699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`2. Kiyohara transfers packet data to the “destination” without the
`host processing network layer or transport layer headers
`
`3. Kiyohara’s data storage area is on the host
`
`4.
`
`Information in Kiyohara’s data storage area is controlled by the
`application
`
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`148
`
`
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`2. Kiyohara transfers packet data to the “destination” without the
`host processing network layer or transport layer headers
`
`3. Kiyohara’s data storage area is on the host
`
`4.
`
`Information in Kiyohara’s data storage area is controlled by the
`application
`
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`148
`
`
`
`PO argues that Kiyohara transfers the
`headers and the data to the “destination”
`
`“…transferring the data to the destination, without transferring the network layer
`headers or the transport layer headers of the plurality of packets to the destination…”
`
`PO argues that Fig. 16 shows
`that the data storage area and
`the header storage area are on
`the same physical memory and
`are stored sequentially (address
`An, An-1, An-2, etc.).
`
`Paper 15 (POR) at 15-17.
`
`Ex. 1089 (Kiyohara) at Fig. 16.
`
`Demonstrative Exhibit – Not Evidence
`
`149
`
`
`
`“Destination” does not require a
`separate physical memory
`
`Ex. 1001 (699 Patent) at Claim 7; see also id. at Claims 1 and 13; Paper 29 (Reply) at 4.
`
`Demonstrative Exhibit – Not Evidence
`
`150
`
`
`
`Kiyohara’s header portions and data
`portions are stored in different areas
`
`Ex. 1089 (Kiyohara) at 17:18-25; Paper 1 (Petition) at 44, 61;
`Ex.1003 (Horst Decl.) at A-13; Paper 29 (Reply) at 4-8.
`
`Demonstrative Exhibit – Not Evidence
`
`151
`
`
`
`Kiyohara’s header portions and data
`portions are stored in different areas
`
`The data storage area 71 is the
`“destination”, which only contains data
`
`Demonstrative Exhibit – Not Evidence
`
`Ex. 1089 (Kiyohara) at Figs. 16, 18;
`Ex.1003 (Horst Decl.) at 57-58;
`Paper 29 (Reply) at 4-8.
`
`152
`
`
`
`Only the data portions of Kiyohara’s packets
`are stored sequentially in the memory
`
`Ex. 1089 (Kiyohara) at Figs. 16, 18, 15:20-25, 17:32-44;
`Ex.1003 (Horst Decl.) at 57-58; Paper 29 (Reply) at 4-6.
`
`Demonstrative Exhibit – Not Evidence
`
`153
`
`
`
`Dr. Horst: Addresses An-1, An-2 are for layers n-1,
`n-2, not relative locations of the addresses
`
`Ex. 1089 (Kiyohara) at Fig. 16; Ex. 1425 (Horst Dep.) at 37:9-15;
`Paper 29 (Reply) at 7.
`
`Demonstrative Exhibit – Not Evidence
`
`154
`
`
`
`699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`2. Kiyohara transfers packet data to the “destination”
`without the host processing network layer or transport
`layer headers
`a. Kiyohara discloses offloading processing of network and
`transport layers to a network coprocessor on an intelligent
`board
`
`b. Kiyohara’s host does not process the network or transport
`headers
`
`3. Kiyohara’s data storage area is on the host
`
`4.
`
`Information in Kiyohara’s data storage area is controlled by the
`application
`
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`155
`
`
`
`Petitioner’s disclosures all concern the third
`embodiment
`
`Ex. 1089 (Kiyohara) at 20:4-9;
`Paper 29 (Reply) at 2, 8.
`
`Demonstrative Exhibit – Not Evidence
`
`156
`
`
`
`Kiyohara explains how its intelligent board
`system processes received packets
`
`“…transferring the data to the
`destination…without processing the
`network layer headers or the transport
`layer headers by the computer.”
`
`Ex. 1089 (Kiyohara) at 17:52-18:2, Fig. 24; Paper 1;
`Paper 29 (Reply) at 2-3, 8-10; see also (Petition) at 36-45; Ex.1003 (Horst Decl.) at 51-59.
`
`Demonstrative Exhibit – Not Evidence
`
`157
`
`
`
`Dr. Horst explained what is depicted in
`Figure 24 of Kiyohara
`
`Ex. 1425 (Horst Dep.) at 30:13-19;
`Paper 29 (Reply) at 2.
`
`Demonstrative Exhibit – Not Evidence
`
`158
`
`
`
`699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`2. Kiyohara transfers packet data to the “destination”
`without the host processing network layer or transport
`layer headers
`a. Kiyohara discloses offloading processing of network and
`transport layers to a network coprocessor on an intelligent
`board
`
`b. Kiyohara’s host does not process the network or transport
`headers
`
`3. Kiyohara’s data storage area is on the host
`
`4.
`
`Information in Kiyohara’s data storage area is controlled by the
`application
`
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`159
`
`
`
`PO relies on Kiyohara’s description of Figs. 20A and
`20B as allegedly showing the host performs all
`header processing
`
`Paper 15 (POR) at 22.
`
`Demonstrative Exhibit – Not Evidence
`
`160
`
`
`
`Kiyohara’s Figs. 20A and 20B are for
`transmission; Figs. 22A and 22B are for reception
`
`Neither disclose the host performing all protocol processing
`
`Ex. 1089 (Kiyohara) at Figs. 20, 22; Paper 29 (Reply) at 10.
`Demonstrative Exhibit – Not Evidence
`
`161
`
`
`
`Kiyohara bypasses protocol processing
`for layers that have expected headers
`
`Ex. 1089 (Kiyohara) at Fig. 22; Paper 1 (Petition) at 39-42, 44; Ex.1003 (Horst Decl.) at 58-59.
`Demonstrative Exhibit – Not Evidence
`
`162
`
`
`
`Kiyohara’s second section is the only one with TCP
`and IP protocols for network and transport layer
`processing
`
`2nd Section
`
`Ex. 1089 (Kiyohara) at Fig. 24, 17:60-18:2; Paper 1 (Petition) at 37-39;
`Ex.1003 (Horst Decl.) at 52-53.
`
`Demonstrative Exhibit – Not Evidence
`
`163
`
`
`
`699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`
`2. Kiyohara transfers packet data to the “destination” without the
`host processing network layer or transport layer headers
`3. Kiyohara’s data storage area is on the host
`4.
`Information in Kiyohara’s data storage area is controlled by the
`application
`
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`164
`
`
`
`PO admits the data storage area is where the
`packet is stored but disputes whether it is on the
`host
`
`“…obtaining a destination for the
`data in a memory of the computer…”
`
`Paper 15 (POR) at 23.
`
`Demonstrative Exhibit – Not Evidence
`
`165
`
`
`
`Dr. Horst explained that data is stored where
`the application layer has access to it
`
`Ex. 1425 (Horst Dep.) at 33:24-34:9 (objection omitted);
`Paper 29 (Reply) at 2-3, 10-11.
`
`Demonstrative Exhibit – Not Evidence
`
`166
`
`
`
`Kiyohara’s data storage area pointer is
`obtained from the application
`
`Ex. 1089 (Kiyohara) at 16:60-63;
`Paper 1 (Petition) at 39-42;
`Ex.1003 (Horst Decl.) at 58.
`
`Demonstrative Exhibit – Not Evidence
`
`167
`
`
`
`Kiyohara’s first section (host) includes a
`user application
`
`1st
`Section
`(HOST)
`
`Ex. 1089 (Kiyohara) at Fig. 24; Paper 1 (Petition) at 37-39; Ex.1003
`(Horst Decl.) at 52-53.
`
`Demonstrative Exhibit – Not Evidence
`
`168
`
`
`
`Kiyohara’s first section (host) includes a
`user application
`
`Ex. 1089 (Kiyohara) at 17:52-60; Paper 1 (Petition) at 37-38; Ex.1003
`(Horst Decl.) at 52-53.
`
`Demonstrative Exhibit – Not Evidence
`
`169
`
`
`
`PO admits that no data is left behind on the
`NI device, so it must be stored on the host
`
`Paper 15 (POR) at 18.
`
`Demonstrative Exhibit – Not Evidence
`
`170
`
`
`
`699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`
`2. Kiyohara transfers packet data to the “destination” without the
`host processing network layer or transport layer headers
`
`3. Kiyohara’s data storage area is on the host
`4.
`Information in Kiyohara’s data storage area is controlled
`by the application
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`171
`
`
`
`Kiyohara in combination with SMB discloses an
`application that controls data in the data storage area
`
`“…such that information that is later stored
`in the destination will be controlled by the
`application…”
`
`Paper 1 (Petition) at 55-60; see
`also Paper 29 (Reply) at 11-12.
`
`Demonstrative Exhibit – Not Evidence
`
`172
`
`
`
`A POSA would have understood that the
`information is controlled by the application
`
`Ex. 1003 (Horst Decl.) at 81-83;
`Paper 1 (Petition) at 56;
`Paper 29 (Reply) at 11-12.
`
`Demonstrative Exhibit – Not Evidence
`
`173
`
`
`
`Dr. Horst: data received from an SMB request
`is sent to the requesting application
`
`Ex. 1003 (Horst Decl.) at 63-65;
`Paper 1 (Petition) at 57-60.
`
`Demonstrative Exhibit – Not Evidence
`
`174
`
`
`
`699 Patent: Disputes
`
`1. Kiyohara transfers packet data without headers to the
`“destination”
`
`2. Kiyohara transfers packet data to the “destination” without the
`host processing network layer or transport layer headers
`
`3. Kiyohara’s data storage area is on the host
`
`4.
`
`Information in Kiyohara’s data storage area is controlled by the
`application
`5. SMB is a session layer protocol (claims 2, 7)
`
`Demonstrative Exhibit – Not Evidence
`
`175
`
`
`
`Claim language
`
`Ex. 1001 (699 Patent) at Claims 2 and 7;
`Paper 29 (Reply) at 13-15
`
`Demonstrative Exhibit – Not Evidence
`
`176
`
`
`
`PO disputes whether the SMB protocol
`is a session layer protocol
`
`“…providing, by the network interface to
`the computer, a session layer header from
`one of the packets…”
`
`Paper 15 (POR) at 29-30
`
`Demonstrative Exhibit – Not Evidence
`
`177
`
`
`
`In the related 205 Patent, PO admitted
`that SMB is a session layer protocol
`
`Ex. 1090 (205 Patent) at Claim 4, 19:41-43;
`Ex. 1003 (Horst Decl.) at 62;
`Paper 29 (Reply) at 13-14, FN 2, 3.
`
`Demonstrative Exhibit – Not Evidence
`
`178
`
`
`
`The 205 and 699 Patents are closely related
`and claim priority from the same applications
`
`***
`
`Ex. 1090 (205 Patent) at 1:8-15;
`Paper 29 (Reply) at 13-14, FN 2.
`Demonstrative Exhibit – Not Evidence
`
`Ex. 1001 (699 Patent) at (63), (60);
`Paper 29 (Reply) at 13-14, FN 2.
`
`179
`
`
`
`Each of the 205 Patent inventors are
`inventors on the 699 Patent
`
`Ex. 1090 (205 Patent) at (75);
`Paper 29 (Reply) at 13-14.
`
`Demonstrative Exhibit – Not Evidence
`
`Ex. 1001 (699 Patent) at (75);
`Paper 29 (Reply) at 13-14.
`
`180
`
`
`
`The 205 patent’s disclosure of SMB as a session
`layer protocol should carry to the 699 patent
`
`“[W]e presume, unless otherwise
`compelled, that the same claim term in .
`. . related patents carries the same
`construed meaning.”
`Omega Eng’g, Inc. v. Rayek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003)
`Paper 29 (Reply) at 13-14.
`
`Demonstrative Exhibit – Not Evidence
`
`181
`
`
`
`PO relies on Microsoft SMB Protocol
`and CFIS Protocol Overview
`
`Ex. 2005, Page 1 (2018 Microsoft SMB Protocol and CFIS
`Protocol Overview); Paper 15 (POR) at 10, 32-33.
`
`Demonstrative Exhibit – Not Evidence
`
`182
`
`
`
`Dr. Horst: SMB protocol is used by an application
`program, like Samba, to read and write files remotely
`
`Ex. 1003 (Horst Decl.) at 60; Paper 1 (Petition) at 47, 57, 64-65.
`
`Demonstrative Exhibit – Not Evidence
`
`183
`
`
`
`The 699 patent’s preferred embodiment uses
`Samba to generate its session layer header
`
`Ex. 1001 (699 Patent) at 3:53-55, 5:5-10; Paper 1 (Petition) at 29-30;
`Ex.1003 (Horst Decl.) at 47-48;
`Paper 29 (Reply) at 14-15.
`
`Demonstrative Exhibit – Not Evidence
`
`184
`
`
`
`PO alleges that NetBIOS is the session
`layer
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 15 (POR) at 10-11, 32.
`
`185
`
`
`
`NetBIOS is an interface not a protocol
`
`Ex. 1055 (SMB) at 60; Paper 1 (Petition) at 47.
`
`Demonstrative Exhibit – Not Evidence
`
`186
`
`
`
`PO’s extrinsic evidence includes definitions of
`“session layer” that are consistent with SMB
`
`Ex. 2008 (Newton’s
`Telecom Dictionary)
`
`Ex. 2009 (IBM
`Dictionary of Computer)
`
`Paper 29 (Reply) at 14; Paper 15 (POR) at 30.
`
`Ex. 2007 does not include a definition for “session layer”
`
`Demonstrative Exhibit – Not Evidence
`
`187
`
`
`
`Evidence of Obviousness Far
`Outweighs Patent Owner’s Alleged
`“Objective Evidence”
`
`All citations refer to the docket for Case IPR2018-00226 unless otherwise noted.
`
`Petitioner’s arguments are the same for IPR2018-00234 and IPR2018-00401.
`
`188
`
`
`
`No evidence PO’s products practice the
`claims
`
`Paper 42 (205 Reply) at 12;
`IPR2018-0234 Ex. 1232.005 (Alacritech’s First Amended and
`Supplemental Patent Local Rule 3-1 and 3-2 Disclosures).
`
`Demonstrative Exhibit – Not Evidence
`
`189
`
`
`
`“Conventional wisdom”: Use special
`purpose NICs for TCP/IP acceleration
`
`Paper 42 (205 Reply) at 14;
`Ex. 2300.001 (IP Storage and the CPU Consumption Myth).
`
`Demonstrative Exhibit – Not Evidence
`
`190
`
`
`
`SMB Is Prior Art
`
`Petitioner’s arguments rely on the same evidence for IPR2018-00226 and IPR2018-00401.
`
`191
`
`
`
`Dates on SMB are consistent with
`publicly availability in 1992
`
`Paper 1 (205 Petition) at 18;
`Paper 1 (699 Petition) at 16;
`Ex. 1055.004 (SMB).
`
`Demonstrative Exhibit – Not Evidence
`
`192
`
`
`
`Open Group declaration establishes SMB
`was publicly available on its website
`
`Paper 1 (205 Petition) at 18 (citing Ex. 1077 (Open Group Declaration));
`Paper 29 (699 Reply) at 26 (citing Ex. 1404 (Open Group Declaration)).
`Ex. 1077 for the 205 IPR and Ex.1404 for the 699 IPR are identical.
`
`Demonstrative Exhibit – Not Evidence
`
`193
`
`
`
`Bennett declaration establishes SMB
`was publicly available in various libraries
`
`Paper 1 (205 Petition) at 18 (citing Ex. 1078 (Bennett Declaration));
`Paper 29 (699 Reply) at 26 (citing Ex. 1405 (Bennett Declaration)).
`Ex. 1078 for the 205 IPR and Ex. 1405 for the 699 IPR are identical.
`
`Demonstrative Exhibit – Not Evidence
`
`194
`
`
`
`Hsieh-Yee declaration establishes SMB
`was publicly available in British Library
`
`Paper 42 (205 Reply) at 15 (citing Ex. 1409 (Dr. Hsieh-Yee Declaration));
`Paper 1 (699 Petition) at 45 (citing Ex. 1094 (Dr. Hsieh-Yee Declaration)).
`Ex. 1409 for the 205 IPR and Ex.1094 for the 699 IPR are identical.
`
`Demonstrative Exhibit – Not Evidence
`
`195
`
`
`
`Rampersad letter confirms SMB was
`publicly available in British Library
`
`Paper 1 (205 Petition) at 1 (citing Ex. 1074 (Rampersad Letter));
`Paper 29 (699 Reply) at 26 (citing Ex. 1403 (Rambersad Letter)).
`Ex. 1074 for the 205 IPR and Ex. 1403 for the 699 IPR are identical.
`
`Demonstrative Exhibit – Not Evidence
`
`196
`
`
`
`US Patent confirms public availability
`
`Paper 1 (205 Petition) at 18 (citing Exhibit 1079 at 6:3-6);
`Paper 1 (699 Petition) at 16 (citing Exhibit 1100 at 6:3-6);
`Exhibit 1079 from the 205 IPR is identical to Exhibit 1100 from
`the 699 IPR.
`
`Demonstrative Exhibit – Not Evidence
`
`197
`
`
`
`Motion to Exclude Should be Denied
`
`*All citations refer to the docket for Case IPR2018-00226 unless otherwise noted.
`
`Petitioner’s arguments are the same for IPR2018-00226 and IPR2018-00234.
`
`198
`
`
`
`Motion to Exclude: Disputes
`
`1. Admissibility of Stephens Declaration
`
`2. Exhibits 1227 and 1230 Are Admissible
`
`Demonstrative Exhibit – Not Evidence
`
`199
`
`
`
`Motion to Exclude: Disputes
`
`1. Admissibility of Stephens Declaration
`
`a. Stephens Declaration provides factual statements
`related to IPRs and Litigation
`
`b. Stephens Declaration does not waive privilege
`
`c. PO’s complaints about discovery are irrelevant to the
`admissibility of the Stephens Declaration
`
`Demonstrative Exhibit – Not Evidence
`
`200
`
`
`
`Alacritech accused Microsoft or Linux protocol
`stack in Wistron’s server under the 205 Patent
`
`Paper 54 (205 Opp. to Motion to Exclude) at 5; Ex. 1444.013
`(Alacritech’s Complaint against Wistron)
`
`204
`
`
`
`PO admits that Intel’s components are
`just part of Defendants’ accused systems
`
`Paper 54 (205 Opp. to Motion to Exclude) at 5-6; Ex. 1417 at 11-12
`(Alacritech Opp. to Intel’s Mot. to Intervene)
`
`205
`
`
`
`Stephens provides statements based on
`his personal knowledge
`
`Paper 54 (205 Opp. to Motion to Exclude) at 6; Ex. 1414.002
`(Stephens Decl.)
`
`Demonstrative Exhibit – Not Evidence
`
`206
`
`
`
`Stephens Declaration is not hearsay
`
`Paper 54 (205 Opp. to Motion to Exclude) at 6-7
`
`Demonstrative Exhibit – Not Evidence
`
`207
`
`
`
`Stephens Declaration is appropriate
`testimony for an attorney
`
`Paper 54 (205 Opp. to Motion to Exclude) at 6-7
`
`Demonstrative Exhibit – Not Evidence
`
`208
`
`
`
`Motion to Exclude: Disputes
`
`1. Admissibility of Stephens Declaration
`
`a. Stephens Declaration provides factual statements
`related to IPRs and Litigation
`
`b. Stephens Declaration does not waive privilege
`
`c. PO’s complaints about discovery are irrelevant to the
`admissibility of the Stephens Declaration
`
`Demonstrative Exhibit – Not Evidence
`
`209
`
`
`
`Documents on Intel’s privilege log are work
`product and common interest privileged
`
`Parties have common interest for all post-litigation
`communications between defendant and party who partially
`indemnifies defendant, including about scope of indemnity.
`
`Am. Eagle Outfitters, Inc. v. Payless ShoeSource, Inc., CV 07-1675 ERK
`VVP, 2009 WL 3786210, at *4 (E.D.N.Y. Nov. 12, 2009)
`
`Paper 54 (205 Opp. to Motion to Exclude) at 10.
`
`Demonstrative Exhibit – Not Evidence
`
`212
`
`
`
`Common interest can occur prior to
`addressing indemnification obligations
`
`“Union Bank overlooks the fact that even during the time
`period when Chicago Title had not yet agreed to
`indemnify Gallagher and First American, it already had a
`common interest in defeating Union Bank’s claim to have
`a security interest in the Home under the Third Deed of
`Trust because it was potentially responsible for that
`indemnification.”
`
`Gallagher v. Union Bank, N.A., D058896, 2012
`WL 2866689, at *11 (Cal. App. 4th Dist. July
`13,2012)
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 63 (205 Supp. Br.) at 6-7.
`
`213
`
`
`
`No requirement that joint defense
`agreement be in writing
`
`“The common interest doctrine does not require a written
`agreement ... nor does it require that both parties to the
`communications at issue be co-parties in litigation.”
`
`Am. Mgt. Services, LLC v. Dept. of the Army, 703
`F.3d 724, 733 (4th Cir. 2013)
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 63 (205 Supp. Br.) at 6-7.
`
`214
`
`
`
`Joint defense agreements are protected by
`work product and common interest privilege
`
`“The Court agrees with Citizens Financial that the JDA is
`work product” and it “has properly asserted the joint-
`defense privilege.”
`
`DataTreasury Corp. v. Wells Fargo & Co., 2:06CV72,
`2007 WL 9636837, at *2-3 (E.D. Tex. June 26, 2007)
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 63 (205 Supp. Br.) at 6-7.
`
`215
`
`
`
`Appropriate to rely on common interest
`privilege in context of RPI dispute
`
`“There is nothing surreptitious about separate entities, as
`either third parties, or separate parties to a legal action,
`proclaiming shared interests to protect communications that
`are relevant to advance the interests of the entities
`possessing the common interest.”
`
`Petroleum Geo-Services Inc. v. WesternGeco LLC, IPR2014-00689,
`Paper 101 at 45-46 (P.T.A.B. Dec. 15, 2015)
`
`Paper 54 (205 Opp. to Motion to Exclude) at 10.
`
`Demonstrative Exhibit – Not Evidence
`
`216
`
`
`
`Motion to Exclude: Disputes
`
`1. Admissibility of Stephens Declaration
`
`a. Stephens Declaration provides factual statements
`related to IPRs and Litigation
`
`b. Stephens Declaration does not waive privilege
`
`c. PO’s complaints about discovery are irrelevant to
`the admissibility of the Stephens Declaration
`
`Demonstrative Exhibit – Not Evidence
`
`217
`
`
`
`Documents PO claims “undoubtedly exist”
`either do not exist or are not responsive
`
`Paper 51 (205 Motion to Exclude) at 7-8
`
`Demonstrative Exhibit – Not Evidence
`
`218
`
`
`
`Motion to Exclude: Disputes
`
`1. Admissibility of Stephens Declaration
`
`2. Exhibits 1227 and 1230 Are Admissible
`
`Demonstrative Exhibit – Not Evidence
`
`220
`
`
`
`Exhibit 1227: Opposing party’s statement showing
`TOE was not accepted in the industry
`
`Paper 54 (205 Opp. to Motion to Exclude) at 14-15; Ex. 1227.001 (EE
`Times Article)
`
`Demonstrative Exhibit – Not Evidence
`
`221
`
`
`
`Exhibits 1227 is admissible under FRE
`807
`
`Strong circumstantial guarantees of
`trustworthiness
`
`Evidence of a material fact
`
`The declarant is still PO’s CEO. PO
`could have challenged the
`statements with a declaration from
`Mr. Boucher if they were not true
`
`PO’s commercial technology was
`not successful
`
`More probative than any other
`evidence
`
`PO’s CEO admitted the technology
`was not commercially successful
`
`Admitting the statements are in the
`interests of justice
`
`•
`
`If untrue, PO could readily
`provide evidence to that effect;
`• Exhibit used in the earlier IPRs
`(e.g., IPR2017-01391, Paper41 at
`21-22).
`
`Paper 54 (205 Opp. to Motion to Exclude) at 15.
`
`Demonstrative Exhibit – Not Evidence
`
`222
`
`
`
`Exhibit 1230: Shows TOE was not
`accepted in the industry
`
`Paper 54 (205 Opp. to Motion to Exclude) at 14-15; Ex. 1230.003
`(Microsoft.com Article)
`
`Demonstrative Exhibit – Not Evidence
`
`223
`
`
`
`Exhibits 1230 is admissible under FRE
`807
`
`Strong circumstantial guarantees of
`trustworthiness
`
`Evidence of a material fact
`
`More probative than any other
`evidence
`Admitting the statements are in the
`interests of justice
`
`Article was published by Microsoft
`on the Microsoft website regarding
`a Microsoft product (Windows) and
`remains available
`
`PO’s commercial technology was
`not successful
`Microsoft removing the feature from
`Windows
`• Exhibit used in the earlier IPRs
`(e.g., IPR2017-01391, Paper41 at
`21-22);
`• PO could have submitted
`evidence to the contrary but did
`not
`
`Paper 54 (205 Opp. to Motion to Exclude) at 15.
`Demonstrative Exhibit – Not Evidence
`
`224
`
`
`
`The 205 and 948 Petitions are Not
`Time-Barred Under 35 USC § 315(b)
`
`*All citations refer to the docket for Case IPR2018-00226 unless otherwise noted.
`
`Petitioner’s arguments are the same for IPR2018-00226 and IPR2018-00234.
`
`225
`
`
`
`Time-bar under 35 USC § 315(b):
`Disputes
`
`Intel is the sole real party in interest
`1.
`Intel is not in privity with Defendants
`2.
`Intel does not “fully defend” Dell
`3.
`4. The facts do not justify application of the equitable
`doctrines of real party in interest and privity
`5. The time-bar does not apply to Cavium’s joined Petition
`
`Demonstrative Exhibit – Not Evidence
`
`226
`
`
`
`Alacritech accused Intel of infringing
`patents on December 13, 2016
`
`Paper 42 (205 Reply) at 16;
`Ex. 1412.008.
`
`Demonstrative Exhibit – Not Evidence
`
`227
`
`
`
`Intel filed the 948 and 205 Petitions within
`one year of being accused of infringement
`
`PO sues
`Defendants
`
`PO served counter-
`claims on Intel for 205
`and 948 Patents
`
`Court grants
`Intel’s Motion
`to Intervene
`
`Original 205 and
`948 Petitions filed
`
`Intel’s One-
`Year Bar Date
`
`205 and 948
`Petitions filed
`
`June 30,
`2016
`
`Nov. 21,
`2016
`
`Dec. 13,
`2016
`
`May 9,
`2017
`
`
`2017
`
`Nov. 21, Dec. 13,
`2017
`
`PO refuses to let Intel see
`infringement contentions
`
`Intel filed IPRs within one year
`of being allowed to intervene
`Paper 42 (205 Reply) at 16, 24.
`
`Demonstrative Exhibit – Not Evidence
`
`228
`
`
`
`Intel is the sole real party in interest for
`the Petition
`
`“To decide whether a party other than the
`petitioner is the real party in interest, the
`Board seeks to determine whether some
`party other than the petitioner is the ‘party or
`parties at whose behest the petition has been
`filed.’”
`
`Wi-Fi One, LLC v. Broadcom Corp., 887 F.3d 1329, 1336
`(Fed. Cir. 2018) (citations omitted) (emphasis added).
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 42 (205 Reply) at 17.
`
`229
`
`
`
`Intel’s lead in-house and outside attorney testified
`Defendants exercised no role in Intel’s IPRs
`
`Paper 42 (205 Reply) at 17-18;
`Ex. 1301 (Kyriacou Decl.); Ex. 1302 (Stephens Decl.);
`
`Demonstrative Exhibit – Not Evidence
`
`230
`
`
`
`Customer-supplier, indemnification, and joint
`defense relationship not sufficient for RPI
`
`While Broadcom’s interests regarding
`infringement were generally aligned with its
`customers, there was no evidence that
`Broadcom was “acting at the behest or on
`behalf of the D-Link defendants.’”
`
`Wi-Fi One, LLC v. Broadcom Corp., 887 F.3d 1329,
`1340-41 (Fed. Cir. 2018) (citations omitted).
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 42 (205 Reply) at 18-19.
`
`231
`
`
`
`Other parties in litigation filed motions to join
`IPRs where they perceived an interest
`
`Paper 42 (205 Reply) at 16-18 (citing
`IPR2018-01306, Paper 3 (Motion for Joinder).
`Demonstrative Exhibit – Not Evidence
`
`232
`
`
`
`Intel has no obligation to indemnify (or control the
`defense of) any Defendant on 205 or 948 Patents
`
`PO’s allegations in litigation are
`not directed exclusively to
`components supplied by Intel
`(e.g. operating systems)
`
`Paper 42 (205 Reply) at 17-18, 23;
`Ex. 1414, ¶¶ 5, 10 (Stephens Decl.); Paper 63 (205 Supp. Brief) at 2,
`6; Paper 54 (205 Opp. to Motion to Exclude) at 4-6; Ex. 1417 at 11-
`12; Ex. 1444.013, -.067.
`
`Demonstrative Exhibit – Not Evidence
`
`233
`
`
`
`PO admits that Intel’s components are just
`part of Defendants’ accused systems
`
`Paper 42 (205 Reply) at 23; Paper 63 (205 Supp. Brief)
`at 6; Paper 54 (205 Opp. to Motion to Exclude) at 5-6;
`Ex. 1417 at 11-12.
`
`Demonstrative Exhibit – Not Evidence
`
`234
`
`
`
`Microsoft or Linux protocol stack in Wistron’s
`server is accused under 205 Patent
`
`Paper 63 (205 Supp. Brief) at 2;
`Paper 54 (205 Opp. to Motion to Exclude) at 5;
`Ex. 1444.013
`
`Demonstrative Exhibit – Not Evidence
`
`236
`
`
`
`Microsoft or Linux protocol stack in Wistron’s
`server is accused under 948 Patent
`
`Paper 63 (205 Supp. Brief) at 2;
`Paper 54 (205 Opp. to Motion to Exclude) at 5;
`Ex. 1444.067.
`
`Demonstrative Exhibit – Not Evidence
`
`237
`
`
`
`Microsoft or Linux protocol stack in Dell’s
`server is accused under 205 Patent
`
`Paper 63 (205 Supp. Brief) at 2;
`Paper 54 (205 Opp. to Motion to Exclude) at 4;
`Ex. 1416.013.
`
`Demonstrative Exhibit – Not Evidence
`
`239
`
`
`
`Microsoft or Linux protocol stack in Dell’s
`server is accused under 948 Patent
`
`Paper 63 (205 Supp. Brief) at 2;
`Paper 54 (205 Opp. to Motion to Exclude) at 5;
`Ex. 1416.083.
`
`Demonstrative Exhibit – Not Evidence
`
`240
`
`
`
`Defendants do not possess effective
`control of IPRs
`
`“ “[T]he evidence, as a whole, must show that
`the unnamed party possessed effective
`control [of the IPR] from a practical
`standpoint.”
`
`Google v. Seven Networks, IPR2018-01047, Ex.
`1056 at 11 (PTAB Dec. 3, 2018) (citing Gonzalez v.
`Banco Cent. Corp., 27 F.3d 751, 759 (1st Cir. 1994)).
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 63 (205 Supp. Brief) at 2.
`
`242
`
`
`
`PO overextends reasoning of recent
`Federal Circuit case law
`
`PO’s sweeping generalization would “run
`afoul of ‘the general rule that a litigant is not
`bound by a judgment to which she was not a
`party’ except in discrete and limited
`circumstances.”
`
`Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC,
`IPR2018-00883, 2018 WL 6504233, at *6 (PTAB Oct. 11, 2018)
`(citing Taylor, 553 U.S. at 898).
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 42 (205 Reply) at 20-22.
`
`243
`
`
`
`Time-bar under 35 USC § 315(b):
`Disputes
`
`Intel is the sole real party in interest
`1.
`Intel is not in privity with Defendants
`2.
`Intel does not “fully defend” Dell
`3.
`4. The facts do not justify application of the equitable
`doctrines of real party in interest and privity
`5. The time-bar does not apply to Cavium’s joined Petition
`
`Demonstrative Exhibit – Not Evidence
`
`244
`
`
`
`Privity and collateral estoppel do not apply
`because Intel is a party in the litigations
`
`The privity analysis turns on “nonparty
`preclusion” and whether
`the relationship
`between the parties “is sufficiently close
`such that both should be bound by the trial
`outcome and related estoppels.”
`
`Office Patent Trial Practice Guide, 77 Fed. Reg.
`48756, 48759 (Aug. 14, 2012);
`Taylor v. Sturgell, 553 U.S. 880 (2008)
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 42 (205 Reply) at 22.
`
`245
`
`
`
`Alacritech has provided no separate
`analysis for privity
`
`It is improper to “comingle privity
`and real party in interest challenges
`in IPR proceedings.”
`
`Applications in Internet Time, LLC v. RPX Corp., 897
`F.3d 1336, 1365 n.7 (Fed. Cir. 2018) (Reyna, J., concurring)
`
`Demonstrative Exhibit – Not Evidence
`
`Paper 63 (205 Supp. Brief) at 1.
`
`246
`
`
`
`Taylor factors do not apply because Intel
`is a party in the underlying litigations
`
`Rule against nonparty preclusion is subject to six exceptions:
`
`(1) An agreement between the parties to be bound;
`
`(2) Pre-existing substantive legal relationships between the parties;
`
`(3) Adequate representation by the named party;
`
`(4) The non-party’s control of the prior litigation;
`
`(5) Where the non-party acts as a proxy for the named party to relitigate
`the same issues; and
`
`(6) Where special statutory schemes foreclose successive litigation by
`the non-party (e.g., bankruptcy and probate).
`
`Taylor v. Sturgell, 553 U.S. 880 at 894–95 (2008)
`
`Paper 42 (205 Reply) at 22-23.
`
`247
`
`
`
`Defendants are all represented by their
`own attorneys in litigation
`CenturyLink
`Dell Attorneys
`Attorneys
`
`Wistron Attorneys
`
`Paper 42 (205 Reply) at 23;
`Paper 54 (205 Opp. to Motion to
`Exclude) at 23; Paper 63 (205 Supp.
`Brief) at 4-5; Ex. 1413 at .005-.007.
`
`248
`
`Demonstrative Exhibit – Not Evidence
`
`
`
`Defendants each served their own damages and
`non-infringement reports with their own experts
`
`Paper 42 (205 Reply) at 23; Paper 63 (205 Supp. Br.) at 5; Paper
`.
`54 (205 Opp. to Motion to Exclude) at 5; Ex. 1414, § 10; Ex. 1447.
`
`249
`
`
`
`Defendants do not adequately represent
`Intel’s interests
`
`Alacritech served separate
`infringement contentions for
`all parties
`
`Paper 42 (205 Reply) at 23;
`Paper 54 (205 Opp. to Motion to Exclude) at 5-6; Ex. 1414, ¶ 10;
`Ex. 1417.015-.016 (Alacritech Opposition to Motion to Intervene).
`
`Demonstrative Exhibit – Not Evidence
`
`251
`
`
`
`Intel is entitled to litigate whether its products
`infringe without loosing its one year bar date
`
`“[T]he standards for the privity inquiry
`must be grounded in due process.”
`
`WesternGeco LLC v. ION Geophysical Corp., 889
`F.3d 1308, 1319 (Fed. Cir. 2018)
`
`Demonstrative Exhibit – Not Evidence
`
`252
`
`Paper 63 (205 Supp. Brief) at 3-4.
`
`
`
`Time-bar under 35 USC § 315(b):
`Disputes
`
`Intel is the sole real party in interest
`1.
`Intel is not in privity with Defendants
`2.
`Intel does not “fully defend” Dell
`3.
`4. The facts do not justify application of the equitable
`doctrines of real party in interest and privity
`5. The time-bar does not apply to Cavium’s joined Petition
`
`Demonstrative Exhibit – Not Evidence
`
`253
`
`
`
`Dell attorneys handled infringement
`allegations against Dell products
`
`Paper 63 (205 Supp. Brief) at 4-5; Ex. 1460.001.
`
`Demonstrative Exhibit – Not Evidence
`
`256
`
`
`
`Dell attorneys managed Dell’s discovery
`obligations
`
`Paper 63 (205 Supp. Brief) at 4-5; Ex. 1458.002-.003.
`
`Demonstrative Exhibit – Not Evidence
`
`257
`
`
`
`Intel does not control Dell’s attorneys
`
`Paper 63 (205 Supp. Brief) at 5; Ex. 1414.004.
`
`Demonstrative Exhibit – Not Evidence
`
`258
`
`
`
`Intel intervened in the case to defend
`allegations against its own products
`
`Paper 63 (205 Supp. Brief) at 5-6; Ex. 2051.
`
`Demonstrative Exhibit – Not Evidence
`
`259
`
`
`
`Intel filed a declaratory judgment on all
`patents asserted against Intel components
`
`Paper 63 (205 Supp. Brief) at 5-6; Ex. 2505.
`
`Demonstrative Exhibit – Not Evidence
`
`260
`
`
`
`Dell’s products might or might not infringe for
`additional reasons unrelated to Intel products
`
`Paper 63 (205 Supp. Br.) at 6; Ex. 1417 at 11-12.
`
`Demonstrative Exhibit – Not Evidence
`
`261
`
`
`
`Time-bar under 35 USC § 315(b):
`Disputes
`
`Intel is the sole real party in interest
`1.
`Intel is not in privity with Defendants
`2.
`Intel does not “fully defend” Dell
`3.
`4. The facts do not justify application of the equitable
`doctrines of real party in interest and privity
`5. The time-bar does not apply to Cavium’s joined Petition
`
`Demonstrative Exhibit – Not Evidence
`
`262
`
`
`
`Facts do not justify application of
`equitable doctrines of RPI and privity
`PO served counter-
`claims on Intel for 205
`and 948 Patents
`
`PO sues
`Defendants
`
`Intel’s One-
`Year Bar Date
`
`Court grants
`Intel’s Motion
`to Intervene
`
`Original 205 and
`948 Petitions filed
`
`205 and 948
`Petitions filed
`
`June 30,
`2016
`
`Nov. 21,
`2016
`
`Dec. 13,
`2016
`
`May 9,
`2017
`
`
`2017
`
`Nov. 21, Dec. 13,
`2017
`
`PO refuses to let Intel see
`infringement contentions
`
`Intel filed IPRs within one year
`of being allowed to intervene
`Paper 42 (205 Reply) at 16, 24; Paper 63 (205 Supp. Br.) at 6-7.
`Demonstrative Exhibit – Not Evidence
`
`263
`
`
`
`Original 205 and 948 Petitions nearly
`identical to current 205 and 948 Petitions
`
`Paper 63 (205 Supp. Brief) at 6 (citing Paper 7
`(Institution Decision) at 12).
`
`Demonstrative Exhibit – Not Evidence
`
`264
`
`
`
`205 and 948 Petitions re-filed to address
`evidentiary issues
`
`Paper 63 (205 Supp. Brief) at 6 (citing Paper
`7 (Institution Decision) at 13).
`
`Demonstrative Exhibit – Not Evidence
`
`265
`
`
`
`All parties agreed to be estopped to same
`extent as Petitioner in exchange for stay
`
`Paper 42 (205 Reply) at 17; Paper 63 (205 Supp. Br.) at
`6-7; Ex. 1413.003 (Stipulation and Joint Motion to Stay
`Litigation Proceeding).
`
`Demonstrative Exhibit – Not Evidence
`
`266
`
`
`
`No serial petitioning by parties in
`Alacritech litigations
`
`Paper 42 (205 Reply) at 16
`(citing Paper 7 (Institution Decision) at 14).
`
`Demonstrative Exhibit – Not Evidence
`
`267
`
`
`
`PO did not loose any opportunity to amend
`claims in the 948 Patent
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