Paper No. __
`Filed: August 14, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
`v.
`DANIEL L. FLAMM,
`Patent Owner
`____________________
`Case No. IPR2017-01750
`Patent No. RE40,264E
`____________________
`REPLY TO PARTIAL OPPOSITION TO
`PETITIONER’S MOTION FOR JOINDER
`
`
`
`
`
`
`Filed: August 14, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
`v.
`DANIEL L. FLAMM,
`Patent Owner
`____________________
`Case No. IPR2017-01750
`Patent No. RE40,264E
`____________________
`REPLY TO PARTIAL OPPOSITION TO
`PETITIONER’S MOTION FOR JOINDER
`
`
`
`
`
`
`
`Case IPR2017-01750
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`Samsung Electronics Co., Ltd. (“Petitioner” or “Samsung”) submitted a
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`Motion for Joinder (“the Samsung Motion”), concurrently with a Petition for Inter
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`Partes Review (“the Samsung Petition”) of U.S. Patent No. RE40,264E (“the ’264
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`patent”), seeking joinder with Intel Corp. et al v. Daniel L. Flamm, IPR2017-
`
`00280 (“the Intel IPR” or “the Intel proceeding”), which the Board instituted on
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`June 13, 2017. Patent Owner did not file a response to Samsung’s Motion. The
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`petitioners in the Intel IPR, i.e., Intel Corporation, Micron Technology, Inc., and
`
`GLOBALFOUNDRIES U.S. Inc. (jointly the “Intel Petitioners”) submitted a
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`partial opposition to Samsung’s Motion. (Paper No. 7, “Intel Opposition.”) This
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`paper responds to the Intel Opposition. For the reasons indicated below,
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`Samsung’s Motion should be granted.
`
`The Intel Petitioners “do not object to joinder” so long as Samsung’s role in
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`the joined proceedings is limited to a truly “passive role” but they do object if
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`Samsung’s joinder goes beyond such a role. They also raise the possibility of an
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`illusion of privity between the Intel Petitioners and Samsung. (See generally
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`Opposition.) These concerns are unfounded.
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`For instance, the Intel Petitioners contend that Samsung seeks to have filings
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`coordinated with the Intel Petitioners or seeks some deposition time. (Opposition
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`at 3-4.) This, according to the Intel Petitioners, would create “additional and
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`unnecessary work” for the Intel Petitioners and also gives Samsung an active role
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`Case IPR2017-01750
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`in the proceeding. (Id.) These concerns are overstated because Samsung explicitly
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`agreed to take an “understudy” role until the Intel Petitioners cease participation in
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`this proceeding. (See Samsung Motion at 6-8.) The consolidation of filings as
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`referenced in Samsung’s Motion simply refers to the fact that any paper filed by
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`the Petitioners (including Samsung, if joined) that relates to issues common to all
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`Petitioners will be filed as a consolidated filing. Moreover, the reference to
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`deposition time in Samsung’s Motion was not a request for deposition time but
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`simply an agreement to conditions set forth in other Board decisions. (Id. at 7,
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`citing Noven Pharmaceuticals, Inc. v. Novartis AG et al., IPR2014-00550, Paper
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`No. 38 at 5 (Apr. 10, 2015).)1 Through its motion, Samsung seeks no more than
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`what the Board has allowed in similar situations. (See generally Motion.)
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`The Intel Petitioners’ final concern relates to the potential appearance of
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`privity between the Intel Petitioners and Samsung if the Intel Petitioners were
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`somehow forced to coordinate with Samsung in this proceeding. (Opposition at 4-
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`5.) But the Intel Petitioners seem to acknowledge Samsung’s joinder does not
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`1 Regardless, the Board has allowed petitioners like Samsung to receive deposition
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`time under certain conditions. See, e.g., Dell, Inc. v. Network-1 Sec. Sols., Inc.,
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`IPR2013-00385, Paper No. 17 (July 29, 2013) (granting Dell, which was the party
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`seeking joinder, deposition time after the original Petitioner completed its
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`examination).
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`Case IPR2017-01750
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`result in any such relationship. (Id. at 5.) Indeed, this concern is entirely
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`unfounded, especially given Patent Owner did not file an opposition to Samsung’s
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`Motion, much less raise any potential privity issues.
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`Even though the concerns that the Intel Petitioners have raised in their
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`opposition lack merit, Samsung further agrees to the following conditions (and any
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`other reasonable conditions the Board deems necessary) to alleviate any concerns
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`raised in the Intel Opposition. Specifically, Samsung agrees that until the Intel
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`Petitioners otherwise agree or cease participation in the proceeding:
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`(1) Samsung will not participate in any filings or discovery unless the filing
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`or discovery involves an issue solely relating to Samsung; and
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`(2) Samsung will not present oral argument unless oral argument concerns
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`an issue solely relating to Samsung.
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`Again, Samsung seeks no more rights with its motion than what the Board
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`has provided for in other similar situations and is willing to agree to any reasonable
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`conditions the Board deems appropriate. As such, Samsung respectfully requests
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`that the Board grant its motion and join it to the Intel IPR.
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`Dated: August 14, 2017
`
`
`
`Respectfully submitted,
`By: /Naveen Modi/
`Naveen Modi (Reg. No. 46,224)
`Counsel for Petitioner Samsung
`
`
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`Case IPR2017-01750
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 14, 2017, a copy of the foregoing REPLY
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`TO PARTIAL OPPOSITION TO PETITIONER’S MOTION FOR JOINDER was
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`served by electronic means on Patent Owner’s counsel at the following
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`correspondence address of record:
`
`Christopher Frerking (chris@ntknet.com)
`174 Rumford Street
`Concord, NH 03301
`
`Rolf O. Stadheim (stadheim@stadheimgrear.com)
`7689 E. Paradise Ln, Suite 2
`Scottsdale, AZ 85260
`
`A copy of the reply was also served via electronic mail on the following
`
`counsel for Petitioners in IPR2017-00280:
`
`Jeremy Jason Lang
`Jared Bobrow
`WEIL, GOTSHAL & MANGES LLP
`jason.lang@weil.com
`jared.bobrow@weil.com
`micron.flamm.service@weil.com
`
`Chad Campbell
`Jonathan McFarland
`Tyler Bowen
`Daniel Keese
`PERKINS COIE LLP
`Intel-Flamm-Service-IPR@perkinscoie.com
`CSCampbell@perkinscoie.com
`jmcfarland@perkinscoie.com
`tbowen@perkinscoie.com
`dkeese@perkinscoie.com
`
`1
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`Case IPR2017-01750
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`David M. Tennant
`Nathan Zhang
`WHITE & CASE LLP
`dtennant@whitecase.com
`nathan.zhang@whitecase.com
`WCGlobalFoundries-FlammTeam@whitecase.com
`
`
`
`By: /Naveen Modi/
`Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner Samsung
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`2
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