UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SIRIUS XM RADIO INC.,
`Petitioner,
`
`V.
`
`FRAUNHOFER-GESELLSCHAFT ZUR FORDERUNG DER
`ANGEWANDTEN FORSCHUNG E.V.,
`Patent Owner.
`
`Case IPR2018-00681
`Patent No. 7,061,997
`
`DECLARATION OF PATRICK L. DONNELLY
`
`Petitioner Sirius XM Radio Inc. — Exhibit 1024,p. 1
`Sirius XM v. Fraunhofer — IPR2018-00681
`U.S. Patent No. 7,061,997
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SIRIUS XM RADIO INC.,
`Petitioner,
`
`V.
`
`FRAUNHOFER-GESELLSCHAFT ZUR FORDERUNG DER
`ANGEWANDTEN FORSCHUNG E.V.,
`Patent Owner.
`
`Case IPR2018-00681
`Patent No. 7,061,997
`
`DECLARATION OF PATRICK L. DONNELLY
`
`Petitioner Sirius XM Radio Inc. — Exhibit 1024,p. 1
`Sirius XM v. Fraunhofer — IPR2018-00681
`U.S. Patent No. 7,061,997
`
`
`
`I, Patrick L. Donnelly, declare as follows:
`
`il.
`
`I am Executive Vice President, General Counsel and Secretary of
`
`Sirius XM Radio Inc. (“Radio”).
`
`I am also Executive Vice President, General
`
`Counsel and Secretary of Sirius XM HoldingsInc. (“Holdings”). I make this
`
`declaration based upon my personal knowledgeofthe facts stated herein.
`
`2.
`
`Radio is a corporation engagedin the businessof,interalia,
`
`transmitting music, sports, entertainment, comedy,talk, news,traffic and weather
`
`channels, as well as infotainment services, in the United States on a subscription
`
`fee basis through two proprietary satellite radio systems and via the Internet.
`
`o
`
`Radio is a wholly-owned subsidiary of Holdings. Holdings ownsall
`
`of the issued and outstanding capital stock of Radio.
`
`4.
`
`5.
`
`Holdingsis a non-operational holding company.
`
`Holdings has the powerto appointthe officers and directorsofits
`
`wholly owned subsidiary, Radio, but it does not operate the business of Radio or
`
`control the day-to-day business or operations of Radio.
`
`6.
`
`Radio and Holdings maintain separate business records and financial
`
`accounts.
`
`7.
`
`Liberty Media Corporation andits subsidiaries and affiliates (“Liberty
`
`Media”) beneficially owns “approximately 70% of the outstanding shares of
`
`Petitioner Sirius XM Radio Inc. — Exhibit 1024, p. 2
`Sirius XM v. Fraunhofer — IPR2018-00681
`U.S. Patent No. 7,061,997
`
`
`
`Holdings’ commonstock.” Ex. 2001-4. Liberty Media has no direct ownership of
`
`Radio.
`
`8.
`
`Liberty Media does not control or operate the business activities and
`
`operations of Holdings or Radio.
`
`9.
`
`Liberty Media maintains business operations, business records, and
`
`financial accounts separate from Holdings and Radio.
`
`10.
`
`Liberty Media hastheability to (i) “determine the outcomeofall
`
`matters requiring general stockholder approval, including the election of the board
`
`of directors and changesto [Holdings’] certificate of incorporation or by-laws,”(ii)
`
`“cause or prevent a change of control of Holdings,” and(iii) “preclude any
`
`unsolicited acquisition of [Holdings’].” Ex. 2001-28. While Liberty Media has the
`
`ability to change the charter of Holdings and replace the Board of Directors of
`
`Holdings, Liberty Media does not control or direct the day-to-day operations of
`
`Holdings.
`
`11.
`
`Fraunhofer-Gesellschaft Zur Forderung Dr Angewandten Forschung
`
`E.V. (“Fraunhofer”) sued Radio for allegedly infringing U.S. Patent Nos.
`
`6,931,084; 7,061,997; 6,993,084; and 6,314,289 (the “Asserted Patents”) (the
`
`“Fraunhofer Litigation”). Ex. 2010. Fraunhofer did not sue Holdings or Liberty
`
`Media for patent infringement on the Asserted Patents and neither Holdings nor
`
`Liberty Media could be sued for allegedly infringing the Asserted Patents.
`
`Petitioner Sirius XM Radio Inc. — Exhibit 1024, p. 3
`Sirius XM v. Fraunhofer — IPR2018-00681
`USS. Patent No. 7,061,997
`
`
`
`12.
`
`Radio has been and will continue to be solely responsible for directing
`
`and controlling all matters pertaining to the IPR petition in this proceeding and the
`
`Fraunhofer Litigation. Radio has been and will continue to be the only entity
`
`paying for and fundingall filing and legal fees associated with both proceedings.
`
`13. Neither Holdings nor Liberty Media participated in or exercised any
`
`control over the decision to file or the content of the petition in this proceeding.
`
`14. Neither Holdings nor Liberty Media has,or will, direct, control, fund,
`
`or make any decisions, exercise control over, or otherwise participate in (i) any
`
`matters orfilings relating to this proceeding, including regarding any content
`
`subject to this proceeding, (ii) pay any filing or legal fees associated with this
`
`proceeding,or (iii) engage in any of the foregoing for any of the IPR petitions
`
`challenging the Asserted Patents.
`
`15. Neither Holdings nor Liberty Media has, or will, direct, control, fund,
`
`or make any decisions or otherwise participate in the Fraunhofer Litigation, nor has
`
`either of them paid or will either of them pay anyfiling or legal fees associated
`
`with the Fraunhofer Litigation.
`
`Petitioner Sirius XM RadioInc. — Exhibit 1024, p. 4
`Sirius XM v. Fraunhofer — IPR2018-00681
`U.S. Patent No. 7,061,997
`
`
`
`I hereby declare, under penalty of perjury, that all statements made
`
`herein are of my own knowledgeare true andthat all statements made on
`
`information and belief are believed to be true; and further that these statements
`
`were made with the knowledgethat willful false statements and the like so made
`
`are punishable by fine or imprisonment, or both, under Section 1001 of Title 18 of
`
`the United States Code.
`
`Dated: June 28, 2018
`
`*
`
`Patrick L. Don
`
`Petitioner Sirtus XM RadioInc. — Exhibit 1024, p. 5
`Sirius XM v. Fraunhofer — IPR2018-00681
`U.S. Patent No. 7,061,997
`
`
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