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`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`----------------------------x
`VIPTELA, INC.,
` Petitioners,
` vs. Case No.
` IPR2017-00684
`FATPIPE NETWORKS PRIVATE
`LIMITED,
`
` Patent Owner.
`-----------------------------x
`
` PROCEEDINGS HELD VIA TELECONFERENCE
` New York, New York
` Tuesday, May 22, 2018
` 2:30 p.m.
`B E F O R E:
` JUDGE CHRISTA P. ZADO
` JUDGE STACEY G. WHITE
` JUDGE MICHELLE N. WORMMEESTER
`
`Reported by:
`Jennifer Ocampo-Guzman, CRR, CLR
`JOB NO. 142539
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`FatPipe Exhibit 2009, pg. 1
`Viptela v. FatPipe
`IPR2017-00684
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`----------------------------x
`VIPTELA, INC.,
` Petitioners,
` vs. Case No.
` IPR2017-00684
`FATPIPE NETWORKS PRIVATE
`LIMITED,
`
` Patent Owner.
`-----------------------------x
`
` PROCEEDINGS HELD VIA TELECONFERENCE
` New York, New York
` Tuesday, May 22, 2018
` 2:30 p.m.
`B E F O R E:
` JUDGE CHRISTA P. ZADO
` JUDGE STACEY G. WHITE
` JUDGE MICHELLE N. WORMMEESTER
`
`Reported by:
`Jennifer Ocampo-Guzman, CRR, CLR
`JOB NO. 142539
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`FatPipe Exhibit 2009, pg. 1
`Viptela v. FatPipe
`IPR2017-00684
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`Page 2
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` May 22, 2018
` 2:30 a.m.
`
` Proceedings held via
`teleconference, taken by Jennifer
`Ocampo-Guzman, a Certified Real-Time
`Shorthand Reporter and Notary Public of
`the State of New York.
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`Viptela v. FatPipe
`IPR2017-00684
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`Page 3
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`A P P E A R A N C E S:
`
` MCGUIRE WOODS
` Attorneys for Petitioner
` 2000 McKinney Avenue
` Dallas, Texas 75201
` BY: ROBERT HILTON, ESQ.
` JASON COOK, ESQ.
`
` OBLON, McCLELLAND, MAIER & NEUSTADT
` Attorneys for Patent Owner
` 1940 Duke Street
` Alexandria, Virginia 22314
` BY: ROBERT MATTSON, ESQ.
` SAMEER GOKHALE, ESQ.
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`Viptela v. FatPipe
`IPR2017-00684
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` JUDGE ZADO: Good afternoon. This
`is Judge Zado and with me on the call
`today are Judges White and Wormmeester.
`And this is pertaining to IPR2017-00684.
` And we will just start with the
`rollcall. Who do we have on the call
`for petitioner?
` MR. HILTON: Yes, Your Honors, we
`have Robert Hilton, from McGuireWoods
`and also Jason Cook from McGuireWoods.
` JUDGE ZADO: Thank you.
` And who do we have on the call for
`the patent owner?
` MR. MATTSON: Good afternoon, Your
`Honor. This is Robert Mattson with the
`Oblon firm for patent owner. With me is
`my partner, Sameer Gokhale and we also
`have a court reporter on the line as
`well.
` JUDGE ZADO: Okay. Thank you. We
`would just ask that after this call that
`patent owner have the transcript for
`this call uploaded into the system for
`this case.
`
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`FatPipe Exhibit 2009, pg. 4
`Viptela v. FatPipe
`IPR2017-00684
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` MR. MATTSON: Certainly.
` JUDGE ZADO: Okay. Great. So the
`reason we're having this call is a
`recap. Earlier in this case we
`instituted -- we issued an order
`instituting on all challenges in this
`case, not just the challenges we
`instituted on, and for now, I just
`wanted to start with an update from the
`parties.
` We previously had a call last week
`to discuss various ways to handle our
`institution of all the claims and all
`challenges.
` And I guess we will just start with
`petitioner, as far as an update as to
`whether or not the parties want to
`jointly agree to terminate the portion
`of the proceeding we instituted on
`versus whether the parties would like to
`move forward on all of these challenges.
` MR. HILTON: Thank you, Your Honor.
`So the parties have not come to an
`agreement on this. Our position, as
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`FatPipe Exhibit 2009, pg. 5
`Viptela v. FatPipe
`IPR2017-00684
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`petitioner, is that we would be amenable
`to the board withdrawing institution of
`this IPR under 325(d), or otherwise
`dropping all of the claims of the IPR as
`long as there is not a final written
`decision on those claims.
` JUDGE ZADO: Okay. And what is
`patent owner's position on this issue?
` MR. MATTSON: Thank you. Patent
`owner prefers to go forward on all
`claims, and the reason for this is to
`have the benefit of a final written
`decision which would result in an
`estoppel.
` JUDGE ZADO: Okay. So in view of
`this, we've looked at the schedule, you
`know, the parties are aware a final
`written decision in this case under the
`12-month statutory deadline would be due
`on July 13, 2018. We have already had
`an oral hearing in this case. And so
`from last week, the question is, if we
`move forward, and we will start with
`patent owner, our understanding is that
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`FatPipe Exhibit 2009, pg. 6
`Viptela v. FatPipe
`IPR2017-00684
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`patent owner would want additional
`briefing and to file an expert
`declaration, and last week we had talked
`about patent owner would be requesting
`5,000 words for the additional
`supplemental response.
` And so patent owner, is that still
`what you would be seeking?
` MR. MATTSON: Yes, and we would
`also like to take the deposition of
`petitioner's expert. We went over that
`last week as well.
` JUDGE ZADO: Correct, yes, that's
`correct.
` And this question is for the
`petitioner's counsel. If we do grant
`patent owner 5,000 words, for a
`supplemental briefing, what would
`petitioner request be? I mean would
`petitioner want to reply to that, or
`respond to that, what is petitioner's
`position on that?
` MR. HILTON: Well, Your Honor, the
`petitioner, if we were to go forward
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`FatPipe Exhibit 2009, pg. 7
`Viptela v. FatPipe
`IPR2017-00684
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`with briefing all claims, we would want,
`you know -- you know, we would propose a
`full briefing schedule that would
`include the patent owner's response,
`petitioner's reply deposition, and we
`would also like another oral argument on
`those additional claims.
` In terms of the length, we would
`like for the briefing documents to be
`the same length as they would be in a
`regular patent owner response or
`petitioner reply, which I think is a
`little bit more than 5,000 words. I
`think it's more like 5,600.
` Just to follow up on that; that our
`preferred position would be to, you
`know, you know, to withdraw institution
`of the IPR.
` JUDGE ZADO: Okay. So -- and we do
`recognize petitioner's preference.
` But if we are to move forward on
`this, you know, a few things I wanted to
`reiterate and make clear is: First of
`all, 5,000 would be more than adequate,
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`FatPipe Exhibit 2009, pg. 8
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`IPR2017-00684
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`and we're not even sure 5,000 would be
`warranted. And the reason being is that
`the parties did already have the
`opportunity to address, address
`something that was reasonably
`substantial, and that is the following:
`We instituted on claim 6, which is a
`dependent claim, and the detention claim
`5, and because we instituted on claim 6,
`the parties, you know, already had the
`opportunity to not only brief claim 6
`but to brief independent claim 5, and so
`as an initial matter, any additional
`briefing would be limited in the sense
`that we would not permit any additional
`briefing on claim 5. It would be
`limited to, so even though we didn't
`institute on claim 5, due to this
`dependency that claim 6 has, we wouldn't
`allow additional briefing on claim 5.
` So because we are talking about the
`subset of this case, you know, to have,
`you know, 5,000, you know, 5,600 words
`as petitioner is requesting, is not
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`FatPipe Exhibit 2009, pg. 9
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`warranted. It would be something less.
`And, you know, we were thinking about,
`you know, the other thing we had
`discussed is because the final is due on
`July 13, 2018, we understand the parties
`had requested an extension to the
`statutory deadline, and if the panel
`were to grant that extension, we would
`not use the entire six months. You
`know, we would still want to complete
`this case in a fashion that is more
`efficient and provides the parties with
`a final written decision sooner than
`six months after the current deadline,
`statutory deadline.
` And so what we were looking in
`terms of a potential extension, if we
`were to offer that, was we were looking
`at potential hearing dates of the end of
`July, and we were looking at July 30th,
`July 31st and August 2nd. Those three
`dates. And what we would ask the
`parties to do after this call, is we
`would like by the end of the day for the
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`FatPipe Exhibit 2009, pg. 10
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`parties to get back to us on those three
`dates, again it's July 30th, July 31st
`and August 2nd, in Alexandria, it looks
`like the parties' counsel is either in
`Virginia or I believe one is in Texas,
`but then for that particular party, the
`other counsel is in Virginia, so we
`would most likely be looking at a
`hearing in Alexandria on one of those
`three dates.
` So please get back to us by the end
`of today, as far as which, of those
`three dates, please list all for which
`you would be available. Because that
`would be our target date for a hearing.
` And then we would work backwards
`from there to figure out due dates for
`the supplemental response, the
`supplemental patent owner response, and
`any reply by the petitioner.
` And we are looking at a schedule
`that, you know, we're not setting this
`in stone, but something that might look
`like something on the order of
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`FatPipe Exhibit 2009, pg. 11
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`four weeks per side. So patent owner
`would have four weeks for a response and
`any depositions that we would need to
`take, and petitioner would have about
`four weeks if we had a schedule like
`that, that would leave a few weeks prior
`to the hearing.
` MR. HILTON: Your Honor, this is
`petitioner's counsel. You are thinking
`roughly two weeks between the time that
`the petitioner's reply is due and then
`the oral hearing occurs?
` JUDGE ZADO: Well, yeah, it would
`be two, approximately two weeks, that's
`right.
` And so are there any questions
`about the schedule that would be along
`those lines?
` We will start with the petitioner
`and then we will ask the patent owner
`the same question.
` MR. HILTON: I guess my question
`would just be more towards the side of
`we would prefer a larger, you know,
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`FatPipe Exhibit 2009, pg. 12
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`amount of time, a greater amount of time
`to both do the briefing, get the
`depositions done, and then prepare for
`the oral hearing. I'll need to, I
`guess, confer with our backup counsel
`and client regarding those specific
`dates, but my question would be, is the
`board dead set at this point on holding
`the end of July time frame as being the
`time for the oral hearing; and then
`secondly, is the board, you know, making
`a decision at this point as to whether
`or not we would go forward with a full
`briefing as opposed to withdrawing
`institution of the IPR?
` JUDGE ZADO: Well, given that
`patent owner does not agree to that
`withdrawal, you know, it's -- I want to
`confer with my counsel -- with the
`panel, but. You know, I think given
`that there is no agreement between the
`parties, it's likely we are going to
`move forward.
` Now that said, the briefing in
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`FatPipe Exhibit 2009, pg. 13
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`terms of number of words is certainly
`going to be shorter than what would
`typically be allowed for a full patent
`owner response, because, you know, we've
`already had the full number of pages for
`briefing on the claims we did institute
`on, and as I noted, we had already an
`opportunity for full briefing on
`independent claim 5.
` There are two other independent
`claims in this case, but, you know, if
`you look at the limitations, you know,
`some of them are similar to what is in
`claim 5. And so we don't see, and we
`haven't heard a reason why it would be
`warranted to have, you know,
`5,600 words, and as I said, we're not
`even completely sure 5,000 words is
`warranted in light of these
`circumstances.
` And so, you know, even though this
`schedule would be four weeks per side,
`you know, this is really going to be
`just in terms of the number of words
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`FatPipe Exhibit 2009, pg. 14
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`allowed, it's going to be smaller and,
`you know, we also want to note that we
`already, on the claims we did not
`institute on in this case, we already
`not only instituted but have a final
`written decision on those exact same
`claims of this patent in another IPR
`proceeding, and we also wanted to note
`that the petition in this case
`essentially was the same as the petition
`in the other case, where we've issued a
`final. And the same prior art, the same
`challenges, the same grounds are in that
`other petition, and it's almost a copy
`in this case verbatim of the petitioner
`in the other case. And so these are not
`necessarily completely new issues.
`There was a patent owner response in the
`other case on all of these claims, and
`as I said, we also have a final decision
`finding all of those claims
`unpatentable.
` And so at this point we don't see
`why more time is warranted. We don't
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`FatPipe Exhibit 2009, pg. 15
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`see why more words would be warranted
`after the patent owner's supplemental in
`this case. You know, if for some reason
`petitioner believes it's warranted we
`could revisit that. But at this point,
`frankly, we're not just seeing why it
`would be warranted.
` MR. HILTON: Okay. Thank you, Your
`Honor.
` JUDGE ZADO: Yes. And so for now,
`as I said, what we're asking the parties
`to do is today, it doesn't have to be
`close of business necessarily, because I
`realize it's on the East Coast already
`2:45 but today. So that by the end of
`today, if the parties, we ask that the
`parties please get back to us on the
`dates July 30th, July 31st, and
`August 2nd for hearing dates, so that
`way by tomorrow morning, we will all
`have those answers.
` I want to briefly confer with the
`panel so we're just going to put you on
`hold, just to see whether there was
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`FatPipe Exhibit 2009, pg. 16
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`anything else we wanted to cover. But I
`will come back to the parties to see if
`there anything else they would like to
`cover on this call. But first I would
`like to confer with the panel, so we
`will go ahead and put you on hold for a
`moment.
` (A brief recess was taken.)
` JUDGE ZADO: So we don't have any
`other issues from the panel.
` But where we stand now is that we
`intend to move forward with the briefing
`schedule and we would -- we will issue
`within the next day or two a scheduling
`order for the briefing, which would
`indicate the dates of the briefing, and
`the page or word limits, whether it's
`pages or words, but it will indicate
`limits.
` And so with that, before we
`adjourn, do we have any further
`questions from petitioner?
` MR. HILTON: No further questions
`from Petitioner, Your Honor.
`
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`FatPipe Exhibit 2009, pg. 17
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` JUDGE ZADO: Okay. Thank you.
` And do we have any further
`questions from patent owner?
` MR. MATTSON: None from patent
`owner. Thank you.
` JUDGE ZADO: Thank you for your
`time today, and with that we will
`adjourn. Thank you.
` (Time noted: 2:49 p.m.)
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`FatPipe Exhibit 2009, pg. 18
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`C E R T I F I C A T E
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`)
`
`)
`
`I, Jennifer Ocampo—Guzman, a
`
`Notary Public within and for the State
`
`of New York, do hereby certify that the
`
`within is a true and accurate
`
`transcript of the telephonic
`
`proceedings taken on May 22, 2018.
`
`I further certify that I am not
`
`related to any of the parties to this
`
`action by blood or marriage and that I
`
`am in no way interested in the outcome
`
`of this matter.
`
`IN WITNESS WHEREOF,
`
`I have
`
`hereunto set my hand this 25th day of
`
`May, 2018.
`
`W
`
`JENNIFER OCAMPO-GUZMAN, CRR, CLR
`
`TSG Reporting - Worldwide
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`877-702-9580
`
`FatPipe Exhibit 2009, pg. 19
`Viptela v. FatPipe
`|PR20T100684
`
`FatPipe Exhibit 2009, pg. 19
`Viptela v. FatPipe
`IPR2017-00684
`
`
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