Case IPR2019-00525
`’978 Patent
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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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`ZTE (USA), INC.
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`Petitioner,
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`v.
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`CYWEE GROUP LTD.
`Patent Owner.
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`—————————————
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`IPR2019-00525
`Patent No. 8,552,978
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`PETITIONER’S REPLY TO OPPOSITION TO MOTION FOR JOINDER
`TO INTER PARTES REVIEW IPR2018-01257
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`’978 Patent
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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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`ZTE (USA), INC.
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`Petitioner,
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`v.
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`CYWEE GROUP LTD.
`Patent Owner.
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`—————————————
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`IPR2019-00525
`Patent No. 8,552,978
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`—————————————
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`PETITIONER’S REPLY TO OPPOSITION TO MOTION FOR JOINDER
`TO INTER PARTES REVIEW IPR2018-01257
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`Case IPR2019-00525
`’978 Patent
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`TABLE OF CONTENTS
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`I.
`II.
`III.
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`INTRODUCTION ........................................................................................... 1
`JOINDER WOULD NOT PREJUDICE PATENT OWNER ......................... 1
`JOINDER WILL NOT ADVERSELY IMPACT TRIAL
`SCHEDULE .................................................................................................... 3
`A.
`Joinder Will Not Introduce New Claim Construction
`Issues ..................................................................................................... 3
`Any Need For RPI Discovery Has No Bearing on Joinder................... 5
`B.
`IV. CONCLUSION ................................................................................................ 5
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`TABLE OF AUTHORITIES
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`Case IPR2019-00525
`’978 Patent
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`Page(s)
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`CASES
`Duodecad IT Services v. WAG Acquisition, LLC,
`IPR2017-00785, Paper 12 (Apr. 13, 2017) ............................................................ 2
`Friendfinder Networks Inc., v. WAG Acquisition, LLC,
`IPR2017-00784, Paper 12 (Mar. 31, 2017) ............................................................ 2
`Samsung Elecs. Am., Inc. v. Uniloc 2017 LLC,
`IPR2017-01797, Paper 8 (Feb. 6, 2018) ................................................................. 3
`Samsung v. Uniloc 2017 LLC,
`IPR2018-01383, Paper 9 (Nov. 19, 2018) .............................................................. 4
`Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC,
`IPR2018-00883, Paper 29 (Oct. 11, 2018) ............................................................. 5
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`STATUTES
`35 U.S.C. § 315 .......................................................................................................... 3
`REGULATIONS
`37 C.F.R. § 42.100 ..................................................................................................... 4
`37 C.F.R. § 42.5 ......................................................................................................... 4
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`ii
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`Case IPR2019-00525
`’978 Patent
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`I.
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`INTRODUCTION
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`ZTE’s request for joinder is entirely appropriate and consistent with the
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`Board’s well-settled joinder practice. ZTE has filed a copy-cat petition to join the
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`already-instituted inter partes review IPR2018-01257 (“Google IPR”) against the
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`same patent claims on the same unpatentability grounds using the same expert
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`declaration. ZTE also has explicitly agreed to an “understudy” role.
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`CyWee’s opposition lacks merit. First, CyWee’s alleged prejudice is
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`speculation that borders on paranoia. Second, joinder will not impact the trial
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`schedule because ZTE’s petition raises no new issues, and ZTE will act as an
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`understudy, unless and until Google drops out. Also, ZTE’s joinder will not raise
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`new claim construction issues because ZTE’s petition adopts the claim construction
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`positions in Google’s petition, and the claim construction standard applicable to the
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`Google proceeding (BRI) continues to apply even if Google departs and ZTE takes
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`over. Finally, CyWee’s purported need for discovery regarding real parties-in-
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`interest (“RPI”) is based on pure conjecture. It also is irrelevant to joinder because
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`if CyWee has a plausible basis to take RPI discovery, it could do so now in the
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`Google IPR. In short, CyWee offers no reasonable basis for denying joinder.
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`II.
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`JOINDER WOULD NOT PREJUDICE PATENT OWNER
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`The Board has held that a patent owner is not prejudiced merely by a joinder.
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`E.g., Duodecad IT Services v. WAG Acquisition, LLC, IPR2017-00785, Paper 12, at
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`1
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`’978 Patent
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`7 (Apr. 13, 2017) (“Patent Owner’s arguments [regarding prejudice] are
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`unpersuasive. Patent Owner will not be prejudiced. It is already defending the
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`[underlying petitioner’s] IPR and there will be no schedule change or separate filings
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`by Petitioner in the [underlying petitioner’s] IPR.”); see also Friendfinder Networks
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`Inc., v. WAG Acquisition, LLC, IPR2017-00784, Paper 12, at 6 (Mar. 31, 2017).
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`In this case, ZTE unequivocally committed to proceed in the Google IPR as
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`an “understudy” (Motion at 1, 7, 8), ensuring that CyWee will not be prejudiced by
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`ZTE’s joinder. CyWee does not allege that ZTE’s detailed limitations on its role are
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`insufficient and does not propose additional conditions to minimize CyWee’s
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`alleged prejudice. Rather, CyWee merely states that it is “unfathomable” that ZTE
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`will honor its commitments. (Opp. at 4-5.)
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`CyWee’s skepticism rests on unsupported and misplaced conspiracy theories.
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`There is no evidence that ZTE, Google and others are “working together” as CyWee
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`speculates. And even if that conspiracy theory was plausible, they could “work
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`together” even if no one filed a joinder motion. More importantly, CyWee faces no
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`prejudice from ZTE’s joinder because ZTE will act as an understudy or as Google’s
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`replacement: it is one or the other, not both Google and ZTE that CyWee faces as
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`the Petitioner.
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`CyWee overstates that it faces a “deluge” of joinder petitions, which should
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`be denied so the Board is not “overwhelmed.” The four petitioners seeking to join
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`2
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`Case IPR2019-00525
`’978 Patent
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`the Google IPR each filed briefs that “contain nearly identical language with only
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`minor modifications,” thereby streamlining issues for CyWee to address in its
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`Oppositions.1 (Opp. at 5.) CyWee likewise will not be prejudiced if the joinder
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`motions are granted, as CyWee will face the same grounds on the same prior art
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`asserted in the Google IPR. (Opp. at 8 (conceding that “ZTE does not present any
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`new grounds of unpatentability”).) Furthermore, CyWee cannot credibly complain
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`of the prospect of facing multiple Petitioners when it is CyWee’s own litigation
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`activity that prompted multiple Petitioners to challenge its patent. Samsung Elecs.
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`Am., Inc. v. Uniloc 2017 LLC, IPR2017-01797, Paper 8, at 33 (Feb. 6, 2018). The
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`fact that CyWee has opposed every joinder petition shows that it does not want a
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`single joinder granted; CyWee’s fixation on the number of joinder petitions is
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`rhetorical hand-waving.
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`III. JOINDER WILL NOT ADVERSELY IMPACT TRIAL SCHEDULE
`Joinder Will Not Introduce New Claim Construction Issues
`A.
`As discussed above, CyWee concedes that ZTE’s petition does not present
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`any new grounds. Rather, the only alleged new issue is the (incorrect) assertion that
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`1 ZTE independently drafted its joinder motion based on joinder motions that the
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`Board granted in earlier cases. Presumably, other joinder movants did the same,
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`which is an innocuous reason that their motions are so similar.
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`3
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`Case IPR2019-00525
`’978 Patent
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`ZTE’s petition will apply a different claim construction standard. (Opp. at 7.) While
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`the claim construction standard has changed from BRI to Phillips for petitions filed
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`after November 13, 2018, the BRI standard applies to ZTE’s Petition because ZTE
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`is simply seeking joinder as a co-petitioner. See 35 U.S.C. § 315(c) (“join as a party
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`to that inter partes review.”) (emphasis added). ZTE would be joined as a petitioner
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`in IPR2018-01257 pursuant to 37 C.F.R. § 42.122. See, e.g., Samsung v. Uniloc 2017
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`LLC, IPR2018-01383, Paper 9, at 6-7 (Nov. 19, 2018). Thus, the BRI standard
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`applicable in the Google IPR would also apply to ZTE’s Petition, as “that case” will
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`proceed by ZTE replacing Google.2
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`Also, 37 C.F.R. § 42.100(b) plainly states that the Phillips standard shall be
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`used “[i]n an inter partes review proceeding.” (emphasis added). This language
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`clearly ties the claim construction standard to a proceeding rather than a petition.
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`Here, ZTE seeks to be joined to the earlier IPR proceeding where the BRI applies.
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`Finally, Patent Owner fails to cite a single case that supports its position,
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`which would essentially prohibit joinders to any IPRs filed when BRI was
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`applicable. Patent Owner also fails to identify a single claim term that would have
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`a different construction under the BRI versus Phillips standard.
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`2 If the Board deems that its rule(s) require application of the Phillips standard to
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`ZTE’s Petition, ZTE seeks waiver of such rule(s) pursuant to 37 C.F.R. § 42.5(b).
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`4
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`B. Any Need For RPI Discovery Has No Bearing on Joinder
`CyWee contends that joinder “will necessitate additional discovery to
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`Case IPR2019-00525
`’978 Patent
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`determine what other unknown makers of Android-based devices are RPIs to the
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`Google IPR.” (Opp. at 9.) First, even if CyWee has a plausible concern that other
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`parties are RPIs to Google’s petition, CyWee can seek RPI discovery in the Google
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`IPR, regardless of whether anyone files a motion for joinder. Second, CyWee’s
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`unsupported assertion that unnamed phone manufacturers whose products “utilize
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`the Google Android operating system” may have “an interest in the outcome of this
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`proceeding,” (Opp. at 8-9) is legally insufficient to convert any such party into an
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`RPI. Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-00883,
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`Paper 29, at 15 (Oct. 11, 2018) (finding aligned interests to be insufficient).
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`IV. CONCLUSION
`For the foregoing reasons, ZTE respectfully requests that the Board institute
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`the ZTE petition and grant joinder with the Google IPR.
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`Respectfully submitted,
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`March 11, 2019
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`Date
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`BRINKS GILSON & LIONE
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` / James R. Sobieraj/
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` James R. Sobieraj
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`5
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`Case IPR2019-00525
`’978 Patent
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`CERTIFICATE OF SERVICE
`I certify that, on March 11, 2019, I caused a true and correct copy of the
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`foregoing Petitioner’s Reply to Opposition to Motion for Joinder to Inter Partes
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`Review IPR2018-001257 to be served electronically on the following:
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`Jay P. Kesan: jkesan@dimuro.com
`Cecil E. Key: ckey@dimuro.com
`Arlen Papazian: apapazian@dimuro.com
`DimuroGinsberg PC
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`Respectfully submitted,
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`BRINKS GILSON & LIONE
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` March 11, 2019
`Date
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` / James R. Sobieraj/
` James R. Sobieraj
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`6
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