BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD.,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner
`
`v.
`
`Cywee Group Ltd.
`(record) Patent Owner
`_____________
`
`IPR2018-01257
`_____________
`
`Patent No. 8,552,978
`
`PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO TERMINATE
`
`PUBLIC - REDACTED
`
`
`_____________
`
`GOOGLE LLC, ZTE (USA), INC.,
`SAMSUNG ELECTRONICS CO., LTD.,
`LG ELECTRONICS INC., HUAWEI DEVICE USA, INC.,
`HUAWEI DEVICE CO. LTD., HUAWEI TECHNOLOGIES CO. LTD.,
`HUAWEI DEVICE (DONGGUAN) CO. LTD.,
`HUAWEI INVESTMENT & HOLDING CO. LTD.,
`HUAWEI TECH. INVESTMENT CO. LTD., and
`HUAWEI DEVICE (HONG KONG) CO. LTD.,
`Petitioner
`
`v.
`
`Cywee Group Ltd.
`(record) Patent Owner
`_____________
`
`IPR2018-01257
`_____________
`
`Patent No. 8,552,978
`
`PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO TERMINATE
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`PUBLIC - REDACTED
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`
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
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`TABLE OF CONTENTS
`INTRODUCTION ....................................................................................... 1
`
`LEGAL STANDARD .................................................................................. 1
`
`I.
`
`II.
`
`III.
`
`STATEMENT OF FACTS (“SOF”) ............................................................. 2
`
`IV. ARGUMENT ............................................................................................... 6
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`CyWee’s Belated Motion Should Be Denied as Untimely .................. 6
`
`LG’s Statement as a Joinder Petitioner Does Not Make LG an
`RPI of Google .................................................................................... 6
`
`Google—Not LG or Samsung or ZTE—Was Responsible for
`Preparing and Filing these Petitions ................................................... 9
`
`Google Has Been Separately Sued on its Own Devices, and Has
`Its Own Separate Interest in Invalidating CyWee’s Patents ................ 9
`
`Using Android OS under an Open-Source License Does Not
`Convert a Person into Google’s Real Party-In-Interest or Privy ....... 10
`
`CyWee Has Not Shown that the MADA or PAX Agreements
`are Relevant to any RPI or Privy Determination in This Case .......... 12
`
`The Number and Timing of the IPR Petitions Against CyWee is
`a Result of CyWee’s Own Litigation Campaign ............................... 15
`
`CyWee Has Not Met Its Initial Burden for Google to be
`Required to Submit Additional Evidence ......................................... 16
`
`V.
`
`CONCLUSION .......................................................................................... 16
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`2
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`
`TABLE OF AUTHORITIES
`
`Cases
`Applications in Internet Time, LLC v. RPX Corp., 897
`F.3d 1336 (Fed. Cir. 2018) ............................................................................. 1, 6
`Aruze Gaming Macau, Ltd. v. MGT Gaming, Inc.,
`IPR2014-01288, Paper 13 (Feb. 20, 2015) .................................................... 1, 12
`Samsung Electronics Co., Ltd. v. Seven Networks, LLC,
`IPR2018-01108, Paper 22 (PTAB Nov. 29, 2018) .............................................. 9
`Ventex Co. v. Columbia Sportswear N. Am., IPR2017-
`00651, Paper 152 (PTAB Jan. 24, 2019) (precedential) .......................... 6, 11, 14
`WesternGeco LLC v. ION Geophysical Corp., 889 F.3d
`1308 (Fed. Cir. 2018) ............................................................................. 2, 12, 14
`Worlds Inc. v. Bungie, Inc., 903 F.3d 1237 (Fed. Cir.
`2018) ................................................................................................................ 16
`
`Statutes
`35 U.S.C. § 315(b) ........................................................................................... 8, 15
`
`Regulations
`37 C.F.R. § 42.122(b) ........................................................................................... 15
`37 C.F.R. § 42.23(b) ............................................................................................. 13
`37 C.F.R. § 42.25(b) ............................................................................................... 6
`77 Fed. Reg. 48,612 (Aug. 14, 2012)...................................................................... 1
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`
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`3
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`TABLE OF EXHIBITS
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`Exhibit No.
`
`Description
`
`1001
`
`1002
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`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
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`1009
`
`1010
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`1011
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`1012
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`1013
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`1014
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`1015
`
`U.S. Pat. No. 8,441,438 (“the ’438 patent”).
`
`Declaration of Professor Majid Sarrafzadeh.
`
`C.V. of Professor Majid Sarrafzadeh.
`
`U.S. Pat. No. 7,089,148 (“Bachman”).
`
`U.S. Pat. App. Pub. 2004/0095317 (“Zhang”).
`
`U.S. Pat. 7,158,118 (“Liberty”).
`
`Return of Service for Cywee Group Ltd. v. Google, Inc., Case
`No. 1-18-cv-00571, (D. Del.).
`
`Return of Service for Cywee Group Ltd. v. Huawei Technologies
`Co., Inc. et al., Case No. 2-17-cv-00495, (E.D. Tex.).
`
`File History of U.S. Pat. App. 13/176,771
`
`Joint Claim Construction and Prehearing Statement in Cywee
`Group Ltd. v. Samsung Electronics Co. Ltd. et al., Case No. 2-
`17-cv-00140, (E.D. Tex.).
`
`Ex. D to Complaint of April 16, 2018 in Cywee Group Ltd. v.
`Google, Inc., Case No. 1-18-cv-00571 (D. Del.).
`
`Email of August 3, 2018 from Michael Shore to Luann
`Simmons.
`
`CyWee’s First Requests for Production of Documents in Cywee
`Group Ltd. v. Google, Inc., Case No. 1-18-cv-00571, (D. Del.).
`
`CyWee’s Opposition to Petitioner’s Motion for Joinder to Inter
`Partes Review IPR2018-01258 of February 8, 2019.
`
`CyWee’s Opp. to Defendants’ Motion to Stay Pending Inter
`Partes Review Proceedings in CyWee Group, Ltd. v. Samsung
`
`
`
`4
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`Elec. Co., Ltd., Case 2:17-cv-00140-WCB-RSP (E.D. Tex. Jan.
`25, 2019).
`
`Complaint of April 16, 2018 in Cywee Group Ltd. v. Google,
`Inc., Case No. 1-18-cv-00571 (D. Del.).
`
`U.S. Pat. Pub. No. US 2010/0312468 Al (“Withanawasam”).
`
`Rebuttal Declaration of Professor Majid Sarrafzadeh
`
`Deposition Transcript of Dr. Joseph LaViola in IPR2018-01257,
`-01258 (May 22, 2019)(“LaViola Tr.”).
`
`U.S. Pat. No. 7,356,361 (“Hawkins”).
`
`U.S. Pat. No. 7,630,741 (“Siddiqui”).
`
`U.S. Pat. No. 8,738,103 (“Puente Baliarda”)
`
`USPTO PATFT database search results (search string
`“ref/7089148”).
`
`U.S. Pat. Pub. 2018/0153587 A1 (“van der Walt”).
`
`Deposition Transcript of Joseph LaViola in CyWee Group Ltd.,
`v. Huawei Device Co. Ltd., CASE NO. 2017-cv-00495-WCB-
`RSP (E.D. Tex. September 25, 2018).
`
`Complaint, CyWee Group Ltd., v. Google, Inc. 1:18-cv-00571
`(D. Del. Apr. 16, 2018).
`
`First Amended Complaint, CyWee Group Ltd. v. LG Electronics,
`Inc., 3:17-cv- 01102 (S.D. Cal. Oct. 6, 2017).
`
`First Amended Complaint, CyWee Group Ltd. v. Samsung
`Electronics Co., Ltd., 2:17-cv-00140 (E.D. Tex. Mar. 3, 2017).
`
`Complaint, CyWee Group Ltd. v. ZTE Corp., 3:17-cv-02130
`(S.D. Cal. Oct. 17, 2017)
`
`About the Android Open Source Project,
`https://source.android.com
`
`5
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
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`1021
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`1022
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`1023
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`1024
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`1025
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`1026
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`1027
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`1028
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`1029
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`1030
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`PUBLIC - REDACTED
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`1031
`
`1032
`
`1033
`
`1034
`
`1035
`
`1036
`
`1037
`
`Android Is For Everyone, Enabling Opportunity, available at
`https://www.android.com/everyone/enabling-opportunity/
`
`Android Is For Everyone, Facts available at
`https://www.android.com/everyone/facts/
`
`Official Blog, Hiroshi Lockheimer April 15, 2015, available at
`https://googleblog.blogspot.com/2015/04/android-has-helped-
`create-more-choice.html
`
`Memorandum Opinion and Order (Dkt. #250), CyWee v.
`Samsung, 2:17-cv-00140 (E.D. Tex. Nov. 7, 2018)
`
`PAXLICENSE.ORG, available at
`https://paxlicense.org/index.html
`
`PhoneArena.com, Phone Manufacturers, available at
`www.phonearena.com/phones/manufacturers
`
`PhoneArena.com, Google Pixel Rivals and Competitors,
`available at https://www.phonearena.com/phones/Google-Pixel-
`2_id10584/rivals
`
`1038
`
`Declaration of Collin W. Park
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`6
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`I.
`
`INTRODUCTION
`
`Google LLC (“Google”) submits this opposition to CyWee’s Motion to
`
`Terminate (“Mot.”). The only entities that CyWee has pointed to as alleged unnamed
`
`real parties-in-interest (“RPIs”) or privies of Google are: LG Electronics Inc.
`
`(“LG”), Samsung Electronics Co. Ltd. (“Samsung”), and ZTE (USA), Inc. (“ZTE”).
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`Thus, the only question raised by CyWee’s motion is whether LG, Samsung, or ZTE
`
`was an RPI or privy of Google in the instant IPR proceedings prior to institution.
`
`II. LEGAL STANDARD
`General. Under 37 C.F.R. § 42.25(b), “A party should seek relief promptly after
`
`the need for relief is identified. Delay in seeking relief may justify a denial of relief
`
`sought.”
`
`Real Party-in-Interest. The question “lying at [the] heart” of “[d]etermining
`
`whether a non-party is a ‘real party in interest’” is “whether a petition has been filed
`
`at a nonparty’s ‘behest.’” Applications in Internet Time, LLC v. RPX Corp., 897 F.3d
`
`1336, 1351 (Fed. Cir. 2018). To answer this, the Board should consider “whether the
`
`non-party exercised control or could have exercised control over a party’s
`
`participation in a proceeding.” 77 Fed. Reg. at 48,759 (Aug. 14, 2012) (emphasis
`
`added). The RPI analysis focuses on the degree of control over the IPR, not the
`
`petitioner. Aruze Gaming Macau, Ltd. v. MGT Gaming, Inc., IPR2014-01288, Paper
`
`13, at 11 (Feb. 20, 2015) (cited approvingly in AIT, 897 F.3d at 1365 n.7).
`
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`Privity. “[T]he reach of privity cannot extend beyond the limits of due process.”
`
`WesternGeco LLC v. ION Geophysical Corp., 889 F.3d 1308, 1319 (Fed. Cir. 2018).
`
`“For example, it is important to determine whether the petitioner and the prior
`
`litigant’s relationship—as it relates to the lawsuit—is sufficiently close that it can
`
`be fairly said that the petitioner had a full and fair opportunity to litigate the validity
`
`of the patent in that lawsuit.” Id. (emphasis added). “In other cases, it may be more
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`relevant to determine whether the petitioner is simply serving as a proxy to allow
`
`another party to litigate the patent validity question that the other party raised in an
`
`earlier-filed litigation.” Id.
`
`III. STATEMENT OF FACTS (“SOF”)
`1. CyWee has sued, in different courts and on different dates, each of Google
`
`(D. Del in April 2018), LG (S.D. Cal. in June 2017), Samsung (E.D. Tex. in Feb.
`
`2017), and ZTE (in S.D. Cal. in Nov. 2017), in separate infringement actions on
`
`the ’978 and ’438 patents, based on each defendant’s own respective products,
`
`listed here:
`
`Defendant
`
`Products Accused of Infringing ’978 and ’438 patents
`
`
`LG
`
`Google Pixel, Google Pixel 2, Google Pixel XL, Google Pixel 2
`XL (“Google Accused Devices”). Ex. 1026, ¶¶38, 122. (1:18-cv-
`00571, D. Del.)
`
`LG V20, LG Stylo 3, LG Stylo 3 Plus, LG G5, LG G6, LG X Mach,
`LG X Venture, LG X Power 2, and LG X Cam (“LG Accused
`Devices”). Ex. 1027, ¶¶48, 212. (3:17-cv-01102, S.D. Cal.)
`
`
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`2
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`Samsung Galaxy S6, Galaxy S6 Edge, Galaxy S6 Edge+, Galaxy S6 Active,
`Galaxy S7, Galaxy S7 Edge, Galaxy S7 Active, Galaxy Note5,
`Galaxy Tab S2 8.0, Galaxy Tab S2 9.7 (“Samsung Accused
`Devices”). Ex. 1028, ¶¶22, 203. (2:17-cv-00140, E.D. Tex.)
`
`ZTE
`
`ZTE Axon 7, ZTE Axon 7 Mini, ZTE ZMax Pro, ZTE Blade Spark
`(“ZTE Accused Devices”). Ex. 1029, ¶¶42, 123. (3:17-cv-02130,
`S.D. Cal.)
`
`
`
`2. The Google Accused Devices compete in the smartphone market against
`
`the LG Accused Devices, Samsung Accused Devices, and ZTE Accused Devices.
`
`Exs. 1036-1037.
`
`3. CyWee has not alleged that Google supplies any of the hardware
`
`components in the LG Accused Devices, Samsung Accused Devices, or ZTE
`
`Accused Devices, including any display screen, housing, accelerometer,
`
`gyroscope, printed circuit board, and/or magnetic sensor, as claimed in the ’978
`
`and ’438 patents. Ex. 1027, 43-68; Ex. 2015; Ex. 1029, 39-65.
`
`4. The Android OS that CyWee alleges is running on the LG Accused
`
`Devices, Samsung Accused Devices, or ZTE Accused Devices, is made available
`
`royalty-free to anyone—including competitors—through the Android Open Source
`
`Project (“AOSP”). More than 400 manufacturers and 500 carriers have produced
`
`devices under the AOSP. Under the AOSP open-source licenses, the Android OS
`
`allegedly running on the LG Accused Devices, Samsung Accused Devices, and
`
`ZTE Accused Devices may be customized from its original form by LG, Samsung,
`
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`and ZTE to, for example, accommodate and run on those devices’ hardware. Ex.
`
`2016; Exs. 1030-1033.
`
`5. Google is not the sole and exclusive supplier of software allegedly running
`
`on the LG Accused Devices, Samsung Accused Devices, and ZTE Accused
`
`Devices. CyWee has itself admitted that software supplied by both Qualcomm and
`
`Samsung implement the accused sensor fusion functionality (allegedly claimed in
`
`the ’978 and ’438 patents) in some of the accused devices, in which the Android
`
`OS code is “dead” and has no functional role in implementing the alleged sensor
`
`fusion functionality. Ex. 1034 at 2, 10, 14. Thus, the Android OS software is
`
`neither essential to, nor the exclusive accused means of implementing, the alleged
`
`functionality claimed in the ’978 and ’438 patents.
`
`6. After reasonable inquiry, and mindful of its duty under 37 C.F.R. § 42.11,
`
`the undersigned hereby states as follows:
`
`6.1 The petitions that Google filed in these IPR proceedings were not
`
`filed on behalf of, at the encouragement of, or at the behest or suggestion of, any of
`
`LG, Samsung, or ZTE. Neither LG, nor Samsung, nor ZTE directed, funded, or
`
`controlled these IPR proceedings or the preparation of Google’s petitions in these
`
`proceedings. Neither LG, nor Samsung, nor ZTE has the ability to determine
`
`whether Google maintains or settles these IPR proceedings against CyWee.
`
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`6.2 Google selected the prior art for Google’s IPR petitions, determined
`
`the grounds for its petitions, developed the positions for its petitions, and financed
`
`its petitions. Google did not inform LG or Samsung or ZTE of the specific
`
`patent(s) for which Google would file IPR petition(s) or the art or grounds for its
`
`petition(s), and did not provide LG or Samsung or ZTE with drafts of Google’s
`
`petitions. Neither LG, nor Samsung, nor ZTE provided any input into Google’s
`
`petitions or had the opportunity to review or edit any drafts of Google’s petitions.
`
`6.3 Google had its own interest in filing its IPR petitions against CyWee,
`
`and continues to have its own interest in maintaining the instant proceedings
`
`against CyWee, based on CyWee’s infringement suit against the Google Accused
`
`Devices.
`
`7. Submitted herewith is the declaration of LG’s lead counsel (Collin W.
`
`Park) in the instant proceedings. Ex. 1038. Mr. Park declares that the only reason
`
`LG identified Google as an RPI in LG’s joinder petitions (IPR2019-00559 and -
`
`00560) was because LG was seeking joinder to Google’s petitions in the instant
`
`proceedings. Ex. 1038, ¶¶7-8.
`
`8. The Android Networked Cross-License (or “PAX”) is a royalty-free, non-
`
`exclusive, patent cross-license, which is free to join and open to anyone. The cross-
`
`license covers Android and Google Applications preinstalled on devices that meet
`
`Android’s compatibility requirements. Signatories of the PAX receive long-term
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`freedom of action (or “patent peace” between signatories) with respect to Android
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`and Google Applications from all other signatories. Ex. 1035; Ex. 2016.
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`IV.
`
`ARGUMENT
`A. CyWee’s Belated Motion Should Be Denied as Untimely
`CyWee cannot explain why it did not seek authorization for its motion “promptly
`
`after the need for relief [was] identified.” 37 C.F.R. § 42.25(b). CyWee’s “[d]elay
`
`in seeking relief”—beyond even Due Date 2 for Google’s Replies—justifies “denial
`
`of relief sought.” Id. The Board previously denied CyWee’s motion for additional
`
`discovery in these proceedings due to, among other things, CyWee’s “delay in
`
`raising the issue,” observing that the Federal Circuit’s AIT decision was “rendered
`
`some eight months before CyWee’s Responses in these proceedings,” and holding
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`that the Board’s Ventex decision did not alter the relevant law. Paper 30, 9-10.
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`Nothing has changed since the Board’s denial of CyWee’s discovery motion, other
`
`than the passage of even more time in these proceedings—now barely one month
`
`from oral argument.
`
`B.
`
`LG’s Statement as a Joinder Petitioner Does Not Make LG an
`RPI of Google
`
`On January 10, 2019, LG filed a motion to join Google’s already-instituted IPRs.
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`LG’s joinder motion stated that “[j]oinder would protect [LG]’s interests and avoid
`
`the potential prejudice to [LG] that could result from a settlement between CyWee
`
`and Google.” IPR2019-00560 (LG Mot. 2). LG further agreed to take an
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`“understudy” role under Google. Id. at 6-8. LG’s joinder petitions identified as RPIs
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`various LG corporate entities. IPR2019-00560 (LG Pet. 3). In the next sentence,
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`LG’s petitions went on to “further identif[y] as real-parties-in-interest the parties
`
`identified in IPR2018-01257 (to which this petition seeks joinder),” thus identifying
`
`Google. Id. Similarly, in LG’s petition seeking joinder to ZTE’s instituted petition
`
`in IPR2019-00143, LG analogously “further identif[ied]” ZTE (the lead petitioner)
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`as an RPI—but not Google. IPR2019-01203 (LG Pet. 1). As explained below, LG’s
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`statements regarding RPIs in the joinder context do not make LG an RPI in Google’s
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`proceedings.
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`Submitted herewith is a declaration by LG’s lead counsel (Collin W. Park)
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`declaring that LG identified Google as an RPI “solely because” LG was seeking
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`joinder to Google’s petitions—“and for no other reason.” Ex. 1038, ¶¶7-8. LG did
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`so apparently out of an abundance of caution because LG’s joinder petition was
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`relying on the same grounds, prior art, evidence, and declaration that Google had
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`submitted in these proceedings. Id. ¶¶2-3. LG did so analogously in its petition
`
`seeking joinder to ZTE’s instituted IPR2019-00143: identifying the lead petitioner
`
`ZTE (but not Google) as an RPI for purposes of joining ZTE’s petition. Id. ¶9-10.
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`For its part, Google filed the instant IPR petitions without input from or
`
`opportunity to review or edit by LG (or Samsung or ZTE) regarding the substance
`
`of the petitions prior to filing. Nor did LG (or Samsung or ZTE) fund, control, or
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`direct Google’s preparation or filing of Google’s petitions. Google has its own
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`separate interest in filing and maintaining these IPRs in view of CyWee’s
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`accusations against the Google Accused Products. SOF ¶6.
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`LG’s statement in its petition regarding who is an RPI for purposes of LG’s
`
`petition thus does not speak to the statutory question of who is an RPI for purposes
`
`of Google’s petition. The text of 35 U.S.C. § 315(b) asks who is the RPI or privy
`
`with respect to the petitioner’s IPR. As the Board explained in Aruze (cited favorably
`
`in AIT), “RPI is the relationship between a party and a proceeding; RPI does not
`
`describe the relationship between parties.” IPR2014-01288 (Paper 13), at 11
`
`(emphases in original). LG had no actual or apparent authority to speak for or
`
`otherwise bind Google in the instant proceedings. LG itself stated that it would play
`
`merely an “understudy” role in Google’s proceedings, arguing that joinder to
`
`Google’s proceedings was necessary to protect LG’s own “interests and avoid the
`
`potential prejudice” to LG in the event of “a settlement between CyWee and
`
`Google.” IPR2019-00560 (LG Mot. 2, 6-7). LG’s actions thus belie CyWee’s
`
`contention that Google filed these IPRs on LG’s behalf or that LG ever had the
`
`ability to exert any control over Google in these proceedings. To the contrary,
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`Google is free to settle or maintain these IPRs without any direction or control by
`
`LG (see SOF ¶6), thus necessitating LG’s own status as a petitioner in these IPRs to
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`protect LG’s own interests (as LG asserts).
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`C. Google—Not LG or Samsung or ZTE—Was Responsible for
`Preparing and Filing these Petitions
`
`Google was responsible for financing, preparing, and filing the instant IPR
`
`petitions, without input or opportunity by LG, Samsung, or ZTE to review or edit
`
`any drafts of Google’s petitions. SOF ¶6. Moreover, Google’s expert, Prof.
`
`Sarrafzadeh, testified last month that when he signed his initial declarations for these
`
`proceedings, he was not aware that anyone other than Google had been sued by
`
`CyWee, and was not aware of any communication between the lawyers for Google
`
`and lawyers for LG, Samsung, or ZTE. Ex. 2033, 186:16-188:11.
`
`D. Google Has Been Separately Sued on its Own Devices, and Has Its
`Own Separate Interest in Invalidating CyWee’s Patents
`
`Each of Google, LG, Samsung, and ZTE was sued separately by CyWee, in
`
`separate infringement actions, based on each company’s own separate devices. SOF
`
`¶1. The Google Accused Devices compete in the smartphone market against the LG
`
`Accused Devices, Samsung Accused Devices, and ZTE Accused Devices. SOF ¶2.
`
`Google had its own interest in filing its IPR petitions against CyWee, and continues
`
`to have its own interest in maintaining the instant proceedings against CyWee, based
`
`on CyWee’s infringement suit against the Google Accused Devices. SOF ¶6.
`
`As in Seven Networks (where the Board held that Samsung was not an RPI in
`
`Google’s IPR2018-01108), “the nature of the relationship between Google and
`
`Samsung, as parties charged with infringing the same patents, does not indicate that
`
`
`
`9
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`PUBLIC - REDACTED
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`
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`Samsung is an RPI. Google and Samsung are independent companies that Patent
`
`Owner separately accused of patent infringement.” IPR2018-01108 (Paper 22), at
`
`12 (emphases added). CyWee has not offered any evidence that Google’s
`
`relationship with Samsung in the Seven Networks proceedings is different in any
`
`relevant way from its relationships with Samsung, LG, or ZTE in these proceedings.
`
`Indeed, nothing has changed since June 20, 2019, when the Board in the instant
`
`proceedings denied CyWee’s motion for additional discovery, in which the Board
`
`concluded that “[w]hile Patent Owner suggests that the relationship between Google
`
`and Samsung in the prior cases [including Seven Networks] could be different from
`
`their relationship in this case, Patent Owner offers no specific evidence of this.”
`
`IPR2018-01257 (Paper 30), at 7 (emphasis added). The same is true today: CyWee
`
`offers no specific evidence contrary to that conclusion as to Samsung, LG, or ZTE.
`
`E. Using Android OS under an Open-Source License Does Not
`Convert a Person into Google’s Real Party-In-Interest or Privy
`
`More than 400 manufacturers and 500 carriers have produced devices with an
`
`Android operating system under the AOSP open-source licenses. SOF ¶4. Anyone—
`
`including LG, Samsung, and ZTE—is permitted to download, install, modify, and
`
`distribute the Android OS source code for free. Id.
`
`Google’s free, non-exclusive, open-source supply of Android OS to hundreds of
`
`competing manufacturers is a far cry from the insular and exclusive supply
`
`
`
`10
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`PUBLIC - REDACTED
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`
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`relationship described in Ventex Co. v. Columbia Sportswear N. Am., IPR2017-
`
`00651, Paper 152 (PTAB Jan. 24, 2019) (precedential). In that case, Ventex and
`
`Seirus contracted an “Exclusive Manufacturing Agreement” that included a
`
`provision that Ventex “agrees to only manufacture Heatwave Materials for Seirus”
`
`in exchange for Seirus’s payment of an “exclusivity fee.” Id. at 7. The petitioner
`
`(Ventex) manufactured the allegedly infringing product only for the unnamed RPI
`
`(Seirus). Id. at 8-9. The patent owner filed an infringement suit against Seirus, but
`
`not against Ventex. Id. at 8. A Ventex executive explained that the “filing of the
`
`Petition was grounded in concern of potential legal jeopardy for ‘its customers.’” Id.
`
`Ventex only had one customer and filed the IPR to protect that customer, but did not
`
`name that customer as an RPI. Id. 8-9. Here, by contrast, there is no exclusivity or
`
`fee for the open-source use of Android OS, which anyone—even Android
`
`competitors—can use free-of-charge.
`
`Not only does Google not supply Android OS exclusively to one customer
`
`(instead offering it freely to everyone), Google is not even the sole and exclusive
`
`supplier of relevant software running on the defendants’ accused devices. SOF ¶5.
`
`In court, CyWee has admitted that software supplied by both Qualcomm and
`
`Samsung have been incorporated into and implements the accused sensor fusion
`
`functionality (allegedly claimed in the ’978 and ’438 patents) in certain accused
`
`devices, and that the Android code is “dead” in those devices and has no functional
`11
`
`
`
`PUBLIC - REDACTED
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`
`
`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`role in implementing that sensor fusion functionality. Ex. 1034 at 2, 10, 14. Thus,
`
`Android OS software is neither essential to, nor the exclusive accused means of
`
`implementing, the alleged functionality recited in the asserted patent claims.
`
`Nor has CyWee alleged that Google supplies any hardware for the LG Accused
`
`Devices, Samsung Accused Devices, or ZTE Accused Devices. SOF ¶3. The ’978
`
`and ’438 patents recite numerous hardware components, and CyWee’s motion to
`
`amend focuses on the alleged novelty of the device being a “smartphone” having “a
`
`display built-in to and integrated with the 3D pointing device.” CyWee has not
`
`alleged that Google supplies such hardware to LG, Samsung, or ZTE. SOF ¶3.
`
`F.
`
`CyWee Has Not Shown that the MADA or PAX Agreements are
`Relevant to any RPI or Privy Determination in This Case
`
`CyWee argues that a Samsung MADA (Ex. 2014) and PAX cross-license (Ex.
`
`2016) establish a “preexisting, established relationship” (Mot. 12), but CyWee fails
`
`to show how either agreement bears on the parties’ relationship to these IPR
`
`proceedings involving CyWee’s patents, as required under Aruze (for RPI) and
`
`WesternGeco (for privity).
`
`First, CyWee alleges only that the “MADA contained indemnification
`
`provisions for applications running on the Android OS and for Android-based
`
`devices.” Mot. 5 (citing Ex. 2014, §§11.1-11.2) (emphasis added). CyWee’s
`
`infringement allegations do not accuse the Google applications that are distributed
`
`
`
`12
`
`PUBLIC - REDACTED
`
`
`
`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`under this MADA, which defines “Google Applications” as including applications
`
`like Gmail, Google Calendar, and YouTube—not the Android OS. Ex. 2014, §1.12.
`
`Instead, the Android OS is provided for free under AOSP open-source licenses, and
`
`can be freely modified by anyone. SOF ¶4. CyWee’s motion has not alleged nor
`
`explained how the cited MADA—an agreement relating to the distribution of
`
`unaccused mobile applications—or any indemnification mentioned therein, has any
`
`bearing on the parties’ dispute in these proceedings involving CyWee’s patents.1
`
`Simply because an accused device is running Android OS—the only “component”
`
`of the accused devices CyWee’s motion asserts Google supplied to LG, Samsung,
`
`and ZTE—does not mean that agreements for unaccused software on those devices
`
`creates an RPI relationship. CyWee has not shown that any indemnification
`
`obligations exist under the cited MADA with respect to CyWee’s infringement
`
`suit—they do not—and CyWee cannot do so for the first time in reply. See 37 C.F.R.
`
`§ 42.23(b).
`
`Second, the PAX agreement also is not pertinent to the RPI or privity analysis in
`
`this matter. PAX is a royalty-free, non-exclusive, patent cross-license that is free to
`
`join and open to anyone. SOF ¶8. PAX is therefore similar to a patent pool, except
`
`
`1
`
`
`
`13
`
`
`
` E.g., 1038, ¶¶6, 9.
`
`PUBLIC - REDACTED
`
`
`
`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`it is royalty-free and anyone can join. CyWee has not shown that PAX (under which
`
`members promise not to sue each other on their own patents) has any bearing on
`
`how members deal with a non-member’s patent suit or IPR proceeding. Again, as
`
`explained in Aruze (cited favorably in AIT), “RPI is the relationship between a party
`
`and a proceeding; RPI does not describe the relationship between parties.” IPR2014-
`
`01288 (Paper 13), at 11 (emphases in original). Here, one PAX member’s promise
`
`not to sue another PAX member has no bearing on the members’ relationship to an
`
`IPR involving a non-member’s patent. Because the PAX agreement has no bearing
`
`on the members’ conduct with respect to IPRs involving non-member’s patents, the
`
`agreement is not the type of preexisting contractual relationship that would give rise
`
`to a determination that one member should be named as an RPI in another member’s
`
`IPR. See Ventex, at 10.
`
`Nor does the PAX agreement give rise to a privity relationship between
`
`members. PAX is “open to anyone,” is “royalty-free,” and is “free to join.” SOF ¶8.
`
`Such an open, non-exclusive, and royalty-free agreement is not the type of closed,
`
`exclusive, and fee-bearing contract that has given rise to privity in other cases. See
`
`Ventex, at 12-13. Indeed, no member’s royalties owed under the PAX would change
`
`(from $0.00) upon the successful cancelation of a non-member’s patent. The PAX
`
`itself thus provides no motivation for a member to challenge a non-member’s patent
`
`in any litigation or IPR—a fact that refutes any privity here. See WesternGeco, 889
`14
`
`
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`PUBLIC - REDACTED
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`
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`F.3d at 1319 (focusing privity inquiry on “the petitioner and the prior litigant’s
`
`relationship—as it relates to the lawsuit”) (emphasis added).
`
`G. The Number and Timing of the IPR Petitions Against CyWee is a
`Result of CyWee’s Own Litigation Campaign
`
`CyWee complains that it faces a total of twelve petitions against its two patents.
`
`But CyWee sued each petitioner for patent infringement, filing multiple suits in
`
`different courts at different times. SOF ¶1. CyWee is now strategically using those
`
`staggered filings (and associated 1-year deadlines) to argue that defendants’ IRPs
`
`are barred under 35 U.S.C. § 315(b). Indeed, rather than being “abusive” (Mot. 13),
`
`the IPR petitions CyWee faces are mostly copycat joinder petitions that are identical
`
`to one another, wherein multiple IPRs are funneled through an efficient process in
`
`accordance with filing deadlines established by Congress and the USPTO. See 35
`
`U.S.C. § 315(b) (1 year); 37 C.F.R. § 42.122(b) (1 month).
`
`Regarding CyWee’s conspiracy of a Samsung-Google “proxy” relationship,
`
`CyWee repeats its argument about the Bachmann reference. Mot. 13. As Google
`
`argued in opposition to this argument in CyWee’s discovery motion, CyWee’s
`
`theory again conflicts with what it said in court about differences between the
`
`litigation and Google IPRs (Ex. 1015, p. 1), arguing that Samsung had dropped
`
`Bachmann after Google filed its IPRs (id.), and that by so doing Samsung had
`
`“implicitly conceded that the Google IPRs are meritless” (Ex. 1015, p. 13). The
`
`
`
`15
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`
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`IPR2018-01257
`U.S. Pat. No. 8,552,978
`
`notion that Samsung convinced Google to file IPRs that Samsung (according to
`
`CyWee) considered to be “meritless,” all to revive an invalidity case Samsung had
`
`yet to drop, strains credulity.
`
`Regarding an alleged ZTE-Google “proxy” relationship, CyWee’s similar
`
`Bachman argument (see Mot. 8) is likewise speculative, meritless, and again merely
`
`reflects the consequence of CyWee’s staggered infringement complaints against
`
`multiple defendants, whose defensive IPRs, in turn, simply followed the procedures
`
`and time limits set by Congress and the USPTO.
`
`H. CyWee Has Not Met Its Initial Burden for Google to be Required
`to Submit Additional Evidence
`
`Given the Board’s recent denial of CyWee’s discovery motion on this identical
`
`RPI/privity issue (Paper 30), and near-identical arguments in CyWee’s motion to
`
`terminate, Google does not believe that CyWee has introduced the necessary
`
`“quantum of support required from a patent owner” to require Google to introduce
`
`any additional evidence beyond what Google has submitted herewith (i.e., Exs.
`
`1026-1038). Worlds Inc. v. Bungie, Inc., 903 F.3d 1237, 1244 & n.8 (Fed.
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