Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
`
`-------------------------------------------------
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`-------------------------------------------------
`
`Medtronic, Inc., and Medtronic Vascular, Inc.,
`
` Petitioners,
`
`vs.
`
`Teleflex Innovations S.À.R.L.,
`
` Patent Owner
`
`-------------------------------------------------
` Case No.: IPR2020-00127
` U.S. Patent No. 8,048,032
`-------------------------------------------------
` Case No.: IPR2020-00130
` U.S. Patent No. RE 45,380
`-------------------------------------------------
` Case No.: IPR2020-00131
` U.S. Patent No. RE 45,380
`-------------------------------------------------
` Case No.: IPR2020-00133
` U.S. Patent No. RE 45,760
`-------------------------------------------------
` Case No.: IPR2020-00134
` U.S. Patent No. 45,760
`-------------------------------------------------
` Case No.: IPR2020-00136
` U.S. Patent No. RE 45,776
`-------------------------------------------------
` Case No.: IPR2020-00138
` U.S. Patent No. RE 47,379
`-------------------------------------------------
`
` TELEPHONIC PROCEEDING
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` May 15, 2020
`
`By Brandi N. Bigalke, RPR RSA
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 1
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`

`

`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` Taken pursuant to notice to take telephonic
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`oral proceeding, on the 15th day of May, 2020,
`
`before Brandi N. Bigalke, Registered Professional
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`Reporter, Realtime Systems Administrator,
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`Stenographic Court Reporter, and a Notary Public
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`in and for the State of Minnesota.
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`A P P E A R A N C E S:
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`(**Everyone appeared by telephone)
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`The Honorable Christopher Paulraj
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`The Honorable Sheridan Snedden
`
`The Honorable Jon Tornquist
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`On Behalf of the Petitioner:
`
`Cyrus A. Morton
`Christopher A. Pinahs
`Sherry Roberg-Perez
`Robins Kaplan, LLP
`800 LaSalle Avenue
`Suite 2800
`Minneapolis, Minnesota 55402
`612-349-8722
`CMorton@RobinsKaplan.com
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 2
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`

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`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
`APPEARANCES (Cont'd)
`
`On Behalf of the Patent Owner Teleflex Innovations,
`S.À.R.L.:
`
`J. Derek Vandenburgh
`Peter Kohlhepp
`CARLSON CASPERS
`Capella Tower, Suite 4200
`225 South Sixth Street
`Minneapolis, Minnesota 55345
`612-436-9618
`dvandenburgh@carlsoncaspers.com
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 3
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`

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`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` 1 P R O C E E D I N G S
` 2 Whereupon, the telephonic proceeding on May 15,
` 3 2020 was commenced at 10:00 a.m. as follows:
` 4 - - -
` 5 THE COURT: Good morning. This is
` 6 the conference call in a hearing of IPR,
` 7 IPR2020-00126 through IPR2020-00138.
` 8 This is Judge Paulraj, and with me
` 9 I have the two other panel members on this case,
`10 Judge Tornquist and Judge Snedden.
`11 Let's start with roll call. Who do
`12 we have on the call for petitioner?
`13 MR. MORTON: Yes, your Honor. This
`14 is Cy Morton for petitioner. With me also on the
`15 line is Christopher Pinahs and Sharon
`16 Roberg-Perez.
`17 Your Honor, we also do have a court
`18 reporter.
`19 THE COURT REPORTER: Hello. This
`20 is Brandi Bigalke with Depo International.
`21 THE COURT: All right. Thank you.
`22 Mr. Morton, since we do have a
`23 court reporter, I would ask for our normal
`24 practice for you to make that transcript
`25 available as part of the record, whenever it does
`
`Page 4
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` 1 become available.
` 2 MR. MORTON: Yes, your Honor.
` 3 Understood.
` 4 THE COURT: So who do we have on
` 5 the line for patent owner?
` 6 MR. VANDENBURGH: Your Honor, this
` 7 is Derek Vandenburgh for patent owner, and with
` 8 me on the call is Peter Kohlhepp.
` 9 THE COURT: Thank you,
`10 Mr. Vandenburgh.
`11 So the purpose of this call is to
`12 discuss a request from petitioner to file a reply
`13 to address the 314 factor set forth in the recent
`14 precedential Apple petition, IPR2020-00019, Paper
`15 11. And then there was another request from
`16 petitioner to support timing {ph} with respect to
`17 the 379 IPR.
`18 So since it looks like it was
`19 petitioner's request that prompted this phone
`20 call, we'll have Mr. Morton address each of those
`21 issues.
`22 So perhaps we'll proceed this way:
`23 We'll -- to the extent that those issues are
`24 distinct, which it does seem like they are, why
`25 don't you start with the request for the reply to
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`Page 5
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` 1 the Apple decision, Mr. Morton, and then I'll
` 2 have Mr. Vandenburgh respond, and then we'll
` 3 proceed with your second request for timing.
` 4 MR. MORTON: Yes, your Honor.
` 5 So on the first issue, it's pretty
` 6 straightforward, your Honor. As you already
` 7 said, the Board designated Apple v. Fintiv
` 8 precedential, and does provide for a six-factor
` 9 analysis under 314, which is an issue patent
`10 owner has raised. And obviously that decision
`11 itself is a decision granting a reply brief to
`12 address those factors, and that decision is now
`13 binding on the panel.
`14 So we thought it made sense to seek
`15 to provide the Board with some additional facts
`16 to aid the Board's analysis. And, I mean, I will
`17 point out, we did not initially seek a reply
`18 brief on 314 because the district court trial was
`19 later than final written decisions would be, and
`20 the patent owner's arguments did not seem to
`21 merit a reply brief.
`22 So while that's still true, Apple
`23 v. Fintiv provides some additional grounds, which
`24 again are now precedential, that we think support
`25 a rejection of patent owner's 314 arguments. In
`
`Page 6
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` 1 addition, an institution of trial.
` 2 So just for instance, your Honor,
` 3 and I won't go into too much detail, but under
` 4 Factor 1, Apple v. Fintiv asked the Board to look
` 5 into the district court, whether the district
` 6 court may stay the litigation. And here the
` 7 district court has already stayed co-pending
` 8 litigation on the eve of trial in favor of seeing
` 9 how the IPRs turn out. And our --
`10 THE COURT: Mr. Morton, I don't
`11 want you to get into kind of what might be a
`12 preview of what you might argue in your reply.
`13 So to the extent that you've already laid out
`14 your brief {inaudible} your reply {inaudible}
`15 because of the recent designation of that whole
`16 decision is precedential.
`17 Do you have anything else to add
`18 without getting into perhaps the individual
`19 factors that might be addressed in any reply?
`20 MR. MORTON: Sure. The basis is
`21 really the precedential decision, your Honor.
`22 Couple other factors we would
`23 address, and this is really why we, in our
`24 e-mail, you know, we only ask for two pages. If
`25 it would help the Board, we'd be happy to do a
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 4
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`

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`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` 1 fulsome analysis of all the factors and really
` 2 get into it. But really we just wanted to add a
` 3 few facts, like I started to mention, that are
` 4 just -- would be let in the record for the Board
` 5 to consider in making the analysis.
` 6 THE COURT: All right. Thank you,
` 7 Mr. Morton.
` 8 Let me turn it over to
` 9 Mr. Vandenburgh to address the request for a
`10 reply.
`11 MR. VANDENBURGH: Yeah, thank you.
`12 In our view, the most important
`13 fact is one that Mr. Morton acknowledged, which
`14 is that they chose not to address the pending
`15 litigation and the 314 factors in their petition.
`16 We have a case that we found that
`17 is really directly on point. It's Google v.
`18 Uniloc, IPR2020-00115, Paper Number 7 from March
`19 of this year, which basically address this exact
`20 situation where the patent owner didn't -- I'm
`21 sorry, the petitioner didn't address it in their
`22 petition and then sought a reply. The panel
`23 there found no good cause pointing out that not
`24 only NHK being out there at that time, but also
`25 just an EPG itself indicates that if there is
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`Page 8
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` 1 pending litigation with relevant -- that they be
` 2 relevant to discretionary denial that it be
` 3 addressed -- should be addressed in the petition,
` 4 and it wasn't a cause to come in after the fact.
` 5 You know, that was the strategic
` 6 decision they made then, and there's no reason to
` 7 {inaudible} now.
` 8 The second point I want to make is
` 9 that Apple is not new law. You know, four out of
`10 six factors identified in Apple can be found in
`11 NHK. The other two can be found in other case
`12 law, and are also just, you know, pretty
`13 self-evidently relevant. So it's not like they
`14 couldn't have anticipated those and addressed
`15 them in their petition.
`16 I hope you'll permit me this
`17 latitude. I know you don't want us to go into
`18 the merits, but Mr. Morton got to say the part of
`19 the story he wanted to tell on this stay in
`20 co-pending litigation.
`21 I just want to be able to say that
`22 that actually favors us because that party in
`23 order to get the stay both pulled its product
`24 from the market, agreed to keep its product off
`25 the market, and waived its defenses in the
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`Page 9
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` 1 district court. And I am quite confident that if
` 2 Medtronic is willing to pull its product off the
` 3 market, that we would probably agree to a stay
` 4 with them as well. But absent that, that is
` 5 going to be a hotly contested issue.
` 6 And then the last point I guess I
` 7 want to make is I think in their request they
` 8 suggested simultaneous briefing. And of course
` 9 we don't think there's good cause at all, but if
`10 your Honor is inclined to do it, you know, the
`11 way this should have played out is they should
`12 have addressed it in their petition, we then
`13 could have made our argument and responded to
`14 theirs in our POPR.
`15 They are now apparently trying to
`16 get an effort to make whatever argument they want
`17 to make without us being able to respond, and
`18 that would simply be unfair. So if you are
`19 inclined to grant their relief, it certainly
`20 should be sequential briefing.
`21 That's what I have.
`22 THE COURT: All right. So it
`23 sounds like you -- to the extent that we are
`24 inclined to grant a reply, you want a fair reply
`25 after you've had a chance to review it to view --
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`Page 10
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` 1 MR. VANDENBURGH: Certainly.
` 2 THE COURT: -- whatever reply.
` 3 Okay. And you did bring up a good
` 4 cause standard, and that is the standard that's
` 5 set forth in our rules for granting a reply.
` 6 So if I understand you correctly,
` 7 it's your view that notwithstanding the recent
` 8 designation of the Apple decision of
` 9 precedential, I believe it was sometime last week
`10 {inaudible} -- the decision itself came out
`11 sometime in March, you don't believe that fact is
`12 sufficient for the good cause standard for reply.
`13 MR. VANDENBURGH: That's correct,
`14 Your Honor. You know, it makes sense that
`15 periodically the Board would, you know, change,
`16 you know, update to the latest and greatest
`17 opinion to be precedential. But again, if you
`18 compare Apple to NHK, it's really not that much
`19 of a departure. As you read Apple, every -- you
`20 know, all of the factors that they basically
`21 collect are either in NHK, or the couple that
`22 aren't are from other existing case law.
`23 The other point on that is if you
`24 read the Apple decision, the reason it looks like
`25 they allowed supplemental briefing was, first of
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 5
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`

`

`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` 1 all, Apple had raised it, had raised 314 in their
` 2 opening papers, but then circumstances had
` 3 changed in a way that was considered to be
` 4 relevant. The Board hadn't set a -- or I'm
` 5 sorry, the Court hadn't set a schedule at the
` 6 time the petition was filed, and they had it, so
` 7 there was relevant new information.
` 8 We don't have that here. The only
` 9 new information we have, you know, again, I guess
`10 we've talked about it at this point, is the grant
`11 of the stay relevant to the other party who also
`12 agreed to stay off the market and wave their
`13 defenses. So, no, we don't think there's due
`14 cause here.
`15 THE COURT: Okay. Thank you,
`16 Mr. Vandenburgh.
`17 All right. Let me put the parties
`18 on hold and confer with the panel before we
`19 proceed with the second issue real quick.
`20 (Off the record.)
`21 THE COURT: So this is Judge
`22 Paulraj. So on the reply brief issue, I've
`23 conferred with the panel, and we are going to go
`24 ahead and authorize a limited two-page reply to
`25 address specifically the Apple versus Fintiv
`
`Page 12
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` 1 factor for petitioner. And given that the clock
` 2 is ticking and our institution system is
` 3 {inaudible} earlier set up cases is going to be
` 4 due in early June, we do need to get those --
` 5 that reply brief in a fairly quick turnaround.
` 6 So that two-page reply, to the
` 7 extent, you know, petitioner is going to file it,
` 8 will be due by May 19. So that's Tuesday, two
` 9 business days from now.
`10 And then we'll go ahead and
`11 authorize a two-page surreply by patent owner
`12 that will be due two business days after the
`13 reply is filed, so May 21st. And it will be
`14 limited to specifically the Apple versus Fintiv
`15 factor.
`16 We already have briefing on, you
`17 know, the 314 issues, and the Board is already
`18 aware of the Apple versus Fintiv factors, but
`19 this is an opportunity for the parties to address
`20 the factor and to the extent that there aren't
`21 {ph} maybe any specific issues concerning those
`22 factors as applied to this case.
`23 Any questions on that, on that
`24 issue?
`25 MR. MORTON: Your Honor, this is
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`Page 13
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` 1 Mr. Morton for petitioners. No questions, your
` 2 Honor. Understood.
` 3 THE COURT: Thank you, Mr. Morton.
` 4 MR. VANDENBURGH: No questions,
` 5 your Honor. Thank you. No questions.
` 6 THE COURT: All right. So then
` 7 let's turn on over to the other issue that was
` 8 raised in petitioner's e-mail.
` 9 So Mr. Morton, if you can address
`10 that issue, and I'll limit Mr. Vandenburgh's
`11 response accordingly.
`12 MR. MORTON: Yes, your Honor.
`13 So this issue just relates to the
`14 two IPRs filed on the '379 patent. I think it's
`15 the 137 and 138 IPRs.
`16 So these were filed less than nine
`17 months after the reissued patent reissued. And
`18 the basic question, your Honor, is whether or not
`19 the '379 patent is a pre AIA patent based on its
`20 original filing date, or post AIA because at
`21 these one claim lacks written description.
`22 So if it's pre AIA, it is timely
`23 filed because Congress removed the so-called
`24 nine-month dead zone, and allows for IPRs during
`25 that time.
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`Page 14
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` 1 But if it is post AIA, it still
` 2 might be timely filed because it's a reissue
` 3 based on one possible interpretation of the
` 4 statute. And we preserve that argument in the
` 5 petition, but I'm not aware that it has ever been
` 6 addressed by a court. And so our concern is that
` 7 patent owner later argues it was not timely
` 8 filed, and we lose on that issue in the final
` 9 written decision, and lose our IPRs. And by that
`10 time, by the time that happens, our one year bar
`11 has run out to refile, which expires July 2nd is
`12 the one year.
`13 So while the underlying legal
`14 issues are somewhat complicated, your Honor,
`15 we're seeking an easy solution. We proposed that
`16 the Board -- we have a couple different options.
`17 We propose that the Board
`18 administratively change the filing date to after
`19 the nine-month window, or after February 7, 2020.
`20 There would be no need to do anything else. The
`21 IPRs can stay on the same schedule. If that is
`22 something the Board can do, that's easy.
`23 If you don't think you can just
`24 grant a different date, another thing we thought
`25 of is we could file an amended petition, which
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 6
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`

`

`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` 1 results in a new filing date. It would be the
` 2 same materials, just filed later, you know, after
` 3 the nine-month window, same IPR numbers. If the
` 4 amended petition is granted a filing date of the
` 5 day we file it, say next week sometime, that
` 6 solves the problem.
` 7 The third option we thought of,
` 8 your Honor, is so we could end up just having to
` 9 refile the same petitions over again. The issue
`10 there is our client would rather not pay over
`11 $60,000 in filing fees just to address this
`12 potential contingent issuance.
`13 If there was a way the Board can,
`14 you know, authorize refiling and waive the filing
`15 fees, again, keeping the same schedule, that
`16 would be another easy resolution.
`17 We did discuss this with patent
`18 owner. You know, their position was basically
`19 that we either have to roll the dice and
`20 hopefully are right on these novel kind of legal
`21 issues, or we should have to pay another 60,000
`22 for the same petitions.
`23 I'm hoping the Board can instead
`24 adopt one of our proposals or provide its own
`25 suggested solution. Again, our proposals were
`
`Page 16
` 1 administratively change the filing date, or have
` 2 us grant -- have us file amended petitions
` 3 thereby changing the filing date, or file new
` 4 petitions but waive the filing fees.
` 5 That's our issue, your Honor.
` 6 THE COURT: All right. Thank you,
` 7 Mr. Morton.
` 8 Let me turn it over to
` 9 Mr. Vandenburgh to respond. And then in the
`10 event we have questions, I'll chime in at that
`11 point.
`12 MR. VANDENBURGH: Yeah, so just to
`13 be clear from the outset, we're at sort of an odd
`14 situation here because, you know, we don't see
`15 how a reissue patent can possibly have an
`16 effective filing date other than that of the
`17 patent provision being reissued. We just -- we
`18 don't see the possibility that the Board could
`19 find otherwise. You can't add new matter and
`20 reissue patent. It is a reissue of an earlier
`21 patent that has that filing date. So --
`22 And assuming the Board reaches that
`23 decision, then there's -- we wouldn't, I think,
`24 dispute that the IPRs were from a timing
`25 standpoint proper relative to the '379 patent.
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`Page 17
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` 1 So we're dealing with a
` 2 hypothetical where somehow the Board I guess
` 3 nonetheless concludes that, oh, maybe that's not
` 4 the law, and that a reissue patent can have a
` 5 later filing date. I guess then we're back in
` 6 the situation where Medtronic, you know, they
` 7 made -- this was all part of a big, strategic
` 8 plan. They knew what they were doing. It wasn't
` 9 an accident that they filed it within the
`10 nine-month window after the '379 patent had
`11 issued.
`12 They could have filed it as a PGR.
`13 They made a strategic decision not to do that.
`14 They could have waited another three months and
`15 made a strategic decision not to do that, again
`16 all tied in with presenting these 13 IPRs to the
`17 district court a week before they filed their
`18 response to our preliminary injunction motion.
`19 They wanted to, you know, show the district court
`20 what a strong validity -- invalidity case they
`21 had.
`22 You know, under 314, timing also
`23 does matter. If they had waited to file the
`24 '379, it would result in it being ruled on later
`25 in time. Again, relative to the district court,
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`Page 18
` 1 it would be relevant to the 314 factors. Again,
` 2 Medtronic made a strategic decision to file when
` 3 they did, to take the risk they did, because they
` 4 wanted to maximize their chances here.
` 5 Having made those decisions, you
` 6 know, I guess, let me start with we don't have
` 7 any -- we can't find any authority for the Board
` 8 having -- or for the Board having the authority
` 9 to just administratively change a date.
`10 We've heard a couple of options
`11 today. Again, I'm not sure -- I think what
`12 they're asking the Board to then do is treat it
`13 as a newly-filed petition but don't wait six
`14 months to decide on institution counting on the
`15 fact respondents already {inaudible} into this
`16 case.
`17 I guess all I can say is I don't
`18 think Medtronic's, you know, strategic decision
`19 in wanting to basically have their cake and eat
`20 it too here is good cause for the extraordinary
`21 things they're asking for.
`22 THE COURT: Thank you,
`23 Mr. Vandenburgh.
`24 Let me confer with the panel on
`25 what we've just heard and get back to you.
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 7
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`

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`Teleconference Hearing - 5/15/2020
`Medtronic, Inc. and Medtronic Vascular, Inc. vs. Teleflex Innovations S.A.R.L.
`
` 1 issues we need to address on this call today?
` 2 MR. VANDENBURGH: Not for patent
` 3 owner, your Honor.
` 4 MR. MORTON: Not for petitioner,
` 5 your Honor.
` 6 THE COURT: All right. Thank you,
` 7 Counsel.
` 8 So since we do have a record of
` 9 this call, that will serve as whatever order we
`10 issue. We're not going to issue a separate order
`11 for what we stated on this call. And we'll look
`12 for the parties' reply/surreply brief to address
`13 the Apple v. Fintiv factors next week.
`14 With that, the call is adjourned.
`15 Thank you, Counsel.
`16 MR. VANDENBURGH: Thank you, your
`17 Honor.
`18 MR. MORTON: Thank you, your Honor.
`19 (Whereupon, the telephonic
`20 proceeding was terminated at 10:32 a.m.)
`21
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`23
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` 1 (Off the record.)
` 2 THE COURT: Counsel, this is Judge
` 3 Paulraj again. So we've conferred, and at this
` 4 point we aren't going to grant any of the relief
` 5 that petitioner had asked for on this call,
` 6 especially with the second granting --
` 7 administratively granting a new filing date. We
` 8 don't necessarily see any authority to do so at
` 9 this point.
`10 Certainly petitioner is always free
`11 to withdraw its petition and try to refile.
`12 We're not going to pass on the merits of any new
`13 petition that might be filed at this point, nor
`14 are we going to pass on from -- you know, give
`15 any judgment on the written description arguments
`16 that were raised in the prior petitions.
`17 So with that, to the extent that
`18 this issue is still continuing to be an issue
`19 after we issue our institution decisions, the
`20 parties are free to bring it to our attention
`21 again. But at this point we're not going to
`22 grant any new filing date for the petition.
`23 Is that understood?
`24 MR. MORTON: Your Honor, this is
`25 Mr. Morton. I do think I -- I understand.
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` 1 I don't think you referenced
` 2 specifically the idea of filing amended
` 3 petitions, you know, the same petition, you're
` 4 just filing an amended petition, which is
` 5 something that can be done if there's a mistake
` 6 or something that's wrong. Of course it's tough
` 7 here because we don't think anything is wrong,
` 8 we're just worried that it could be seen that way
` 9 later.
`10 So I gather you're not going to
`11 entertain that option either, the idea of an
`12 amended --
`13 THE COURT: No, Mr. Morton, we're
`14 not. So I would say that, you know, you can make
`15 a choice as to whether withdraw and refile the
`16 petition, if you think that's an appropriate way
`17 to do it, and the additional cost that might be
`18 involved for your client with that option.
`19 But obviously the other option is
`20 to wait for our decision on {inaudible} petition
`21 and these petitions, and then we'll proceed based
`22 on how we decide these issues.
`23 MR. MORTON: Yes, your Honor.
`24 Understood.
`25 THE COURT: Are there any other
`
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`(763) 591-0535 | info@depointernational.com
`Depo International, Inc.
`
`Page 8 (20 - 22)
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`IPR2020-00131
`Medtronic v. Teleflex
`Medtronic Exhibit 1896 - Page 8
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`