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`Paper No. ___
`Filed: September 29, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`—————————————————
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`APPLE INC.,
`Petitioner,
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`v.
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`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
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`—————————————————
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`Case IPR2017-00700
`Patent 7,421,032
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`—————————————————
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION TO
`SUBMIT SUPPLEMENTAL INFORMATION
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`Case IPR2017-00700
`Patent 7,421,032
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`I.
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`INTRODUCTION
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`On September 22, 2017, Apple, Inc. (“Petitioner”) filed a Motion to Submit
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`Supplemental Information under 37 C.F.R. §§ 42.123 and 42.5 (Paper 21)
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`(“Motion”). Petitioner seeks to introduce 15 exhibits that were previously served
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`on Patent Owner as Supplemental Evidence. Patent Owner California Institute of
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`Technology (“Caltech”) opposes Petitioner’s motion.
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`Rule 123(a) applies to requests made within one month of institution. Rule
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`123(b) applies to requests made later than one month from institution. The present
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`case presents the latter scenario. Petitioner does not meet the higher threshold
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`showing required under Rule 123(b), nor could it as there is no reasonable excuse
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`for its delay. Petitioner admits as much by requesting a waiver of the rules
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`governing submission of supplemental information. The motion should be denied
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`on that basis, as Petitioner cannot show its unexplained delay should be excused.
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`Further, the Motion should also be denied for reasons extending beyond the
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`timeliness issue to the merits of the supplemental information request. The
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`requested supplemental evidence relates to purported publication of the Frey and
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`Divsalar references. Petitioner was already given one chance to modify the
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`evidence relied upon in the petition on these issues when it was allowed to enter
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`substitute exhibits prior to institution. See Papers 10, 12. Now, Petitioner seeks a
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`third opportunity to present evidence that should have been included in the
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`petition. This is remarkable considering Petitioner recycled previous petitions
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`where the public availability of Frey and Divsalar was at issue.
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`What’s more, Petitioner makes clear that the new evidence is intended to
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`shift the case away from the grounds presented in the petition by presenting a
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`myriad of possible publication dates. To begin with, Frey is not a reference
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`asserted in any instituted ground. Furthermore, as discussed below, the petition
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`made no effort to argue, much less substantiate, any particular date of publication
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`for Frey.1 Yet the Motion asserts that the various exhibits in the requested
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`supplemental information demonstrate publication in February 2000, January
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`2000, October 1999, or even the year 1999 generally. As such, these exhibits are
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`not only internally contradictory so as to create an evidentiary mess, but irrelevant
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`to the March 20, 2000 date stated in Petitioner’s exhibit list and the Motion.
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`Finally, Petitioner has candidly acknowledged that it is attempting to
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`preempt potential arguments in the Patent Owner Response. Petitioner expressly
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`stated in the July 26, 2017 conference call with the Board its concern that Caltech
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`1 The table of exhibits lists a date of March 20, 2000, but no argument or
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`explanation is provided.
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`might attempt to antedate the alleged March 20, 2000 publication date asserted
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`regarding Frey. 2 However, submitting supplemental information as a vehicle to
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`preempt a possible position the Patent Owner may take is impermissible.
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`Medtronic, Inc. v. Endotach LLC, IPR2014-00100, Paper 18 at 4 (Apr. 21, 2014)
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`(“[S]upplemental information . . . to respond to a possible position that another
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`party may take in the future is improper.”). Presenting publication dates as moving
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`targets with evolving theories of unpatentability is prejudicial to Caltech, is
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`improper use of supplemental information, and should be denied.
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`II. LEGAL STANDARD
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`Even if the requirements of 37 C.F.R. § 42.123(a) for filing the motion are
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`satisfied, the Board is not required to grant the motion. Redline Detection, LLC v.
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`Star Envirotech, Inc., 811 F.3d 435, 445 (Fed. Cir. 2015). Instead, the “guiding
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`principle” for the Board is to “ensure efficient administration of the Office and the
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`ability of the Office to complete IPR proceedings in a timely manner.” Id.
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`The Board has denied supplementation proffered to change the evidence
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`presented in the petition, or to “bolster” a challenge based on feedback gleaned
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`2 That call involved IPR2017-00210 and -00219.
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`from the institution decision. Mitsubishi Plastics, Inc. v. Celgard, LLC, IPR2014-
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`00524, Paper 30 at 5-6 (Nov. 28, 2014); Redline Detection, LLC v. Star
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`Envirotech, Inc., IPR2013-00106, Paper 24 at 4 (Aug. 5, 2013), aff’d, 811 F.3d
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`435 (Fed. Cir. 2015)).
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`The use of supplemental information as a vehicle to reply to arguments
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`made in a preliminary response or as an attempt to preempt possible arguments a
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`Patent Owner might take during trial is not permitted either. VTech Commc’ns, Inc.
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`v. Spherix Inc., IPR2014-01432, Paper 12 at 3 (, Jan. 21, 2015); see also
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`Medtronic, IPR2014-00100, Paper 18 at 4 (Apr. 21, 2014).
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`III. PROCEDURAL HISTORY
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`Petitioner’s motion for supplemental information represents its third attempt
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`to provide support for its grounds of unpatentability. See Motion at 11; Paper 10.
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`The petition materials initially relied upon a draft version of the Frey paper
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`allegedly distributed over the Internet—a theory previously rejected by the Board.
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`See Ex. 1010 (original); see also Hughes Communications, Inc. v. California
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`Institute of Technology (IPR2015-00067, “Hughes”), Paper 18 at 8-11. As to
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`Divsalar, the petition relies on the Declaration of Robin Fradenburgh (Ex. 1019),
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`recycled from the Hughes case, to allege public accessibility of the reference.
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`Prior to institution, the Petitioner requested permission to replace certain
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`exhibits including Frey and Divsalar with new exhibits, and filed a motion to that
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`effect. Paper 10. The Board granted the motion. The newly-submitted evidence
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`included a copy of Frey (Ex. 1010, replacement) which the Motion now argues was
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`published on March 20, 2000 based on a library stamp in the document. The
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`original copy of the Divsalar exhibit was also replaced (Ex. 1017, replacement).
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`On July 26, 2017, the Board held a conference call to discuss Petitioner’s
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`request to submit the same supplemental information in IPR2017-00210 and
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`IPR2017-00219. During the call, Petitioner admitted that it intended to submit Exs.
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`1027–1041 as supplemental information at least in part because it anticipated that
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`Patent Owner would show that the claimed invention was invented prior to the
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`alleged March 20, 2000 publication date of Frey. Over six weeks later, and more
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`than one month after trial was instituted in this proceeding, Petitioner requested the
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`same supplemental information in this proceeding. Petitioner’s Motion followed.
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`IV. ARGUMENT
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`A. Petitioner’s Request to Waive the Requirements for Submission of
`Supplemental Information Improperly Circumvents Rule 123(b)
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`It is undisputed that Petitioner has not satisfied the requirements of 37
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`C.F.R. § 42.123 for submission of supplemental information. Petitioner’s request
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`for authorization to file its Motion was not made within one month of institution so
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`Petitioner did not satisfy Rule 123(a). Moreover, Petitioner makes no attempt to
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`argue that “the supplemental information reasonably could not have been obtained
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`earlier,” so submission under Rule 123(b) is likewise improper. Petitioner’s motion
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`should be denied for failure to satisfy either Rule 123(a) or Rule 123(b).
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`Rather than argue that its request fits the framework laid out in the rules on
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`submission of supplemental information, Petitioner seeks a waiver granting it an
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`exemption from the rules. No such exemption is merited. Petitioner was on notice
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`that Caltech contests the prior art status of Frey and Divsalar even before it filed
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`the petition in this proceeding, by virtue of the publicly available record of the
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`Hughes case. The Board already gave Petitioner the opportunity to attempt to
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`remedy its evidentiary deficiencies once when it granted its motion to submit
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`replacement exhibits. Petitioner was in possession of the supplemental information
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`weeks before the institution decision in this case. Motion at 1 (describing service
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`on July 14, 2017 in other proceedings). In view of this, Petitioner’s delay in
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`making its request for supplemental information is inexcusable.
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`Petitioner argument that good cause exists to grant the requested waiver is
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`an attempted circumvention of Rule 123(b) and should be rejected. Petitioner
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`makes no attempt to explain its delay other than an unexplained assertion that it
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`“inadvertently missed the deadline.” Motion at 2. This does not constitute good
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`cause, let alone satisfy the “interests-of-justice” standard recited in Rule 123(b).
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`Nor does its argument that the waiver is necessary to maintain consistency with
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`other IPRs involving the ’032 patent. As explained in the sections below, the
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`proper way for the Board to achieve consistency is by denying Petitioner’s
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`supplemental information motions in all proceedings. Beyond that, to the extent
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`there is any risk of the Board reaching different results in different cases it is
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`entirely of Petitioner’s own doing. Petitioner chose to file multiple petitions, and it
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`was in Petitioner’s own power to comply with the requirements of Rule 123 in
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`each case. That its failure to do so might lead to different records in each case does
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`not create a risk of an “arbitrary” result, as Petitioner bears the burden of
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`demonstrating unpatentability in each proceeding, and of creating a record in
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`compliance with Board rules to satisfy that burden. Rather, Petitioner through its
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`waiver request seeks an arbitrary result that would undermine consistent
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`application of the Board’s rules.
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`Petitioner’s argument that waiver would be in the interest of justice also
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`should not persuade the Board to grant the requested exemption. Petitioner had
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`possession of the documents at issue weeks before institution and yet failed to
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`timely request authorization to submit them. Nothing prevented Petitioner from
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`making the request promptly after the institution decision, in view of the fact that it
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`had already made a similar request in other proceedings on a related patent.
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`Petitioner’s delay has prejudiced, and continues to prejudice, Caltech. We are now
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`more than halfway through the period for preparing the Patent Owner Response
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`and uncertainty still looms over whether these documents will be admitted to the
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`record. On the other hand, any prejudice to Petitioner that would result from
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`denying the motion is entirely of its own doing in view of its repeated efforts to
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`supplement its petition case and delay in requesting the Motion. Similarly,
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`Petitioner’s attempt to blame Caltech for the delay is misplaced, as nothing
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`prevented Petitioner from raising the issue with the Board in a timely manner and
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`stating that Caltech had not yet provided its position.
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`Finally, the cases cited by Petitioner do not support its waiver request.
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`Petitioner cites decisions granting a request for late filing due to technical
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`difficulties with the PTAB electronic filing system. See Valeo N. Am. Inc. et al. v.
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`Schaeffler Techs. AG & Co. KG, IPR2016-00502, Paper 46 (Aug. 7, 2017); H&S
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`Mfg. Co., Inc. v. Oxbo Int’l Corp., IPR2016-00960, Paper 8 (Dec. 7, 2016);
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`Universal Remote Control, Inc. v. Universal Elecs., Inc., IPR2014-01102, Paper 26
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`(July 6, 2015). That is not the case here, where Petitioner simply failed to email its
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`request to the Board in a timely manner. Petitioner’s support for waiving the
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`requirements of § 42.123(b) is similarly misplaced, as the two cited cases involve
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`an instance where “the record indicates that Petitioner made continuous attempts to
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`obtain the [supplemental] information,” and a case where the sole requested
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`supplemental exhibit was a replacement declaration in which “none of the
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`substantive testimony is altered, and no new substantive testimony is added.”
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`Biomarin Pharm. Inc. v. Genzyme Therapeutic Prods. Ltd. P’ship, IPR2013-
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`00534, Paper 80 at 5-6 (Jan. 7, 2015); Gen. Elec. Co. v. Univ. of Virginia Patent
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`Found., IPR2016-00357, Paper 51 at 4 (Feb. 21, 2017). Again, the circumstances
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`here are quite different, where Petitioner seeks to add fifteen new exhibits
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`including multiple declarations, and had the information in hand long before the
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`time for making its request expired.
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`For these reasons, Petitioner’s request for a waiver from the requirements of
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`37 C.F.R. §§ 42.123(a)-(b) should be rejected and its Motion denied on that basis.
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`B. Petitioner Has Failed to Demonstrate That Exhibits 1027–1041
`Are Relevant to an Instituted Claim
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`Beyond the timeliness issue, Petitioner’s motion should also be denied on its
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`merits. The exhibits submitted by Petitioner are confusing, duplicative, and contain
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`speculation and hearsay. Furthermore, they fail to support the specific allegations
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`made in the petition regarding the publication date of Divsalar. As to Frey, as an
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`initial matter, Petitioner made no effort in the petition to demonstrate that Frey
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`qualifies as a prior art printed publication. See, e.g., Paper 5 at 20, 40. The Motion
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`is a belated attempt to fix that flaw. Beyond that, the proposed supplemental
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`evidence fails to support the March 20, 2000 date now asserted. Petitioner’s
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`motion promises to turn the present proceeding into an evidentiary morass.
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`Exs. 1027-1030: Exhibits 1027 and 1028 are identified as library records
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`that allegedly show a 1999 date of publication for the conference proceedings
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`containing Frey. Motion at 5. Petitioner relies on the declaration of Theodore Fons
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`(Ex. 1030) in support. These documents are irrelevant to the March 20, 2000 date
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`asserted in the Motion, but are an improper attempt to materially alter the petition
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`theory and preempt an argument Petitioner believes Caltech may make later.
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`Exhibits 1027, 1028 and 1030 additionally create confusion rather than any
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`clarity, and will waste Caltech and Board resources. For example, in his
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`declaration, Mr. Fons observes that the date “1999” was entered into a field by
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`WorldCat, and possibly copied by JPL at an unknown later date. Ex. 1030, ¶21.
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`Mr. Fons offers conjecture as to the thoughts of unknown cataloguers but concedes
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`a “date was not present in place where imprint information is normally found and
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`used for cataloging.” Ex. 1030, ¶19. However, this opinion is speculation on the
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`part of Mr. Fons and hearsay. Indeed, the simplest explanation is that the “1999” in
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`the date field reflects the conference date, at which Frey gave a presentation but no
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`paper was distributed (it is uncontested that no Frey paper was distributed at the
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`conference, as Dr. Frey previously testified). Moreover, an alleged 1999
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`publication date for Frey contradicts other arguments and evidence relied on by
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`Petitioner. See, e.g., Motion at 7 (arguing that Ex. 1038 shows the 1999
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`Proceedings were not shipped to the Allerton hosts before late February, 2000).
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`Exhibit 1029 is a library record from WorldCat allegedly showing that the
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`conference proceedings containing Divsalar were published in June of 1999. First,
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`this is irrelevant to the Fradenburgh declaration’s alleged publication at the
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`University of Texas, or the asserted April 30, 1999 public accessibility case as
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`stated in the petition. Second, the petition asserts Divsalar solely as 102(b) prior art
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`based on the asserted April 30, 1999 date. Pet. at 34-35. However, Ex. 1029 serves
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`as an implicit acknowledgment by Petitioner that the unpatentability case as stated
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`in the petition was not sufficiently substantiated. That does not permit Petitioner,
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`however, to use supplemental information to advance an alternate theory.
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`Ex. 1031: Exhibit 1031, the affidavit of Pamela Stansbury, is the sole piece
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`of evidence provided by Petitioner that actually discusses the alleged March 20,
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`2000 publication of Frey. However, Petitioner has failed to sufficiently explain
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`why this testimony was not provided either with the original petition, or when
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`changing the exhibits after filing. Petitioner should not be permitted to change the
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`evidence and have yet another attempt to substantiate unsupported assertions made
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`in the exhibits list, but omitted from the petition.
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`Exs. 1032–1035: Exhibits 1032–1034 are declarations by three Allerton
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`conference chairs and Exhibit 1035 is a declaration by Brendon Frey. The
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`conference chairs’ declarations speculate, roughly 20 years later, as to expected
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`“timelines associated with the 36th and 37th Allerton Conferences.” Motion at 6-7.
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`Not one of the four witnesses, however, purports to have actual knowledge specific
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`to the actual alleged publication of the 37th Proceedings. Instead, each repeats the
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`same speculation about when the Proceedings might have been shipped.
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`Dr. Frey’s declaration (Ex. 1035) adds significant confusion, and is not
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`relevant to the Cornell library stamp on Frey or the instituted ground as it discusses
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`a different alleged publication than the identified March 20, 2000 date. Dr. Frey
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`reverts to a different theory compared to what is relied on in the petition—the
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`alleged internet posting of the draft version of Frey. For example, Dr. Frey
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`discusses the alleged posting of the electronic draft Frey paper on Dr. MacKay’s
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`website. See Ex. 1035, ¶¶17-18. Moreover, Petitioner disavowed that draft Frey
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`paper and pled for relief by arguing that filing the draft Frey paper was a clerical
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`error due to an associate not following instructions. Paper 10 at 4. Petitioner should
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`not be allowed to reintroduce the admittedly erroneous document, and advance a
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`different and previously rejected theory, after trial has been instituted. Moreover,
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`Petitioner should not be allowed to circumvent the standards for gaining institution
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`(and avoid 325(d) arguments) through a supplemental information submission.
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`Ex. 1036: Exhibit 1036, the Allerton website from 1999, is not relevant to
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`the date of publication of the Frey paper. The only basis for relevance suggested is
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`that Ex. 1036 lists a due date (September 24) for papers. However, this does not
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`indicate a date of publication. Indeed, its relevance is further undermined by the
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`testimony of Dr. Frey that he finished his paper on September 29 and submitted it
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`“within a couple of weeks of that.” Ex. 1035, ¶17.
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`Exs. 1037 and 1038: Both documents address Frey but are irrelevant to the
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`Motion’s theory. Exhibit 1037 is an email dated December 8, 1999. The email
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`relates only to the placing of an order for future publication and speculations of the
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`Allerton conference chairs regarding how long after that date printed copies of the
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`conference proceedings might have been shipped.
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`Exhibit 1038 is allegedly “a bill of lading for the 37th Annual Allerton
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`Conference Proceedings with a ship date of February 21, 2000.” However, no
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`witness has authenticated this exhibit—only unsubstantiated attorney argument is
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`provided. There is no indication how a shipment could have been made on a
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`federal holiday, no indication of a date when this alleged shipment was received is
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`present on the form, nor does it indicate how much time would have passed
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`between any request and subsequent mailing to the public.
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`Exs. 1039 and 1040: Exhibits 1039 and 1040 each contain testimony from
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`the Hughes litigation and are irrelevant here. Petitioner relies on Ex. 1039 as
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`allegedly showing that the deponent in that case, Dr. Wicker, was “reasonably sure
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`that the irregular turbo codes paper, Frey ’99, was indeed published as part of the
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`proceedings of the Allerton conference.” Motion at 9 (citing Ex. 1039 at 157:2–5).
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`However, Dr. Frey concedes that the paper was not published at the conference.
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`Ex. 1035, ¶ 17. Moreover, the exhibits are irrelevant to the March 20, 2000 date.
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`Petitioner relies on Ex. 1040 as allegedly demonstrating that “Dr. Urbanke
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`suggested that people in the field were looking at Divsalar in 1999.” Motion at 9
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`(citing Ex. 1040 at 168:4–21). First, this extrinsic deposition of a different witness
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`is irrelevant to the Fradenburgh testimony relied on in the petition as allegedly
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`demonstrating publication and related issues raised in the preliminary response.
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`Additionally, Petitioner improperly characterizes the cited testimony. It is the
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`attorney taking the deposition, not Dr. Urbanke, who discusses the Divsalar paper.
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`Given the voluminous content of this deposition transcript (383 pages) and
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`Petitioner’s mischaracterization of Dr. Urbanke’s testimony, submission as
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`supplemental information should be denied.
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`Ex. 1041: Exhibit 1041 is irrelevant to the asserted March 20, 2000 date and
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`provides no contemporaneous evidence regarding Frey’s publication as it is a copy
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`of a book published in 2014. Ex. 1041 at 4. Motion at 9. Moreover, as Petitioner
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`admits, the book describes 1999 as the date of some presentation, not publication
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`of a paper. Id., Ex. 1041 at 36. And the book adds confusion rather than clarity as
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`the dates cited in the book are internally inconsistent. Ex. 1041 at 68 (ref. 4).
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`C. Petitioner Should Not Be Allowed a Third Reformulation
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`Petitioner chose not to previously submit any of the evidence it now seeks to
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`introduce. Given the unique history of the present case, including the previous
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`Hughes cases and the fact that this petitioner was already granted the extraordinary
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`relief of replacing its petition documents with different ones, the Board should
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`decline to exercise its discretion in allowing yet another attempt to address issues
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`that should have been identified and addressed previously. Allowing the petitioner
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`multiple opportunities to supplement, and even alter, its petition case long after the
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`petition filing is inefficient, wastes resources, is prejudicial to Caltech, and is
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`contrary to the “guiding principle” for the Board to “ensure efficient administration
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`of the Office and the ability of the Office to complete IPR proceedings in a timely
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`manner.” Redline Detection, 811 F.3d at 435.
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`D. The Motion is an Improper Vehicle to Change the Petition’s
`Alleged Dates of Publication
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`Exs. 1027-1041 are irrelevant to the asserted March 20, 2000 publication
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`date for Frey. Petitioner has admitted that its purposes in submitting these exhibits
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`include an attempt to head off a potential argument by Caltech of prior invention.
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`See Section III, supra (discussing July 26, 2017 call). This represents improper use
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`of supplemental information to modify arguments made in the petition. Medtronic,
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`IPR2014-00100, Paper 18 at 4; see also Intelligent Bio-Systems, Inc. v. Illumina
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`Cambridge Ltd., 821 F.3d 1359, 1369 (“[T]he expedited nature of IPRs bring[s]
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`with it an obligation for petitioners to make their case in their petition.”). The
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`Board should deny use of supplemental information for such purposes.
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`V. CONCLUSION
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`For the reasons described above, the Board should deny Petitioner’s Motion.
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`Date: September 29, 2017
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`Respectfully submitted,
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`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
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`CERTIFICATE OF SERVICE
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`I certify that the foregoing Patent Owner’s Opposition to Petitioner’s Motion
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`to Submit Supplemental Information was served on this 29th day of September,
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`2017, on the Petitioner at the correspondence address of the Petitioner as follows:
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`Richard Goldenberg
`Brian M. Seeve
`Dominic Massa
`Michael H. Smith
`WILMER CUTLER PICKERING HALE AND DORR LLP
`60 State Street
`Boston, MA 02109
`richard.goldenberg@wilmerhale.com
`brian.seeve@wilmerhale.com
`dominic.massa@wilmerhale.com
`michaelh.smith@wilmerhale.com
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`Date: September 29, 2017
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`Respectfully submitted,
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`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
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