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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`CANON U.S.A., INC.
`Petitioner
`
`v.
`
`
`
`
`
`
`
`CELLSPIN SOFT, INC.
`Patent Owner
`
`___________________
`
`U.S. Patent No. 9,258,698
`Inter Partes Review No. 2019-00127
`___________________
`
`
`CANON’S OPPOSITION TO
`GOPRO AND GARMIN’S MOTION FOR JOINDER
`FILED IN IPR2019-01107
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`
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`
`I.
`
`II.
`
`PROCEDURAL BACKGROUND ................................................................. 3
`
`III. LEGAL STANDARD ..................................................................................... 4
`
`IV. ARGUMENT ................................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`Joinder Is Not Appropriate Because It Would Introduce New Claim
`Construction Issues that Would Complicate the Proceeding ................ 5
`
`The New Claim Construction Issues Would Potentially Impact the
`Trial Schedule ........................................................................................ 8
`
`GoPro and Garmin Do Not Address How Briefing and Discovery
`Would be Simplified In Light of New Claim Construction Issues ..... 10
`
`D. Granting the Motion for Joinder Would Prejudice Canon .................. 10
`
`V.
`
`CONCLUSION .............................................................................................. 11
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`TABLE OF AUTHORITIES
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`Page
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`Cases
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`Kyocera Corp. v. Softview LLC,
`IPR2013-00004, Paper 15 (Apr. 24, 2013) ...................................................... 4
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................. passim
`
`Samsung Elec. Co., Ltd. V. Arendi S.A.R.L.,
`IPR2014-01142, Paper 11 (Oct. 2, 2014) ............................................... 7, 8, 9
`
`Unified Patents, Inc. v. PersonalWeb Techs., LLC.,
`IPR2014-00702, Paper 12 (Jul. 24, 2014) ....................................................... 8
`
`
`
`Statutory Authorities
`
`35 U.S.C. § 314 .......................................................................................................... 3
`
`35 U.S.C. § 315 ................................................................................................ passim
`
`
`
`Rules and Regulations
`
`37 C.F.R. § 42.20 ....................................................................................................... 4
`
`37 C.F.R. § 42.25 ....................................................................................................... 1
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`37 C.F.R. § 42.100 ..................................................................................................... 5
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`EXHIBIT LIST
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`No.
`
`Short Name
`
`Exhibit
`
`1001
`
`’698 Patent
`
`U.S. Patent No. 9,258,698 to Singh et al.
`
`1002
`
`’698
`Prosecution
`History
`
`1003
`
`Madisetti
`Declaration
`
`Prosecution history for U.S. Patent No. 9,258,698
`
`Declaration of Vijay Madisetti, Ph.D.
`
`1004
`
`Hiroishi JP
`
`JP Patent Application Publication No. 2003-60953
`to Hiroishi
`
`1005
`
`Hiroishi
`
`1006
`
`Hiroishi
`Translation
`Affidavit
`
`Certified Translation of JP Patent Application
`Publication No. 2003-60953 to Hiroishi
`
`Affidavit of Translation for JP Patent Application
`Publication No. 2003-60953 to Hiroishi
`
`1007
`
`Takahashi JP
`
`JP Patent Application Publication No. 2005-303511
`to Takahashi
`
`1008
`
`Takahashi
`
`1009
`
`Takahashi
`Translation
`Affidavit
`
`Certified Translation of JP Patent Application
`Publication No. 2005-303511 to Takahashi
`
`Affidavit of Translation for JP Patent Application
`Publication No. 2005-303511 to Takahashi
`
`1010
`
`Nozaki JP
`
`JP Patent Application Publication No. 2004-96166
`to Nozaki
`
`1011
`
`Nozaki
`
`Certified Translation of JP Patent Application
`Publication No. 2004-96166 to Nozaki
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`No.
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`Short Name
`
`Exhibit
`
`1012
`
`Nozaki
`Translation
`Affidavit
`
`Affidavit of Translation for JP Patent Application
`Publication No. 2004-96166 to Nozaki
`
`1013
`
`Hollstrom
`
`U.S. Patent No. 6,763,247 to Hollstrom et al.
`
`1014
`
`Ando JP
`
`JP Patent Application Publication No. 2003-46841
`to Ando
`
`1015
`
`Ando
`
`1016
`
`Ando
`Translation
`Affidavit
`
`1017
`
`IEEE 2001
`
`Certified Translation of JP Patent Application
`Publication No. 2003-46841 to Ando
`
`Affidavit of Translation for JP Patent Application
`Publication No. 2003-46841 to Ando
`
`Bisdikian, An Overview of the Bluetooth Wireless
`Technology, IEEE Communications Magazine
`(Dec. 2001)
`
`1018 Bluetooth v1.1
`
`Specification of the Bluetooth System,
`Version 1.1 (Feb. 2001)
`
`1019
`
`Margalit
`
`U.S. Patent Publication No. 2002/0141586
`to Margalit et al.
`
`1020
`
`Montulli
`
`U.S. Patent Publication No. 2006/0189349
`to Montulli et al.
`
`1021
`
`District Court
`Order
`
`Order Granting Canon’s Motion to Dismiss in
`Cellspin Soft, Inc. v. Canon USA, Inc.,
`No. 4:17-cv-05938 (N.D. Cal. 2018)
`
`1022 Madisetti CV
`
`Curriculum Vitae for Vijay Madisetti, Ph.D.
`
`1023
`
`Anderson
`
`U.S. Patent No. 6,636,259 to Anderson et al.
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`No.
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`Short Name
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`Exhibit
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`1024
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`IEEE 2004
`
`Narayanaswami et al., Expanding the Digital Camera
`Reach, IEEE Computer Magazine (Dec. 2004)
`
`1025
`
`Hunter
`
`U.S. Patent Publication No. 2004/0005915 to Hunter
`
`1026
`
`Kagle
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`U.S. Patent No. 6,148,149 to Kagle
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`1027
`
`Jakobsson
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`U.S. Patent No. 6,574,455 to Jakobsson
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`1028
`
`Kalajan
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`U.S. Patent No. 7,639,943 to Kalajan
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`1029
`
`HTTP/1.1
`
`Hypertext Transfer Protocol -- HTTP/1.1,
`https://www.w3.org/Protocols/rfc2616/rfc2616.html
`(1999)
`
`1030
`
`Method
`Definitions
`
`HTTP/1.1 Method Definitions,
`https://www.w3.org/Protocols/rfc2616/rfc2616-
`sec9.html (1999)
`
`1031
`
`MobShare
`
`Sarvas et al., MobShare: Controlled and Immediate
`Sharing of Mobile Images (Oct. 2004)
`
`1032
`
`ACM
`
`ACM Multimedia 2004: Final Program,
`http://www.mm2004.org/acm_mm04_FinalProgram.htm
`(October 2004)
`
`1033
`
`’1107 IPR
`Motion for
`Joinder
`
`IPR2019-01107 Motion for Joinder Under 35 U.S.C.
`§ 315(c) and 37 C.F.R. §§ 42.22 and 42.122(b) to
`Related Inter Partes Review IPR2019-00127
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.25(a)(1) and the Board’s Order on Conduct of the
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`Proceedings, Paper 14, Petitioner Canon U.S.A., Inc. (“Canon”) respectfully
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`submits this Opposition to the Motion for Joinder (“Motion”) filed by GoPro Inc.
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`(“GoPro”), and Garmin Int’l Inc. and Garmin USA, Inc. (together “Garmin”) in
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`Inter Partes Review proceeding IPR2019-01107 (“’1107 IPR”).1
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`GoPro and Garmin ask the Board to join two petitions that were filed under
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`different claim construction standards. Canon filed the original petition on
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`October 30, 2018, under the then-applicable Broadest Reasonable Interpretation
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`(“BRI”) standard. See IPR2019-00127, Paper 1 at 17. GoPro and Garmin filed the
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`second petition on May 28, 2019, under the now-applicable Phillips standard,
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`which the USPTO adopted for petitions filed after November 13, 2018. See
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`IPR2019-01107, Paper 1 at 18. If the Board grants joinder, then the issues in this
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`proceeding may have to be decided under both standards, which would complicate
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`the proceedings, lead to additional briefing and discovery, and require the parties
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`1 Pursuant to the Board’s instruction, Canon is filing this paper in IPR2019-
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`00127 (“’127 IPR”) and concurrently emailing a copy of the paper to
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`Trials@uspto.gov for entry in IPR2019-01107. Canon is also submitting a copy of
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`GoPro and Garmin’s Motion for Joinder as an exhibit in the ’127 IPR.
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`and Board to expend resources beyond those that would be required in the absence
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`of joinder.
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`Despite bearing the burden to demonstrate why joinder is appropriate in
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`these circumstances, GoPro and Garmin offer no explanation as to how the parties
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`and Board would proceed under two different claim construction standards. See
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`Motion at 4, 6. GoPro and Garmin simply refer to these issues as “non-substantive
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`formalities,” and argue that “the difference in standards should not have any
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`material effect on whether joinder is appropriate.” Id. This argument ignores the
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`possibility that Patent Owner Cellspin Soft, Inc. (“Cellspin”) presents new
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`arguments under the Phillips standard in its Preliminary or Patent Owner Response
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`to the second petition, or that a claim construction dispute materializes at a later
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`stage of the proceeding. In such a scenario, the parties and Board would have to
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`undertake additional briefing and arguments, which will complicate the overall
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`proceeding and impact the procedural schedule.
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`GoPro and Garmin could have avoided these complications by filing the
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`second petition prior to the one-year bar date under 35 U.S.C. § 315(b), or
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`otherwise prior to November 13, 2018.2 This would have ensured that the second
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`2 Canon believes that the one-year bar date applicable to GoPro and
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`Garmin’s petition was October 30, 2018.
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`petition was subject to the BRI standard, and therefore consistent with Canon’s
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`petition. By waiting until after that date, however, GoPro and Garmin subjected
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`their petition to the Phillips standard and therefore introduced the possibility of
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`new issues and inconsistencies with Canon’s petition. Canon should not have to
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`suffer the prejudice and uncertainty that would result from having this proceeding
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`advance under two claim construction standards. Accordingly, Canon respectfully
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`requests that the Board deny GoPro and Gamin’s Motion for Joinder.
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`II.
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`PROCEDURAL BACKGROUND
`
`This proceeding concerns U.S. Patent No. 9,258,698 (the “’698 patent”). On
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`October 16, 2017, Cellspin filed a series of lawsuits in the Northern District of
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`California asserting the ’698 patent against defendants including Canon, GoPro,
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`and Garmin. On October 30, 2018, Canon filed a petition for inter partes review
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`against the ’698 patent. See IPR2019-00127, Paper 1. The petition was timely
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`filed pursuant to 35 U.S.C. § 315(b), and subject to the BRI claim construction
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`standard because it was filed before November 13, 2018. See id. at 4, 17.
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`On January 30, 2019, Cellspin filed a Patent Owner Preliminary Response,
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`arguing that Canon’s petition should not be instituted. See IPR2019-00127, Paper
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`6. On April 29, 2019, the Board issued a Decision on Institution under 35 U.S.C.
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`§ 314, and determined that Canon had demonstrated a reasonable likelihood of
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`success in proving that at least one claim of the ’698 patent is unpatentable. See
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`IPR2019-00127, Paper 7. Cellspin took the deposition of Canon’s expert on June
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`12, 2019, and the deadline for Cellspin’s Patent Owner Response is July 22, 2019.
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`IPR2019-00127, Paper 8 at 9.
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`On May 28, 2019, GoPro and Garmin filed a petition for inter partes review
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`against the ‘698 patent, along with the instant Motion for Joinder. See IPR2019-
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`01107, Paper 1. The petition was filed approximately seven months after the one-
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`year bar date under § 315(b), and subject to the Phillips claim construction
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`standard. Id. at 18. Cellspin has indicated that it intends to file a Preliminary
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`Response, with a current deadline of September 11, 2019. See IPR2019-00127,
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`Paper 14 at 2.
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`III. LEGAL STANDARD
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`The Board has discretion to grant or deny joinder. See 35 U.S.C. § 315(c).
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`As the moving party, GoPro and Garmin bear the burden of demonstrating that the
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`Board should exercise its discretion and joinder should be granted. See 37 C.F.R.
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`§ 42.20(c). To meet this burden, GoPro and Garmin must (1) set forth the reasons
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`why joinder is appropriate; (2) identify any new grounds of unpatentability
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`asserted in the petition; (3) explain what impact joinder would have on the trial
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`schedule for the existing review; and (4) address specifically how briefing and
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`discovery may be simplified. Kyocera Corp. v. Softview LLC, IPR2013-00004,
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`Paper 15 (Apr. 24, 2013).
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`IV. ARGUMENT
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`For the reasons set forth below, GoPro and Garmin have failed to meet their
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`burden to show that joinder is appropriate, to explain what impact joinder would
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`have on the trial schedule for the existing review, or to address specifically how
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`briefing and discovery may be simplified.
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`A.
`
`Joinder Is Not Appropriate Because It Would Introduce New
`Claim Construction Issues that Would Complicate the Proceeding
`
`Because GoPro and Garmin filed their petition after November 13, 2018, it
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`is subject to the claim construction standard set forth in Phillips v. AWH Corp., 415
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`F.3d 1303 (Fed. Cir. 2015) (en banc). See 37 C.F.R. § 42.100(b). Introducing the
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`Phillips standard into this inter partes review would create new issues complicate
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`the proceeding.
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`First, the parties would have to address any new constructions and counter-
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`constructions under the Phillips standard, and then evaluate the prior art of record
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`under these constructions. This would introduce a number of new issues into the
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`proceeding and require new briefing and expert testimony on claim construction,
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`the teachings of the prior art, and obviousness. GoPro and Garmin try to downplay
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`the impact of two different claim construction standards in a single proceeding by
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`arguing that “any proposed constructions in the Canon IPR are at least included
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`within the scope of either standard.” Motion at 4. This argument is conclusory
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`and lacks any analysis to show how the BRI claim constructions at issue in the
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`’127 IPR are “within the scope” or consistent with the Phillips standard. Id. The
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`argument also ignores the possibility that Cellspin presents new constructions
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`under the Phillips standard in its Preliminary or Patent Owner response to the
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`second petition, or that claim construction disputes arise under Phillips at a later
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`stage of the proceeding. In this scenario, GoPro and Garmin will likely seek leave
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`to file a reply brief and new expert testimony to address Cellspin’s constructions,
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`which will introduce new issues into the proceeding—i.e., the proper constructions
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`under Phillips and application of those constructions to the prior art—along with
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`additional briefing, expert declarations, and depositions.3
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`Second, as an administrative matter, GoPro and Garmin do not explain how
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`a single proceeding could advance under two different claim construction
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`standards. See Motion at 4. Effectively, the Board would have to decide claim
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`construction and invalidity issues under both standards, with the BRI standard
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`3 GoPro and Garmin have already introduced a new expert into the
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`proceeding through the declaration of Mr. Gerald Christensen. See IPR2019-
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`01107, Ex. 1033. Canon expects that Cellspin will seek to depose Mr. Christensen
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`concerning his opinions under the Phillips standard, which is another potential
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`avenue for introducing new issues into the proceeding.
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`applying to Canon, and the Phillips standard applying to GoPro and Garmin. This
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`would be unprecendented, and would require the Board to expend additional
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`resources beyond those that it will expend in the absence of joinder. Any hearing
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`that the Board permits would have to include argument time for both standards;
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`the Board’s Final Written Decision would have to resolve any disputes that arise
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`under the Phillips standard in addition to those that already exist under the BRI
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`standard; and any appeal would be complicated by the existence of both standards.
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`GoPro and Garmin have not met their burden to demonstrate why joinder is
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`appropriate in these circumstances. GoPro and Garmin argue that “the difference
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`in standards should not have any material effect on whether joinder is appropriate.”
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`Motion at 4. But this argument fails to account for the scenario discussed above
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`where new claim construction disputes arise under the Phillips standard. GoPro
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`and Garmin also fail to address how a single proceeding can advance under both
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`standards. As discussed above, joinder in these circumstances would serve only to
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`make the proceeding more complicated and less efficient, thereby defeating the
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`purpose of joinder and inter partes review. Accordingly, GoPro and Garmin’s
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`Motion should be denied. Samsung Elec. Co., Ltd. v. Arendi S.A.R.L., IPR2014-
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`01142, Paper 11 at 7 (Oct. 2, 2014) (denying joinder where “Petitioner, as movant,
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`has not met its burden to show why joinder is appropriate, consistent with the goal
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`of securing the just, speedy, and inexpensive resolution of every proceeding.”).4
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`B.
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`The New Claim Construction Issues Would Potentially Impact the
`Trial Schedule
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`GoPro and Garmin’s Motion for Joinder also fails to explain how new claim
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`construction disputes arising under the Phillips standard would impact the trial
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`schedule. As discussed in the previous section, introducing the Phillips standard
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`into this proceeding would necessitate additional briefing and depositions. GoPro
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`and Garmin do not propose any procedure to accomodate these events without
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`impacting the procedural schedule. See Motion at 7. Thus, they have failed to
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`meet their burden. See Samsung, IPR2014-01142, Paper 11 at 5 (“Petitioner in its
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`Motion does not suggest any specific changes to the schedule ... Petitioner, instead,
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`4 Even if the issues were identical—which they are not in light of the
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`different claim construction standards—simply filing a “copycat” or “substantively
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`identical” petition does not make joinder appropriate as a matter of right. See
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`Unified Patents, Inc. v. PersonalWeb Techs., LLC, IPR2014-00702, Paper 12 at 4
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`(July 24, 2014) (“Where two parties file nearly identical petitions in separate
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`proceedings, joinder is not granted ‘as a matter of right’ … particularly given the
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`need to complete proceedings in a just, speedy, and inexpensive manner.”).
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`merely alleges that ‘there appears to be no discernable impact on the trial schedule’
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`with respect to the other proceeding.”).
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`Moreover, comparing the current deadlines for the two proceedings shows
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`that there would be a significant impact. The ’127 IPR is currently in the Patent-
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`Owner discovery phase, with Cellspin having deposed Canon’s expert on June 12,
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`2019. See IPR2019-00127, Paper 8 at 9. The deadline for Cellspin to file its
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`Patent Owner Response is July 22, 2019. See id. In the ’1107 IPR, the deadline
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`for Cellspin to file a Preliminary Response is September 11, 2019. See IPR2019-
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`00127, Paper 14 at 2. To the extent Cellspin introduces new arguments under the
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`Phillips standard in its Preliminary Response, GoPro and Garmin will likely seek
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`leave to file a reply and new expert declaration to address those arguments. This
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`would lead to a new deposition of GoPro and Garmin’s expert and a supplemental
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`Patent Owner Response for Cellspin. These accommodations could potentially
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`impact the entire remaining procedural schedule, including the Petitioner’s Reply,
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`Hearing, and Final Written Decision.
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`Because GoPro and Garmin fail to address the impact that joinder would
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`have on the procedural schedule, their Motion should be denied. See Samsung,
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`IPR2014-01142, Paper 11 at 5.
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`C. GoPro and Garmin Do Not Address How Briefing and Discovery
`Would be Simplified In Light of New Claim Construction Issues
`
`For similar reasons, GoPro and Garmin’s Motion for Joinder fails to explain
`
`how briefing and discovery would be simplified in light of new claim construction
`
`issues arising under the Phillips standard. Motion at 7-8. Again, introducing the
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`Phillips standard into this proceeding would necessitate additional briefing and
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`depositions. GoPro and Garmin do not address how the parties and Board would
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`accomodate additional briefing and depositions, let alone how they would simplify
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`the proceeding. Clearly they would not. Any additional briefing or discovery
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`would necessarily make the proceeding more complex compared to the status quo,
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`and for this additional reason, joinder should be denied.
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`D. Granting the Motion for Joinder Would Prejudice Canon
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`Canon filed its petition prior to November 13, 2018, with the expectation
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`that the proceeding would be governed by the BRI standard. See IPR2019-00127,
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`Paper 1 at 17, n.2 (“Petitioner understands the USPTO recently published a final
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`rule change under which inter partes review proceedings will follow the claim
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`construction standard in Phillips. The new rule change applies to petitions filed on
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`or after November 13, 2018, and therefore does not impact this Petition.”).
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`Granting joinder will frustrate this expectation and significantly alter the nature of
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`the proceeding because it will add another claim construction standard, introduce
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`new issues, require additional briefing and discovery, and impact the procedural
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`schedule. These changes would unfairly prejudice Canon and its ability to litigate
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`the proceeding predictably and as it intended when it filed the original petition.
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`For this additional reason, GoPro and Garmin’s Motion for Joinder should be
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`denied.5
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`V. CONCLUSION
`
`The foregoing reasons, Canon respectfully requests that the Board deny
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`GoPro and Garmin’s Motion for Joinder.
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`5 GoPro and Garmin could have avoided this prejudice by filing their
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`petition prior to the one-year bar date under 35 U.S.C. § 315(b), or otherwise prior
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`to the November 13, 2018 date that the Director adopted the Phillips standard for
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`unexpired patents. This would have ensured that the petition was subject to the
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`BRI standard, and eliminated the possibility of new issues arising under Phillips.
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`GoPro and Garmin’s Motion does not set forth any explanation to justify the delay
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`in waiting until after the one-year bar date, or after November 13, 2018. See
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`Motion at 4.
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`IPR2019-00127
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`Canon’s Opposition to GoPro and Garmin’s Motion for Joinder
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`Date: June 28, 2019
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`Respectfully submitted,
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`/s/ Jared W. Newton
`Jared Newton
`Reg. No. 65,818
`jarednewton@quinnemaneul.com
`Quinn Emanuel Urquhart & Sullivan
`1300 I Street NW, 9th Floor
`Washington, DC 20005
`Tel: (202) 538-8000
`Fax: (202) 538-8100
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`- 12 -
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 28, 2019, a copy of the foregoing opposition
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`was served by filing this document through the PTAB’s E2E Filing System as well
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`as delivery a copy via electronic mail to the following:
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`John J. Edmonds
`Reg. No. 56,184
`pto-edmonds@ip-lit.com
`Counsel for Patent Owner Cellspin Soft, Inc.
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`David T. Xue
`Reg. No. 54,554
`david.xue@rimonlaw.com
`Counsel for Petitioner GoPro, Inc. in IPR2019-01107
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`Jennifer C. Bailey, Reg. No. 52,583
`Adam P. Seitz, Reg. No. 52,206
`Jennifer.Bailey@eriseip.com
`Adam.Seitz@eriseip.com
`PTAB@eriseip.com
`Counsel for Petitioners Garmin Int’l, Inc. and Garmin USA, Inc. in IPR2019-
`01107
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`Date: June 28, 2019
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`
`/s/ Jared W. Newton
`Jared Newton
`Reg. No. 65,818
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