGE BRADEN: And do I still have the
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`court reporter?
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` THE REPORTER: Yes, Your Honor.
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` JUDGE BRADEN: We are going to send out
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`an order shortly that will explain everything
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`that we discussed on this conference call, but
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`we are going to order new briefing.
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` Petitioner you will get a 12-page brief.
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`With it you may submit a new supporting
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`declaration. We need to work out schedule for
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`when you can have that.
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` Would you be able to have your brief in
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`it by Wednesday the October 25th or Friday the
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`27th? Petitioner, is that doable?
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` MR. RENNER: Your Honor, I believe so.
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`If offline we find that it's not, we will
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`certainly reach out, but thank you, Your Honor.
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` MR. NOROOZI: Patent Owner, in
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`opposition you will be allowed 12 pages. Patent
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`Owner will also get to depose the declarant on
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`the new declaration.
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` Patent Owner, would you be able to have
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`your opposition in by November 10th?
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` MR. NOROOZI: Your Honor, we have
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`another oral hearing in November. We also have
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`several other briefs and various IPRs due that
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`month, and I'm not sure that we could do it by
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`November 10th.
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` JUDGE BRADEN: Okay, here's what we're
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`going to do. Petitioner, you get the 12-page
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`for your opening brief. Patent Owner, you get
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`12 pages for an opposition. Petitioner, in
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`response you can have a five-page reply.
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`Petitioner gets the new declaration support of
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`their opening brief. Patent Owner, you get to
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`depose that declarant.
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` Here's what we're going to do. I want
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`parties to go offline. I want you to work out a
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`schedule for me for when each of your briefs,
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`opposition replies can be done. I want you to
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`agree on a date for the deposition, if it's
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`needed.
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` I want you to also know we are not going
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`to expunge the original briefs. That way,
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`Patent Owner, if you need to refer back to them
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`in order to contest any inconsistency or
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`credibility, you may do so.
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` So I need the parties to go back, work
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`out a schedule and submit it to the Board. Once
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`we have that information, we will submit a new
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`amended scheduling order that will cover all of
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`these dates.
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` Questions?
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` MR. NOROOZI: Yes, Your Honor, I have a
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`couple of questions.
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` The first is, it's my understanding that
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`if we think it's appropriate and necessary we
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`can also include an expert declaration in
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`support of our briefing Patent Owner's briefing
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`so long as we give Apple an opportunity to take
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`a deposition if they need to; is that correct?
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` THE WITNESS: That is authorized, yes.
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`Once I have your schedule, we will amend the
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`scheduling order for both these proceedings. We
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`will be pushing back the November 30th hearing
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`date. And if necessary, we will push back the
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`deadline for both proceedings for a good cause.
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` Did you have another question?
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` MR. NOROOZI: I do, Your Honor. The
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`second question is, while the 12 pages of
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`briefing is limited, is there any limit that the
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`Board is imposing on the length of the
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`declaration that Petitioner can put in or the
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`amount of new art or references or argument?
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`Because without any kind of limitation on what
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`their expert can say and can put in, they could
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`obviously introduce an avalanche of new material
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`through that expert declaration, and it would be
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`quite difficult to grapple with in 12 pages of
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`response of briefing for us.
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` JUDGE BRADEN: I understand your
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`concern, Mr. Noroozi. However, I do believe
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`that the Board's rules against incorporation by
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`reference will prohibit Petitioner from doing
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`such a thing. If the arguments cannot be made
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`and amply supported in their brief, they can't
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`be made and amply supported.
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` MR. NOROOZI: Thank you, Your Honor.
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` JUDGE BRADEN: Petitioner, you
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`understand that, correct?
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` MR. RENNER: Yes, Your Honor. Thank
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`you.
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` JUDGE BRADEN: Very good.
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` Any other questions, Mr. Noroozi?
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` MR. NOROOZI: None for me, Your Honor.
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` JUDGE BRADEN: Any questions from the
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`Petitioner?
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` MR. EDELL: Your Honor, very briefly,
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`this is Joe Edel for the Patent Owner.
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` JUDGE BRADEN: Yes.
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` MR. EDELL: There's a third seating that
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`affects this same -- it's a 1739 proceeding. In
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`that proceeding there is no motion to amend. I
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`23
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`just want to alert you to the fact that it
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`current has the same schedule as these two
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`proceedings we're discussing. So to the extent
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`you do change the schedule, I suggest you also
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`suggest changing the schedule for the 1739 to be
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`consistent with these schedules.
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` JUDGE BRADEN: We will look and see if
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`that's necessitated.
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` Petitioner, did you have any other
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`comments or questions?
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` MR. RENNER: Just one which is also
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`housekeeping. When would you like to see -- and
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`obviously we'll work quickly to get a schedule
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`together with our counterparts. I just want to
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`make sure we're on time for you. So what
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`14
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`schedule would you like to have us submit that,
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`proposed schedule?
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` JUDGE BRADEN: I would prefer to have it
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`no later than noon Eastern time Tuesday,
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`October 17th. That should be plenty of time for
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`you guys to get together and agree on something.
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` MR. RENNER: Agreed. Thank you.
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` JUDGE BRADEN: Do we have any other
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`22
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`questions?
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`23
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` MR. RENNER: None for Petitioner.
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`24
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` JUDGE BRADEN: Any from Patent Owner?
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` Very good. Hearing nothing further, we
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` ROUGH DRAFT
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`are adjourned. Thank you very much. Gentlemen,
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`have a very nice weekend.
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