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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`COREPHOTONICS, LTD.,
`Patent Owner.
`____________
`
`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
`____________
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
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`
`
`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`TABLE OF CONTENTS
`
`LIKELIHOOD OF A PRIMA FACIE CASE OF OBVIOUSNESS
`
`The Petition Fails To Demonstrate A Motivation To Combine The
`
`The Petition Fails To Demonstrate [19.5.1] And [19.5.2] Because It
`Fails To Show A Camera Controller Configured For Those
`
`INTRODUCTION .................................................................. 1
`I.
`II. OVERVIEW OF THE ’479 PATENT ....................................... 3
`III. LEGAL STANDARDS ........................................................... 5
`IV. THE PETITION FAILS TO ESTABLISH THE REASONABLE
` .............................................................................................. 7
`A.
`Cited References ............................................................................. 7
`B.
`Limitations ...................................................................................... 8
`C.
`Demonstrated How Parulski’s Wide Lens is Focused ................... 11
`V.
`THE ’479 PATENT ............................................................... 12
`VI. CONCLUSION .................................................................... 15
`
`Petitioner Has Failed To Show [19.3] Because Petitioner Has Not
`
`THE BOARD SHOULD EXERCISE ITS DISCRETION TO
`DENY INSTITUTION OF MULTIPLE IPR PETITIONS ON
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`
`
`i
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`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`Cases
`
`TABLE OF AUTHORITIES
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) .................................................................. 6
`
`Ariosa Diagnostics v. Verinata Health, Inc.,
`805 F.3d 1359 (Fed. Cir. 2015) .................................................................. 6
`
`Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc.,
`381 F.3d 1371 (Fed. Cir. 2004) .................................................................. 8
`
`In re Dow Chem. Co.,
`837 F.2d 469 (Fed. Cir. 1988) ................................................................ 7, 8
`
`In re Kahn,
`441 F.3d 977 (Fed. Cir. 2006) .................................................................... 7
`
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .................................................................. 6
`
`Innogenetics, N.V. v. Abbott Labs.,
`512 F.3d 1363 (Fed. Cir. 2008) .................................................................. 7
`
`SAS Inst., Inc. v. Iancu,
`138 S. Ct. 1348 (2018) ............................................................................ 12
`
`Wasica Finance GMBH v. Continental Auto. Systems,
`853 F.3d 1272 (Fed. Cir. 2017) .................................................................. 6
`
`Statutes
`Other Authorities
`
`35 U.S.C. § 314(a) ........................................................................................ 12
`
`Consolidated Trial Practice Guide November 2019 ..................................... 13
`
`ii
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`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`Rules
`
`37 C.F.R. § 42.108 .......................................................................................... 5
`
`
`
`iii
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`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`I.
`
`INTRODUCTION
`
`This Petition should be denied because Petitioner has failed to make out
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`a prima facie case for invalidity for a number of reasons.
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`First, Petitioner has failed to provide a motivation to combine Parulski,
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`Ogata, Kawamura, and Soga (the basis of Ground 1). Instead of showing a
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`motivation to create this four-reference combination, Petitioner has purport-
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`edly identified a motivation to create three different two-reference combina-
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`tions: Parulski and Ogata; Parulski and Kawamura; and Parulski and Soga.
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`But Petitioner has not asserted that any of these two-reference combinations
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`invalidate any claim of the ’479 patent. The Petition’s second ground, assert-
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`ing the five-reference combination of Parulski, Ogata, Kawamura, Soga and
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`Morgan-Mar, also fails to include a motivation of combine all five references.
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`Because it is Petitioner’s burden to provide a motivation to combine all of the
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`invalidating references, the Petition must be denied.
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`Second, the Petition has failed to demonstrate that the claim elements
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`styled [19.5.1] and [19.5.2] (portions of claim element 19e) are disclosed by
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`Parulski because it ignores the requirement that the claimed “camera control-
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`1
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`U.S. Patent No. 10,225,479
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`ler” must be configured to perform these limitations. Indeed, Petitioner com-
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`pletely ignores this requirement in its argument. Without such a showing, the
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`Petition should not be granted.
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`Third, the Petition must be denied because Petitioner’s argument as to
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`the claim limitation styled [19.3] is contradicted by Parulski. Petitioner argues
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`that this limitation, which requires “a first autofocus (AF) mechanism” on the
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`Wide lens, is disclosed by Parulski because a POSITA “would have known”
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`to use a first AF mechanism with the Wide lens. But Petitioner ignores that
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`the lack of a first AF mechanism is actually a feature of Parulski. It was an
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`intentional design choice, made to minimize the cost and size of Parulski’s
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`device. Petitioner ignores this disclosure and does not explain why a POSITA
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`would have implemented a first AF mechanism despite Parulski teaching
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`away from the use of such a mechanism.
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`For at least these reasons, Petitioner has failed to establish a likelihood
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`of prevailing and the Petition should not be instituted.
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`Moreover, the Board should exercise its discretion to deny institution,
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`even if it does find a likelihood of prevailing. This is one of two IPRs filed
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`2
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`simultaneously by Petitioner to challenge the claims of the ’479 patent. Peti-
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`tioner has failed to establish that this is one of the “rare” cases where multiple
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`simultaneous petitions against the same patent are justified.
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`II. OVERVIEW OF THE ’479 PATENT
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`The ’479 patent is generally directed to “thin digital cameras with both
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`still image and video capabilities.” Ex. 1001 at 1:24-26. It was issued on
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`March 5, 2019, and claims priority to a provisional patent application filed on
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`June 13, 2013. As the patent described, the prior art included “[a]ttempts to
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`use multi-aperture imaging systems to approximate the effect of a zoom lens.”
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`Id. at 1:59-60. One problem with such prior art systems was that they led to
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`parallax effects when taking video. Id. at 2:39-55. Other solutions led to de-
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`graded image quality. Id. at 2:56-67. The patent owner, Corephotonics, devel-
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`oped an innovative dual-aperture camera technology “with fixed focal length
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`lenses, the camera configured to operate in both still mode and video mode to
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`provide still and video images, wherein the camera configuration uses partial
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`or full fusion to provide a fused image in still mode and does not use any
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`fusion to provide a continuous, smooth zoom in video mode.” Id. at 3:20-25.
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`The Petitioner, Apple, adopted this technology in its iPhone models with dual
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`rear cameras, starting with the iPhone 7 Plus in September 2016 and continu-
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`ing with its successive generations of new iPhone models. The technology is
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`also now used in smartphones made by other manufacturers, such as Samsung
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`and Huawei.
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`
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`Ex. 1001 at Fig. 1B.
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`To make this technology a reality, Corephotonics developed solutions
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`to practical issues, some of which are the subject matter of the ’479 patent.
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`For example, Corephotonics developed technology that results in a “fused im-
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`age including always information from both W [“Wide”] and T [“Tele”] im-
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`ages.” Id. at 3:48-51. One embodiment of this technology allows out-of-focus
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`background to be fused with another image of an in focus subject, creating for
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`example a blurrier background and creating the effect of a shallower DOF.
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`This effect is often used, for example, in “Portrait” pictures. The inventive
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`process is summarized in the ’479 patent as follows:
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`Due to the large focal length, objects that are in front or behind the
`plane of focus appear very blurry, and a nice foreground-to-back-
`ground contrast is achieved. However, it is difficult to create such
`a blur using a compact camera with a relatively short focal length
`and small aperture size, such as a cell-phone camera. In some em-
`bodiments, a dual-aperture zoom system disclosed herein can be
`used to capture a shallow DOF photo (shallow compared with a
`DOF of a Wide camera alone), by taking advantage of the longer
`focal length of the Tele lens. The reduced DOF effect provided by
`the longer Tele focal length can be further enhanced in the final
`image by fusing data from an image captured simultaneously with
`the Wide lens. Depending on the distance to the object, with the
`Tele lens focused on a subject of the photo, the Wide lens can be
`focused to a closer distance than the subject so that objects behind
`the subject appear very blurry. Once the two images are captured,
`information from the out-of-focus blurred background in the Wide
`image is fused with the original Tele image background infor-
`mation, providing a blurrier background and even shallower DOF.
`Ex. 1001 at 4:18-38.
`
`III. LEGAL STANDARDS
`
`The petitioner has the burden to “demonstrate that there is a reasonable
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`likelihood that at least one of the claims challenged in the petition is unpatent-
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`able.” 37 C.F.R. § 42.108. A petition challenging a claim on grounds of obvi-
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`ousness must sufficiently explain (1) “how specific references could be
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`combined,” (2) “which combination(s) of elements in specific references
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`would yield a predictable result,” and (3) “how any specific combination
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`would operate or read on” the claims. ActiveVideo Networks, Inc. v. Verizon
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`Commc’ns, Inc., 694 F.3d 1312, 1327–28 (Fed. Cir. 2012).
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`Moreover, a petitioner may not rely on the Board to substitute its own
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`reasoning to remedy the deficiencies in a petition. In re Magnum Oil Tools
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`Int’l, Ltd., 829 F.3d 1364, 1381 (Fed. Cir. 2016) (rejecting the Board’s reli-
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`ance on obviousness arguments that “could have been included” in the petition
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`but were not, and holding that the Board may not “raise, address, and decide
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`unpatentability theories never presented by the petitioner and not supported
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`by the record evidence”); Ariosa Diagnostics v. Verinata Health, Inc., 805
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`F.3d 1359, 1367 (Fed. Cir. 2015) (holding that “a challenge can fail even if
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`different evidence and arguments might have led to success”). Nor may the
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`petitioner remedy the deficiencies in a reply brief. Wasica Finance GMBH v.
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`Continental Auto. Systems, 853 F.3d 1272, 1286 (Fed. Cir. 2017) (“Rather
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`than explaining how its original petition was correct, Continental’s subse-
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`quent arguments amount to an entirely new theory of prima facie obviousness
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`absent from the petition. Shifting arguments in this fashion is foreclosed by
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`statute, our precedent, and Board guidelines.”) (internal citations omitted).
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`IV. THE PETITION FAILS TO ESTABLISH THE
`REASONABLE LIKELIHOOD OF A PRIMA FACIE CASE
`OF OBVIOUSNESS
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`A. The Petition Fails To Demonstrate A Motivation To Combine
`The Cited References
`
`Ground 1 of the Petition asserts obviousness over a combination of Pa-
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`rulski, Ogata, Kawamura, and Soga. E.g., Paper 3 at i, 12, 62. Petitioner, how-
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`ever, has failed to disclose a motivation to combine all of these references, let
`
`alone in the specific manner to achieve the claimed inventions. Instead, Peti-
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`tioner has identified purported motivations for creating two-reference combi-
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`nations of Parulski/Ogata, Parulski/Kawamura and Parulski/Soga. Paper 2 at
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`21-24, 28-30, 33-39. Because Petitioner does not argue that any of these two-
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`reference combinations invalidate the claims, the Petition must fail on its face.
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`It is Petitioner’s burden to show a motivation to combine all of the references
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`it combines to invalidate claims 19 and 20. E.g., Innogenetics, N.V. v. Abbott
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`Labs., 512 F.3d 1363, 1373 (Fed. Cir. 2008) (“There must be some articulated
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`reasoning with some rational underpinning to support the legal conclusion of
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`obviousness.” (internal quotations omitted) (citing In re Kahn, 441 F.3d 977,
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`988 (Fed. Cir. 2006))); In re Dow Chem. Co., 837 F.2d 469, 473 (Fed. Cir.
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`1988) (“[t]here must be a reason or suggestion in the art for selecting the pro-
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`cedure used, other than the knowledge learned from the applicant’s disclo-
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`sure”); Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 381 F.3d 1371,
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`1376 (Fed. Cir. 2004) (“the suggestion to combine references must not be de-
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`rived by hindsight from knowledge of the invention itself.”). Having failed to
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`provide a motivation to combine, Ground 1 must not be instituted.
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`Ground 2 should not be instituted for similar reasons. Ground 2 is a
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`five-reference combination of Parulski, Ogata, Kawamura, Soga and Morgan-
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`Mar. Paper 3 at ii, 67-74. Petitioner, however, has only provided a purported
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`motivation to combine for three of the five references: Parulski, Soga and
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`Morgan-Mar. Paper 3 at 67-69. Petitioner does not provide a motivation to
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`combine Parulski, Soga and Morgan-Mar with Ogata and Kawamura. Ground
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`2 must therefore not be instituted. E.g., In re Dow Chem. Co., 837 F.2d at 473;
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`Cardiac Pacemakers, 381 F.3d at 1376.
`
`B.
`
`The Petition Fails To Demonstrate [19.5.1] And [19.5.2] Be-
`cause It Fails To Show A Camera Controller Configured For
`Those Limitations
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`Petitioner has failed to show that its proposed combination discloses
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`the claim limitations styled [19.5.1] and [19.5.2]. [19.5.1] and [19.5.2] are ex-
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`cerpts from claim 19e of the ’479 patent:
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`a camera controller operatively coupled to the first and second
`AF mechanisms and to the Wide and Tele image sensors and
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`configured to control the AF mechanisms, to process the Wide
`and Tele images to find translations between matching points
`in the images to calculate depth information and to create a
`fused image suited for portrait photos, the fused image having
`a DOF shallower than DOFT and having a blurred background.
`Ex. 1001 at 15:25-32 (emphasis added). For the purposes of this argument,
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`the relevant portions have been highlighted. The claim limitations require that
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`the camera controller be configured to both “process the Wide and Tele im-
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`ages to find translations” and “create a fused image suited for portrait photos.”
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`Id. Petitioner identifies Parulski’s image processor 50 as being the camera
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`controller. Paper 3 at 52. Petitioner fails to demonstrate that image processor
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`50 is configured as required in both [19.5.1] and [19.5.2].
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`For [19.5.1], Petitioner argues that it identifies a “process for calculat-
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`ing depth information based on wide and tele images” in Parulski that pur-
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`portedly discloses the “to process the Wide and Tele images to find
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`translations between matching points in the images to calculate depth in-for-
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`mation” limitation. Paper 3 at 53-54. Petitioner has failed, however, to show
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`that image processor 50 is involved in Parulski’s “process for calculating
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`depth information based on wide and tele images,” let alone that the image
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`processor 50 is “configured . . . to process the Wide and Tele images to find
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`translations be-tween matching points in the images to calculate depth in-for-
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`mation” as required by [19.5.1]. The Petition should not be instituted for this
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`reason alone.
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`Similarly, Petitioner has failed to show that Parulski’s image processor
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`50 is configured to perform [19.5.2]. Petitioner argues that “Parulski’s dual-
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`lens camera system implementing Soga’s image capture and enhancement
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`method” renders this limitation obvious. Petitioner has failed, however, to
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`show that image processor 50, the portion of the combination identified as the
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`claimed camera controller, is configured to perform the recited limitation. In-
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`deed, other than a general reference to “Parulski’s dual-lens camera system,”
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`Petitioner fails to identify any specific aspect of Parulski or Soga that is con-
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`figured to perform [19.5.2], let alone demonstrate that image processor 50 is
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`“configured . . . to create a fused image suited for portrait photos.” The Peti-
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`tion should not be instituted for this reason alone.
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`By separating claim 19e into multiple elements, Petitioner has obfus-
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`cated the actual requirements of [19.5.1] and [19.5.2]. As shown above, the
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`claim language as written imposes multiple limitations on the claimed camera
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`controller. Petitioner, through its excerpting, has removed this limitation from
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`claim 19. According to the Petition, a camera controller is only needed to meet
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`[19.5]. Paper 3 at 51-52. As shown above, it removed the camera controller
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`elements from both [19.5.1] and [19.5.2]. The Petitioner therefore leads the
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`Board to potential error.
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`C.
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`Petitioner Has Failed To Show [19.3] Because Petitioner Has
`Not Demonstrated How Parulski’s Wide Lens is Focused
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`[19.3] requires “a first autofocus (AF) mechanism coupled mechani-
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`cally to, and used to perform an AF action on the Wide lens.” Paper 3 at 45.
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`Petitioner has failed, however, to show that wide angle lens 612 in Parulski,
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`which is purported to be the claimed Wide lens, has a “first autofocus (AF)
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`mechanism coupled mechanically to it.” In the portion of Parulski cited by
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`Petitioner, Parulski discloses autofocus subsystem 628, which is connected to
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`telephoto lens 616, not wide angle lens 612. Ex. 1005 at 23:62-24:7; Paper 3
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`at 45-46.
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`Petitioner recognizes this issue, and argues that a POSITA “would have
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`understood” to use a similar “autofocus mechanism” with the purported Wide
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`lens. Paper 3 at 46. But Petitioner cites no evidence for its argument. Instead,
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`it cites to the Durand Declaration (Ex. 1003) that simply parrots Petitioner’s
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`attorney argument. Neither Petitioner nor the Durand Declaration explain
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`why, without the benefit of hindsight, a POSITA would have understood this.
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`Further, Petitioner also fails to explain why a POSITA would have known to
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`use a separate autofocus (AF) mechanism coupled mechanically to the
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`Wide lens instead of, for example, utilizing autofocus subsystem 628. Peti-
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`tioner’s argument is also contradicted by Parulski itself. Parulski deliberately
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`discloses a single focusing subsystem: to reduce “cost and size.” Ex. 1005 at
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`24:17-19; see also id. at Fig. 16B (showing only one focusing subsystem).
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`Parulski discloses that size (which is reduced by not having a second focusing
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`subsystem) is an “important constraint.” Id. at 24:20-27. Simply put, Parulski
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`teaches away from using a second focusing subsystem. Petitioner does not
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`explain why, despite these disclosures of Parulski, a POSITA “would have
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`understood” the use of an autofocus system on wide angle lens 612.
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`The Petition should not be instituted for this reason as well.
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`V. THE BOARD SHOULD EXERCISE ITS DISCRETION
`TO DENY INSTITUTION OF MULTIPLE IPR
`PETITIONS ON THE ’479 PATENT
`
`The Board is never required to institute an IPR. Even if the Board de-
`
`termines the reasonable likelihood standard is met by a petition, the decision
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`to institute is discretionary. 35 U.S.C. § 314(a); SAS Inst., Inc. v. Iancu, 138
`
`S. Ct. 1348, 1361 (2018) (“Even if there is one potentially meritorious chal-
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`lenge, we have said that the statute contains ‘no mandate to institute review,’
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`so the Director still has discretion to deny a petition.”).
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`The Board has recognized that multiple petitions filed against the same
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`patent at the same time “may place a substantial and unnecessary burden on
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`the Board and the patent owner and could raise fairness, timing, and efficiency
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`concerns.” Consolidated Trial Practice Guide November 2019 at 59). The
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`Board has indicated that such multiple petitions “are not necessary in the vast
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`majority of cases” and “should be rare.” Id.
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`Petitioner fails to show this case is “rare” such that multiple petitions
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`are justified. The Petition adds only an additional four challenged claims to
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`the claims challenged in IPR2020-00905. Furthermore, the challenges to all
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`of the claims in both petitions are based on obviousness with the same primary
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`reference, Parulski. This is not a case involving “a large number of claims
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`[asserted] in litigation” or “a dispute about priority date,” which are the cir-
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`cumstances identified in the Trial Practice Guide as potentially justifying mul-
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`tiple petitions. Consolidated Trial Practice Guide November 2019 at 59. A
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`petition raising this number of grounds against a small number of claims could
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`readily have been drafted within the 14,000-word limit for a single petition.
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`But petitioner has instead burdened the Board and patent owner with petitions
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`totaling 27,619 words (just shy of the 28,000-word limit for two petitions),
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`and the need to prepare double the number of filings and double the number
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`of decisions that would ordinarily be required to resolve the challenges to a
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`single patent.
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`Petitioner acknowledges that “all of the claims are directed to a dual-
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`lens camera with wide and telephoto lenses (1) having overlapping fields of
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`view (FOV) and (2) an autofocus mechanism providing each lens with sepa-
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`rate focusing control.” Paper 2. However, it attempts to justify its decision to
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`file two-separate, near 14,0000-word IPRs because the claims purportedly
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`“perform different image processing steps.” Id. at 1. This assertion rings hol-
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`low. It is always the case that there are differences in claims. The ’479 patent
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`is no different than any other patent in this respect. Indeed, even under Peti-
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`tioner’s summary, the primary difference between the claims is a “different
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`image processing steps” involves “calculating a depth map.” The first element
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`of all of the claims is “controlling the autofocus mechanism.” Id. at 2. Like-
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`wise, the final step under Petitioner’s summary of the claimed inventions both
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`involve outputting a “fused image.” Id. Petitioner fails to show why image
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`processing elements alone requires almost 14,000 additional words.
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`The overlap between the two Petitions is also emphasized by the fact
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`that the Petitioner uses the same prior art as its “primary” reference (Parulski)
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`and the secondary prior art references in both Petitions relate to the same sub-
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`ject area.
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`Moreover, Petitioner previously filed an unsuccessful IPR petition
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`IPR2018-01348, which challenged U.S. Patent No. 9,185,291, the grandpar-
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`ent to the ’479 patent. In that petition, Petitioner challenged 10 claims of the
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`’291 patent, again using Parulski as the primary prior art reference. IPR2018-
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`01348, Paper 2 at 8. In IPR2018-01348, Petitioner was able to challenge 10
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`claims, concerning both image processing and optical design. Petitioner has
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`not shown why it was able to address all of the claims in IPR2018-01348 but
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`needs an additional 14,000-word Petition to address the claims in the Petitions
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`at issue here.
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`Petitioner’s unjustified decision to burden the Board and patent owner
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`with 27,619 words of Petitions challenging the ’479 patent should not be re-
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`warded, and the Board should exercise its discretion to deny this Petition.
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`VI. CONCLUSION
`
`For the reasons set forth above, the petition fails to establish a reasona-
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`ble likelihood of prevailing on any challenged claim. The Petition should also
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`be denied in the Board’s discretion as a result of Petitioner’s multiple Petitions
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`addressing the ’479 patent. Patent Owner respectfully requests that the Board
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`deny institution.
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`
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`Dated: August 13, 2020
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`
`
` /Neil A. Rubin/
`Neil A. Rubin (Reg. No. 67,030)
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, CA 90025
`Telephone: 310-826-7474
`
`Attorney for Patent Owner,
`COREPHOTONICS, LTD.
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`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`CERTIFICATE REGARDING WORD COUNT
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`Pursuant to 37 C.F.R. § 42.24(d), Patent Owner certifies that there are 3,113
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`words in the paper excluding the portions exempted under 37 C.F.R. §
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`42.24(a)(1).
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` /Neil A. Rubin/
`Neil A. Rubin (Reg. No. 67,030)
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`17
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`Case No. IPR2020-00906
`U.S. Patent No. 10,225,479
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`CERTIFICATE OF SERVICE
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`I hereby certify that “Patent Owner’s Preliminary Response” (Paper No. 7)
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`was served on August 13, 2020 by email sent to:
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`Michael S. Parsons
`Andrew S. Ehmke
`Jordan Maucotel
`HAYNES AND BOONE, LLP
`2323 Victory Ave. Suite 700
`Dallas, TX 75219
`Telephone: 214-651-5000
`Email: michael.parsons.ipr@haynesboone.com
`Email: andy.ehmke.ipr@haynesboone.com
`Email: jordan.maucotel.ipr@haynesboone.com
`
`
` /Neil A. Rubin/
`Neil A. Rubin (Reg. No. 67,030)
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