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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RESHAPE MEDICAL LLC, )
` )
` Petitioner, )
` ) Case No.
` vs. ) IPR2018-00957
` ) IPR2018-00958
`FULFILLIUM, INC., )
` ) Patent Nos.
` Patent Owner. ) 9,456,915 B2
`-------------------------- ) 9,445,930 B2
`
` PTAB CONFERENCE CALL
` Thursday, September 20, 2018
`
`Reported by:
`Stacey L. Daywalt
`JOB NO. 148168
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 1
`ReShape v. Fulfillium
`Case IPR2018-00958
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`RESHAPE MEDICAL LLC, )
` )
` Petitioner, )
` ) Case No.
` vs. ) IPR2018-00957
` ) IPR2018-00958
`FULFILLIUM, INC., )
` ) Patent Nos.
` Patent Owner. ) 9,456,915 B2
`-------------------------- ) 9,445,930 B2
`
` PTAB CONFERENCE CALL
` Thursday, September 20, 2018
`
`Reported by:
`Stacey L. Daywalt
`JOB NO. 148168
`
`TSG Reporting - Worldwide 877-702-9580
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`ReShape v. Fulfillium
`Case IPR2018-00958
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`Page 2
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` Thursday, September 20, 2018
` 4:15 p.m.
`
` PTAB Conference Call, held before
`Administrative Patent Judges Matthew S. Meyers,
`James A. Worth and Barry L. Grossman, before
`Stacey L. Daywalt, a Court Reporter and Notary
`Public of the District of Columbia.
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`ReShape v. Fulfillium
`Case IPR2018-00958
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`A P P E A R A N C E S:
`(All appearances are telephonic)
`
` FOLEY & LARDNER
` Attorneys for Petitioner
` 3579 Valley Centre Drive
` San Diego, California 92130
` BY: NICOLA PISANO, ESQ.
` JUSTIN GRAY, ESQ.
`
` GARDELLA GRACE
` Attorneys for Patent Owner
` 80 M Street SE
` Washington, DC 20003
` BY: GREG GARDELLA, ESQ.
` NATALIE GRACE, ESQ.
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`ReShape v. Fulfillium
`Case IPR2018-00958
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` ADMINISTRATIVE PATENT JUDGE: Do we
`have Petitioner's counsel on?
` MR. PISANO: Yes, sir.
` This is Nic Pisano from Foley &
`Lardner. And I have with me in my office
`Justin Gray on behalf of Petitioners.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` Patent Owner, who else is with you?
` MS. GRACE: Natalie Grace.
` MR. GARDELLA: So Natalie Grace.
` ADMINISTRATIVE PATENT JUDGE: Oh,
`thank you. Okay.
` Anyone else on the line?
` All right. Thank you. My name is
`Judge Meyers. And also on the call are Judges
`Worth and Grossman.
` We're here today to discuss
`IPR2018-00957 and 00958. Patent Owner is
`requesting the call to discuss the request for
`routine discovery under 37 CFR 4251(b)(1)(i).
` Patent Owner has asked the
`Petitioner to produce the acquisition
`agreement. I believe it's between Reshape Inc.
`and EnteroMedics, Incorporated, because the
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`Fulfillium Exhibit 2018, Page 4
`ReShape v. Fulfillium
`Case IPR2018-00958
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`agreement was, as Patent Owner put it in their
`correspondence, cited in a paper.
` Patent Owner, could you please
`explain your position?
` MR. GARDELLA: Yes, Your Honor. I'd
`be happy to.
` This is Greg Gardella for Patent
`Owner, Fulfillium.
` So the Petitioner appears to be of
`the view that a document doesn't have to be
`produced as routine discovery unless it's
`actually filed and labelled as an exhibit. And
`we respectfully submit that that would make the
`rule meaningless.
` The following cases we'd bring to
`your attention in which it was -- in which the
`board has addressed this issue and filed, I
`guess, a discussion in a document, in a paper,
`wherein testimony makes it follow the newly
`cited rule and renders that document subject to
`routine discovery.
` The next one here, Case IPR2015-594,
`Paper 35, indicated that testimony discussed in
`the declaration ought to be provided as routine
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`Fulfillium Exhibit 2018, Page 5
`ReShape v. Fulfillium
`Case IPR2018-00958
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`discovery.
` The BLD case, IPR2014-00770, Paper
`24, most of those -- even the publications just
`mentioned the patent and the declaration is
`subject to routine discovery, even though they
`were publicly available in that case.
` Patent Owner has also made reference
`to, you know, tangentiality being a basis to
`not produce the document. However, there is no
`tangentiality exception to the routine
`discovery rule.
` And the board has specifically
`addressed that argument and rejected it in
`MaxLinear. And again, that's 2015-594, Paper
`35. The board held that if something's cited,
`it's not tangential in ordering the materials
`to be produced.
` With your indulgence, and really at
`your preference, I can explain why the
`relevant -- why this document matters. I don't
`know that that's something you want to hear
`about, but I'm happy to explain why it matters
`in the context of this case.
` ADMINISTRATIVE PATENT JUDGE: Okay.
`
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`Fulfillium Exhibit 2018, Page 6
`ReShape v. Fulfillium
`Case IPR2018-00958
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` Before we get to that, Petitioner,
`what are your thoughts on this matter?
` MR. PISANO: Yes, Your Honor. This
`is Nic Pisano on behalf of the Petitioners.
` I would take issue with
`Mr. Gardella's explanation of the cases. But
`very briefly, for example, in the Worlds case,
`the board's refusal to provide discovery was
`not actually addressed by the Federal Circuit
`because it wasn't raised by the appellant --
`but I won't go to the other ones.
` More importantly, that merger
`agreement was a public document, and it was
`provided -- I think there were a number of
`pendencies to it. And that document was
`provided to the Patent Owner in the underlying
`litigation, District Court litigation.
` The Patent Owner objected to our
`production in the District Court because
`they -- we redacted the identities of the
`former company's shareholders. And this is
`important.
` And the reason we did not provide
`these is because Patent Owner has filed
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`Fulfillium Exhibit 2018, Page 7
`ReShape v. Fulfillium
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`multiple lawsuits in California, Delaware, and
`just the last two weeks ago, in California
`Superior Court, attempting to sue everyone
`connected to the former company, including --
`and they in fact have sued one of the venture
`funds.
` So on September 7th, Exhibit 1027,
`which we just filed yesterday, Patent Owner
`filed a complaint in the California Superior
`Court where they list Does 1 to 100. And these
`are the -- and I have no doubt that if we
`produced an unredacted version of the merger
`agreement -- they already have redacted
`version. If we produce an unredacted version,
`the individual shareholders of the former
`company will be substituted in for those Does 1
`to 100.
` And just so you get a better idea, I
`believe, of the Petitioner's perspective,
`37 CFR 42.1 has as a policy that IPRs should be
`conducted to secure a just, speedy and
`inexpensive resolution of every proceeding.
` So the discovery -- and we believe
`the discovery being demanded by the Patent
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`Fulfillium Exhibit 2018, Page 8
`ReShape v. Fulfillium
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`Owner will only lead to additional vexatious
`multiplication of the proceedings between the
`Patent Owners, the Petitioners and the
`shareholders in the former company and anybody
`who had any relationship with the former
`company.
` And not to belabor this point, but
`there are now two pending -- two identical
`lawsuits in the Central District of California,
`United States District Court for the Central
`District of California, an appeal from one of
`those lawsuits to the Federal Circuit.
` A case was filed in Delaware by the
`Patent Owner against one of the early censure
`funds, and the basis of that complaint is
`indirect infringement by the Petitioners, which
`is the subject of the two Central District of
`California cases.
` And then we have a duplicative trade
`secret case that was just filed in California
`Superior Court.
` So you know, with respect to whether
`this constitutes routine discovery or not,
`we're happy to give them the merger agreement.
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`Fulfillium Exhibit 2018, Page 9
`ReShape v. Fulfillium
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`They already have it. You know, we could
`certainly reproduce it. But if we do, it
`should only be in the redacted form with the
`exhibits as we previously provided it and that
`they have in the underlying District Court
`litigation, because if we have to reveal the
`shareholders, they will be immediately
`substituted in as Does 1 to 100. So that's our
`primary concern.
` I mean, I would note that in the
`Under Armour case cited, the board granted the
`request to produce prior deposition
`transcripts, not the exhibits to those
`transcripts.
` In the BLD case, the exhibits that
`were -- which were called routine discovery
`were attached to the expert's declarations and
`said -- the expert's declaration said, attached
`as Exhibits A and B are our prior experience.
` And in fact, they were not attached,
`but I do think that's a situation where they
`were directly, you know, brought up.
` And I guess finally, with -- the
`mandatory notices refer to Paragraph 3 of my
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`Fulfillium Exhibit 2018, Page 10
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`declaration, which is made upon information and
`belief that basically says: "It is my
`understanding that." And that was based on
`confidential communications.
` They've received what can be
`produced already in the underlying District
`Court litigation. Happy to produce that again.
` And beyond that, I don't think that
`they're entitled to any further discovery.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` Patent Owner, why is the redacted
`version inadequate?
` MR. GARDELLA: Okay. So a couple
`things, Your Honor.
` First of all, in our meet and
`confer, which I think was primarily by e-mail,
`it was never suggested that we already have the
`document. Rather, we were told that our
`reading of the routine discovery rules was
`incorrect because it's not an exhibit. So this
`is the first I'm hearing that the relevant
`documents were produced in underlying
`litigation.
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`Fulfillium Exhibit 2018, Page 11
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` Secondly, and more importantly, the
`public, I think it's an 8-K filing, does not
`provide -- I mean, it's really just a shell, a
`summary of the transaction.
` This -- what happened here was
`actually a relatively complex two-stage merger
`involving no less than half a dozen companies.
`And the manner in which the assets were -- and
`many of these companies were created and just
`shell companies strictly for purposes of the
`two-stage merger followed by a name change.
` And upon reviewing the information,
`my corporate specialists -- I'm not a corporate
`specialist -- tell me that there's no way to
`tell where any of the liabilities as to the
`responsibilities lie without the underlying
`documents.
` So yes, it is true that they gave us
`a publicly available document filed with the
`SEC. I am advised that there are a number of
`side agreements and other agreements referenced
`in that document which we have requested from
`opposing counsel in the lawsuit, which actually
`provides the substance and actually indicate
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`Fulfillium Exhibit 2018, Page 12
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`who acquired what liabilities and who was
`running what.
` This has been something that we've
`requested numerous times in the underlying
`litigation. And for reasons which are not
`completely apparent to us, opposing counsel has
`not been willing to produce those materials,
`even though they are clearly relevant. But
`we're sorting that out in the District Court.
` I'll mention just briefly that the
`duplicative litigation that Mr. Pisano refers
`to is -- it's really just an artifact of
`California procedure.
` They have the position -- Mr. Pisano
`took the position with me on the phone the
`other day that we had to file something in
`state court in order to preserve it, so we did
`so. And you know, that's the reason for that
`state court action.
` So the cases -- again, the attempt
`to distinguish them isn't opposite. Any
`documents that are discussed are, you know, in
`a paper or in testimony have uniformly, in my
`eyes, been ordered to be produced.
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`Fulfillium Exhibit 2018, Page 13
`ReShape v. Fulfillium
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` And there is actually ample reason,
`Your Honors, to suspect that this may be
`tactical, this may have been tactical, the
`decision not to list the parent company in the
`original mandatory notice.
` And in short, this has been a hotly
`contested issue in the underlying litigation.
`We moved to add the parent company in
`litigation that was opposed, even though the
`website shows the parent company as the one
`selling the product that was opposed by
`opposing counsel.
` ADMINISTRATIVE PATENT JUDGE: But
`Counsel, let me interrupt you for a moment.
` MR. GARDELLA: Sure. Sure.
` ADMINISTRATIVE PATENT JUDGE:
`Haven't their amended mandatories taken care of
`this?
` MR. GARDELLA: Well --
` ADMINISTRATIVE PATENT JUDGE: So
`what relevance is this to your -- these
`particular proceedings that we would need this
`information?
` MR. GARDELLA: Okay. So --
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`Fulfillium Exhibit 2018, Page 14
`ReShape v. Fulfillium
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` ADMINISTRATIVE PATENT JUDGE: The
`parent company is now named as a real party in
`interest.
` MR. GARDELLA: Yes.
` So in the last call, opposing
`counsel, Mr. Pisano, represented to you that
`the -- at the time of filing, the parent
`company was probably not an RPI, but later they
`became an RPI. They did not make any showing
`of good cause or interest of justice to do this
`belatedly. And so these are mandatory notices
`which we expected to see an explanation as to
`what changed after filing the petition.
` But in the mandatory notices,
`Mr. Pisano is very careful to not call it a
`typographical error, nor does he identify
`anything that changed after the filing of the
`petition. Rather, he just refers to something
`which occurred more than six months prior to
`the filing of the petition.
` So I don't understand what actually
`happened here. What I do know is that what
`Mr. Pisano represented to us all during the
`last call does not appear to be consistent with
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`the updated mandatory notices, because all they
`say is, well, there's this merger six months
`prior. And upon reading the POPR, we realized
`that it wasn't -- that the parent was not
`listed.
` Again, in the declaration and in the
`updated mandatory notices, they're very careful
`not to call it a typographical or a clerical
`error. And in light of the underlying and
`ongoing dispute about whether the parent
`company is the proper party in the lawsuit, we
`think this was probably intentional.
` And one of the things that makes me
`think that, Your Honors, is that in their
`motion to stay the litigations pending these
`proceedings, I mean, you typically see a
`defendant say, well, look, we're going to be
`estopped by the results of the IPR, so this
`will simplify the issue.
` Conspicuously, opposing counsel did
`not argue that. And we think that was quite
`intentional because they were hoping to keep
`the parent out of the case.
` So I don't understand really what's
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`going on here, Your Honor. This is a very
`complex transaction, one that opposing counsel
`has worked very hard to keep opaque to the
`Patent Owner.
` We don't, even as it stands today,
`understand what parties are on first, second
`and third base and who has what liabilities.
`So at this point all we have, Your Honors, is
`Mr. Pisano's representation that -- I don't
`know what his current position is. Before he
`said something changed after filing. I don't
`know what to think now.
` So it's relevant because we are
`entitled under the rules to, at the end, if
`necessary for us, to oppose the veracity of the
`representations, which I can't quite make heads
`nor tail of currently.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` MR. PISANO: Your Honor, may I be
`heard?
` ADMINISTRATIVE PATENT JUDGE: Yes.
`Go ahead.
` MR. PISANO: Okay.
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` So it's shocking to me that
`Mr. Gardella says that he doesn't have anything
`other than the public document, because we
`provided him the -- not only the merger
`agreement that was in the SEC filings, but also
`all of the related schedules that are directly
`related to that.
` And we did, however, redact out all
`of the shareholders, because we do -- because
`if you look at the multiplicity of suits, there
`are five of them going on right now.
` And the District Court -- the most
`recent state court case, I certainly did not
`tell him he needed to go file it. I merely
`pointed out that his second duplicative
`District Court case was, according to the case
`law the judge himself cited, time barred. So
`he apparently took that as some reason to go do
`something else.
` But they have everything that
`relates to this transaction, and it's been
`provided in confidence to them or subject to --
`we never did get around to getting a protective
`order entered. But they have it and they
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`agreed to take it confidentially.
` It's surprising he would say they
`don't say they have it. He's lead counsel.
`He's listed as alternate lead counsel in the
`District Court litigations, or at least he was.
`So that's all very confusing to me.
` I agree with you this is not
`relevant. The District Court certainly hasn't
`seen any reason to require production of these
`documents.
` There's no tactical decision here.
`I mean, in fact, when the company was acquired,
`we -- and by the way, I'm not even sure of
`which motion to dismiss he's referring to,
`because there have been multiple throughout the
`course of this litigation, directed to the
`patents, directed to the parties, directed to
`the lack of subject matter jurisdiction.
`There's at least a -- maybe a half a dozen at
`least. And then there's other parties who also
`filed motion to dismiss.
` But in any event, they wouldn't even
`agree to substitute in the LLC for the Inc.,
`and we offered to do that to them -- or with
`
`TSG Reporting - Worldwide 877-702-9580
`
`Fulfillium Exhibit 2018, Page 19
`ReShape v. Fulfillium
`Case IPR2018-00958
`
`
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`Page 20
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`them back in -- right after like October or
`November of 2017.
` So -- and we said, if you want to
`add other parties, you know, fine, you can
`move. But they wouldn't even agree to the
`substitution. So it is perplexing.
` It sounds to me like they would like
`to crawl all over all of the deal documents.
`And I don't see that those are relevant.
` I mean -- and I don't agree, going
`back to an earlier part of his discussion, that
`it was the intention to identify what Reshape
`Lifesciences Inc., as real party in interest --
`that's why they're in the section called Notice
`of Real Party in Interest.
` Certainly, we're under time pressure
`to get this thing filed, because we were
`hoping, as stated in my declaration, to come to
`some reasonable resolution of this thing. And
`we were holding on to the considerable cost of
`the IPR filing as a potential basis for
`settlement. But when that all fell through, we
`needed to get the papers on file.
` They pointed out that we'd made an
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 20
`ReShape v. Fulfillium
`Case IPR2018-00958
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`Page 21
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`error, and we fixed it. So I -- or they think
`we made an error. And the board said, go ahead
`and correct it, and we did.
` The board did not give us permission
`to respond to all of the speculation, the rank
`speculation, in their Patent Owner's
`preliminary response, and we chose not to. And
`I think that was a wise decision.
` What I'm hearing is that
`Mr. Gardella would really like to file a motion
`to reconsider the board's previous
`determination allowing the Petitioners to, you
`know, correct the mandatory notices. I don't
`think that -- you know, he can certainly ask
`for that. But trying to backdoor that by
`looking for wide ranging discovery, which in my
`experience is never permitted in an IPR and
`doesn't seem to be appropriate. And if he goes
`back and looks at the documents he has,
`including all the confidential exhibits, which
`of course are redacted only as to shareholder
`identities, he should have everything he needs.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
`
`TSG Reporting - Worldwide 877-702-9580
`
`Fulfillium Exhibit 2018, Page 21
`ReShape v. Fulfillium
`Case IPR2018-00958
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`Page 22
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` I'm going to take a few minutes for
`the panel to confer. We will be back.
` (Discussion was held off the
`record.)
` ADMINISTRATIVE PATENT JUDGE: We're
`back. Sorry to keep the parties waiting.
` So Patent Owner, are you alleging a
`time bar here?
` MR. GARDELLA: Yeah, we believe it
`actually is time barred, Your Honor, in light
`of the intervening -- the case is escaping me
`right now, but we discussed it during the --
`the Federal Circuit case we discussed during
`the last call that essentially changed the law.
`The underlying lawsuit was dismissed with
`prejudice because of a co-owner who was deemed
`not to be sufficiently present in the suit, so
`that's been rejected now.
` But yeah, we do believe there is.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` And which case was that? Which case
`is the one that that did arise?
` MR. GARDELLA: Let's -- if you give
`me a moment.
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 22
`ReShape v. Fulfillium
`Case IPR2018-00958
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`
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`Page 23
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` ADMINISTRATIVE PATENT JUDGE: Sure.
` (Discussion was held off the
`record.)
` MR. GARDELLA: And back to your
`question, Your Honor, it's Click-to-Call
`Technologies. And this was cited in our
`response to the mandatory notices. I don't
`have the paper number handy. But it's -- it's
`on Page 2. I can give you the Westlaw cite if
`you're interested.
` ADMINISTRATIVE PATENT JUDGE: No.
`No. I was talking about the underlying
`District Court case for this case, the
`infringement action.
` MR. GARDELLA: Oh, okay.
` Well, to answer that, I would ask
`you which one you're referring to, because, as
`noted, one was dismissed for failure to list a
`co-owner, and which entailed a re-filing.
` And Mr. Pisano, I believe, filed
`four updated mandatory notices, which list all
`of the cases. So that's Paper 116.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` MR. GARDELLA: And on making that
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 23
`ReShape v. Fulfillium
`Case IPR2018-00958
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`
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`Page 24
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`his -- the board's updated mandatory notices,
`then this appears to be the correct set of
`citations.
` ADMINISTRATIVE PATENT JUDGE: All
`right. All right. Well, we are going to take
`this all under advisement and send an order out
`shortly.
` But one thing I want to get clear:
`Is there any complaint that was served on
`Petitioner more than a year ago that is the
`basis of this bar?
` MR. GARDELLA: Yes, there is, Your
`Honor.
` And I can give you that citation
`now.
` ADMINISTRATIVE PATENT JUDGE: Yeah,
`just so we're clear.
` MR. PISANO: Your Honor, we disagree
`that that's actually factually correct. It's
`not.
` The petition was filed within one
`year of complaint being filed against the now
`nonexistent Reshape Medical Inc. The petition
`identifies Reshape Medical LLC and its parent
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 24
`ReShape v. Fulfillium
`Case IPR2018-00958
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`as real parties in interest.
` Patent Owner complained that we did
`not say each was a real party in interest, but
`each appears under the notice that says Notice
`of Each Real Party in Interest.
` MR. GARDELLA: This is Mr. Gardella.
` I do have the --
` MR. PISANO: So we are now rearguing
`the prior motion.
` ADMINISTRATIVE PATENT JUDGE: Okay.
` MR. GARDELLA: Would you like the
`Civil Action Number, Your Honor?
` ADMINISTRATIVE PATENT JUDGE: Yes,
`let me get the Civil Action Number real quick.
` MR. GARDELLA: Yes. It's
`17-CV-08419 in CD Cal.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` And Patent Owner, would you be
`willing to accept the redacted version of the
`agreement?
` MR. GARDELLA: You know, again, Your
`Honor, as I alluded to before, my advisors that
`are experts in corporate law tell me that the
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 25
`ReShape v. Fulfillium
`Case IPR2018-00958
`
`
`
`Page 26
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`redacted version does us virtually no good and
`the documents they've given us are not
`sufficient to identify who is controlling what
`and who has what assets and liabilities.
` These deals, as I understand it,
`have a whole set of deal documents and side
`agreements. And without those other
`agreements, we just have -- we don't have
`enough information to determine anything
`meaningful.
` MR. PISANO: So Your Honors, the
`only thing that was redacted out was the
`shareholders' names.
` There's 157 pages of the deal
`documents. I'd be happy to submit that to the
`board, if they want to look at it.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` MR. PISANO: If you -- if --
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` Patent Owner, so is that -- would
`you agree with that assessment, that the only
`redacted information are the shareholder names?
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 26
`ReShape v. Fulfillium
`Case IPR2018-00958
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` MR. GARDELLA: I would have to check
`that.
` Again, it was not mentioned until at
`the beginning of this call that we supposedly
`had the documents that you're asking for.
`Rather, Mr. Pisano said he wasn't going to
`produce them because they weren't routine
`discovery.
` So I haven't, during this call, been
`able to comb through them. So no, I cannot
`agree that that's all the information that was
`redacted.
` And again, most fundamentally, the
`information that I am aware of is not
`sufficient to answer, or even to show, you
`know, who's responsible for what, as discussed
`in the third updated mandatory notice.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` And if the shareholders' names are
`in fact the only thing that is redacted from
`the document, would that be sufficient?
` MR. GARDELLA: Not necessarily.
` Again, he's referring to the
`
`TSG Reporting - Worldwide 877-702-9580
`
`Fulfillium Exhibit 2018, Page 27
`ReShape v. Fulfillium
`Case IPR2018-00958
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`agreement. He doesn't say it's the 8-K filing.
` I am not a corporate specialist. My
`understanding is the 8-K filing and that one
`deal document is one of a relatively large set
`of documents.
` So to the extent -- maybe Mr. Pisano
`is suggesting -- kind of implicit in what he's
`saying is that, well, the document referred to
`in the third updated mandatory notices is the
`8-K document. I don't know that to be the
`case.
` As I understand the 8-K document,
`it's not sufficient to explain and delineate
`that which -- you know, who's responsible for
`what, which is really the crux.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` MR. GARDELLA: The third updated
`mandatory notice talks about certain people
`being responsible for --
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` MR. PISANO: Your Honor, again, I
`don't mean to --
`
`TSG Reporting - Worldwide 877-702-9580
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`Fulfillium Exhibit 2018, Page 28
`ReShape v. Fulfillium
`Case IPR2018-00958
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` MR. GARDELLA: Excuse me,
`Mr. Pisano.
` ADMINISTRATIVE PATENT JUDGE: Hold
`on.
` MR. GARDELLA: The documents that
`I've seen from the litigation, I've been told
`point-blank by corporate specialists they are
`not sufficient to tell us who's responsible for
`what.
` ADMINISTRATIVE PATENT JUDGE: All
`right.
` Well, who is the suspected real
`party here that --
` MR. PISANO: Well, Reshape
`Lifesciences and -- Reshape Lifesciences
`Inc. and Reshape Medical LLC, the two people
`who are listed in the updated mandatory
`notices.
` MR. GARDELLA: And again, Your
`Honor, this is Mr. Gardella.
` There were no less than half a dozen
`companies involved in this
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