Trials@uspto.gov
`571-272-7822
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`
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`Paper No. 19
`Entered: September 9, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2019-00973
`Patent 7,075,917 B2
`____________
`
`Record of Oral Hearing
`Held: August 20, 2020
`____________
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`
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`571-272-7822
`
`
`
`
`Paper No. 19
`Entered: September 9, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`____________
`
`IPR2019-00973
`Patent 7,075,917 B2
`____________
`
`Record of Oral Hearing
`Held: August 20, 2020
`____________
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`ROBERT J. WEINSCHENK, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2019-00973
`Patent 7,075,917 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ANDREW MASON, ESQ.
`JOSEPH JAKUBEK, ESQ.
`TODD SIEGEL, ESQ.
`JOHN VANDENBERG, ESQ.
`Klarquist Sparkman, LLP
`One World Trade Center, Suite 1600
`121 SW. Salmon Street
`Portland, Oregon 97204
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JEFFREY HUANG, ESQ.
`RYAN LOVELESS, ESQ.
`BRETT MANGRUM, ESQ.
`JAMES ETHERIDGE, ESQ.
`Etheridge Law Group
`2600 East Southlake Boulevard
`Suite 120-324
`Southlake, Texas 76092
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, August
`
`20, 2020, commencing at 10:30 a.m. EDT, by video/by telephone.
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`IPR2019-00973
`Patent 7,075,917 B2
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE MEDLEY: Good morning. This is the hearing for IPR 2019-
`
`00973 between Microsoft and Uniloc involving U.S. patent number
`7,075,917. I’m Judge Medley and with me are Judges Deshpande and
`Weinschenk.
`
`At this time, we’d like the parties to please introduce counsel for the
`record, beginning with the Petitioner.
`
`MR. MASON: On behalf of the Petitioner this is Andy Mason of
`Klarquist Sparkman.
`
`JUDGE MEDLEY: Good morning. Thank you.
`
`MR. MASON: Good morning.
`
`JUDGE MEDLEY: And for Patent Owner?
`
`MR. HUANG: Good morning, Your Honor. My name is Jeffrey
`Huang for Patent Owner.
`
`JUDGE MEDLEY: Thank you. Each party has 45 minutes total time
`to present arguments. Petitioner, you’ll proceed first and may reserve some
`of your time to respond to arguments presented by Patent Owner. And
`thereafter, Patent Owner will respond to Petitioner’s presentation and may
`reserve argument time for surrebuttal.
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`Counsel for Petitioner, do you wish to reserve some of your time to
`respond?
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`MR. MASON: Yes, Your Honor, I will reserve 20 minutes for
`rebuttal.
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`JUDGE MEDLEY: Okay, thank you. And you may proceed when
`you’re ready.
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`IPR2019-00973
`Patent 7,075,917 B2
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`MR. MASON: Thank you, Your Honor. Good morning. May it
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`please the Board, Andy Mason on behalf of Microsoft Corporation.
`
`In this IPR the Petitioner carefully explains how a POSITA wasn’t
`being motivated and able to implement the network described in TR25.835
`Version 1.0.0. -- that’s Exhibit 1005 -- using the Abrol abbreviated sequence
`numbers that’s satisfying all the claims. This is supported by the detailed
`expert testimony of Dr. Harry Bims, as well as the exhibits in evidence
`themselves.
`
`After the Petition made this showing and the Board instituted, Uniloc
`has done nothing to undermine the Petition’s showing of unpatentability, it
`did not depose Microsoft’s experts, nor submit testimony of its own that
`would undermine any of the evidence which shows that all challenged
`claims are unpatentable. Uniloc relied exclusively on an array of conclusory
`attorney arguments in its Patent Owner response, and the reply brief explains
`that --
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`CLERK: I’m sorry, can we pause for a moment? I have a message
`from Judge Weinschenk. It looks like he’s having an issue. Standby, please.
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`MR. MASON: Okay.
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`CLERK: And we have you on the line, sir? Judge Weinschenk?
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`JUDGE WEINSCHENK: Yes, I’m here.
`
`CLERK: Okay, thank you. Okay. I have him connected by
`telephone whenever you’re ready.
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`JUDGE MEDLEY: Okay. So, we don’t have his video?
`
`CLERK: I believe his computer probably needs restarting, so I can
`bring him on at -- if he can let me know by and when he’s ready and I can
`reconnect it.
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`IPR2019-00973
`Patent 7,075,917 B2
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`JUDGE MEDLEY: Okay.
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`JUDGE WEINSCHENK: I’m ready now if you want to bring him in.
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`CLERK: Okay, reconnecting, stand by. And once we reconnect,
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`you’ll need to drop the phone call.
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`JUDGE WEINSCHENK: Okay.
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`CLERK: And when you’re ready, you hit Start by Video, top right
`corner. Right, we can see you. Can you hear us now?
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`JUDGE WEINSCHENK: Yes. Can you hear me?
`
`CLERK: Yes, sir. Thank you.
`
`JUDGE MEDLEY: Okay, Mr. Mason, you can restart. You were
`only a minute into your presentation or a little over a minute, so if you’d like
`to restart or start from where you left off is fine.
`
`MR. MASON: I’ll just jump in where I left off. Can Your Honor
`hear me?
`
`JUDGE MEDLEY: Yes, thank you.
`
`MR. MASON: Okay, great. Thank you. I’ll just jump in where I left
`off.
`In short, the reply brief and the accompanying exhibits, including
`
`additional background references that further confirmed Dr. Bims’ original
`testimony that our challenged claims are unpatentable. And because of that
`showing, we submit that the Board should find each challenged claim
`unpatentable.
`
`If we jump to slide 2, we have our shorthand for several of the
`exhibits.
`
`Slide 3 also lists the shorthand that I will use today for two of the
`central exhibits in this case. On slide 3, I’m going to talk about Exhibit 1006
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`IPR2019-00973
`Patent 7,075,917 B2
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`as the “August TR document” or just the “August document” and then a
`later version of that same document I will refer to as the “September TR
`document.” That’s Exhibit 1005. That’s our primary reference and the
`combination that renders all challenged claims unpatentable. So, they were
`published in August 2000 and September 2000, respectively. And as a
`reminder, of course, the German application for the '917 was not filed until
`October of 2000 and the U.S. application was not filed until October of
`2001.
`
`If we turn to slide 5, there are really only two claim elements in the
`suit here. The Petition shows all other elements of the claims and Uniloc,
`Patent Owner, does not dispute that. And of these two elements shown on
`slide 5, there’s really only aspects of these claim elements that are in dispute.
`With respect to element 1.3, we’re dealing with the abbreviated sequence
`numbers. And really the issue there is would a skilled artisan have modified
`or implemented the September TR network using the abbreviated sequence
`numbers of Abrol. And we submit that the evidence is overwhelmingly yes
`on that issue.
`
`As to element 1.5 --
`
`JUDGE MEDLEY: So, Mr. Mason? I have a question on that 1.3.
`It’s not Patent Owner’s position that Abrol does not teach abbreviated
`sequence numbers, is that correct? It’s just that there would not have been a
`reason to combine the two references. Am I correct in my understanding?
`
`MR. MASON: That is our understanding, that Patent Owner does not
`dispute that Abrol’s abbreviated sequence numbers satisfy all other aspects
`of their claims. In their preliminary response they did argue some aspects of
`the abbreviated sequence numbers. They have dropped those arguments.
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`IPR2019-00973
`Patent 7,075,917 B2
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`They have waived any arguments that Abrol does not -- that Abrol’s
`abbreviated sequence numbers do not satisfy the claims.
`
`So, yes, the real issue in dispute is would a skilled artisan have used
`those abbreviated sequence numbers in implementing the September TR
`network or the network described in the September TR document.
`
`JUDGE MEDLEY: Okay, thank you.
`
`MR. MASON: And then as to element 1.5, the question there really is
`-- it relates to moving certain operations to the physical layer. And what the
`claim recites is moving testing for the correct reception of the coded
`transport block to the physical layer.
`
`The '917 patent itself, as well as the TR documents, explain how
`earlier, in August 2000, the error checking, the hybrid ARQ, many of the
`operations were done at the RLC layer. And what the September TR
`document described was moving those operations to the physical layer. And
`then later on, the alleged invention purported to do the same thing.
`
`I think if -- so, those are the two claim elements in dispute. If we can
`turn to slide 6, I think just stepping back a bit, slide 6 shows in the lower
`left-hand corner, really at the bottom, column 1 of the '917 patent describes
`how its alleged invention relates to and is built upon this network that’s
`described in the August TR document. And the August TR document, the
`cover of that that is shown there on slide 6.
`
`And a month later, 3GPP also published the September TR document,
`which is -- excerpts which are shown then on slide 7. That September TR
`document was the natural evolution of the technology that occurs before the
`alleged invention was filed; over a year before the alleged invention
`application was filed in the U.S.
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`IPR2019-00973
`Patent 7,075,917 B2
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`And what that September TR document described was the exact same
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`thing with respect to the physical layer that the '917 patent purported to
`invent. So, if you look at chapter 5 of the September TR document, which is
`shown on slide 7, that explains how, you know, in one option of hybrid
`ARQ, and that’s the root technology here, certain transmissions or
`retransmissions occur at the RLC layer. And then it goes on to explain in
`that second paragraph that a second option, a new option is the fast hybrid
`ARQ, and that moves space to Layer 1, i.e., the physical layer. And so, it’s
`moving all this fast hybrid -- this fast hybrid ARQ is moving several of these
`operations from the RLC layer to the physical labor. This is described in the
`'917 patent, but before the '917 patent.
`
`If we turn to slide 8, slide 8 describes some of those operations. This
`is chapter 7 of the September TR document or that’s the new chapter. That’s
`the chapter that is different in the September TR document as opposed to the
`earlier admitted prior art August TR document.
`
`And what chapter 7 explains is the different functions that happen at
`the physical layer, at Layer 1. And among those are certain soft decision
`buffering and combining, the second bullet there, encoding and decoding.
`And all these operations relate to determining whether the correct packet has
`been received and then sending either an acknowledgement back to the
`transmitter or sending something else back, indicating -- it’s called a NACK
`or “negative acknowledge”, indicating that the packet did not arrive. And
`so, the September TR document discloses the exact same physical layer
`transition as the '917 patent.
`
`If we turn then to slide 10, this relates to Abrol. Abrol, as discussed
`earlier, discloses abbreviated sequence numbers. The sole issue in dispute is
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`IPR2019-00973
`Patent 7,075,917 B2
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`whether a skilled artisan would have used Abrol’s abbreviated sequence
`numbers in the network of the September TR document.
`
`And in his original testimony, Dr. Bims explained the many reasons
`that a skilled artisan would have had for using those abbreviated sequence
`numbers. There are benefits described by Abrol. So, this is paragraph 83 on
`slide 10 of Dr. Bims’ testimony, Exhibit 1003. And he describes how there
`would have been efficiencies gained from that use of abbreviated sequence
`numbers.
`
`But I think most notably, he discussed how Abrol specifically calls
`out W-CDMA as that type of network or type of technology that his
`abbreviated sequence numbers could be used with. And W-CDMA, as
`Dr. Bims has explained, is the exact same network technology that’s used in
`the network of that September TR document and the August TR document
`and utilizes several other arguments as to why a skilled artisan would not
`combine these two references, but they’ve never disputed that fact that Abrol
`expressly teaches use of its technology in the same network of the
`September TR document. And we submit that’s dispositive as to
`combinability. All the other attorney arguments cannot undermine that fact.
`
`Nonetheless, Dr. Bims has also submitted additional testimony
`refuting each of those attorney arguments. And so, we submit then, if we
`turn to slide 11, this is paragraph 16 of the Bims reply declaration where he
`further explains the motivation, the express teaching used Abrol’s
`abbreviated sequence numbers in the September TR document.
`
`And so, we submit that based on this evidence, then it’s very clear that
`(technical inaudible) and Uniloc has done nothing to undermine it. They did
`not cross-examine Dr. Bims either based on his original declaration or his
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`IPR2019-00973
`Patent 7,075,917 B2
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`reply declaration. They had an opportunity to do so, but they waived that
`opportunity. And so, the overwhelming evidence shows that a skilled artisan
`would have made this combination.
`
`I’ll just turn briefly to slide 13 and slide 14, show the two experts that
`we relied on here in this proceeding. Slide 13 shows Dr. Bims and his
`credentials. Again, I note that Patent Owner did not cross-examine Dr. Bims
`or otherwise undermine his testimony or his credibility. They did not submit
`any testimony of their own purporting to challenge or question Dr. Bims’
`testimony.
`
`And slide 14 shows Dr. Rodermund. And, again, he submitted
`testimony as to the public availability of the September TR document.
`Patent Owner once again called into question his testimony, but it did not
`cross-examine him either based on his original or reply declaration, which
`clearly show in high detail a full explanation that skilled artisans would have
`had known of and had ready access to the September TR document.
`
`If there’s no questions there, I will turn to slide 16. Very briefly, this
`is the definition of a POSITA that Petitioner has set forth in the Petition. In
`the middle there, notably, a skilled artisan would have had “working
`knowledge of the hybrid ARQ method described in the '917 patent” and
`“closely followed ARQ developments by 3GPP and network standardization
`groups.” As the '917 patent itself describes, this August TR document was
`known, the network it described was known, the focus of the '917 patent and
`hybrid ARQ. Skilled artisans would have been following developments in
`that technology and they would have known about the August TR document,
`as the '917 patent admits, and they would have known about the September
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`IPR2019-00973
`Patent 7,075,917 B2
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`TR document, as the evidence overwhelmingly shows. And Uniloc has not
`disputed this definition of a POSITA on slide 16.
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`So, then turning to slide 18, this is element 1.3 and sequence number
`element in dispute. And I think if we turn to slide 19, this explains the
`obviousness of this combination. So, as discussed, on the left-hand side
`there, the September TR document explains the creation and use of sequence
`numbers. That’s not disputed.
`
`Abrol explains how and why abbreviated sequence numbers are good,
`why they reduce overall retransmissions, why they reduce overall data
`processing. And significantly, there’s been express teaching to use those
`abbreviated sequence numbers in the network of the September TR
`document.
`
`So, that record, a skilled artisan would have been motivated and able
`without issue to implement Abrol’s abbreviated sequence numbers in the
`September TR network, thus satisfying element 1.3.
`
`If there are no questions on element 1.3 and the motivation to
`combine, I’d like to turn to element 1.5, and I’ll pause for a second. So,
`element 1.5 on slide 36, and this, again, as has been described earlier, relates
`to the physical layer and moving certain operations to the physical layer.
`
`Slide 39 describes those operations that are there. And really, I think
`with element 1.5 the issue disputed is, does the September TR document
`disclose error checking that occurs at the physical layer? So, I’ll stay on
`slide 36 for a second.
`
`I think one significant point here is, while the claim recites “testing
`the correct reception of the coded transport block,” the '917 patent itself
`actually admits that this was already done in the prior art, and the prior art,
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`IPR2019-00973
`Patent 7,075,917 B2
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`that’s the August TR document. The patent explains, if we turn to slide 38,
`essentially how the physical layer was already checking the presence of the
`correct block. It had to send out information up to the RLC layer and the
`RLC layer had to make the determination as to what should be sent back in
`the ACK or the NACK response to the transmitting device.
`
`And so that trip up the RLC layer, back down the physical layer was
`the alleged -- the purported problem in the prior art and that the -- and the
`'917 patent purported to solve. That was already solved by the September
`TR document. But significantly conveyed here, the error-checking itself
`was already occurring at the physical layer. And it’s even in the prior art as
`admitted by the '917 patent on slide 38. And it says there, “the physical
`layer has already recognized the packet data unit as being error-affected.”
`And from the surrounding language in this column, he understood, okay,
`even though we’re checking for errors here, we still have to send some
`decision-making up to the RLC layer output-sufficient. That’s not really
`reflected in the claim. This is (inaudible) of that termination is not reflected
`in the claim. If you look at 1.5, it says the claim only calls for testing the
`correct reception.
`
`Even without that condition (phonetic) in the patent, if we turn to slide
`39, this is chapter 7 from Exhibit 1005, the September TR document, chapter
`7 explains all these things that removed the physical layer and the hybrid --
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`JUDGE MEDLEY: Excuse me, can I ask a quick question? Back to
`your slide 37 --
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`MR. MASON: Yes, Your Honor.
`
`JUDGE MEDLEY: I’m sorry, no. There was that bit you were
`talking about, the admission.
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`IPR2019-00973
`Patent 7,075,917 B2
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`MR. MASON: Thirty-eight. Slide 38, I think, has that --
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`JUDGE MEDLEY: Yeah, okay.
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`MR. MASON: -- prior to the patent.
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`JUDGE MEDLEY: Just to be clear, however, the Petitioner does not
`
`rely on this admission, correct, as prior art? The way I’m understanding the
`Petition, you’re relying strictly on TR documents, the September document,
`chapter 7 for teaching a dispute of limitation. Is that correct? A physical
`layer of receiving side is provided for testing the correct reception of the
`coded transport block.
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`MR. MASON: Yes, Your Honor. I think that’s a fair reading of the
`Petition. We discussed this (inaudible) of the patent in the background. I
`don’t know that we expressly mapped it or relied on this in mapping the
`(technical inaudible). I don’t think it -- what it would have done is it
`provides color and background. So, the fact that this already was happening
`at the physical layer.
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`But I think to Your Honor’s point, we are relying on a sufficient
`number of TR documents to show this claim element. And the September
`TR document does show that --
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`JUDGE MEDLEY: Thank you.
`
`MR. MASON: -- discussion. So, yes, turning back then to slide 39,
`these are the functions of Layer 1. I think the second and third bullet points,
`they’re perhaps the important. Their second bullet point in the upper clip
`discusses “encoding/decoding, transmission, and error detection on fast
`ARQ side information.” So, that’s all occurring at the physical layer.
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`The third bullet point, as well, discusses how “generation of
`acknowledgement packet data unit and side information” also occurs at the
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`IPR2019-00973
`Patent 7,075,917 B2
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`physical layer. So, there’s all these things happening at the physical layer
`that expressly identifies and mentions error detection is happening at that
`physical layer on the receiving device.
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`But I think more importantly, and Dr. Bims explained this in his reply
`declaration, is the whole point of the fast hybrid ARQ was to perform
`operations on the physical layer. And so, that would require -- the ultimate
`thing that you want to do is you want to make the decision to send back the
`ACK or the NACK to the transmitting side to confirm either correct receipt
`or, no, we did not correctly receive this packet. That’s the whole goal. If
`you moved any of those -- and in order to do that, in order to make a
`determination, in order to acknowledge correct receipt, you need to check
`for whether or not the block has correctly been received.
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`So, we submit that clearly shows that you would have been testing for
`correct reception at the physical layer. Dr. Bims explained that in his
`original paragraph 100. He also explained that in his reply declaration.
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`He also explained in his reply, and I think if we turn to slide 40, this
`was testimony from Dr. Bims’ reply, he talks about how, you know, again,
`moving certain functions, there on slide 40, moving “certain functions to the
`physical layer was the whole purpose of fast HARQ.” It avoided a delay of
`sudden decision-making up to the RLC or MAC. So, if any of the
`operations that were sent, if it were sent up through RLC or MAC layer,
`you’re losing all the benefits of the fast ARQ. And, therefore, anything
`involved in this process, including error detection, would occur at the
`physical layer.
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`On slide 41, this shows, you know, (inaudible). This is also from the
`September TR document in Exhibit 1005. The figure at top shows the
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`IPR2019-00973
`Patent 7,075,917 B2
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`physical channel carrying the data and the fast HARQ side information,
`assess the back channel that was originating, and that’s what it is in the
`claim. That is not in dispute.
`
`I think if we turn to slides 43 and 44, this is additional explanation,
`additional testimony from Dr. Bims from paragraphs 40 -- on paragraph 40
`on slide 43, describing why TR25.835 has a “physical layer testing the
`correct reception of each transport block.” And there’s additional testimony
`from Dr. Bims, paragraph 41, on slide 44, again, explaining how “the
`physical layer must first” test for correct reception of the block in order to
`send back an acknowledgement or lack of reception message.
`
`And so, we submit that -- oh, and again, Dr. Bims was not questioned.
`He was not cross-examined. His testimony is undisputed.
`
`So, on that record we submit that the September TR document
`unequivocally shows that these operations, this testing for corrupt reception,
`would have occurred at the physical layer.
`
`If there’s no further questions on that issue, I will turn to, briefly, to
`slide 47. And this is the public accessibility point. Patent Owner admits that
`the prior version of the August 2000 TR document was known. That’s in the
`'917 patent itself. And Dr. Rodermund provided extensive and unrebutted
`testimony as to why these documents would have been known to skilled
`artisans, to the POSITA, and why and how skilled artisans could have easily
`accessed these documents.
`
`And in addition to that, finally, the definition of a POSITA, which is
`undisputed, is that a POSITA would have been following these hybrid ARQ
`developments. It would have been following this work at 3GPP and,
`therefore, known of these documents and been able to readily access them.
`
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`IPR2019-00973
`Patent 7,075,917 B2
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`And on that record these documents would have been publicly acceptable
`and, therefore, are prior art under 102(a) and 102(b).
`
`If there’s no further questions on that issue, I have nothing further.
`
`JUDGE MEDLEY: Just a quick question. In the surreply, Patent
`Owner states on page 7 of the surreply that you concede that you do not rely
`on any distribution at a meeting. I don’t appreciate that your reply actually
`concedes that.
`
`MR. MASON: I don’t --
`
`JUDGE MEDLEY: Are you relying on the distribution at a meeting
`showing what’s in your Petition?
`
`MR. MASON: Yes, we still are relying on the distribution at the
`meeting. But we don’t need the distribution at the meeting. I think there’s
`other evidence that was distributed via email to POSITAs. And the
`distribution at the meeting is just one more reason confirming or showing
`that skilled artisans have access to this document.
`
`JUDGE MEDLEY: Okay, thank you.
`
`JUDGE WEINSCHENK: Mr. Mason, I have one question for you,
`too. I think there’s some dispute here about how a person would get on the
`email distribution list for the 3GPP documents. I think Patent Owner
`suggests that maybe you have to be part of a select group of companies or
`something like that. Could you explain to me the process for getting on the
`distribution list, how we could get access to these documents?
`
`MR. MASON: Yes, Judge Weinschenk. So, yeah, Dr. Rodermund
`explained this in his original declaration, but then he went into much more
`detail in his reply declaration. And I will summarize it and then I’ll provide
`additional citations to his paragraphs.
`
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`IPR2019-00973
`Patent 7,075,917 B2
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`But what he essentially explained is that skilled artisans would have
`
`known about this website. Anybody could access these “email exploders,”
`as they were called. And there was -- he described and actually showed
`excerpts of the email exploders. He recalls it existing in 2000, where you
`would go in and you would sign up. So, anybody could go in, enter their
`email address, and sign up for the email exploder. Alternatively, I think he
`also testified that there’s a way in which you could email the group manager
`or email some email address that would automatically add anyone to these
`email exploders. And he explained then that at that time, in September of
`2000, there were over 800 people on this email exploder list that distributed
`the September TR document.
`
`So, in brief, anybody could go to the 3GPP website, get the email
`exploder list, identify the corresponding group that was working on hybrid
`ARQ, and then sign themselves up to receive emails on that email exploder.
`And see, that’s just signing up for the emails.
`
`Then separately, he testified how there were also -- there was a server
`that maintained emails, an archive effectively, and that anybody could have
`gone in, and to this day anybody can go in, and search that email archive for
`these same emails. And that requires no signing-up to be a part of the group.
`And so, he also explained how you could go in and sign up for those emails.
`And I think that’s --
`
`JUDGE WEINSCHENK: But to receive the emails, you didn’t need
`to have any sort of membership or be, you know, an employee of a particular
`company or anything like that? Anybody from the public, you know, if they
`knew about it, they could go sign up for it and receive those emails?
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`IPR2019-00973
`Patent 7,075,917 B2
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`MR. MASON: Anyone from the public could receive -- sign up or
`
`receive those emails. No membership in any organization was required.
`
`JUDGE WEINSCHENK: Thank you.
`
`MR. MASON: And that’s discussed, in part at least, on our slide 52.
`And I think the relevant testimony is quoted in the reply declaration, Exhibit
`1033, paragraphs 11 to 13.
`
`JUDGE MEDLEY: Okay, thank you. Any other questions from the
`panel members?
`
`JUDGE WEINSCHENK: Not from me.
`
`JUDGE MEDLEY: Okay. You have approximately a little over 19
`minutes left.
`
`MR. MASON: Thank you.
`
`JUDGE MEDLEY: And Counsel for Patent Owner, when you’re
`ready, you may begin.
`
`CLERK: (inaudible), I think you’re muted.
`
`MR. HUANG: Sorry about that.
`
`JUDGE MEDLEY: Okay. We can hear you now. Thank you.
`
`MR. HUANG: Okay. Again, my name is Jeffrey Huang.
`
`JUDGE MEDLEY: Oh, before you start, I’m sorry, before you start,
`would you like to reserve time and how much time?
`
`MR. HUANG: Sure. I’ll reserve 10 minutes. Thank you.
`
`JUDGE MEDLEY: Ten minutes? Okay. Thank you. You may
`proceed.
`
`MR. HUANG: So, if you want to follow along, I’ll start on slide 2.
`And I apologize, the first bullet point does have a typo. It should be
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`IPR2019-00973
`Patent 7,075,917 B2
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`TR25.835, not 832. Slide 2 is just a general outline of the conversation
`today.
`
`First, we’re going to focus on Petitioner’s failure to show that
`TR25.835 is prior art or in a printed publication. And I’ll refer to that
`sometimes as Exhibit 1005. And then second, there’s -- despite the cert
`(phonetic) point, we’ll discuss some certain substance deficiencies of ground
`1 (phonetic) which is the only ground in the Petition.
`
`Okay. So, moving along to slide 3, yeah, this is -- in the Petition the
`sum total of Petitioner’s argument that Exhibit 1005 is allegedly publicly
`available. And here the Petition only alleges that the document was
`available on the file server as of a certain date.
`
`But even if you take that allegation on its face, it does not establish
`public availability. And the Petition does cite, you know, to many
`(inaudible) -- cites to general -- to paragraphs of Mr. Rodermund’s
`declaration. However, by the Board’s own authority, just make an allegation
`and citing to multiple paragraphs of a declaration is insufficient as credible
`evidence that the document is publicly available. And that citation was
`DynaEnergetics v. GeoDynamics, PGR2018-00065, paper 8, 25 to 26.
`
`Moving on to the variety of exhibits and arguments attached in
`Petitioner’s reply, I’m going to start with the fact that none of those exhibits,
`and these are the Exhibits 1013 through 18 -- or actually, 1013 through 19,
`1020, 1022, 1023, which attaches 1025, none of those exhibits were properly
`authenticated and are, therefore, in admissible because these are all
`screenshots or printouts of (inaudible). And you have the --
`
`JUDGE MEDLEY: Excuse me, Counsel. Did you object, file an
`objection? As you know, per our rule, you’re to file within five days, or file
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`IPR2019-00973
`Patent 7,075,917 B2
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`and serve, I’m not sure what the rule says. But you’re supposed to submit
`your objections, yes, file I think, in the record within five days of receiving,
`and we don’t have anything that shows that you objected to these reply
`documents.
`
`MR. HUANG: I don’t -- you’re probably right, I don’t think we did.
`We mentioned it in our surreply, but, so, that might be true. But, in any
`case, the --
`
`JUDGE MEDLEY: But that’s sort of problematic for you because
`our rules provide the party submitting the evidence to correct. So, if you
`were to give them notice that you had issues, they would have been able to
`correct. And by not letting them do that, I think you’re sort of standing on
`thin legs here, arguing -- making these sorts of arguments in your Patent
`Owner response, which actually should have been for a motion to exclude.
`So, I don’t think --
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