`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`Canon Inc., Canon U.S.A., Inc., and Axis Communications AB,
`
`Petitioners,
`
`v.
`
`Avigilon Fortress Corporation,
`
`Patent Owner.
`______________________
`
`Case No. IPR2019-00311
`
`U.S. Patent No. 7,932,923
`______________________
`
`
`PATENT OWNER’S OPPOSITION TO PETITIONERS’ MOTION TO
`SUBMIT SUPPLEMENTAL INFORMATION UNDER 37 C.F.R. § 42.123(a)
`
`
`
`
`
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`
`I.
`II.
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`TABLE OF CONTENTS
`INTRODUCTION ......................................................................................... 1
`PETITIONERS’ EXHIBITS ARE PROPERLY
`CHARACTERIZED AS SUPPLEMENTAL EVIDENCE, NOT
`SUPPLEMENTAL INFORMATION ......................................................... 2
`III. EVEN IF THE EXHIBITS ARE NOT SUPPLEMENTAL
`EVIDENCE, PETITIONERS’ MOTION SHOULD STILL BE
`DENIED .......................................................................................................... 3
`A.
`Petitioners Improperly Attempt To Submit Exhibits 1049, 1051,
`And 1053 Without The Board’s Authorization. .................................... 3
`Petitioners’ Remaining Requests Should Also Be Denied. .................. 6
`B.
`IV. CONCLUSION ............................................................................................ 10
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`i
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
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`PATENT OWNER’S EXHIBIT LIST
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`Description
`
`ii
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`Exhibit
`No.
`2001 Declaration of Michael W. De Vries in Support of Unopposed Motion
`to Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`2002 Declaration of Adam R. Alper in Support of Unopposed Motion to
`Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`2003 Declaration of Akshay S. Deoras in Support of Unopposed Motion to
`Appear Pro Hac Vice on Behalf of Patent Owner Avigilon Fortress
`Corporation.
`
`37 C.F.R. § 1.132 Declaration of Kenneth A. Zeger (excerpt of U.S.
`Patent No. 7,868,912 Reexamination).
`
`Thomas Olson & Frank Brill, Moving Object Detection & Event
`Recognition Algorithms for Smart Cameras, 1 PROC. 1997 IMAGE
`UNDERSTANDING WORKSHOP 159-175 (1997).
`
`Jonathan D. Courtney, Automatic Video Indexing Via Object Motion
`Analysis, 30(4) PATTERN RECOGNITION 607-625 (1997).
`
`2007 U.S. Patent No. 6,628,835 to Brill et al.
`
`2008 Young Francis Day, et al, Spatio-Temporal Modeling of Video Data
`for On-Line Object-Oriented Query Processing, Proceedings of the
`International Conference on Multimedia Computing and Systems 98-
`105 (1995).
`
`Second Supplemental Amendment, U.S. Patent No. 7,932,923 (Feb. 4,
`2011).
`
`IPR2018-00138; IPR2018-00140, Ex. 2009 (Grindon Dep. Transcript
`Aug. 15, 2018).
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`2004
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`2005
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`2006
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`2009
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`2010
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
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`Description
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`Exhibit
`No.
`2011 Declaration of Jennifer A. Babbitt.
`
`SearchWorks Catalog Entry for Thomas Olson & Frank Brill, Moving
`Object Detection & Event Recognition Algorithms for Smart Cameras,
`1 PROC. 1997 IMAGE UNDERSTANDING WORKSHOP 159-175 (1997).
`
`Scanned Cover and Front Matter of Jonathan D. Courtney, Automatic
`Video Indexing Via Object Motion Analysis, 30(4) PATTERN
`RECOGNITION 607-625 (1997)
`
`2014 MRC Standards Wikipedia Search.
`
`2015 Declaration of Jennifer A. Babbitt for Sur-Reply.
`
`LinkedIn Profile of Marilyn McSweeney.
`
`2017 Declaration of Jennifer A. Babbitt in Support of Patent Owner’s
`Opposition to Petitioner’s Motion for Authorization to Compel
`Testimony and/or Documents.
`
`
`2012
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`2013
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`2016
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`iii
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
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`I.
`
`
`INTRODUCTION
`Patent Owner Avigilon Fortress Corporation (“Patent Owner”) submits this
`
`Opposition to Petitioner Canon Inc., Canon U.S.A., Inc., and Axis Communications
`
`AB’s (collectively, “Petitioners”) Motion to Submit Supplemental Information
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`Pursuant to 37 C.F.R. § 42.123(a) (the “Motion”) dated August 16, 2019 (Paper 19).
`
`Petitioners seek to cure the defects in the Petition and Florio declaration (Ex. 1007)
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`as they relate to the alleged printed publication status of the Kellogg and Brill
`
`references. Patent Owner submits that the request should be denied for at least three
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`reasons. First, Petitioners’ request is properly characterized as a request to file
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`supplemental evidence, as the Motion makes clear that the purpose of the exhibits is
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`to support the admissibility of the declaration of Emily Florio (Ex. 1007). Such a
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`request is premature, as the proper time to request to file supplemental evidence is
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`in an opposition to a motion to exclude evidence, which has not been filed. Second,
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`Petitioners seek to file supplementary information that they present for the first time
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`in their motion and was not discussed at the August 9, 2019 telephone conference
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`regarding Petitioners’ request to file supplemental evidence, or at any time prior in
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`communication between the parties. The Board did not authorize Petitioners to file
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`a motion requesting to file these exhibits, and Patent Owner respectfully submits that
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`Petitioners’ request should be denied for that reason as well. Third, Patent Owner
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`requests that the Board deny the Motion to submit the remaining exhibits, which
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`1
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`Petitioners chose not to file with the Petition, even though they were all readily
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`available to them at that time, a factor that the Board considers, even when a motion
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`is made within one month of the institution decision.
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`II.
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`PETITIONERS’ EXHIBITS ARE PROPERLY CHARACTERIZED
`AS SUPPLEMENTAL EVIDENCE, NOT SUPPLEMENTAL
`INFORMATION
`Petitioners make clear that the true purpose of their exhibits is to support the
`
`admissibility of the declaration of Emily Florio, Ex. 1007, which Patent Owner has
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`objected to. Motion at 2, 4, 6 (“[A]s an employee of the UVA Library this evidence
`
`directly addresses Patent Owner’s argument that Ms. Florio lacks sufficient personal
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`knowledge of the practices of the UVA Library.”), 7 (“Exhibit 1045 is thus relevant
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`because
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`it bolsters Ms. Florio’s
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`testimony regarding
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`the availability of
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`Flinchbaugh”), 8-9 (“This information concerning the MARC standard is relevant
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`because Ms. Florio’s declaration includes an explanation of how MARC records
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`work and an examination of MARC records for the Kellogg, Brill, and Flinchbaugh
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`references in support of her testimony regarding public accessibility.”); Ex. 3002
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`(“On July 22, 2019, Patent Owner filed Objections to Evidence in IPR2019-00311
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`and IPR2019-00314 relating to Exhibit 1007, the Florio Declaration, and its
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`testimony regarding whether a number of the prior art references in the subject
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`petitions are printed publications. Petitioners Canon and Axis seek authorization to
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`2
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`file a motion addressing these objections in two ways.”). Indeed, Petitioners refer
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`to the exhibits as “supplemental evidence.” Motion at 2.
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`Exhibits produced in response to evidentiary objections are supplemental
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`evidence, the filing of which is governed by 37 C.F.R. § 42.64(b)(2). See
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`CaptionCall, L.L.C. v. Ultratec, Inc., IPR2015-00636, 00637, Paper 18 at 2 (PTAB
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`Jan. 6, 2016). The proper time to file supplemental evidence is with an opposition
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`to a motion to exclude. Id.; 37 C.F.R. § 42.64(c). Petitioners’ Motion is thus
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`premature and should be denied.
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`III. EVEN IF THE EXHIBITS ARE NOT SUPPLEMENTAL EVIDENCE,
`PETITIONERS’ MOTION SHOULD STILL BE DENIED
`Even if the Board disagrees that the exhibits Petitioners seek to file are more
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`properly characterized as supplemental evidence, Patent Owner respectfully submits
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`that the Board should deny the request to file the exhibits as supplemental
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`information.
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`A.
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`Petitioners Improperly Attempt To Submit Exhibits 1049, 1051,
`And 1053 Without The Board’s Authorization.
`To the extent the Board disagrees that Exhibits 1049, 1051, and 1053 are
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`supplemental evidence, Patent Owner submits Petitioners also failed to satisfy the
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`requirements under Rule § 42.123, which requires Petitioners seek authorization
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`from the Board before filing a motion to submit the exhibits as supplemental
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`information. Exhibit 1049 is alleged to be a declaration from the University of
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`3
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
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`Virginia library. Motion at 2. Exhibit 1051 purportedly is a copy of Brill from the
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`University of Wisconsin library. Id. Exhibit 1053 allegedly is a declaration from
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`the University of Wisconsin library that Petitioners served on August 23, 2019—the
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`day this brief is due. Id. These three unauthorized documents should not be admitted
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`as supplemental information, because Petitioners failed to satisfy the requirements
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`of 37 C.F.R. § 42.123. Exhibit 1053 also should not be admitted because it was
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`served so late as to prejudice Patent Owner’s response in this brief.
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`First, the procedure for the filing of supplemental information is clear: a party
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`must obtain authorization to file a motion to submit supplemental information from
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`the Board. 37 C.F.R. § 42.123. Petitioners, however, did not do so as to Exhibits
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`1049, 1051, and 1053. Rather, during the August 9, 2019 conference call with the
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`Board, Petitioners only sought “authorization to move to submit as supplemental
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`information certain pieces of supplemental evidence that we already served on
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`Patent Owner.” Ex. 1050 at 6:6-9 (emphasis added); see also id. at 4:5-11, 6:1-5.
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`They made no request to include other documents that had not been previously
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`served on Patent Owner. Id. Exhibits 1049, 1051, and 1053 had not been served on
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`Patent Owner at that point, as Petitioners acknowledge. Motion at 2 (“[T]hree
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`additional documents, besides those already served as supplemental evidence, are
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`being requested to be submitted here.”) (emphasis added). Patent Owner was never
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`given the opportunity before the Motion to argue that the Board should not authorize
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`Petitioners’ Motion to Submit Supplemental Information as to these three
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`unauthorized documents. Petitioners’ Motion fails to satisfy 37 C.F.R. § 42.123 on
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`its face and should be denied.
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`Second, to the extent that the Board considers Petitioners’ request as to
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`Exhibits 1049, 1051, and 1053, the request must satisfy 37 C.F.R. § 42.123(b),
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`because it was made for the first time in the Motion, thirty-nine days after trial was
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`instituted. Under Rule 42.123(b), Petitioners must “show why the supplemental
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`information reasonably could not have been obtained earlier, and that consideration
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`of the supplemental information would be in the interests-of-justice.” (Emphasis
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`added). Petitioners make no attempt to satisfy either requirement. Exhibit 1049
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`allegedly is a declaration from the University of Virginia library that Petitioners
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`obtained without a subpoena. Motion at 2. Petitioners have not attempted to explain
`
`why this declaration “could not have been obtained earlier.” Similarly, Exhibit 1051
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`is a purported copy of Brill from the University of Wisconsin library, sought to be
`
`submitted without any explanation as to why it was not included with the Petition or
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`submitted earlier. Lastly, regarding Exhibit 1053, an alleged declaration from the
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`University of Wisconsin library, Petitioners explained that the University of
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`Wisconsin librarian who writes declarations was unavailable until August 22, 2019.
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`Motion, fn. 1; Ex. 1052. But Petitioners do not explain when they requested the
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`declaration, nor do they attempt to explain why the declaration could not have been
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`5
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`obtained long ago, prior to the submission of the Petition, and presumably before the
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`librarian’s window of unavailability. Moreover, Patent Owner only received the
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`declaration a few hours before its Opposition was due, giving it insufficient
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`opportunity to fully respond to the request to file it, which should be denied for at
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`least that reason.
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`B.
`Petitioners’ Remaining Requests Should Also Be Denied.
`Under 37 C.F.R. § 42.123(a), a party may file a motion to submit supplemental
`
`information if it meets the following requirements: “(1) [a] request for the
`
`authorization to file a motion to submit supplemental information is made within
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`one month of the date the trial is instituted” and “(2) [t]he supplemental information
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`must be relevant to a claim for which the trial has been instituted.” 37 C.F.R. §
`
`42.123(a). The Board, however, regularly denies such motions even if the
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`requirements for filing the motion are met. Redline Detection, LLC v. Star
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`Envirotech, Inc., IPR2013-00106, Paper 24 (PTAB Aug. 5, 2013), aff’d 811 F.3d
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`435 (Fed. Cir. 2015); Laboratoire Francais du Fractionnement et des
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`Biotechnologies S.A. v. Novo Nordisk Healthcare AG, IPR2017-00028, Paper 22
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`(PTAB Jun. 13, 2017); ZTE Corp. v. ContentGuard Holdings, Inc., IPR 2013-00139
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`Paper 27 (PTAB Jun. 30, 2013); Ooma, Inc. v. Deep Green Wireless LLC, IPR2017-
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`01541, Paper 14 (PTAB Jan. 23, 2018).
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`6
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`In ZTE, the petitioner sought to submit supplemental information under
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`§ 42.123(a) that would “bolster its position” after trial was instituted. ZTE,
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`IPR2013-00139, Paper 27 at 2. However, the Board denied the petitioner’s request
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`because it found that § 42.123 is not a means to “bolster [a] position, particularly if
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`that evidence was in the petitioner’s possession at the time of filing of the petition.”
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`Id at 3. Here, Petitioners similarly attempt to bolster their arguments with evidence
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`regarding the alleged printed publication status of Kellogg, Brill, and Flinchbaugh.1
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`See Motion at 4 (“the supplemental information presented here . . . provid[es]
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`additional evidence of the publication of these references”).
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`Similarly, in Redline, the Board denied a motion to submit supplemental
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`information under § 42.123(a) where the petitioner “ha[d] not alleged that any of the
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`arguments or evidence in the newly submitted declaration is information that
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`reasonably could not have been submitted with the Petition.” IPR2013-00106, Paper
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`24 at 4. In its Request for Rehearing (Paper 29) and on appeal, the petitioner argued
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`1 Petitioners seek to file exhibits related to Flinchbaugh to bolster their argument
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`that the reference was publicly disseminated. However, the printed publication
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`status of Flinchbaugh is not at issue and it was not a reference relied upon by the
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`Petitioners in the Petition (Paper 1) or by the Board in its Institution Decision
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`(Paper 13).
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`7
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`that the legislative history of Rule § 42.123 prevents the Board from considering
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`“factors articulated in subsections (b) and (c) if the timeliness and relevance
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`conditions in subsection (a) are satisfied.” Redline, 811 F.3d at 444 (Fed. Cir. 2015).
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`The Board disagreed, and the Federal Circuit upheld the Board’s interpretation of
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`Rule § 42.123(a), holding that it was “consistent with the regulation’s plain
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`language” and that “[r]equiring admission of supplemental information so long as it
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`was timely submitted and relevant to the IPR proceeding” would alter the intended
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`purpose of the IPR and “cut against” the mandate that the Board ensures the efficient
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`and timely completion of IPR proceedings. Id. at 445.
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`Petitioners apparently did not require a subpoena to obtain any of the exhibits
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`they seek to file and yet provide no reason for why they were not submitted with the
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`Petition or at any time before now. Petitioners failed to submit adequate declarations
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`from librarians with personal knowledge of the shelving practices at the relevant
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`libraries with the Petition, and they now attempt to rectify their mistake by
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`submitting declarations from librarians (Ex. 1047, 1048, 1049, and 1053), which is
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`improper. Petitioners also failed to provide sufficient evidence of the printed
`
`publication status of the references at the time of the Petition, and now attempt to
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`remedy it by submitting additional copies of Brill (Ex. 1046 and 1051), and a copy
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`of Flinchbaugh (Ex. 1045), a reference that is not at issue in this proceeding.
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`Petitioners also failed to adequately explain with credible testimony what a MARC
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`8
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`record is, and now attempt to cure that deficiency by submitting screenshots of two
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`webpages (Ex. 1042 and 1043). Admitting Petitioners’ exhibits now with
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`information that was readily available to them at the time the Petition was filed,
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`allows Petitioners to “bolster [their] positions” in a way that is not in the interest of
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`justice.
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`Further, Petitioners’ declaration from counsel (Ex. 1041) inadequately
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`authenticates the exhibits sought to be filed, because it fails to provide testimonial
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`evidence from a witness with personal knowledge of how the exhibits were obtained
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`and whether they are authentic. The Board regularly holds that such a declaration is
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`insufficient to authenticate exhibits, in particular with respect to exhibits allegedly
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`demonstrating public availability. ASM IP Holding B.V. v. Kokusai Elec. Corp.,
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`IPR2019-00369, Paper 8 at 20-22 (PTAB Jun. 27, 2019) (finding that a declaration
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`from petitioner’s counsel attesting to how the printouts were generated falls short of
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`authenticating the webpage printouts, in the context of a public availability dispute);
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`see also Standard Innovation Corp. v. Lelo, Inc., IPR2014-00148, Paper 41 at 11
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`(PTAB Apr. 23, 2015) (holding printouts of webpages were not authenticated
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`because petitioner had not provided testimony of any witness attesting to the
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`reliability of the contents or having personal knowledge that the printouts were
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`authentic, in the context of a public availability dispute). Petitioners’ motion should
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`be denied for this reason as well.
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`9
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
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`IV. CONCLUSION
`For the foregoing reasons, Patent Owner respectfully requests the Board deny
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`Petitioners’ Motion to Submit Supplemental Information.
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`Dated: August 23, 2019
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`
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`
`
`By:
`
`
`
`
`
`Reza Dokhanchy (Reg. No. 62,795)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`reza.dokhanchy@kirkland.com
`
`Adam R. Alper (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`adam.alper@kirkland.com
`
`Back-Up Counsel for Patent Owner
`Avigilon Fortress Corporation
`
`
`
`Respectfully submitted,
`
`/s/ Eugene Goryunov/
`Eugene Goryunov (Reg. No. 61,579)
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago, IL 60654
`Telephone: 312-862-2000
`Facsimile: 312-862-2200
`
`
`Lead Counsel for Patent Owner
`Avigilon Fortress Corporation
`
`Akshay S. Deoras (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`akshay.deoras@kirkland.com
`
`Michael W. De Vries (pro hac vice)
`KIRKLAND & ELLIS LLP
`333 South Hope Street
`Los Angeles, CA 90071
`Telephone: 213-680-8400
`Facsimile: 213-680-8500
`michael.devries@kirkland.com
`
`
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`10
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a copy of the foregoing PATENT
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`OWNER’S OPPOSITION TO PETITIONERS’ MOTION TO SUBMIT
`
`SUPPLEMENTAL INFORMATION UNDER 37 C.F.R. § 42.123(a) was served
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`on August 23, 2019 via electronic service on lead and back up counsel:
`
`
`Axis Communications AB
`Lead Counsel
`
`C. Gregory Gramenopoulos (Reg. No.
`36,532)
`Finnegan, Henderson, Farabow,
`Garrett & Dunner LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`Telephone: 202-408-4263
`Facsimile: 202-408-4400
`gramenoc@finnegan.com
`
`
`
`Canon Inc. and Canon U.S.A., Inc.
`Lead Counsel
`
`Joseph A. Calvaruso (Reg. No. 28,287)
`Orrick, Herrington, & Sutcliffe LLP
`2050 Main Street, Suite 1110
`Irvine, CA 92614-8255
`Telephone: 212-506-5140
`Facsimile: 949-567-6710
`ipprosecution@orrick.com
`jcalvaruso@orrick.com
`
`
`
`11
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`
`Axis Communications AB
`Backup Counsel
`
`Kelly S. Horn (Reg. No. 70,657)
`Guang-Yu Zhu (Reg. No. 66,250)
`Finnegan, Henderson, Farabow,
`Garrett & Dunner LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`Telephone: 202-408-43131
`Facsimile: 202-408-4400
`kelly.horn@finnegan.com
`guang-yu.zhu@finnegan.com
`
`
`Canon Inc. and Canon U.S.A., Inc.
`Back-Up Counsel
`
`Richard F. Martinelli (Reg. No. 52,003)
`Orrick, Herrington, & Sutcliffe LLP
`2050 Main Street, Suite 1110
`Irvine, CA 92614-8255
`Telephone: 212-506-5140
`Facsimile: 949-567-6710
`ipprosecution@orrick.com
`rmartinelli@orrick.com
`
`
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`Patent Owner’s Opp. to Petitioners’ Mot. to Submit Supp. Info.
`IPR2019-00311
`
`
`Dated: August 23, 2019
`
`Reza Dokhanchy (Reg. No. 62,795)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`reza.dokhanchy@kirkland.com
`
`Adam R. Alper (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`adam.alper@kirkland.com
`
`
`
`
`
` /s/ Eugene Goryunov
`
`Eugene Goryunov (Reg. No. 61,579)
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago, IL 60654
`Telephone: 312-862-2000
`Facsimile: 312-862-2200
`eugene.goryunov@kirkland.com
`
`Akshay S. Deoras (pro hac vice)
`KIRKLAND & ELLIS LLP
`555 California Street
`San Francisco, CA 94104
`Telephone: 415-439-1400
`Facsimile: 415-439-1500
`akshay.deoras@kirkland.com
`
`Michael W. De Vries (pro hac vice)
`KIRKLAND & ELLIS LLP
`333 South Hope Street
`Los Angeles, CA 90071
`Telephone: 213-680-8400
`Facsimile: 213-680-8500
`michael.devries@kirkland.com
`
`
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`12
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