Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FACEBOOK, INC.
`Petitioner
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`v.
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`WINDY CITY INNOVATIONS, LLC
`Patent Owner
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`Patent No. 8,694,657
`Issued: April 8, 2014
`Filed: September 20, 1999
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`Title: REAL TIME COMMUNICATIONS SYSTEM
`____________________
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`MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c)
`AND 37 C.F.R. §§ 42.22 and 42.122(b) TO RELATED INTER PARTES
`REVIEW IPR2016-01159
`
`

`
`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
`
`TABLE OF CONTENTS
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`STATEMENT OF THE PRECISE RELIEF REQUESTED ......................... 1
`I.
`STATEMENT OF MATERIAL FACTS ....................................................... 2
`II.
`III. STATEMENT OF REASONS FOR RELIEF REQUESTED ....................... 4
`A.
`Legal Standard ...................................................................................... 4
`B.
`Petitioner’s Motion for Joinder is Timely ............................................ 5
`C.
`Joinder is Appropriate .......................................................................... 5
`1.
`The Joinder Petition challenges claims first asserted by
`Patent Owner after Facebook had filed the Original
`Petition ....................................................................................... 7
`The two proceedings involve similar issues and
`overlapping claims and prior art ................................................ 8
`Joinder Will Not Unduly Burden or Negatively Impact the
`Schedule of Case IPR2016-01159 ..................................................... 11
`IV. CONCLUSION ............................................................................................. 12
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`D.
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`2.
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`i
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`

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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
`
`TABLE OF AUTHORITIES
`
` Page(s)
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`Cases
`ABB, Inc. v. ROY-G-BIV Corp.,
`Case IPR2013-00282 ............................................................................................ 6
`
`Amneal Pharmaceuticals, LLC. V. Endo Pharmaceuticals Inc.,
`Case IPR2014-01365 ........................................................................................ 6, 9
`
`Ariosa Diagnostics v. Isis Innovation, Ltd.,
`Case IPR2013-00250 ............................................................................................ 6
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`Facebook, Inc. v. Windy City Innovations, LLC,
`Case IPR2016-01159 ...................................................................................passim
`
`LaRose Indus., LLC v. Capriola Corp.,
`Case IPR2013-00121 ............................................................................................ 6
`
`Microsoft Corp. v. Proxyconn, Inc.,
`Case IPR2013-00109 ............................................................................................ 5
`
`Samsung Electronics, Co., Ltd., et al. v. Raytheon Company,
`Case IPR2016-00962 ............................................................................................ 5
`
`Samsung Electronics Co., Ltd., v. Virginia Innovations Sciences, Inc.,
`Case IPR2014-00557 ........................................................................................ 6, 8
`
`Windy City Innovations, LLC v. Microsoft Corporation,
`Case No. 4:16-cv-01729-YGR, ECF No. 1 ...................................................... 2, 3
`
`Statutes
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`35 U.S.C. § 315(c) ................................................................................................. 1, 4
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`35 U.S.C. § 316(a)(11) ............................................................................................. 12
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`37 C.F.R. § 42.1(b) .................................................................................................. 10
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`37 C.F.R. § 42.22 ....................................................................................................... 1
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`37 C.F.R. § 42.100(c) ............................................................................................... 12
`
`ii
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`37 C.F.R. § 42.101(b) ........................................................................................ 1, 4, 5
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`37 C.F.R. § 42.122(b) ........................................................................................ 1, 4, 5
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`iii
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`

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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
`I.
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`STATEMENT OF THE PRECISE RELIEF REQUESTED
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`Facebook, Inc. (“Petitioner” or “Facebook”) respectfully submits this
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`Motion for Joinder, together with a Petition for Inter Partes Review of U.S. Patent.
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`No. 8,654,657 (“’657 Patent”) (“the Joinder Petition”) filed contemporaneously
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`herewith.
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`The Board instituted inter partes review of claims 189, 334, 342, 348, 465,
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`580, 584, and 592 of the ’657 Patent in Facebook, Inc. v. Windy City Innovations,
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`LLC, Case IPR2016-01159 (the “Facebook IPR”) on December 12, 2016.
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`Pursuant to 35 U.S.C. § 315(c) and 37 C.F.R. §§ 42.22 and 42.122(b), Petitioner
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`requests institution of an inter partes review and joinder only as to claims 203,
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`209, 215, 221, 477, 482, 487, and 492 (“the Petition Claims”) of the ’657 Patent,
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`with instituted proceeding IPR2016-01159.
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`Institution and joinder are appropriate because the Joinder Petition
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`challenges only claims that were asserted in litigation for the first time by Patent
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`Owner against Facebook after the expiration of the one-year period under 37
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`C.F.R. § 42.101(b). It would have been unreasonable for Facebook to challenge all
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`671 claims of the ’657 Patent prior to the one-year bar, and would have risked
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`unnecessarily burdening the Board and parties with a large number of claims that
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`Patent Owner would never assert in litigation. Under the circumstances, Facebook
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`challenged independent claims 189 and 465 and a reasonable selection of
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`1
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`dependent claims. Now that Patent Owner has identified its asserted claims—
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`claims 189 and 465 and a selection of eight other dependent claims—Facebook
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`requests inter partes review of the dependent claims Patent Owner asserted.
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`The Petition Claims will not substantially expand the issues and subject
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`matter of the Facebook IPR. The Petition Claims recite only minor dependent
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`claim limitations that are disclosed and obvious in view of the same prior art
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`disclosures already at issue in the Facebook IPR.
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`Joinder is also appropriate because it will not unduly burden or prejudice
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`Patent Owner, will not cause any undue delay, and will efficiently resolve the
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`questions of invalidity presented. Further, denying institution and joinder would
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`unduly prejudice Facebook because Facebook would lose the opportunity to seek
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`inter partes review of claims that it would have challenged in the Facebook IPR
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`but for Patent Owner’s refusal to identify its asserted claims prior to the one-year
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`bar expiration, as set forth below.
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`II.
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`STATEMENT OF MATERIAL FACTS
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`1.
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`On June 2, 2015, Windy City Innovations, LLC (“Windy City” or
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`“Patent Owner”) filed civil actions for patent infringement of the ’657 Patent and
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`three other patents (collectively, “the Patents-in-Suit”) against Facebook and
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`Microsoft Corp. in the Western District of North Carolina. (Complaint, Windy City
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`Innovations, LLC v. Microsoft Corporation, Case No. 4:16-cv-01729-YGR
`2
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`(“Microsoft Action”), ECF No. 1; Complaint, Windy City Innovations, LLC v.
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`Facebook Inc., Case No. 4:16-cv-01730-YGR (“Facebook Action”), ECF No. 1.)
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`On March 16, 2016, the cases were transferred to the Northern District of
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`California. (Microsoft Action, ECF No. 30; Facebook, ECF No. 32.)
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`2.
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`On April 21, 2016, Facebook sent correspondence requesting that
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`Windy City identify, by May 16, 2016, the claims that it intended to assert in the
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`litigation. (Ex. 1012.) Windy City declined to do so. (Id.)
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`3.
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`On May 4, 2016, Facebook filed an administrative motion requesting
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`that the Court direct Windy City to identify which of the 830 claims of the four
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`Patents-in-Suit it asserts against Facebook. (Facebook Action, ECF No. 46; Ex.
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`1013.) Notably, the ’657 Patent contains 671 of the 830 claims across the Patents-
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`in-Suit.
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`4.
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`On May 9, 2016, Windy City filed a response to Facebook’s motion,
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`declining to identify its asserted claims. (Facebook Action at ECF No. 49.)
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`5.
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`On May 17, 2016, the Court entered an order denying Facebook’s
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`administrative motion. (Id. at ECF No. 50; Ex. 1014.)
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`6.
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`On June 3, 2016, without the benefit of knowing which claims Windy
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`City asserted, Facebook filed a petition for inter partes review (“the Original
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`Petition”) requesting cancellation of claims 189, 334, 342, 348, 465, 580, 584, and
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`592 of the ’657 Patent.
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`3
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`7.
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`On October 19, 2016, pursuant to N.D. Cal. Patent L.R. 3-1(a), Windy
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`City disclosed that it asserts the following claims of the ’657 Patent: 189, 203, 209,
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`215, 221, 465, 477, 482, 487, and 492. (Ex. 1015.) Claims 203, 209, 215, and 221
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`ultimately depend from independent claim 189, and claims 477, 482, 487, and 492
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`ultimately depend from independent claim 465.
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`8.
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`On December 12, 2016, the Board instituted Facebook’s petition for
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`inter partes review as to all challenged claims in the Original Petition, namely
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`claims 189, 334, 342, 348, 465, 580, 584, and 592. Case IPR2016-01159, Paper 7
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`at 36 (PTAB December 12, 2016).
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`9.
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`On December 28, 2016, the Court entered a stay in the two above-
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`cited civil actions.
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`III. STATEMENT OF REASONS FOR RELIEF REQUESTED
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`A. Legal Standard
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`The Board has statutory authority under 35 U.S.C. § 315(c) to join a
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`properly-filed inter partes review petition to an instituted inter partes review
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`proceeding. See 35 U.S.C. § 315(c). A motion for joinder must be filed within one
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`month of the Board instituting the inter partes review for which joinder is
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`requested. 37 C.F.R. § 42.122(b). The one-year statutory time period set forth in
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`37 C.F.R. § 42.101(b) does not apply when, as here, the petition is accompanied by
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`a request for joinder. Id.
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`A motion for joinder should (1) set forth reasons why joinder is appropriate;
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`(2) identify any new grounds of unpatentability asserted in the petition; (3) explain
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`what impact (if any) joinder would have on the trial schedule for the existing
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`review; and (4) address specifically how briefing and discovery may be simplified.
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`Samsung Electronics, Co., Ltd., et al. v. Raytheon Company, Case IPR2016-00962,
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`Paper 12 (PTAB Aug. 24, 2016) (citing Kyocera Corp. v. Softview LLC, Case
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`IPR2013-00004, Paper 15 (PTAB Apr. 24, 2013)). In exercising its discretion to
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`grant joinder, the Board is “mindful of the public interest in securing the just,
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`speedy, and inexpensive resolution of a proceeding.” Microsoft Corp. v.
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`Proxyconn, Inc., Case IPR2013-00109, Paper 15 (PTAB Feb. 25, 2013) (citing 37
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`C.F.R. § 42.1(b)) (internal quotations omitted).
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`B.
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`Petitioner’s Motion for Joinder is Timely
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`This Motion for Joinder is timely because it is filed within one month of the
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`December 12, 2016 institution decision of the Facebook IPR. See 37 C.F.R. §
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`42.122(b). The one-year bar set forth in 37 C.F.R. § 42.101(b) does not apply
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`because the Joinder Petition is filed concurrently with this Motion. 37 C.F.R. §
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`42.122(b).
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`C.
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`Joinder is Appropriate
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`The Board has granted numerous requests for joinder of inter partes review
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`proceedings under circumstances similar to the instant case. For example, in
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`Amneal Pharmaceuticals, LLC. V. Endo Pharmaceuticals Inc., the Board granted
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`the Petitioner’s Motion for Joinder as to certain dependent claims, explaining:
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`Petitioner provides a justification as to why it challenges [additional
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`dependent] claims 44 and 47 in the current Petition, and not in the Petition in
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`[the existing IPR]. Because Patent Owner asserted infringement of claims 44
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`and 47 in a district court case for the first time after Petitioner filed its first
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`Petition and after the § 315(b) bar date passed, we are persuaded that
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`Petitioner provides an adequate justification for considering its contentions
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`in the current Petition in relation to those claims.
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`Amneal Pharmaceuticals, LLC. V. Endo Pharmaceuticals Inc., Case IPR2014-
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`01365, Paper 13 at 14 (PTAB Feb. 4, 2015).
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`Similar rationales have been applied by the Board in numerous other cases.
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`See., e.g., Case IPR2013-00109, Paper 15; Samsung Electronics Co., Ltd., v.
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`Virginia Innovations Sciences, Inc., Case IPR2014-00557, Paper 10 (PTAB Jun.
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`13, 2014); Ariosa Diagnostics v. Isis Innovation, Ltd., Case IPR2013-00250, Paper
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`24 (PTAB Sep. 3, 2013); ABB, Inc. v. ROY-G-BIV Corp., Case IPR2013-00282,
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`Paper 15 (PTAB Aug. 9 2013); LaRose Indus., LLC v. Capriola Corp., Case
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`IPR2013-00121, Paper 11 (PTAB Jun. 28, 2013).
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`Here, as in those cases, the requested joinder is fully justified: (1) the Joinder
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`Petition is timely filed; (2) the two proceedings involve the same parties and same
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`patent; (3) the Joinder Petition challenges only claims that Patent Owner first
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`asserted against Petitioner in litigation for the first time after the one-year statutory
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`bar (despite Facebook’s request that Patent Owner identify its asserted claims); (4)
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`the Joinder Petition challenges only claims that ultimately depend from claims at
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`issue in the instituted Facebook IPR and recite only minor dependent claim
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`limitations; (5) the Joinder Petition relies on the same prior art as the Facebook
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`IPR; and (6) the Joinder Petition relies on testimony from the same expert witness
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`who submitted testimony in the Facebook IPR. Thus, in accordance with the
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`Board’s precedent, joinder of these proceedings is fully appropriate.
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`1.
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`The Joinder Petition challenges claims first asserted by
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`Patent Owner after Facebook had filed the Original Petition
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`As an initial matter, Facebook’s Joinder Petition involves the same patent
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`and same parties—Facebook and Windy City—as the Facebook IPR. Facebook’s
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`Joinder Petition challenges dependent claims 203, 209, 215, 221, 477, 482, 487,
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`and 492. Facebook did not challenge those claims in the Original Petition because,
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`as noted previously, it would have been unreasonable for Facebook to challenge all
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`671 claims of the ’657 Patent without knowing which claims Patent Owner asserts
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`in the pending litigation.
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`Before filing the Original Petition and before the expiration of the one-year
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`statutory bar, Facebook made a good-faith effort to have Windy City disclose
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`which of the 671 claims of the ’657 Patent it asserts against Facebook in litigation,
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`and filed a motion with the Court. However, the motion was denied, and Facebook
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`thus did not have the benefit of knowing which claims Windy City would assert
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`during its one-year period to seek inter partes review. Accordingly, in its Original
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`Petition, Facebook challenged a selection of claims—independent claims 189 and
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`465 and dependent claims 334, 342, 348, 580, 584, and 592.
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` Subsequently, after expiration of the one-year bar, Windy City disclosed
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`that it asserts claims 189, 203, 209, 215, 221, 465, 477, 482, 487, and 492 against
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`Facebook—the same two independent claims challenged in the Original Petition,
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`but different dependent claims. Under these circumstances, it is fully appropriate
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`and warranted for the Board to evaluate the validity of the newly-asserted
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`dependent claims alongside already-instituted independent claims 189 and 465, to
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`serve the efficiency objectives of inter partes review.
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`2.
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`The two proceedings involve similar issues and overlapping
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`claims and prior art
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`The Petition Claims all ultimately depend from independent claims 189 and
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`465 on which trial was instituted in the Facebook IPR and add only minor,
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`redundant dependent claim limitations. The Board has previously ordered joinder
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`in such circumstances. For example, in Samsung Electronics Co., Ltd., v. Virginia
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`Innovations Sciences, Inc., the Board found that:
`8
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`the only additional subject matter added by [new] claims 58 and 63 to the
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`subject matter of the claims for which a trial already has been instituted in
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`IPR2013-00571 is HDMI, for which the Petition cites the Seaman reference.
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`The relevance of Seaman with respect to HDMI is addressed already in the
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`context of trials concerning the unpatentability of certain claims in related
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`proceedings. . . . Accordingly, the minimal additional amount of work
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`required on the part of Patent Owner to address claims 58 and 63 of the ’398
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`Patent is strongly outweighed by the public interest in having consistency of
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`outcome concerning similar sets of claimed subject matter and prior art.
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`Case IPR2014-00557, Paper 10. Similar reasoning was applied by the Board in
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`Amneal Pharmaceuticals, LLC. V. Endo Pharmaceuticals Inc.. Case IPR2014-
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`01365, Paper 13 at 14.
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`Here, as in those cases, the dependent claims are very similar to claims on
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`which trial is already instituted in the Facebook IPR, and the Joinder Petition relies
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`on the same prior art. As shown in the Joinder Petition, the newly challenged
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`claims add only two types of limitation, neither of which substantially expands this
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`proceeding. First, independent claims 189 and 465 each recite “censoring” one or
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`more of certain types of data (e.g., video, audio, graphic and multimedia), and the
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`newly-challenged dependent claims recite particular ones of those types of data. In
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`its institution decision, the Board already determined that censorship of each data
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`type is likely disclosed by the prior art. IPR2016-01159, Paper 7 at 27-32.1
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`Second, the newly challenged claims recite that access is provided through
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`two client software alternatives. This same limitation is already recited in
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`instituted claims 334 and 580 of the ’657 patent and was discussed in the Board’s
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`institution decision, so it does not raise any new issue. See IPR2016-01159, Paper
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`7 at 33-34.
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`Moreover, the Joinder Petition relies on the expert testimony of Dr. Tal
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`Lavian, the same expert who provided a Declaration in the Facebook IPR. Case
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`IPR2015-01159, Paper 1, Ex. 1002. This substantial overlap between the instant
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`proceeding and the Facebook IPR “facilitates scheduling of the joined actions and
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`minimized delay.” Case IPR2013-00282, Paper 15 at 3.
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`Thus, institution and joinder of the Joinder Petition to the Facebook IPR will
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`not unduly complicate these proceedings, allowing the Board to “secure the just,
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`speedy, and inexpensive resolution” of these invalidity questions. See 37 C.F.R.
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`§42.1(b). In addition, Patent Owner will not be unduly prejudiced. Facebook
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`1 The Joinder Petition relies on Roseman, Rissanen, Vetter, Pike, and Lichty, the
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`same references the Board cited to institute trial on claims reciting censoring of
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`various data types and two software alternatives. See IPR2016-01159, Paper 7 at
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`27-32, 33-34.
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`10
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
`
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`timely filed the Joinder Petition within one month of institution, and as discussed
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`above, the substantial overlap in claimed subject matter, prior art references, and
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`expert witness testimony allows Patent Owner to efficiently prepare briefs and
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`engage in discovery without significant additional burden, expense, or delay.
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`Further, as discussed below, to the extent any adjustments to the trial schedule in
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`Case IPR2016-01159 would be warranted, they can be reasonable and minor.
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`D.
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`Joinder Will Not Unduly Burden or Negatively Impact the
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`Schedule of Case IPR2016-01159
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`Joinder of the two proceedings will not unduly delay the schedule of Case
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`IPR2016-01159. The Board and Patent Owner are already familiar with the ‘657
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`patent, the cited prior art, and the claimed subject matter. As set forth above, the
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`newly challenged dependent claims do not substantially expand the subject matter
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`at issue.
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`At most, joinder of the two proceedings would require only reasonable
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`minor adjustments to the schedule that need not unduly delay the final hearing or
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`final decision in Case IPR2016-01159. Facebook is willing to agree to any
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`reasonable and appropriate revisions to the schedule to maximize efficiency and
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`ensure a speedy resolution for the joined proceedings, for example so as to obtain a
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`final written decision within one year of institution of trial in Case IPR2016-01159.
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`The Patent Office is authorized to “adjust the time periods…in the case of joinder.”
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
`
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`35 U.S.C. § 316(a)(11); see also 37 C.F.R. § 42.100(c) (pendency of IPR may be
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`extended up to six months for good cause shown). Accordingly, the Board has
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`granted reasonable extensions in other trial schedules to accommodate joinder. See
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`Case IPR2013-00250, Paper 24 at 5 (“while some adjustments to the schedule have
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`been necessary, there is not undue delay.”); Case IPR2013-00109, Paper 15 at 4-5;
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`Case IPR2014-00557, Paper 10 at 18. Any alleged prejudice to Windy City from a
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`reasonable schedule adjustment is substantially outweighed by the public interest
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`in obtaining a speedy and efficient resolution of these patentability issues.
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`IV. CONCLUSION
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`Based on the factors discussed above, Petitioner respectfully requests that
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`the Board grant the Facebook Petition for Inter Partes Review as to claims 203,
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`209, 215, 221, 477, 482, 487, and 492 and grant joinder with Facebook, Inc. v.
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`Windy City Innovations, LLC, Case IPR2016-01159.
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`12
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`
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`Dated: January 12, 2017
`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`
`
`
` Respectfully submitted,
`
`By: /Heidi L. Keefe
`
`Heidi L. Keefe
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`Reg. No. 40,673
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`Counsel for Petitioner
`Facebook, Inc.
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`13
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`Petition for Inter Partes Review of U.S. Patent No. 8,694,657
`Motion for Joinder
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`CERTIFICATE OF SERVICE
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`I hereby certify, pursuant to 37 C.F.R. § 42.6, that a complete copy of the
`attached MOTION FOR JOINDER UNDER 35 U.S.C. § 315(c) AND 37 C.F.R.
`§§ 42.22 AND 42.122(b) TO RELATED INTER PARTES REVIEW IPR2016-
`01159 is being served in its entirety on the 12th day of January, 2017, the same day
`as the filing of the above-identified document in the United States Patent and
`Trademark Office/Patent Trial and Appeal Board, via Priority Mail Express upon
`the Patent Owner by serving the correspondence address of record with the
`USPTO as follows:
`
`
`PETER K. TRZYNA, ESQ.
`PO BOX 7131
`CHICAGO IL 60680
`
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`and, via Federal Express upon counsel of record for the Patent Owner in the
`litigation pending before the U.S. District Court for the North District of California
`entitled Windy City Innovations, LLC v. Facebook, Inc., Case No. 4:16-cv-1730-
`YGR (N.D. Cal.) as follows:
`
`
`Warren J. McCarty, III
`wmccarty@caldwellcc.com
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Rd., Suite 1000
`Dallas, TX 75201
`Telephone: (214) 888-4848
`Facsimile: (214) 888-4849
`
`Dated: January 12, 2017
`
`COOLEY LLP
`ATTN: Patent Docketing
`1299 Pennsylvania Ave. NW
`Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
`
`
`
`
`
`
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`14
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`/Heidi L. Keefe
`Heidi L. Keefe
`Reg. No. 40,673