`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GUARDIAN ALLIANCE TECHNOLOGIES, INC.
`Petitioner,
`
`v.
`
`TYLER MILLER
`Patent Owner.
`____________
`
`
`Case IPR2020-00031
`Patent 10,043,188 B2
`_____________________________
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`
`
`DECLARATION OF KURT M. RYLANDER
`IN SUPPORT OF PATENT OWNER
`
`
`
`
`
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 1 of 9
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`IPR2020-00031
`Patent 10,043,188
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`I, KURT M. RYLANDER, declares as follows:
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`1.
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`I am the managing attorney of Rylander & Associates PC. I am
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`registered to practice before the United States Patent and Trademark Office.
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`2.
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`I am lead litigation counsel for Miller Mendel, Inc., and Tyler Miller in
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`connection with a patent infringement suit against Oklahoma City (“OKC”) in the
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`United States District Court for the Western District of Oklahoma entitled Miller
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`Mendel, Inc. et al. v. The City of Oklahoma City, Oklahoma, a municipal
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`corporation, Case No. CIVF-18-990-JD (“the District Court Litigation”).
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`3.
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`From the beginning Dunlap Codding P.C. (“Dunlap Codding”), based
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`in Oklahoma City, Oklahoma, has represented OKC in the District Court Litigation.
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`4.
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`I am also the backup counsel in this inter partes review to Rick
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`Mc Leod. It was decided I would be backup counsel on October 20, 2019, the day
`
`before the mandatory notices were filed in this inter partes review.
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`5.
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`At no time prior to the inter partes review being filed did counsel for
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`OKC, Dunlap Codding, notify me that they were representing Guardian Alliance
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`Technologies, Inc. (“Guardian” or “Petitioner”).
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`6.
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`Dunlap Codding notified me on April 30, 2019 that OKC intended to
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`file an inter partes review.
`
`7.
`
`On May 9, 2019, Dunlap Codding notified the Court in the District
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`Court Litigation that that OKC intended to file inter partes review. (Ex. 2018 at 3).
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 2 of 9
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`IPR2020-00031
`Patent 10,043,188
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`8.
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`I learned in the District Court Litigation that Guardian is indemnifying
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`OKC in the District Court Litigation.
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`9.
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`Guardian has avoided and evaded being part of the District Court
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`Litigation and answering any discovery questions in the District Court Litigation:
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`(a) OKC moved to bar subpoenas from Miller Mendel from being served on
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`Guardian; (b) OKC opposed a motion to amend the complaint to add Guardian as a
`
`party in the District Court Litigation (Ex. 2021); (c) Guardian sought to evade
`
`service of a subpoena in the District Court Litigation (Ex. 2019, 2020); and (d) Once
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`service was accomplished, Guardian moved to quash the subpoena that had been
`
`served upon it. (Ex. 2025).
`
`10. On October 10, 2019, Dunlap Codding, with an e-mail subject line
`
`referencing the District Court Litigation, “Miller Mendel et al. v OKC,” asked for
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`permission to serve the inter partes review petition on me electronically. Dunlap
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`Codding did not indicate that it was representing Guardian and not OKC. The subject
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`line led me to believe that Dunlap Codding was in fact representing OKC as they
`
`had always done. A screen print of the pertinent portion of that e-mail is presented
`
`below with highlighting (Ex. 2022):
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 3 of 9
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`IPR2020-00031
`Patent 10,043,188
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`11. To be clear, I was giving consent for OKC to serve a petition for inter
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`partes review upon me. I was not giving consent for Guardian to serve a petition for
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`inter partes review upon me. To be even more clear, had Dunlap Codding told me
`
`they were asking for such consent on behalf of Guardian, I would have said “NO.”
`
`12.
`
`In the District Court Litigation, OKC, via Dunlap Codding, served me
`
`with an e-mail containing a link to an invalidity contentions production on August
`
`8, 2019. The e-mail linked to an FTP site containing a 2.65 Gigabyte ZIP file to
`
`download, as shown below:
`
`13.
`
`I downloaded the ZIP file from that link.
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 4 of 9
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`IPR2020-00031
`Patent 10,043,188
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`14. That e-mail was one of four separate ZIP file productions served on me
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`by OKC between August 6, 2019 and August 9, 2019.
`
`15. None of
`
`the productions served on me were served by
`
`Guardian/Petitioner. All of the productions were served on behalf of OKC.
`
`16.
`
`In that three (3) day period, August 6-9, 2019, OKC served on me
`
`Seventeen Thousand Five Hundred Eighty-Six (17,586) separate documents.
`
`17. Some of the production was in file formats not recognized by my
`
`computer and which I could not open. Included in that group were five separate .FLV
`
`files. They appeared
`
`in
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`the following production file structure,
`
`in
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`the
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`“natives” folder that appeared after the related ZIP file was downloaded, with
`
`highlighting:
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 5 of 9
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`IPR2020-00031
`Patent 10,043,188
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`18. The only files in this production subset that I could open were the MP4
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`file, highlighted on the bottom, and a TXT file.
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`19. The above production does not reflect the file names or metadata
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`illustrated in the Sigale Declaration, ¶ 6. For example, the “Background Assistant
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`Brochure” bears a Modified Date of May 17, 2011, more than one month after
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`Miller’s priority application was filed on April 6, 2011.
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 6 of 9
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`IPR2020-00031
`Patent 10,043,188
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`20. Further, Ex. 1028, ¶ 6 shows an MP4 video titled “Video Prepared to
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`Demonstrate Correspondence Generation” with a modification date of September
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`29, 2015, which is several months after the ’188 Patent application was filed.
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`Paragraph 11 of the Declaration of Thomas Ward (Ex. 1009) appears to describe the
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`content of this MP4 video, which GAT identified as Ex. 1002 in the IPR.
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`21. Sigale Decl. ¶ 17 further lists multiple exhibits with modification dates
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`have in June 2019, August 2019, and even earlier dates.
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`22.
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`I have examined the metadata stored in Guardian’s exhibit files
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`uploaded to E2E. An example is shown below:
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`23. This metadata indicates that Ex. 1012 was last modified in the afternoon
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`of October 10, 2019. Similar metadata is found in the other PDF files uploaded to
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`
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 7 of 9
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`IPR2020-00031
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`E2E on October 10, 2019. The discrepancy between the modification dates suggests
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`that additional changes were made to the files on October 10, 2019, likely to be the
`
`addition of exhibit footers. It also suggests that Ex. 1028, ¶ 17 is not the directory
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`from which the IPR was uploaded.
`
`24.
`
`I participated in a conference call with Guardian’s counsel regarding its
`
`motion and Miller’s motion to terminate the IPR proceeding. During that call, Evan
`
`Talley, who has been the main litigation counsel for OKC in the District Court
`
`Litigation, stated that he was the person that committed the “clerical error.” As I
`
`recall, he stated that he would be the likely declarant for Guardian’s motion. He did
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`not provide the identity of other individuals. When the potential for taking
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`depositions of Mssrs. Ward, Klosson, and the motion declarants arose, Mr. Talley
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`appeared to become defensive.
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`25.
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`It is my understanding that Mr. Talley works in the Oklahoma City
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`office of Dunlap Codding, while Mr. Sigale works in the Chicago office. It is unclear
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`to me how Mr. Sigale has personal knowledge of events that apparently occurred in
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`Oklahoma City, nor is this addressed in his testimony.
`
`26.
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`I HEREBY DECLARE that all statements made herein of my own
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`knowledge are true and that all statements made on information and belief are
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`believed to be true. I further declare that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 8 of 9
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`
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`or imprisonment, or both, under section 1001 of Title 18 of the United States Code
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`and that such willful statements may jeopardize the validity of the application or any
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`IPR2020-00031
`Patent 10,043,188
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`patents issued thereon.
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`Date: February 20, 2020
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`
`
`Respectfully submitted,
`
`
`/Kurt M. Rylander/
`KURT M. RYLANDER
`USPTO Reg. No. 43,897
`Rylander & Associates PC
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`
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`Declaration of Kurt M. Rylander on Behalf of Patent Owner
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`Tyler Miller Exhibit 2024
`Guardian Technologies v Tyler Miller
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`Page 9 of 9
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