Deposition of:
`Telephonic Hearing
`November 4, 2019
`
`In the Matter of:
`Google LLC v. Cywee Group LTD
`
`Veritext Legal Solutions
`800.808.4958 | calendar-dmv@veritext.com |
`
`PATENT OWNER EXHIBIT 2057
`
`
`Telephonic Hearing
`November 4, 2019
`
`In the Matter of:
`Google LLC v. Cywee Group LTD
`
`Veritext Legal Solutions
`800.808.4958 | calendar-dmv@veritext.com |
`
`PATENT OWNER EXHIBIT 2057
`
`
`
`Telephonic Hearing
`
`Page 1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________________________
`
`GOOGLE LLC, ZTE (USA), INC.,
`
`SAMSUNG ELECTRONICS CO., LTD., Case IPR2018-
`
`LG ELECTRONICS INC., HUAWEI DEVICE 01257 (Patent
`
`USA, INC., et al., 8,552,978 B2)
`
` Petitioners,
`
` v. Case IPR2018-
`
`CYWEE GROUP LTD., 01258 (Patent
`
` Patent Owner. 8,441,438 B2)
`
`________________________________
`
` TELEPHONIC HEARING
`
`DATE: Monday, November 4, 2019
`
`TIME: 4:00 p.m.
`
`BEFORE: Honorable Patrick M. Boucher
`
` Honorable Kamran Jivani
`
` Honorable Christopher L. Ogden
`
`LOCATION: Telephonic Hearing
`
`REPORTED BY: Nate Riveness, Notary Public
`
`JOB No.: 3658456
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`Veritext Legal Solutions
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`PATENT OWNER EXHIBIT 2057
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`Telephonic Hearing
`
`Page 2
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` A P P E A R A N C E S
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`O N B E H A L F O F P A T E N T O W N E R :
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` C E C I L E . K E Y , E S Q U I R E
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` J A Y P . K E S A N , E S Q U I R E
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` D i M u r o G i n s b e r g P C
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` 1 7 5 0 T y s o n s B o u l e v a r d , S u i t e 1 5 0 0
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` T y s o n s C o r n e r , V A 2 2 1 0 2
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` c k e y @ d i m u r o . c o m
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` j k e s a n @ d i m u r o . c o m
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` ( 7 0 3 ) 2 8 9 - 5 1 1 8
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` A R I R A F I L S O N , E S Q U I R E
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` S h o r e C h a n D e P u m p o L L P
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` 9 0 1 M a i n S t r e e t , S u i t e 3 3 0 0
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` D a l l a s , T X 7 5 2 0 2
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` a r a f i l s o n @ s h o r e c h a n . c o m
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` ( 2 1 4 ) 5 9 3 - 9 1 1 0
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`2 0
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`2 2
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`Telephonic Hearing
`
`Page 3
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` A P P E A R A N C E S
`
`ON BEHALF OF PETITIONER GOOGLE LLC:
`
` MATTHEW A. SMITH, ESQUIRE
`
` Smith Baluch LLP
`
` 1100 Alma Street, Suite 109
`
` Menlo Park, CA 94025
`
` smith@smithbaluch.com
`
` (202) 669-6207
`
`ON BEHALF OF PETITIONER ZTE (USA), INC.:
`
` ANDREA L. SHOFFSTALL, ESQUIRE
`
` Brinks Gilson & Lione
`
` 455 North Cityfront Plaza Drive, Suite 3600
`
` Chicago, IL 60611
`
` ashoffstall@brinksgilson.com
`
` (312) 840-3295
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`Veritext Legal Solutions
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`Telephonic Hearing
`
`Page 4
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` A P P E A R A N C E S
`
`O N B E H A L F O F P E T I T I O N E R L G E L E C T R O N I C S I N C . :
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` A N D R E W D E V K A R , E S Q U I R E
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` M o r g a n L e w i s & B o c k i u s L L P
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` 2 0 4 9 C e n t u r y P a r k E a s t , S u i t e 7 0 0
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` L o s A n g e l e s , C A 9 0 0 6 7 - 3 1 0 9
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` a n d r e w . d e v k a r @ m o r g a n l e w i s . c o m
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` ( 3 1 0 ) 2 5 5 - 9 0 7 0
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`O N B E H A L F O F P E T I T I O N E R H U A W E I :
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` B E N J A M I N M . K L E I N M A N , E S Q U I R E
`
` K i l p a t r i c k T o w n s e n d & S t o c k t o n L L P
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` T w o E m b a r c a d e r o C e n t e r , S u i t e 1 9 0 0
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` S a n F r a n c i s c o , C A 9 4 1 1 1
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` b k l e i n m a n @ k i l p a t r i c k t o w n s e n d . c o m
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`PATENT OWNER EXHIBIT 2057
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`Telephonic Hearing
`
`Page 5
`
` I N D E X
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` PAGE
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`OPENING ARGUMENT By Mr. Key 8
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`OPENING ARGUMENT By Mr. Smith 16
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`REBUTTAL ARGUMENT By Mr. Key 21
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`REBUTTAL ARGUMENT By Mr. Smith 24
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`DECISION 27
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` E X H I B I T S
`
`NO. DESCRIPTION PAGE
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` (None marked.)
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`Veritext Legal Solutions
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`PATENT OWNER EXHIBIT 2057
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`
`
`Telephonic Hearing
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`Page 6
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` P R O C E E D I N G S
`
` JUDGE BOUCHER: Good afternoon. This
`
`is Patrick Boucher of the Patent Trial and Appeal
`
`Board. And this is the call for IPR2018-1257 and
`
`1258. Also on the line with me are Judges Jivani and
`
`Ogden.
`
` And before we begin, my understanding
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`is that the patent owner was going to retain a court
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`reporter. I just want to confirm that we have a court
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`reporter on the call, please.
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` COURT REPORTER: Yes. That's correct.
`
`This is the court reporter.
`
` JUDGE BOUCHER: Okay. So to make sure
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`that things -- to make sure that things proceed as
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`smoothly as possible with the court reporter, what I
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`will do is call out individuals when it's appropriate
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`to hear from those individuals.
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` If anybody does interject, especially
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`since we have a relatively large number of people on
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`the call, I would ask that you identify who you are so
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`that the court reporter doesn't need to interrupt the
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`conversation.
`
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`Telephonic Hearing
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`Page 7
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` And so with that, I'd like to begin by
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`taking a roll call of who's on the line. First of
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`all, who's on the line for Google, please?
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` MR. SMITH: Thank you, Judge Boucher.
`
`This is Matt Smith for the petitioner Google, LLC.
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` JUDGE BOUCHER: Okay. And who's on the
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`line for ZTE?
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` MS. SHOFFSTALL: Andrea Shoffstall for
`
`ZTE.
`
` JUDGE BOUCHER: Thank you. And on the
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`line for Samsung? There's no one on the line for
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`Samsung? Okay. Is there anyone on the line for LG?
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` MR. DEVKAR: Andrew Devkar for LGE.
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` JUDGE BOUCHER: Okay. And for Huawei?
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` MR. KLEINMAN: Ben Kleinman on the line
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`for Huawei.
`
` JUDGE BOUCHER: Okay. And who's on the
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`line for the patent owner CyWee?
`
` MR. KEY: This is Cecil Key, Your
`
`Honor. And I believe we also have Jay Kesan and Ari
`
`Rafilson.
`
` JUDGE BOUCHER: Okay. Thank you.
`
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`Telephonic Hearing
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`Page 8
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`Since no one identified as being on the line for
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`Samsung, I want to confirm as we've done in the past
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`that the principal parties still turned up and
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`understood the rules, had no objection to proceeding
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`with the call without Samsung. Mr. Smith, does Google
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`have any objection?
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` MR. SMITH: No objection, Your Honor.
`
` JUDGE BOUCHER: Okay. And Mr. Key,
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`does CyWee have any objection?
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` MR. KEY: No objection, Your Honor.
`
` JUDGE BOUCHER: Okay. So with that,
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`we'll proceed. Mr. Key, it was the patent owner who
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`requested the call. So why don't you begin and lay
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`the groundwork for this discussion, please?
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` MR. KEY: Yeah. Thank you, Your Honor.
`
`Well, I'll start with a little bit of recent history.
`
`Prior to the call we had with the board on October the
`
`24th, we had provided Google -- CyWee had provided
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`Google with positions that we wanted to submit in the
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`supplemental submission to the board. And then during
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`the call with the board, we discussed, at least in
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`some general terms with some specific examples I
`
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`Telephonic Hearing
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`Page 9
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`believe, of what CyWee hoped to do.
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` And the agreement was reached that we
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`would submit the agreements and that we would have a
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`non-argumentative short statement that would provide
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`context for the agreement. And that's what was
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`reflected in the board's order, which I believe is
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`paper number 74. And so, we moved forward.
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` We took what we had provided to Google
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`previously. But one of the things we did to try and
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`make it as neutral as possible, we have a lot of
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`direct quotes directly from the agreement. We quote
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`it and then we cite the provisions, the specific
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`agreement, specific provisions, specific page numbers
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`because some of these cut across several agreements.
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` We provided that to Google. And their
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`response is that they really don’t want to have any
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`statements at all. They want to have pincites. But
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`that was the position going into the October 24th
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`call.
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` It was discussed and it was agreed that
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`we would do something more than pincites because our
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`concern then and our concern now is that Google would
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`Telephonic Hearing
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`Page 10
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`like us to simply toss this information and all these
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`agreements over to the board and have the board, which
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`we all know that you're quite busy right now and we
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`have deadlines coming up, just have to wade through
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`this because frankly that's the best way to assure
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`that you won't see the big picture, see what's really
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`going on.
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` And we happen to know that to be the
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`case because that's really what Google's been doing to
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`CyWee for over a year-and-a-half. But we've taken the
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`challenge and I'd like to say, like the Washington
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`Nationals, against all odds I think we've managed to
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`put the picture together here.
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` And so, all we're asking is the
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`opportunity to put forward with these statements. And
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`the board has what we've proposed in front of you so
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`that we can frame what these agreements say that are
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`relevant to this proceeding. And quoting from the
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`agreement -- now, we've gotten a response that we're
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`raising new theories and that it's argumentative.
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` But it's not argumentative to simply
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`quote from the agreement, using the quote. And it's
`
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`Telephonic Hearing
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`Page 11
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`not raising a new theory. All it's doing is stating
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`facts. There are no new theories. There's only been
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`one theory. And it's that -- that is that Google and
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`the other Android defendants have a very substantial
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`preexisting business and legal relationship, which is
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`the federal circuit's test under AIT for the real
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`party and interest issue. And these are just simply
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`facts that go to that issue.
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` But if the -- I will give one example
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`before we break into this any further. If Your Honors
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`would take what we submitted, or what we have
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`proposed, if you compare our first couple or three
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`paragraphs to paper 52 at page three, paragraph three,
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`that is Google's opposition to the Motion to
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`Terminate.
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` These facts go directly to allegations
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`that are made at that point, paper 52, page three,
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`paragraph three. And the important thing to remember
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`here is that ultimately the burden for showing that
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`they have disclosed all RPIs and privities remains
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`with Google. I think they're really trying to shift
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`it back over to us. But it's not our burden. It's
`
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`Page 12
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`their burden.
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` And they also have a duty under 37 CFR
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`42.51 to disclose information in their possession
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`that's directly contrary to a position they're taking
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`before the board. So really they should be disclosing
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`these agreements.
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` So I think that there's a couple or
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`three issues. But starting with the first one, the
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`how will the provisions of the agreement be presented
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`to the board. We think that what we're proposing is
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`fair. It's neutral. It's a what, not a so what.
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`There's not argument there. There's simply facts.
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` Now a second issue that arises there is
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`there is an objection because we have also cited to --
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`and again quoting direct language from the Android
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`compatibility definition documents which are available
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`through a website or a hyperlink. But that hyperlink
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`is identified in the agreements themselves. It is
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`part of the agreement. It's incorporated. It's part
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`of the terms.
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` So all we did was follow the agreement
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`itself and the terms. It's external to the agreement.
`
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`Page 13
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`But it's part of the agreement. And again, we've
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`simply -- we've tried to quote directly and give both
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`Google and the board an idea of exactly what we're
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`looking at. Now there's also a question --
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` JUDGE BOUCHER: Which paragraph --
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` MR. KEY: Sorry.
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` JUDGE BOUCHER: -- were you thinking of
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`with respect to that? Are you thinking of for example
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`paragraph five?
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` MR. KEY: It's paragraph five of what
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`we proposed, Your Honor.
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` JUDGE BOUCHER: Okay. Okay. Go ahead
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`and continue, please.
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` MR. KEY: Okay. Now there is -- there
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`are a couple of other subsidiary questions here that
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`I'll just -- I'll mention. But perhaps we want to
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`come back to them.
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` One is about the submission of the
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`privilege log. And what we proposed to Google, we
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`said we want to submit the privilege log and here's
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`our reasoning or our position behind it. I think they
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`may be willing to agree that we can submit the
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`Page 14
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`privilege log. It's one page. It's a single entry.
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` And really all it identifies is a
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`common interest agreement. It identifies the
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`agreement, the parties to the agreement, when it was
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`entered and the basis for the privilege, which is
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`common interest and joint privilege. That's all it
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`is.
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` I think that that may resolve itself
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`along the same lines once we have a determination of
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`exactly what format things can be submitted. And Mr.
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`Smith, correct me if I'm wrong, but that may resolve
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`itself. And I think we also have what I view as kind
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`of a tertiary question about the confidentiality of
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`the names and dates of the agreement, which I think we
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`have a proposal for there.
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` But Your Honor, I believe -- and we can
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`do this if we need to. I was just hoping we could
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`avoid it. I think we could go through every single
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`one of these statements that they accuse us of saying
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`this is new theories or argumentative and we could tie
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`it to the briefing that is before the board on the
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`Motion to Terminate, including Google's statements,
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`PATENT OWNER EXHIBIT 2057
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`Telephonic Hearing
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`own statements in its opposition in, generally
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`speaking, paragraphs two through six, I think, in
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`paper 52.
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` And with that, I mean, we're really
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`having trouble understanding why this was -- you could
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`consider this to be -- statement of facts as
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`argumentative or raising any new theories. And we're
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`also pretty concerned that -- I thought we had -- we
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`understood that we were going to be -- Google was in
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`agreement that we could submit a statement about the
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`agreements themselves or the provisions of the
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`agreements.
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` But the response we got was that they
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`don’t want to see anything except, quote, unquote
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`"pincites," which we think is not the right way to go.
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`We don’t think it's particularly helpful. And we
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`think that what we have proffered here is perfectly
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`down the middle, non-argumentative, exactly what
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`everyone agreed we would do at the October 24th
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`hearing.
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` JUDGE BOUCHER: Okay. Let me turn to
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`Mr. Smith now so you can give us the petitioners'
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`Telephonic Hearing
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`perspective, please.
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` MR. SMITH: Yes. Thank you, Judge
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`Boucher. I think in reality there's one main issue
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`that Mr. Key only touched on peripherally. And that
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`is really the question of to what extent is CyWee
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`allowed through this filing to add to the theory that
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`it uses to try to demonstrate the relevance of the
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`MADA, M-A-D-A, agreements.
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` And when CyWee filed its original
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`Motion to Terminate, it of course submitted Exhibit
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`2014, which is the Samsung MADA. And when it
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`requested the submission of the ZTE production, it
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`represented that the terms of the ZTE agreement were,
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`at least in the sense of the ones they wanted to rely
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`upon, similar to the Samsung MADA.
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` And in the original Motion to
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`Terminate, CyWee cited the Samsung MADA for exactly
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`two provisions, 11.1 and 11.2, and had a single theory
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`based on those two provisions. And I'll just note for
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`the record that the particular ZTE submission document
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`is marked confidential. So I'm going to try to avoid
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`talking about specific confidential information.
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`Telephonic Hearing
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` But the fact remains CyWee had one
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`theory based on two sections. And in this submission,
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`it is significantly expanding the theories on which it
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`is relying. And I think you can see that in the
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`submission itself if you look at where CyWee is citing
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`to the ZTE production, and specifically a list of
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`bullet points that go A, B, C, D. And at the end of
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`those bullet points there is usually a cross-citation
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`to Exhibit 2014 which is the Samsung MADA.
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` But they're not limiting their
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`citations to 11.1 and 11.2 and then just citing the
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`corresponding ZTE provision. They are in fact citing
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`10 additional provisions from the MADA agreement in
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`addition to the Android compatibility document, which
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`Mr. Key referenced, which are also from a public
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`website that is referenced in the Samsung MADA to
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`which CyWee had access when it filed its Motion to
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`Terminate.
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` And so, our concern is that CyWee is
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`not in fact using this process to say, hey, we've got
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`some agreements for ZTE and they're similar to what
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`we've already submitted and here is how those
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`Telephonic Hearing
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`agreements apply to the arguments in our Motion to
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`Terminate. They're in fact looking for a way to
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`rewrite and expand the original Motion to Terminate,
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`which at this stage in the proceeding we think is
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`improper. And we think it probably can't be done if
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`these are new arguments, and they are, without Google
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`having a chance to respond to it.
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` I mean, it would be one thing if CyWee,
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`for example, cited the ZTE documents and then said
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`here's where we argued this in our Motion to Terminate
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`because then the board could look at it and could see
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`whether or not CyWee had in fact made that argument
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`and then trust that Google had the opportunity to
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`respond to it in the opposition.
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` But if CyWee is now in fact making new
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`arguments, we will have never had the opportunity to
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`respond to those. And if it was the board's intent
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`when it ordered CyWee to provide brief non-
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`argumentative statements identifying the portions of
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`agreements relevant to patent owner's arguments
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`advancing its Motion to Terminate, if it was the
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`board's intent to allow CyWee to expand on those
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`arguments, then I think Google does need to be given a
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`chance to respond to that. And that's the main point
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`of our disagreement with CyWee right now.
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` JUDGE BOUCHER: Okay. So I guess, Mr.
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`Smith, looking at the proposed document from CyWee,
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`would it resolve your objections if that additional of
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`the bullet points in each of those paragraphs
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`referring to Exhibit 2014 were removed?
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` MR. SMITH: No, Your Honor. I don’t
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`think it would because CyWee is in effect I think
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`providing corresponding provisions of the ZTE
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`agreement. So it's making arguments that it could
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`have made using the Samsung MADA. But it is expanding
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`the theories about why the MADA agreements are
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`relevant in ways we haven't had a chance to respond
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`to.
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` We don’t think they are relevant in the
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`ways CyWee says they are. But this kind of document
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`where you're trying to make a brief neutral statement
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`is really not appropriate for adding new argument
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`because we would then be denied our right to respond
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`to the substance of what they're insinuating with the
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`citation and their characterization of it.
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` JUDGE BOUCHER: Okay. What about, for
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`example -- I'll get to you in a moment, Mr. Key. But
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`I just want to ask Mr. Smith, for example, if we look
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`at the first paragraph where it says, you know, the
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`distribution and limitation of the Google applications
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`and so on and it appears to be a quotation from the
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`agreements, what is argumentative about that?
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` MR. SMITH: Your Honor, I think there
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`is a -- I'm going to answer this a little bit -- with
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`a little bit of circumnavigation. But I will answer.
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`I think there is a spectrum of things that are
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`argumentative and not.
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` For example, the last paragraph dealing
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`with the privilege log, you know, the last couple of
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`lines of the paragraph begin this is relevant because
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`and then it states a long theory. That would be on
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`the extreme end of the spectrum. And then there are
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`passages like this which are less argumentative. And
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`then there are passages in the middle where maybe
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`CyWee has quoted something but it has added
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`interpretative language around it.
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`Telephonic Hearing
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` But if you take the paragraph strung
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`together, CyWee is advancing a new sort of theory of
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`control that it has never advanced before based on
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`sections it has never discussed before in any of its
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`Motion to Terminate briefings. And I think that is
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`what we need to have a chance to respond to.
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` JUDGE BOUCHER: Okay. Mr. Key, you
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`wanted to respond. Could you go ahead, please?
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` MR. KEY: Yes, Your Honor. With all
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`due respect to Mr. Smith, what he's saying really
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`doesn't make any sense.
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` If you will look at what the proposal
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`that they sent back to us, they are proposing that we
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`still have the same exhibits with the same pages and
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`the same sections cited, just removing the quotation
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`that helps, you know, the board focus on exactly what
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`that provision is -- where you're supposed to look at
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`it instead of having to read all these agreements and
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`what have you and under the circumstances.
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` So I don’t know where, how there would
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`be any new theory or there's any difference other than
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`they want to strip out any sort of guidance. And as
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`Telephonic Hearing
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`Your Honor I think just alluded to, just quoting from
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`the agreement is -- it's not argumentative. It's just
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`saying here it is and this is what it says. And I
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`also think that we've got to step back --
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` JUDGE BOUCHER: Well, let me interrupt
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`you though, Mr. Key.
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` MR. KEY: Sure.
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` JUDGE BOUCHER: What about Mr. Smith's
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`point that you are relying -- or you're citing in this
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`document portions of the Samsung agreement that you've
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`not relied on previously in your Motion to Terminate?
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` MR. KEY: Well, Your Honor, so there
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`are two things about that. Firstly, the Samsung was a
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`single standalone agreement which we had to find
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`ourselves. They didn't produce it, as we think they
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`should have. We had to find it ourselves.
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` And then we pointed to a couple of the
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`provisions that said that this shows that they are
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`involved -- that the involvement here is more
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`extensive than Google wants to let on.
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` Now following in response to that,
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`Google then has made arguments that the MADAs only
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`relate to apps, for example. That was at the oral
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`hearing, as Your Honor may recall. These agreements
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`prove -- show a couple of things. One is that's not
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`true. It doesn't relate just to apps. It also shows
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`that this is a relationship that extends -- it wasn't
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`just a one-off in 2011. It's been over the last, you
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`know, eight years. And it is really sort of quite
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`extensive.
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` So this isn't just about the MADA and
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`what we may have cited from the MADA back when we
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`filed our Motion to Terminate. This is directly
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`responsive to positions Google is now taking saying
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`that, you know, they're competitors with the other
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`Android defendants. They didn't have anything to do
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`with the hardware. That's just not true.
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` But that's what they have said to try
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`and persuade the board that there is no real party and
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`interest or privity relationship here. And this is
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`directly contrary -- information that goes directly
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`contrary to that.
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` Now the fact that it is, you know,
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`other provisions, because I think it's important
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`because you need to look and see what the pattern is
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`that results here. And remember one of the parties
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`that we have the concern about being a time-barred,
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`undisclosed RPI and perhaps privity is LG. And we
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`don’t have anything from LG.
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` So this shows that when you take what
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`we do have from Samsung and what you do have from ZTE,
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`it shows that exactly as CyWee has been arguing and
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`pointing out, that there is a broader and deeper
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`relationship here than Google wants to admit.
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` So all we have done is point out what
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`we think are relevant provisions of these agreements
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`for the board to consider. We have not -- except for
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`this phone call, we have not done any of the arguing.
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`We didn't put any of that in there so that the board
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`can just take a look and the board can decide where it
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`fits in the grand scheme of things.
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` JUDGE BOUCHER: Okay. Mr. Smith, do
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`you want to add anything before the panel confers and
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`comes to a decision?
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` MR. SMITH: Yes. I want to add two
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`things, Your Honor, in response to two points raised
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`by Mr. Key. For one thing, concerning his allegation
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`that there was something we said at the oral hearing
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`that he needs to rebut, CyWee did have the opportunity
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`to file a reply briefing on the Motion to Terminate.
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`All of the provisions that it is citing from the ZTE
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`agreement I believe have a cross-cite to the Samsung
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`MADA which it had available to it during the Motion to
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`Terminate briefing.
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` But I don’t think CyWee cited the
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`Samsung MADA at all in its reply. It just didn't do
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`it. It could have made any arguments that it needed
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`to make based on Google's opposition. And by the way,
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`the argument that Google applications does appear in
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`Google's opposition and CyWee was on notice of that.
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` And then the second point, I wanted to
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`respond to Mr. CyWee's -- sorry, Mr. Key's contention
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`that the argument that I am making doesn't make any
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`sense because of what we've proposed. And it does
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`make sense depending on your interpretation of the
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`board's order.
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` Our interpretation of the October 28th
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`order was that CyWee needed to make citations relevant
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`to the arguments advanced in its Motion to Terminate.
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`And that means, you know, literally the arguments.
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`And CyWee's interpretation, I'll try to characterize
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`it fairly, I think is that the Motion to Terminate
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`relates broadly to RPI and privity and thus if the
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`argument is in some way relevant to RPI and privity,
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`they get to make it here.
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` And our counter-suggestion takes out
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`the theories that CyWee is attempting to leave in by
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`its characterization of the agreement provisions
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`because it allows the board to then look at the Motion
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`to Terminate briefing and decide whether that --
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`whether those provisions are actually relevant to
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`something that CyWee argued in the Motion to
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`Terminate.
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` I think it would be fine if CyWee
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`provided pinpoint cites and said here's where we
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`argued it in the Motion to Terminate without further
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`commentary or interpretation. I don’t think we would
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`have an issue with that because then the board could
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`look at it and decide whether it's actually there or
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`not and know whether Google was given a chance to
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`respond or not.
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` But if CyWee is going to introduce new
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`theories based on new provisions of the MADA
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`agreements, then we need to be given a chance to
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`respond. And we would request to be able to do that.
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` JUDGE BOUCHER: Okay. Thank you, Mr.
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`Smith. I am going to put everyone on hold for a
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`moment while the panel confers. And I'll return in
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`just a couple of minutes with our de
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