Filed: November 22, 2019
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`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.
`Patent Owner
`
`____________________
`
`Case IPR2018-01257
`Patent No. 8,552,978
`____________________
`
`PATENT OWNER RESPONSE TO PETITIONER GOOGLE’S MOTION
`TO SEAL
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`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.
`Patent Owner
`
`____________________
`
`Case IPR2018-01257
`Patent No. 8,552,978
`____________________
`
`PATENT OWNER RESPONSE TO PETITIONER GOOGLE’S MOTION
`TO SEAL
`
`
`
`2001
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`2002
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`2003
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`2004
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`2005
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`2006
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`2007
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`2008
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`2009
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`2011
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`2012
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`2013
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`Case IPR2018-01257
`Patent No. 8,552,978
`
`LIST OF EXHIBITS
`
`Declaration of Dr. Gary L. Blank [WITHDRAWN]
`
`Curriculum Vitae of Dr. Gary L. Blank CV [WITHDRAWN]
`
`Claim Construction Opinion and Order (Doc. 117), Cywee
`Group Ltd. v. Samsung Elecs. Co., Ltd., C.A. No. 2:17-CV-
`00140-WCB-RSP (E.D. Tex., July 9, 2018)
`
`
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Patent Owner Response
`
`Curriculum Vitae of Dr. Joseph LaViola, Ph.D.
`
`Order (Doc. 153), Cywee Group Ltd. v. Samsung Elecs. Co.,
`Ltd., C.A. No. 2:17-CV-00140-WCB-RSP (E.D. Tex., Aug.
`14, 2018)
`
`Memorandum Opinion (Doc. 55), CyWee Group Ltd. v.
`Motorola Mobility LLC, C.A. No. 17-780-RGA (D. Del.,
`Dec. 21, 2018)
`
`File History of U.S. Application No. 10/396,439
`
`File History of U.S. Application No. 12/413,722
`
`File History of U.S. Application No. 13/367,058
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Motion to Amend
`
`File History of U.S. Provisional Application 61/292,558
`
`Google’s Responses to CyWee’s Requests for Production,
`CyWee Group Ltd. v. Google, Inc., No. 1:18-cv-00571 (D.
`Del.) (Sep. 4, 2018)
`
`i
`
`
`
`
`
`2014
`
`2015
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`2016
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`2017
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`2018
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`2019
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`2020
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`2021
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`2022
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`2023
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`2024
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`2025
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`2026
`
`2027
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`Google/Samsung 2011-2012 Mobile Application Distribution
`Agreement (Android)
`
`CyWee Group, Ltd. v. Samsung Elecs. Co. Ltd., C.A. No. 2:17-
`CV-00140-WCB-RSP, Doc. 1-1 (Exhibit A, Infringement
`Claim Chart)
`
`Web Print-Out “Introducing PAX: the Android Networked
`Cross-License Agreement,” available at
`<https://blog.google/outreach-initiatives/public-
`policy/introducing-pax-android-networked-cross-license-
`agreement/>
`
`List of IPR Petitions Filed against Seven Networks, LLC
`
`Demonstrative: Relationship of Android Defendants
`
`Transcript of Call Authorizing Patent Owner to File Motion
`to Terminate (July 8, 2019)
`
`Declaration of Shun-nan Liou
`
`CyWee, Where Technology Entertains 2009.09
`
`JIL Game System Hardware Specification Ver. 1.5
`
`JIL Phone Bill of Materials (May 24, 2010)
`
`Photographs of JIL Phone Prototype
`
`CyWee Phone API Reference
`
`CyWee Motion Fusion Solution
`
`CyWee Where technology entertains Technical Presentation:
`Motion Technology and Gaming Applications
`
`
`
`
`ii
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`
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`
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`2028
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`2029
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`2030
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`2031
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`2032
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`2033
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`2034
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`2035
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`2036
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`2037
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`2038
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`2039
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`Case IPR2018-01257
`Patent No. 8,552,978
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`July 29, 2009 email to James Shen, Qualcomm
`
`Attachment to July 29, 2009 email to James Shen,
`Qualcomm
`
`CyWee/Qualcomm Mutual NDA (April 23, 2008)
`
`Attitude.cpp file (last modified February 12, 2010)
`
`Expert Declaration of Dr. Joseph LaViola, Ph.D., in Support
`of Patent Owner’s Reply in Support of Motion to Amend
`
`Transcript of Deposition of Prof. Majid Sarrafzadeh (July 24,
`2019)
`
`Attitude.cpp file, with Line Numbers (last modified February
`12, 2010)
`
`Amended Notice of Deposition of Collin W. Park
`(previously filed as Paper 62)
`
`Complaint for Patent Infringement, CyWee Group Ltd., v.
`Samsung Elec. Co., Ltd., et al., C.A. No. 2;17-cv-00140-
`WCB-RSP, Dkt. 1 (filed Feb. 17, 2017)
`
`Petition, LG Elec. Inc. v. CyWee Group Ltd., IPR2019-
`00559, Paper 1 (Jan. 10, 2019)
`
`Petition, LG Elec. Inc. v. CyWee Group Ltd., IPR2019-
`00560, Paper 1 (Jan. 10, 2019)
`
`Petition, LG Elec. Inc. v. CyWee Group Ltd., IPR2019-
`01203, Paper 1 (June 15, 2019)
`
`
`
`
`iii
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`
`
`
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`2040
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`2041
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`2042
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`2043
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`2044
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`2045
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`2046
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`2047
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`2048
`
`2049
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`Web Print-Out “Introducing PAX: the Android Networked
`Cross-License Agreement,” available at
`<https://blog.google/outreach-initiatives/publicpolicy/
`introducing-pax-android-networked-cross-
`licenseagreement/>
`(previously filed as Ex. 2016)
`
`Declaration of Collin W. Park
`(previously filed as Ex. 1038)
`
`Web Print-Out, Morgan Lewis, Lawflash Article “Statutory
`Time Bar Applies to Privity and RPI Relationships Arising
`After Filing of IPR Petition,” (June 27, 2019), available at
`< https://www.morganlewis.com/pubs/statutory-time-
`barapplies-
`to-privity-rpi-relationships-arising-after-ipr-petitionfiling>
`
`CyWee Litigation Timeline
`
`CyWee Group, Ltd. v. LG Elecs., Inc., et al., Exemplary
`Claim Chart
`
`Transcript of Deposition of Collin W. Park (August 21,
`2019)
`
`Google U.S. Trademark Reg. No. 4,692,657, Statement of
`Use (filed December 2, 2014)
`
`Aug. 16-20, 2019, Correspondence between C. Key and M.
`Smith
`
`LG Electronics, Inc. Filings for ZNFG011C (Google Pixel 2
`XL), External Photographs (submitted Sep. 11, 2017)
`
`Mobile Application Distribution Agreement (Android) (July
`1, 2011), ZTE-IPR 000001-12
`
`
`
`
`iv
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`2050
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`2051
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`2052
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`2053
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`2054
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`2055
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`2056
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`2057
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`Case IPR2018-01257
`Patent No. 8,552,978
`
`Anti-Fragmentation Agreement (March 2, 2011), ZTE-IPR
`000013-17
`
`Mobile Application Distribution Agreement (MADA)
`(January 1, 2014), ZTE-IPR 000020-35
`
`Android Compatibility Commitment (June 1, 2017), ZTE-IPR
`000039-43
`
`Mobile Application Distribution Agreement (MADA) (August
`1, 2017), ZTE-IPR 000045-67
`
`Google Play Services Software Suite Distribution Agreement
`(March 1, 2017), ZTE-IPR 000069-94
`
`Android Pre-Release Software License Agreement for OEMs
`(December 27, 2017), ZTE-IPR 000141-149
`
`Privilege Log for Petitioner ZTE (USA) Inc., ZTE (USA) Inc.
`v. CyWee Group Ltd., IPR2019-00143
`
`Transcript of November 4, 2019 Hearing
`
`v
`
`
`
`Pursuant to 37 C.F.R. § 42.23, Patent Owner hereby presents its response to
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`
`
`Petitioner Google, LLC’s Motion to Seal (Paper 79) regarding Patent Owner
`
`Exhibits 2049-2056 (the “ZTE Exhibits”) submitted with Patent Owner’s
`
`Supplemental Submission (Paper 77).
`
`In an inter partes review, the moving party bears the burden of showing that
`
`the relief requested should be granted. 37 C.F.R. § 42.20(c). A party moving to seal
`
`must show “good cause” for the relief requested. 37 C.F.R. § 42.54(a).
`
`The “good cause” standard for granting a motion to seal reflects the strong
`
`public policy for making all information in an inter partes review open to the public.
`
`37 C.F.R. § 42.54; see Argentum Pharms. LLC v. Alcon Research, Ltd., Case
`
`IPR2017-01053 (PTAB Jan. 19, 2018), Paper 27 at 3-4. In an inter partes review,
`
`“the default rule is that all papers . . . are open and available for access by the public.”
`
`Garmin Int’l v. Cuozzo Speed Techs., LLC, Case IPR2012-00001 (PTAB Mar. 14,
`
`2013), Paper 34 at 2. Thus, to demonstrate “good cause,” the moving party must
`
`demonstrate that:
`
`(1) the information sought to be sealed is truly confidential, (2) a
`concrete harm would result upon public disclosure, (3) there exists a
`genuine need to rely in the trial on the specific information sought to be
`sealed, and (4), on balance, an interest in maintaining confidentiality
`outweighs the strong public interest in having an open record.
`Argentum, IPR2017-01053, Paper 27 at 3-4; see also Corning Optical
`
`Communications RF, LLC, v. PPC Broadband, Inc., Case IPR2014-00440 (PTAB
`
`
`
`1
`
`
`
`
`April 6, 14, 17, 2015), Paper 46 at 2 (requiring a demonstration that information is
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`not “excessively redacted”).
`
`The ZTE Exhibits consist exclusively of documents produced by ZTE (USA),
`
`Inc. in ZTE (USA), Inc. v. CyWee Group, Ltd., IPR2019-00143 (the “ZTE IPR”).
`
`Pursuant to the Protective Order entered in the ZTE IPR, the ZTE Exhibits are
`
`designated Highly Confidential Protective Order Material because ZTE believes the
`
`documents contain valuable and sensitive commercial information that is not
`
`available to the public. Google, LLC, the Petitioner in this IPR, likewise believes
`
`that the documents contain valuable and sensitive non-public commercial
`
`information and requests that they not be made available to the public. A Protective
`
`Order that is essentially identical to that entered in the ZTE IPR has been entered in
`
`this IPR. See Paper 68.
`
`Petitioner’s Motion seeks to seal the identified documents in their entirety,
`
`stating that “the redacted information consists of confidential, internal, and sensitive
`
`business information. Good cause exists to seal and keep this information
`
`confidential because the extent of the redaction is limited and because the
`
`information would be valuable to competitors and harmful to Google if made
`
`public.” Paper 75 at 4. This is a conclusory assertion, and Petitioner provides no
`
`explanation as to what specific details are highly sensitive and confidential. Google
`
`thus provided no information supporting that the standard for sealing the requested
`
`
`
`2
`
`
`
`
`documents set forth in Argentum has been met. Argentum, IPR2017-01053, Paper
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`27 at 3–4. Although Patent Owner has no objection to the treatment of the substance
`
`of the documents as Highly Confidential Protective Order Material for purposes of
`
`the filing of Patent Owner’s Supplemental Submission, Petitioner has requested, also
`
`without explanation, that even title and date of the documents be considered Highly
`
`Confidential and kept from disclosure to the public. The title and date of the
`
`agreements disclose nothing more than the fact that Google and ZTE have business
`
`relationships, which appears to be a matter of public knowledge. See, e.g.,
`
`https://www.cnet.com/news/zte-may-lose-android-licensing-from-google-report-
`
`says/.
`
`Patent Owner objects to the continued treatment of document titles and dates
`
`as Highly Confidential. Patent Owner does not believe that mere titles and dates can
`
`be properly considered confidential and that the titles and dates should appear in the
`
`E2E system and be available for citation in any non-confidential versions of papers
`
`filed by the parties, or decisions of the Board, or a court in which the substance of
`
`the documents has been redacted.
`
`
`
`
`
`
`
`
`
` Dated: November 22, 2019
`
`
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`3
`
`Respectfully submitted,
`
`
`
`
`
`/Jay P. Kesan/
`Jay P. Kesan
`Reg. No. 37,488
`Counsel for Patent Owner
`Cywee Group Ltd.
`
`
`
`
`
`Certificate of Service
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on the date
`
`indicated below, a complete and entire copy of this submission, including the
`
`exhibits hereto, was provided by email to Petitioners’ counsel via email, as agreed
`
`to by Petitioners’ Service Information in the Petition submissions, by serving the
`
`email addresses of record as follows:
`
`Counsel for Google:
`
`Matthew A. Smith
`smith@smithbaluch.com
`
`
`
`Andrew S. Baluch
`baluch@smithbaluch.com
`
`
`
`
`
`Yeuzhong Feng
`yfeng@brinksgilson.com
`
`ZTE_CyweeIPRs@brinksgilson.com
`
`
`Christopher M. Colice
`colice@smithbaluch.com
`
`Counsel for ZTE:
`
`James R. Sobieraj
`jsobierah@brinksgilson.com
`
`Andrea Shoffstall
`ashoffstall@brinksgilson.com
`
`Counsel for Samsung:
`
`Naveen Modi
`Chetan Bansal
`PH-Samsung-Cywee-IPR@paulhastings.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Counsel for LG:
`
`Collin Park
`collin.park@morganlewis.com
`
`Jeremy Peterson
`jeremy.peterson@morganlewis.com
`
`Case IPR2018-01257
`Patent No. 8,552,978
`
`
`
`Andrew Devkar
`andrew.devkar@morganlewis.com
`
`Adam Brooke
`adam.brooke@morganlewis.com
`
`
`
`
`
`
`
`
`
`
`
`
`/Jay P. Kesan/
`Jay P. Kesan
`Reg. No. 37,488
`
`Counsel for Patent Owner
`Cywee Group Ltd.
`
`MLB_CyweevsLGE@morganlewis.com
`
`Counsel for Huawei:
`
`Kristopher L. Reed
`Benjamin M. Kleinman
`Norris P. Boothe
`HuaweiCywee@kilpatricktownsend.com
`
`
`
`
`Dated: November 22, 2019
`
`
`
`
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