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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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`INTEL CORP., CAVIUM, LLC, and DELL, INC.
`Petitioners,
`
`v.
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`ALACRITECH, INC.
`Patent Owner.
`____________
`
`Case IPR2018-00226 (Patent 7,124,205)
`Case IPR2018-00234 (Patent 8,805,948)
`Case IPR2018-00401 (Patent 7,945,699)
`____________
`
`Record of Oral Hearing
`Held: March 4, 2019
`_____________
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`INTEL CORP., CAVIUM, LLC, and DELL, INC.
`Petitioners,
`
`v.
`
`ALACRITECH, INC.
`Patent Owner.
`____________
`
`Case IPR2018-00226 (Patent 7,124,205)
`Case IPR2018-00234 (Patent 8,805,948)
`Case IPR2018-00401 (Patent 7,945,699)
`____________
`
`Record of Oral Hearing
`Held: March 4, 2019
`_____________
`
`Before STEPHEN C. SIU, DANIEL N. FISHMAN and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
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`PUBLIC VERSION
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`IPR2018-00226 (Patent 7124205)
`IPR2018-00234 (Patent 8805948)
`IPR2018-00401 (Patent 7945699)
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER INTEL CORP.:
`
`GARLAND STEPHENS, ESQ.
`ANNE CAPPELLA, ESQ.
`MELISSA HOTZE, ESQ.
`AMANDA BRANCH, ESQ.
`Weil, Gotshal & Manges
`700 Louisiana
`Houston, Texas 77002
`(713) 546-5011
`
`
`ON BEHALF OF THE PETITIONER CAVIUM, LLC:
`
`KARINEH KHACHATOURIAN, ESQ.
`DAVID XUE, ESQ.
`Rimon, P.C.
`2479 East Bayshore Road, Suite 210
`Palo Alto, California 94303
`(650) 461-4433
`
`
`ON BEHALF OF THE PETITIONER DELL, INC.:
`
`BRADY COX, ESQ.
`Alston & Bird LLP
`1950 University Avenue, 5th Floor
`East Palo Alto, California 94303
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`IPR2018-00234 (Patent 8805948)
`IPR2018-00401 (Patent 7945699)
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`ON BEHALF OF THE PATENT OWNER, ALACRITECH, INC.:
`
`JOSEPH PAUNOVICH, ESQ.
`BRIAN MACK, ESQ.
`SEAN LEE, ESQ.
`Quinn Emanuel Urquhart & Sullivan, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, California 90017
`
`ALSO PRESENT:
`
`JOHN EDWARDS, ESQ.
`ALYSSA LIANG, ESQ.
`MATTHEW FAGAN, ESQ.
`Intel Corporation
`
`ALBERT HARNOIS, ESQ.
`ROY RUN (PH), ESQ.
`Cavium INC.
`
`The above-entitled matter came on for hearing on March 4, 2019,
`commencing at 10:04 a.m. PT, at the Silicon Valley U.S. Patent and
`Trademark Office, 26 S. 4th Street, San Jose, California 95112.
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`P R O C E E D I N G S
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` JUDGE BOUDREAU: Good morning. This is the
`oral hearing in cases IPR2018-00226 and 234, both captioned Intel
`Corporation versus Alacritech, Incorporated, and IPR2018-00401,
`captioned Cavium, LLC, versus Alacritech, Incorporated.
` Cavium and Dell Incorporated have both joined Intel as
`Petitioners in the '226 and '234 cases, and Intel has also joined
`Cavium as a Petitioner in the '401 case and has been designated as
`the primary petitioner in that case as well.
` I'm Judge Boudreau. We're joined by Judges Siu and
`Fishman by videoconference. Could we have counsel for each of the
`parties come up and enter an appearance and state your names for
`the record. And I'll just note that, because of the limitations
`on our audio technology, just make sure that you come to the
`podium whenever you need to speak.
` MR. STEPHENS: Thank you, Your Honors. Garland Stephens
`of Weil, Gotshal & Manges representing Intel Corporation. With me
`today is my colleague, Ann Cappella, Melissa Hotze, and Amanda
`Branch. Also representing Intel is their in-house counsel, John
`Edwards, Alyssa Liang --
` JUDGE FISHMAN: I'm not hearing anything from the
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`podium.
` MR. STEPHENS: Oh, I'm sorry. I was turning around. I
`apologize.
` Also here are in-house counsel for Intel, John Edwards,
`Alyssa Liang, and Matthew Fabian. Thank you.
` JUDGE BOUDREAU: Thank you, Mr. Stephens.
` And for Alacritech? Oh, I'm sorry, for the other
`Petitioners.
` MS. KHACHATOURIAN: I'm sorry. Good morning, Your
`Honors, Karineh Khachatourian and David Xue for Cavium, LLC. With
`me today is in-house counsel, Albert Harnois and Roy Run (ph).
` JUDGE BOUDREAU: Thank you. Welcome.
` MR. COX: Thank you, Your Honors. Brady Cox for Dell.
` JUDGE BOUDREAU: Thank you.
` MR. PAUNOVICH: Good morning, Your Honors. Joe
`Paunovich, Quinn Emanuel, on behalf of the Patent Owner. With me
`today are Mr. Brian Mack and Mr. Sean Lee. Thank you.
` JUDGE BOUDREAU: Thank you.
` And before we begin, I just have a couple of brief
`housekeeping matters. We set forth the procedure for the hearing
`in our oral hearing order dated February 25th. But just as a
`reminder, Intel and Alacritech will each have 60 minutes of total
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`presentation time today. And also, just as a practical matter,
`keep in mind that anything you put up on the screen won't be
`visible by Judges Siu and Fishman remotely, and so we just ask that
`any time that you put anything up on the screen, please identify
`by page number or slide number. We all have copies of the full
`record and of all the demonstratives, so just to enable us to
`follow along and make sure that the record is clear, identify
`anything you're discussing.
` I also remind the parties that, if you have any objections
`to anything that any other party is presenting, please hold that
`until your own turn at the podium rather than interrupting.
` Okay. And with that, we note that Intel requested and
`we granted that 20 minutes of each parties' allotted presentation
`time today will be closed to the public to discuss materials that were
`filed under seal. We'd like to begin with those issues.
` And so what we'd like to do at this time is to excuse
`anyone who hasn't signed on to the protective order. I'm not
`entirely sure how the logistics of this will work, since we have
`some material that may be Intel-confidential and other material
`that may be Cavium-confidential.
` Mr. Stephens, would you like to address that?
` MR. STEPHENS: Your Honor, I think we have worked this
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`out so that all of the people who are in here now, certainly all
`of the in-house counsel for each of the parties can remain during
`the confidential hearing.
` JUDGE BOUDREAU: All right. So there's no one that
`needs to be excused then; is that correct? All right. That makes
`it a lot easier. Thank you.
` MR. STEPHENS: And we have also agreed that we would
`divide up the confidential portion of the hearing so that we would
`do ten minutes of opening, and with the Board's permission, we
`would like Cavium to have some opportunity to speak to issues that
`are specific to them with respect to RPI and privity, which we'll
`give from our ten minutes.
` And then we'd reserve ten minutes for rebuttal. And
`then after we finish the nonconfidential portion, we could do 20
`minutes and save 20 minutes for rebuttal.
` JUDGE BOUDREAU: That sounds fine. And we recognize
`that this will be an exception to the agreement that was reached
`when Cavium joined the 224 and 234 cases -- 226 and 234 cases that
`they wouldn't have the opportunity to speak, but given the
`circumstances, we understand that that makes sense.
` MR. STEPHENS: Thank you, Your Honor. We will try to
`cover most of it, but there are some issues that are unique to
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`them that I think they want to be able to address separately.
` JUDGE BOUDREAU: That sounds good.
` Okay. And with that, do you want to begin?
` MR. STEPHENS: Sure, yeah. So --
` JUDGE FISHMAN: This is Judge Fishman. Sorry to
`interrupt just momentarily. Mr. Cox, we issued an order for
`conditional pro hac entry. Your declaration had a minor technical
`error. I don't know if you saw that order. It just went out this
`morning. I don't know if the parties need to address that first.
` MR. COX: Thank you, Your Honors. We did see that and
`we did file the amended declaration before the hearing this
`morning.
` JUDGE FISHMAN: Okay. Thank you.
` MR. COX: Thank you.
` JUDGE BOUDREAU: I see that that just came in a few
`minutes ago. Thank you.
` MR. STEPHENS: May I proceed?
` JUDGE BOUDREAU: You may. Thank you.
` MR. STEPHENS: Thank you. I'm going to start, of
`course, by addressing the issues that are specific -- specifically
`confidential. And I don't believe that necessarily all of the
`real party in interest and privity issues are necessarily
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`confidential, so it doesn't mean that this is the only time we're
`prepared to address those issues, but we're going to start with
`those because they implicate those issues.
` So if I can have slide 226, please. I'll talk first
`about the time bar issues under Section 315(b) and the thrust of
`where I'm starting is that Intel is the sole real party in
`interest in these IPRs.
` If I could go to slide 230, please. We have presented
`evidence, including a declaration from me and a declaration from
`Intel's former in-house counsel who was in charge of this -- these
`IPRs in the district court litigation until the beginning of this
`year when he left Intel, that show clearly that the defendants
`exercised no role whatever in any of these IPRs. Intel filed
`them, filed them within Intel's own one-year bar date and actually
`initially filed an IPR that was not instituted but was otherwise
`identical within the defendant's one-year bar date as well. But
`these IPRs were filed entirely at Intel's volition and without any
`input whatsoever from any of the other parties.
` If we could go to slide 235. Now, Alacritech has argued
`that there's real party in interest relationship and privity
`resulting from an alleged indemnity relationship with the
`defendants.
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` Again, that takes it outside the scope of any indemnity
`obligation that Intel has to Wistron. And the same, of course, is
`true for the '948 patent.
` And, of course, the '699 patent is not asserted against
`any party in the case. It was dropped. And it was never asserted
`against any of the defendants based on Intel products. So there
`has never been any indemnity obligation for the '699 as well.
` The same is true for Dell.
` JUDGE BOUDREAU: Did you say that the '699 was never
`asserted against any of the customers of --
` MR. STEPHENS: It was never asserted against Intel
`customers based on their inclusion of any Intel components.
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` and not Intel
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` JUDGE BOUDREAU: And when you say that Intel -- that
`Alacritech sued Intel directly, do you mean in a counterclaim --
` MR. STEPHENS: Yes. That's us. Intel intervened
`seeking a declaratory judgment of non-infringement on the patents
`that were asserted against Intel components only. Alacritech
`counterclaimed and included the '699 at that point. So those were
`the first allegations of infringement involving Intel components,
`and they were directly against Intel.
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` JUDGE BOUDREAU: Has Intel now filed IPR petitions with
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`respect to every patent that Alacritech has asserted against Dell?
` MR. STEPHENS: Yes, but that's because all of those
`patents were asserted directly against Intel.
` JUDGE BOUDREAU: But only after Intel intervened.
` MR. STEPHENS: That's correct. That's right.
` JUDGE FISHMAN: This is Judge Fishman. May I ask,
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` is it, in fact, the case that you are defending in that
`litigation, that you are defending Dell as a matter of fact?
` MR. STEPHENS: Only to the extent that we're defending
`our own products. In other words, Intel is obviously defending
`allegations against Intel components, both as Intel sells them and
`as Intel's customer use them, including Dell, but not other than
`that. So, you know, there's a sense in which Intel defending
`itself necessarily accrues to Dell's benefit to some degree. We
`can't deny that.
` But there are separate reasons why Dell might infringe,
`including the fact that they might configure their operating
`systems not to perform the limitations of these claims. And those
`are things that Dell has handled. They have their own counsel.
`And Intel is not responsible for those kinds of issues.
` So we have -- Intel has been defending its own products,
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`and apart from the fact that that does inevitably inure somewhat
`to Dell's benefit, have not otherwise been defending Dell on these
`patents.
` JUDGE FISHMAN: So is Dell separately addressing issues
`in the underlying litigation?
` MR. STEPHENS: Yes, yes. And I have some slides on
`that. If we can have slide -- I guess it's 255.
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` They have their own counsel. Mr. Brady here is also
`representing -- Mr. Brady Cox, that is, is also representing Dell
`in the district court case.
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` Intel also doesn't control Dell's attorneys, and I put
`in a declaration to that effect. We haven't exercised any control
`over them. We have a typical joint defense relationship as it
`relates to these patents.
` And Dell has handled all of the infringement allegations
`that are specific to its products, as I mentioned. So those
`include both the allegations relating to the claims in these
`patents as they relate to aspects of the claims that Dell provides
`and Intel does not, like the operating system or other aspects of
`the server. They also relate to the other suppliers. Right?
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`There's five different suppliers of accused network components in
`these cases: Broadcom, Emulex, Mellanox, and Cavium. So
`it's not really practical for Intel to defend Dell across the
`board, even if they wanted to. And of course, they have no
`obligation to and wouldn't. But because of the fact that Dell is
`accused of infringing based on network chips that are provided by
`many different suppliers, it wouldn't be practical to any of it.
` Dell also managed -- excuse me. Dell attorneys also
`managed Dell's discovery obligations, for example. These are
`objections that were served by Dell's attorneys, not supervised or
`governed by Intel at all. And importantly, these products
`particularly accused under these patents can infringe for reasons
`that have nothing to do with Intel. For example, if Dell provided
`some of the claimed functionality that Intel does not, in addition
`to the operating systems that I have already mentioned, and they
`might have separate non-infringement defenses as well for similar
`reasons.
` And with that, I'll let Cavium's attorney talk. Thank
`you.
` JUDGE BOUDREAU: Thank you, Mr. Stephens.
` MS. KHACHATOURIAN: Good morning, Your Honors.
` JUDGE BOUDREAU: Welcome, Ms. Khachatourian.
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` MS. KHACHATOURIAN: There is significant overlap between
`Intel and Cavium with respect to the argument, so I will not
`restate what Mr. Garland has already said other than to say it
`equally would apply to us.
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` With the 401 IPR for the '699 patent, again, that patent
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`is not asserted any longer. Dell did not join in that proceeding.
`Thereby, there is no evidence that Dell perceives any interest. I
`do not represent Dell. And just to point the Board to the items
`in the record, Mr. Albert Harnois, Cavium's in-house counsel,
`Exhibit 1500, Mr. Harnois testified under the penalty of perjury
`that Cavium is not paying Dell's attorneys' fees. Dell did not
`contribute to the petition in the '699 for the '401 proceeding.
`Cavium solely made the decision to do so. The reason being, that
`Cavium was sued independently on the '699, having absolutely
`nothing to do with Dell.
` And the case law is clear that if a party is
`independently sued, then the time for the one-year bar does not
`start until you're actually sued with a counterclaim. And this
`isn't just a counterclaim against Dell products. This is a slew
`of Cavium products that have nothing to do with Dell at all.
` I'd also like to point out that --
` JUDGE BOUDREAU: But would you agree that if -- I'm just
`speaking hypothetically. If Cavium were -- or if Dell were a real
`party in interest, if we were to -- if you were to concede that
`point, which I know that you're not going to, but if you were to,
`would you agree, then, under that circumstance, that the one-year
`bar would apply?
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` MS. KHACHATOURIAN: Well, for the '205 and the '948
`patents, no, because Cavium joined, and the statute and the case
`law are clear, it's -- the case is ARM -- that, with respect to
`privity, the one-year bar does not apply. So in that instance, I
`would not agree. But with respect to real parties in interest, I
`would agree that the one-year bar would trigger when Dell was
`served.
` JUDGE BOUDREAU: So are you saying that, by joining, a
`party can actually defeat a bar under 315(b)?
` MS. KHACHATOURIAN: I don't think that's the intention,
`to defeat it, but it doesn't apply. In other words, there's no
`strategy involved here. It simply doesn't apply. The case law
`has interpreted 1315(b) [verbatim] and the rule itself makes it
`explicitly clear that it does not apply to a joinder.
` JUDGE BOUDREAU: And what was the case you cited for
`that?
` MS. KHACHATOURIAN: Arm. It's cited in all of our
`papers, but it's the ARM case.
` JUDGE FISHMAN: I presume you're referring to 315(c),
`excepts the time bar for a joinder.
` MS. KHACHATOURIAN: Yes, that is correct.
` JUDGE FISHMAN: Okay. But the underlying petition --
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`the original petition filed by Intel, if 315(b) applies because of
`Dell, the underlying petition, potentially, would have been
`barred?
` MS. KHACHATOURIAN: For Intel, yes, but not for Cavium.
`And not for Dell, because they joined.
` Whether or not that should be the right result, I
`presume, is for another day, but that is currently where the law
`stands.
` And I'd also like to mention that, with respect to
`privity, every case cited, whether on our side or Alacritech's
`side, identifies privity as an analysis for non-parties. Even in
`the Taylor case, which is a Supreme Court case, privity is
`identified as applying to a non-party. Here, Cavium's a party and
`Intel's a party. So I would submit that, under the circumstances,
`the privity analysis does not apply here because we are a party.
`Privity in its history is an equitable and due process doctrine
`applied to see whether you should bind a non-party to a party.
` And in all of the cases, whether it's the RPX case,
`whether it's the Broadcom case, every case that either party has
`cited in these proceedings, it always involves the scenario of the
`petitioner being a non-party or a third party, not a party. Here,
`Cavium and Intel are parties. So to find us either time barred or
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`sometimes there's an issue with RPI that our petition couldn't go
`forward would be unjust and would, frankly, deprive us of our due
`process rights.
` To put this a little bit in background and context, as
`Mr. Stephens had said, this is an incredibly complex fact pattern
`where you have multiple patents, multiple suppliers, multiple
`parties, multiple claims, and to think that you'd be able to
`control anyone under those circumstances is just not practical.
`You know, at the end of the day, the imposition you'd be imposing
`here is that a supplier would have to keep track of every time a
`customer got sued because they had to be cognizant of the one-year
`bar because that's when it would be triggered. And that's just an
`unfair result.
` I did want to yield to my co-counsel in the event we had
`any more time.
` MR. STEPHENS: I just wanted to save something for
`rebuttal.
` JUDGE BOUDREAU: You have two minutes left.
` MS. KHACHATOURIAN: Then I will yield the floor, unless
`anyone has any questions. Thank you, Your Honors.
` JUDGE BOUDREAU: Judges Fishman and Siu, do you have any
`questions?
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` JUDGE SIU: No.
` JUDGE FISHMAN: Not at this time, but you're potentially
`coming back on rebuttal?
` MS. KHACHATOURIAN: Potentially, yes, Your Honor.
` JUDGE FISHMAN: Is that my understanding? Okay. Thank
`you.
` MS. KHACHATOURIAN: Thank you.
` JUDGE BOUDREAU: All right. We'll hear from
`Mr. Paunovich now.
` MR. PAUNOVICH: Let me just switch the technology here
`briefly.
` Your Honors, are you able to see Patent Owner's RPI/privy-related
`demonstratives on your screens?
` JUDGE BOUDREAU: Yes, I have a copy. Thank you.
` MR. PAUNOVICH: This, for the record, is Exhibit 2601.
`Patent Owner has two sets of demonstratives. This is a set that's
`directed to the RPI and privy issues.
` Your Honors, the single-most important issue here today
`is the determination of whether or not the instant petitions are
`time-barred under 35 U.S.C. Section (b) -- 315(b). This is a
`jurisdictional issue under the statute, and it's not something
`that the Board has discretion to ultimately allow or to invalidate
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`time-barred IPRs.
` And to be clear, Petitioners have the burden here today,
`not Patent Owner. In the Worlds v. Bungie decision, they make
`very clear that there is no presumption that the privity and RPI
`identification of Petitioners is correct. Also in that decision
`at 903 F.3d 1237 at 1246, the Federal Circuit makes very clear
`that attorney argument, like the unsupported Garland Stephens
`declaration that we're seeking to exclude, as well as the belated
`Cavium/Harnois declaration that was submitted as new evidence in
`the supplemental briefing are attorney argument that are not
`evidence. And, rather, it's reversible error to rely on such
`evidence and shifting the burden to the PO to essentially prove
`that there is an RPI or privy that would act as a bar to the
`petition.
` The briefing in the arguments before the Board, we
`believe, present a very clear issue. If we can go to --
` JUDGE BOUDREAU: Is your theory based on Dell being a
`privy? Or is it based on Dell being a real party in interest?
` MR. PAUNOVICH: Both, Your Honor. And it's also based
`on Wistron. Today -- so the briefing sets out our basis for the
`argument, which is, it has multiple grounds on which we believe we
`the find the time bar, both with respect to Dell and with respect
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`to Wistron. On both of these entities, we have briefed and argued
`and will argue here today and explain and show the Board why Dell
`is both a real party in interest and separately, independently,
`also a privy. Same thing with Wistron, and we believe the
`evidence very clearly shows that.
` JUDGE BOUDREAU: Can you address the argument that,
`because Dell is already a party in the case, that the privity
`analysis has no place here?
` MR. PAUNOVICH: Sure. No problem. What you're
`referring to, Your Honor, is 315(c), which talks about a joinder
`of a petition. Under the seminal case -- and actually, if we can
`just going to slide 6, please. In the Federal Circuit's
`Applications In Internet Time v. RPX, they make very clear, the
`Federal Circuit does, in the instance where the alleged real party
`in interest or privity -- or privy had a lawsuit filed against
`them more than one year prior to the filing of the instant
`petitions, 315(c) does not act as an exception to the otherwise
`one-year bar.
` In this situation where we have parties who have
`closely connected long-established contractual relationships in
`indemnity and defense, we do dispute indemnity but we're going to
`focus on defense today because we think it's the easiest and
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`clearest path for the Board to understand how Dell and Wistron are
`RPIs and privies. In that instance, there is no exception under
`315(c). It is an absolute bar that deprives the Board of
`jurisdiction to invalidate the instant petitions.
` So if we look at slide 6 of our demonstratives, this is
`from the Board's order. Alacritech/Patent Owner, has sought
`additional discovery, and we did this on the basis of the AIT
`decision, which is how I'll refer to it for the rest of the
`presentation. And the Board acknowledged what everyone now knows
`about how the Federal Circuit wants the Board to look at RPI and
`privy issues, and that is, we can no longer focus on simple
`control or the opportunity to control. That's not the relevant
`inquiry.
` And so the Board has a simple question to ask here
`today. If we look at the thrust of the briefing and the argument
`from the Petitioners, they're essentially advancing the same
`argument that they advanced in the first wave or the first series
`of IPRs. They say, well, Dell, Wistron, they didn't have control.
`We didn't seek their input for these instant petitions.
` Under AIT, that is an improper inquiry. And in that
`case, what we saw is the Federal Circuit reversed the Bboard for
`relying on the very analysis of looking at simple control or the
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`opportunity for control. Instead, what the -- what the AIT court
`said is that we have to look at -- if we can go to slide 11,
`please. What the Board held -- I'm sorry, what the Federal
`Circuit pointed out is that you have to look at and look at the
`documents and the transactions, the relationships to determine who
`is the clear beneficiary that has a pre-existing, established
`relationship with the Petitioner? And we heard from Petitioner
`Intel just shortly ago concede that and acknowledge that they are
`defending Dell in the underlying litigation for those Dell
`products that incorporate Intel components, and they expressly
`acknowledged that, in providing that defense, that there is a
`benefit that accrues to Dell. That was their admission. That's
`exactly the standard post AIT for finding a real party in
`interest.
` So if we can just briefly, to summarize our timeline
`here that I think is helpful -- if we can go to slide 3, please.
`There are three demonstratives that Your Honors will see within
`Alacritech's Exhibit 2601, slides 3 through 5. And this just lays
`out very clearly, so that you can see the timeline of what
`happened in this case. As Your Honors know, there's an underlying
`lawsuit in the Eastern District of Texas, in which Alacritech,
`Patent Owner, filed suit against Dell, Wistron, and others back in
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`June of 2016. Intel and Cavium, their suppliers, then intervened
`a few months later to defend and partially indemnify their
`customers. And we'll get to that in a brief moment.
` There was a first series of IPRs that was filed --
` JUDGE BOUDREAU: Why isn't the key word there
`"partially"? From what I understand from Mr. Stephens' argument
`and from Ms. Khachatourian's argument is that the interests aren't
`entirely aligned between their clients and Dell because the
`accused Dell products include additional components that aren't
`supplied by either of their clients.
` And so how do you reconcile that, the fact that they
`have different interests?
` MR. PAUNOVICH: Very easily, Your Honor. Part of the
`reason we focused on the defense, because we think it makes it
`very clear and easy for this Bboard to understand that we -- as we
`set out in our briefing, indemnity and defense are two independent
`legal obligations. They're well-defined under the law.
` Intel nor Cavium have disputed that. You can indemnify
`a party and decide not to defend them or, alternatively, you could
`defend a party and decide not to indemnify them in the ultimate
`recovery in that suit.
` Here --
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