Paper No. __
`Filed: February 22, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
`v.
`CYWEE GROUP LTD.
`Patent Owner
`____________________
`Patent No. 8,552,978
`Case No. IPR2019-00534
`____________________
`REPLY IN SUPPORT OF
`MOTION FOR JOINDER TO INTER PARTES REVIEW IPR2018-01257
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`Filed: February 22, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`SAMSUNG ELECTRONICS CO., LTD.
`Petitioner
`v.
`CYWEE GROUP LTD.
`Patent Owner
`____________________
`Patent No. 8,552,978
`Case No. IPR2019-00534
`____________________
`REPLY IN SUPPORT OF
`MOTION FOR JOINDER TO INTER PARTES REVIEW IPR2018-01257
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`JOINDER WILL NOT PREJUDICE PATENT OWNER .............................. 2
`JOINDER WILL NOT ADVERSELY IMPACT TRIAL SCHEDULE ........ 4
`A.
`Joinder Will Not Introduce New Claim Construction Issues ................ 4
`B.
`CyWee Has Not Identified a Genuine Real Party-in Interest
`(“RPI”) Issue Implicated by Samsung’s Joinder ................................... 4
`JOINDER WILL NOT WASTE TIME, EFFORT, OR RESOURCES .......... 5
`CONCLUSION ................................................................................................ 5
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`I.
`II.
`III.
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`IV.
`V.
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`1
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`CyWee Grp. Ltd. v. Samsung Elecs. Co. Ltd.,
`No. 2:17-cv-00140, D.I. 332 (E.D. Tex. Feb. 14, 2019) ...................................... 5
`Samsung Electronics America, Inc. v. Uniloc 2017 LLC,
`IPR2017-01797, Paper 8 (Feb. 6, 2018) ............................................................... 3
`Unified Patents, Inc. v. Realtime Adaptive Streaming, LLC,
`IPR2018-00883, Paper 29 (Oct. 11, 2018) ........................................................... 5
`Statutes
`35 U.S.C. § 315(c) ..................................................................................................... 4
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`2
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
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`I.
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`INTRODUCTION
`Samsung has filed a copy-cat petition to join the already-instituted inter
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`partes review IPR2018-01257 (“Google IPR”) against the same patent claims on
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`the same unpatentability grounds using the same expert declaration. Samsung has
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`explicitly agreed to an “understudy” role. Joinder in such a scenario is entirely
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`appropriate and consistent with the Board’s well-settled joinder practice.
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`CyWee raises three arguments in its opposition, each of which rings hollow.
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`First, there is no cognizable prejudice to CyWee. CyWee’s arguments regarding
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`Samsung taking an active role in the proceeding is pure conjecture. Second,
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`joinder will not impact the trial schedule because Samsung’s petition raises no new
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`issues and Samsung will act as an understudy, unless Google drops out as a
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`Petitioner. CyWee’s suggestion that joinder will raise new claim construction
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`issues is meritless because Samsung’s petition adopts the claim construction
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`positions in Google’s petition and if Samsung is joined as a party to the Google
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`IPR, the claim construction standard applicable to that proceeding should continue
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`to apply. CyWee’s unsupported contention that it will need to seek discovery
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`regarding real parties-in-interest if Samsung is joined is perplexing. Indeed, any
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`delay caused by a CyWee motion for additional discovery would be a problem of
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`its own making and cannot justify denying joinder. Third, CyWee’s argument that
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`the parties’ dispute is better handled in district court because that case “is sure to
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`1
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
`resolve more quickly than the Google IPR” is not only moot but irrelevant because
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`the district court recently stayed the litigation between CyWee and Samsung
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`pending resolution of the Google IPR.1
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`II.
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`JOINDER WILL NOT PREJUDICE PATENT OWNER
`Samsung’s commitment to proceed in the Google IPR as an “understudy”
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`shows that there will not be any prejudice to CyWee resulting from Samsung’s
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`joinder. See Mot. at 6-8. Regardless of whether Samsung is joined, CyWee will
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`face a patentability challenge based on the same prior art by Google. See Opp. at 8
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`(conceding “Samsung does not present any new grounds of unpatentability”).
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`Samsung only seeks to join so that, in the event the original Petitioner Google
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`cannot continue, Samsung can assume a leading role. See Mot. at 7.
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`In response, CyWee only offers unsupported conspiracy theories. Opp. at 4-
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`6. CyWee baldly asserts “it is unfathomable that Samsung…will truly take an
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`‘understudy’ role.” Opp. at 5. Such unsupported disbelief fails to address any of
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`the substantive limitations that Samsung has agreed to as a condition for joinder,
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`Mot. at 7, and fails to suggest any additional conditions CyWee believes would be
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`necessary to minimize its alleged prejudice.
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`1 Throughout its Opposition, CyWee makes various representations regarding the
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`underlying litigation. Samsung does not acquiesce to any of those representations.
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`2
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
`CyWee’s complaint of prejudice appears to be grounded in its belief that
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`joinder will result in CyWee having to “face the combined resources and efforts of
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`all of the Petitioners.” Opp. at 4-5. CyWee’s concern is unfounded because under
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`the Board’s practice, each joined party must assume an understudy role, a
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`condition that Samsung explicitly agrees to. CyWee cannot credibly complain of
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`having to face multiple Petitioners when it is CyWee’s own litigation activity that
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`has prompted multiple Petitioners to challenge its patent. Samsung Electronics
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`America, Inc. v. Uniloc 2017 LLC, IPR2017-01797, Paper 8 at 33 (Feb. 6, 2018).
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`CyWee also suggests that joinder must be denied here so that the Board is
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`not “overwhelmed” by joinder petitions. Opp. at 4. But the joinder requests here
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`and in the three other related proceedings are straightforward and ruling on four
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`joinder petitions is well within the capabilities of the Board, particularly because
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`the arguments in support of joinder are similar—a fact CyWee recognizes. Opp. at
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`5-6.2
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`2 The fact that the joinder briefs are similar is neither surprising nor inappropriate.
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`Indeed, a party’s reliance on previously-filed, public motions as a template makes
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`perfect sense as a cost-saving measure and demonstrates the efficiencies to be
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`gained by granting joinder.
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`3
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
`III. JOINDER WILL NOT ADVERSELY IMPACT TRIAL SCHEDULE
`CyWee also asserts that joinder of Samsung to Google’s IPR would
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`introduce “new issues” that “could” lead to shifts in the trial schedule. Opp. at
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`6-11. CyWee’s arguments lack merit.
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`A.
`Joinder Will Not Introduce New Claim Construction Issues
`CyWee initially contends—while citing no authority—that joinder will
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`introduce new claim construction issues because Samsung’s joinder petition was
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`filed after the Board switched to the Phillips standard. Opp. at 7-8. But, as
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`Samsung explained, because Samsung’s petition will be dismissed after joinder
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`under the Board’s current practice, the BRI standard should continue to apply in
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`the Google IPR. Mot. at 8-9 (citing 35 U.S.C. § 315(c) (“Director…may join as a
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`party to that inter partes review”) (emphasis added)). CyWee does not dispute
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`that no new claim construction issues arise if the BRI standard continues to be
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`applied in the Google IPR after Samsung’s joinder.
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`B. CyWee Has Not Identified a Genuine Real Party-in-Interest
`(“RPI”) Issue Implicated by Samsung’s Joinder
`CyWee contends that joinder by “Samsung, Huawei, LG, or ZTE will
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`necessitate additional discovery to determine what other unknown makers of
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`Android-based devices are RPIs to the Google IPR.” Opp. at 10-11 (emphasis
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`added). First, it is perplexing why Samsung’s joinder would result in additional
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`RPI discovery in “the Google IPR.” Assuming that CyWee has any factual basis
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`4
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
`for its bald assertion that several unnamed parties are RPIs to Google’s petition,
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`the proper recourse would be for CyWee to seek discovery in the Google IPR
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`regardless of Samsung’s joinder. Second, CyWee’s unsupported assertion that
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`unnamed phone manufacturers whose products “utilize the Google Android
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`operating system” may have “an interest in the outcome of this proceeding,” Opp.
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`at 10, is legally insufficient to convert any such party into an RPI. Unified Patents,
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`Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-00883, Paper 29 at 15 (Oct.
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`11, 2018) (finding aligned interests to be insufficient).
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`IV. JOINDER WILL NOT WASTE TIME, EFFORT, OR RESOURCES
`CyWee’s argument that the district court action is “sure to resolve more
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`quickly than the Google IPR,” Opp. at 12, is now moot because that case has been
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`stayed pending the Google IPR. See CyWee Grp. Ltd. v. Samsung Elecs. Co. Ltd.,
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`No. 2:17-cv-00140, D.I. 332 (E.D. Tex. Feb. 14, 2019).
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`V. CONCLUSION
`For the foregoing reasons, Samsung respectfully requests that the Board
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`institute the Samsung petition and grant joinder with the Google IPR.
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`Dated: February 22, 2019
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`Respectfully submitted,
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`By: /Naveen Modi/
`Naveen Modi (Reg. No. 46,224)
`Counsel for Petitioner
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`5
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`Samsung’s Motion for Joinder with
`Case IPR2018-01257
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`CERTIFICATE OF SERVICE
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`I hereby certify that on February 22, 2019, I caused a true and correct copy
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`of the foregoing Reply in Support of Motion for Joinder to Inter Partes Review
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`IPR2018-01257 to be served by electronic mail upon 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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` courtesy copy was also served electronically upon counsel of record for
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` A
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`Petitioner Google LLC in Google LLC v. Cywee Group Ltd., IPR2018-01257 at the
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`following addresses:
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`Matthew A. Smith - smith@smithbaluch.com
`Andrew S. Baluch - baluch@smithbaluch.com
`Christopher M. Colice - colice@smithbaluch.com
`SMITH BALUCH LLP
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`By: /Naveen Modi/
`Naveen Modi (Reg. No. 46,224)
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