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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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`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
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`v.
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`CYWEE GROUP LTD.
`Patent Owner
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`____________________
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`Case IPR2018-01257
`Patent No. 8,552,978
`____________________
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`PETITIONER GOOGLE LLC’S OBJECTIONS TO PATENT
`OWNER’S SUPPLEMENTAL SUBMISSION
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`IPR2018-01257
`Patent No. 8,552,978
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`Pursuant to the Board’s Order dated November 6, 2019 (Paper 75), Petitioner
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`Google LLC (“Google”) hereby submits its Objections to Patent Owner’s
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`Supplemental Submission of Information (“CyWee’s Submission”). The citations
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`and statements in CyWee’s Submission are being offered well after the Board’s Oral
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`Hearing (and after the close of evidence), and shortly before the Board’s one-year
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`deadline for issuing a Final Written Decision.
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`Objection to Paragraphs 1-12 of CyWee’s Submission.
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`Google objects to paragraphs 1-12 of CyWee’s Submission because Google
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`has never had the opportunity to respond to the arguments suggested in these
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`paragraphs. Specifically, paragraphs 1-12 appear to posit, for the first time, that
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`Google has direct control over manufacturing of Android devices in some allegedly
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`relevant way (i.e. a “control theory”). This control theory argument was not made
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`in the Motion to Terminate, but instead is being made well after the Board’s Oral
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`Hearing (and after the close of evidence) and shortly before the Board’s one-year
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`deadline for issuing a Final Written Decision.
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`The introduction of such a control theory, without providing Google adequate
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`notice and opportunity to respond, would violate due process and the Administrative
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`Procedure Act. See, e.g., Genzyme Therapeutic Prods. L.P. v. Biomarin Pharm. Inc.,
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`825 F.3d 1360, 1367 (Fed. Cir. 2016) (“The critical question for compliance with
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`the APA and due process is whether [a party] received ‘adequate notice of the issues
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`that would be considered, and ultimately resolved, at that hearing.’”) (citing Pub.
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`Serv. Comm'n of Ky. v. FERC, 397 F.3d 1004, 1012, 365 U.S. App. D.C. 53 (D.C.
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`Cir. 2005) (Roberts, J.)); Belden, Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed.
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`Cir. 2015); 5 U.S.C. §§ 554(b)-(c); 557(c).
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`Furthermore, the introduction of a control theory would violate 37 C.F.R.
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`§ 42.23(b)’s requirement that “[a]ll arguments for the relief requested in a motion
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`must be made in the motion,” as well as § 42.123(b)’s requirement to limit
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`supplemental information to that which “reasonably could not have been obtained
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`earlier” and is “in the interests-of-justice.” CyWee could have argued its control
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`theory, such as it is, when it filed its Motion to Terminate. Notably, throughout the
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`first twelve paragraphs of its Submission, CyWee cross-cites to exhibits to which it
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`had access at the time it filed its Motion to Terminate. See CyWee’s Submission,
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`¶¶1.f., 2.d., 3.e., 4.h., 5 (entire paragraph citing public documents), 6.d. 9.e., 10.f.,
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`11.e., 12.e. Yet, until now, CyWee had never cited these provisions of the
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`previously-available exhibits. This indicates that CyWee is merely attempting to
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`introduce arguments that it could have raised earlier, but did not. Moreover, even if
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`its theories were bound to the new documents, CyWee could have sought additional
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`discovery relating to ZTE as early as December 2018, but unreasonably delayed in
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`doing so.
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`Objection to Paragraphs 13-14 of CyWee’s Submission.
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`Google objects to paragraphs 13-14 of CyWee’s Submission because Google
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`has never had the opportunity to respond to the arguments suggested in these
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`paragraphs. Paragraphs 13-14 appear to make arguments regarding indemnity
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`obligations of the parties to the agreement with respect to intellectual property.
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`Paragraph 13 appears to argue that no party is indemnified because each party
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`remains liable for violations of patent rights, while paragraph 14 appears to assert
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`that Google is indemnified as to certain claims. Both of these positions are new.
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`In its Motion to Terminate, CyWee did not argue that Google was the
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`indemnitee, but rather argued that Google was the indemnitor. CyWee stated that
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`“MADA [sic] contained indemnification provisions for applications running on the
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`Android OS and for Android-based devices. Ex. 2014, §§ 11.1-11.2.” CyWee
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`Motion to Terminate, p. 5, SOF ¶6. CyWee then argued that “Google also has a
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`history of including indemnification provisions” in its Android agreements (id. at
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`10, 12), and that “[t]he MADA indemnification clauses are an example of an
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`agreement to be bound in litigation proceedings based on applications developed for
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`the Android OS and for Android-based devices.” Id. at 12. CyWee, however, did
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`not argue that each party was liable for violations of intellectual property rights
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`(CyWee’s Submission, ¶13), nor that Google was indemnified (CyWee’s
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`Submission, ¶13). After Google responded (see Opposition, Paper 51) to the limited
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`indemnification-related arguments that CyWee did make in its Motion to Terminate,
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`CyWee never mentioned indemnification again in its Reply in support thereof (see
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`Reply, Paper 65).
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`The introduction of the new theories suggested in paragraphs 13-14, that
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`each party remains solely liable or that Google is an indemnitee under the
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`agreements, at this late stage and without an opportunity to respond, would violate
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`due process, the Administrative Procedure Act, and 37 C.F.R. § 42.123(b) for the
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`same reasons given with respect to ¶¶1-12 of CyWee’s Submission.
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`Objection to Paragraph 15 of CyWee’s Submission.
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`Google objects to paragraph 15 of CyWee’s Submission because Google has
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`never had the opportunity to respond to the specific arguments this paragraph
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`suggests. Paragraph 15 expressly argues (in violation of the Board’s October 28
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`Order limiting CyWee to “brief, nonargumentative statements”) that the existence
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`of a joint defense agreement demonstrates a coordination between the parties, as
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`well as a state of mind of the parties allegedly bears on the RPI and privity questions.
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`CyWee specifically makes new arguments concerning the timing of the joint defense
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`agreement with respect to patent infringement assertions against Google, and the
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`nature of the community of interest privilege.
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`CyWee did not make any argument related to a joint defense agreement in its
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`Motion to Terminate. In its Reply to the Motion to Terminate (Paper 65), CyWee,
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`for the first time, mentioned the existence of joint defense agreement, argued that it
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`arose “before Google was sued directly,” and noted that LG had claimed a
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`community of interest privilege. CyWee Reply to Motion to Terminate, p. 3.
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`Google had a limited opportunity to respond to CyWee’s Reply argument
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`concerning the joint defense agreement during the Oral Hearing (Tr. 87:10-19), but
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`has never had an opportunity to respond to CyWee’s expanded reasoning concerning
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`the import of the alleged timing of events. Nor has Google had an opportunity to
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`respond to CyWee’s speculation concerning the basis for the community of interest.
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`The introduction of CyWee’s new arguments, at this late stage and without an
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`opportunity to respond, would violate due process, the Administrative Procedure
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`Act, and 37 C.F.R. §§ 42.23(b) and 42.123(b) for the same reasons given with
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`respect to ¶¶1-12 of CyWee’s Submission.
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`Dated: November 14, 2019
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`IPR2018-01257
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`Respectfully submitted,
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`/Matthew A. Smith/
`Matthew A. Smith
`Reg. No. 49,003
`SMITH BALUCH LLP
`1100 Alma St., Ste. 109
`Menlo Park, CA 94025
`(202) 669-6207
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`Counsel for Petitioner Google LLC
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`Certificate of Service
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on the date
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`indicated below, a complete and entire copy of this submission, including the
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`exhibits hereto, was provided by email to the parties’ counsel via email, by
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`transmitting to the email addresses of record as follows:
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`Ari Rafilson
`arafilson@shorechan.com
`Michael Shore
`mshore@shorechan.com
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`Yeuzhong Feng
`yfeng@brinksgilson.com
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`ZTE_CyweeIPRs@brinksgilson.c
`om
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`Counsel for ZTE:
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`James R. Sobieraj
`jsobierah@brinksgilson.com
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`Andrea Shoffstall
`ashoffstall@brinksgilson.com
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`Counsel for Samsung:
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`Naveen Modi
`Chetan Bansal
`PH-Samsung-Cywee-IPR@paulhastings.com
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`Counsel for CyWee
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`Jay Kesan
`JKesan@dimuro.com
`Cecil Key
`CKey@dimuro.com
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`IPR2018-01257
`Patent No. 8,552,978
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`Andrew Devkar
`andrew.devkar@morganlewis.com
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`Adam Brooke
`adam.brooke@morganlewis.com
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`Counsel for LG:
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`Collin Park
`collin.park@morganlewis.com
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`Jeremy Peterson
`jeremy.peterson@morganlewis.c
`om
`MLB_CyweevsLGE@morganlewis.com
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`Counsel for Huawei:
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`Kristopher L. Reed
`Benjamin M. Kleinman
`Norris P. Boothe
`HuaweiCywee@kilpatricktownsend.com
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`Dated: November 14, 2019
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`/Matthew A. Smith/
`Matthew A. Smith
`Reg. No. 49,003
`SMITH BALUCH LLP
`1100 Alma St., Ste. 109
`Menlo Park, CA 94025
`(202) 669-6207
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`Counsel for Petitioner Google LLC
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