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`Paper No. 21
`Filed: April 28, 2021
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`INTEL CORPORATION,
`Petitioner
`v.
`FG SRC LLC,
`Patent Owner
`____________________
`CASE NO.: IPR2020-01449
`PATENT NO. 7,149,867
`____________________
`PETITIONER’S MOTION TO SUBMIT SUPPLEMENTAL
`INFORMATION PURSUANT TO 37 C.F.R. § 42.123(a)
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`TABLE OF SUPPLEMENTAL INFORMATION EXHIBITS
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`Description
`Exhibit No.
`Exhibit 1027 Declaration of Gordon MacPherson
`Exhibit 1028 Declaration of Eileen D. McCarrier
`Exhibit 1029 Declaration of Austin M. Schnell
`Exhibit 1030 Supplemental Declaration of Rajesh K. Gupta, Ph.D.
`Exhibit 1031 Supplemental Declaration of Jacob Robert Munford
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`i
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`I.
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`INTRODUCTION
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`Petitioner Intel Corporation moves under 37 C.F.R. § 42.123(a) and the
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`Board’s authorization, see Paper 18, to submit Exhibits 1027–31 as supplemental
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`information to confirm the public accessibility of the Zhang (Ex. 1003), Gupta (Ex.
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`1004), and Chien (Ex. 1005) references.
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`The Board instituted IPR on all presented grounds, which rely on the Zhang,
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`Gupta, and Chien references. Id. 10–11. The Board found a reasonable likelihood
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`that each reference was publicly accessible before the alleged priority date and, thus,
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`prior art. Id. at 43–44. However, it noted that “[t]o the extent Patent Owner continues
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`to challenge the printed publication status of these references after institution, the
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`parties are requested to further develop the record on this issue.” Id. at 44. Patent
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`Owner continues to challenge printed publication status. Thus, Intel moves to submit
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`supplemental information to further develop the record as instructed by the Board.
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`The proposed exhibits supplement, corroborate, and confirm the evidence that
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`Petitioner submitted with its petition demonstrating that each reference was a
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`conference paper published by The Institute of Electrical and Electronics Engineers,
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`Incorporated (“IEEE”) and distributed to conference attendees, cataloged and made
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`available in public libraries, and made publicly accessible on IEEE’s Xplore website,
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`all before the alleged priority date. Thus, as detailed below, the Board should grant
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`Petitioner permission to file Exhibits 1027–31 as supplemental information.
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`1
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`II. ARGUMENT
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`A. The requirements of § 42.123(a) are met and the motion is consistent
`with the just, speedy, and inexpensive resolution of this proceeding.
`A party may file a motion to submit supplemental information if (1)
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`authorization is requested within one month of the date trial is instituted; and (2) the
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`supplemental information is relevant to a claim for which trial has been instituted.
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`37 C.F.R. § 42.123(a). The requirements of § 42.123(a) are “construed within the
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`overarching context of the PTAB’s regulations governing IPR and general trial
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`proceedings,” Redline Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435, 446–
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`47 (Fed. Cir. 2015), including to “secure the just, speedy, and inexpensive resolution
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`of every proceeding,” 37 C.F.R. § 42.1(b); see also Redline, 811 F. 3d at 448.
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`The two requirements of § 42.123(a) are met. First, Intel requested
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`authorization to file this motion on April 2, which is less than one month from
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`institution of trial. Paper 18 at 2. Second, the supplemental information is relevant
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`to a claim for which trial has been instituted because it relates to the prior art status
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`of Zhang, Gupta, and Chien, and each of those references is part of an instituted
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`ground challenging multiple claims of the ’867 patent. Paper 13 at 11.
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`Intel’s Petition and accompanying evidence establish that Zhang, Gupta, and
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`Chien are prior art because they were published by IEEE and publicly accessible
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`prior to the critical date. See Paper 1 at 16–21; see also Paper 13 at 34–44. For
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`example, Dr. Gupta, who authored or co-authored each reference, described the
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`MORPH/AMRM project that resulted in the Zhang, Gupta, and Chien references.
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`Ex. 1010 ¶¶ 4–6; 15–26. He testified that each was made available to conference
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`attendees, published in print by IEEE, and available on IEEE’s Xplore website, all
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`before the critical date. Id. ¶¶ 18–26. Similarly, Mr. Munford reviewed the
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`references and multiple libraries’ MARC records for each reference. Ex. 1012 ¶¶
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`15–33. Mr. Munford noted that pandemic-related library closures and travel
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`advisories prevented him from retrieving physical copies of the references, id. ¶ 14,
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`but testified that, in his expert opinion after reviewing these materials, Zhang, Gupta,
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`and Chien were publicly available in libraries shortly after each indicated publication
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`date (November 18, 1997, May 15, 2000, and November 18, 1996, respectively). Id.
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`¶¶ 20, 26, 32. The references themselves bear indicia that support these publication
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`dates. See Exs. 1003, 1004, 1005. As the Board found, this evidence at least
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`established a reasonable likelihood that each was prior art to the ’867 patent. Paper
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`13 ¶¶ 40, 43.
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`Intel moves to provide information that supplements the previously
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`established prior art status for each of Zhang, Gupta, and Chien in response to Patent
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`Owner’s continued challenge to that status. For example, the supplemental
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`information
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`includes
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`testimony by Gordon MacPherson, Director, Board
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`Governance & IP Operations of IEEE. See Exs. 1027. Mr. MacPherson’s declaration
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`includes true and correct copies of the Zhang, Gupta, and Chien references available
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`through the IEEE Xplore website, along with the abstract page for each reference
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`showing publication information, including the name, date, and location of
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`conference, date added to IEEE Xplore, ISBN, ISSN, INSPEC accession number,
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`DOI, title, author, abstract, and publisher. Ex. 1027 ¶¶ 9–10 (referencing Exs. A, B,
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`and C to same). This supplements the information that Dr. Gupta and Mr. Munford
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`provided. Ex. 1010 ¶¶ 18–19, 21–22, 24–25; Ex. 1012 ¶¶ 19, 25, 31. Mr.
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`MacPherson testifies that articles and abstracts from the IEEE Xplore website show
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`the date of publication and additional publication data as populated by metadata
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`created and maintained as part of IEEE’s standard business practices. Ex. 1027 ¶ 10.
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`Mr. MacPherson also confirms that IEEE’s standard practice for conference papers
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`like Zhang, Gupta, and Chien was to make copies available no later than the last day
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`of a conference, id. ¶¶ 11–13, as Dr. Gupta stated in his original declaration, Ex.
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`1010 ¶¶ 18, 21, 24. Thus, MacPherson confirms that IEEE made the papers available
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`to conference attendees, published the references in print, and made the references
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`available through IEEE’s Xplore no later than the critical date, as Dr. Gupta and Mr.
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`Munford stated in their original declarations.
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`The submitted information also includes supplemental testimony from Rajesh
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`K. Gupta, Ph.D., the author or co-author of each of the references. See Ex. 1030. Dr.
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`Gupta confirms—as stated in his original declaration—that Exhibits 1003, 1004, and
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`1005 are true and correct copies of his articles, which are the Zhang, Gupta, and
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`Chien references. Ex. 1030 ¶ 13; see also Ex. 1010 ¶¶ 20, 23, 26. Dr. Gupta presents
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`supplemental testimony on the public accessibility of these references that is
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`consistent with his prior testimony. For example, Dr. Gupta previously testified that
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`each reference was published by IEEE, made available to conference attendees, and
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`was made available through IEEE Xplore. Ex. 1010 ¶¶ 18–26. The proffered
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`testimony provides additional information and clarification on each point. For
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`example, he further confirms, based on his personal knowledge, that each article was
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`included in the IEEE printed publication that was distributed to attendees of each
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`respective conference, and that each article was subsequently made available online
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`and in libraries. Ex. 1030 ¶¶ 5, 8, 11; see also Ex. 1010 ¶¶ 18–26.
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`Finally, the supplemental information includes additional testimony by Jacob
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`Robert Munford, an expert on material authentication and public accessibility, as
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`well as declarations supporting the chain-of-custody of additional references that
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`were retrieved from libraries at Mr. Munford’s direction. Exs. 1028, 1029, 1031. Mr.
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`Munford further confirms the public accessibility and searchability of the references.
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`Ex. 1031. For example, Mr. Munford reviewed library copies of each reference that
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`were previously unavailable due to COVID-19 related library restrictions. Id. ¶¶ 17–
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`19, 22–23, 38–40, 54–57. Mr. Munford testifies that the library copies, collection of
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`MARC records (both prior records and supplemental records), and the copyright
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`registrations for each reference confirm his testimony that each reference was
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`publicly available through libraries before the alleged priority date. Id. ¶¶ 20–69; see
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`also Ex. 1012 ¶¶ 20, 26, 32. Mr. Munford also testifies that each reference’s public
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`availability through libraries is corroborated by authenticated publication details
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`listed on the IEEE Xplore website. Ex. 1031 ¶¶ 70–71. Mr. Munford further testifies
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`that the references were publicly available through the IEEE Xplore platform before
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`the alleged priority date based on the accessibility, searchability, keyword indexing,
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`and cataloging provided by the Xplore during the time frame in which the references
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`were available on that platform. Id. ¶¶ 72–88.
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`This motion and the proposed exhibits are consistent with the efficient
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`administration of this proceeding and the Board’s ability to complete this proceeding
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`in a timely manner. The proposed exhibits merely confirm the accuracy of the
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`publication date cited in the Petition; they do not change the nature of any of the
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`instituted grounds, nor do they change the original assertion that the references were
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`publicly available through conference distribution, IEEE publication availability in
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`libraries, and access through IEEE Xplore all prior to the critical date, as initially
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`presented in the Petition to support those grounds. In-Depth Geophysical, Inc. v.
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`ConocoPhillips Co., IPR2019-00850, Paper 27 at 3 (PTAB Dec. 5, 2019). Petitioner
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`has also not delayed in presenting this supplemental information. Intel already
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`served Exhibits 1027-1031 on Patent Owner on March 31, 2021, and Intel requested
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`authorization to file this motion less than a month after institution, see Ex. 3003.
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`Thus, the supplemental information allows for further development of the record on
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`the issue of public accessibility, and if allowed into the record at this juncture, Patent
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`Owner will have a full and fair opportunity to respond to the submitted evidence in
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`its principal brief. E.g., ClearOne, Inc. v. Shure Acquisition Holdings, Inc.,
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`IPR2019-00683, Paper 32 at 7 (PTAB Nov. 6, 2019); Palo Alto Networks, Inc. v.
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`Juniper Network, Inc., IPR2013-00369, Paper 37 at 5 (PTAB Feb. 5, 2014).
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`For similar reasons, Patent Owner will not be unfairly burdened or
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`significantly prejudiced by granting this motion. The exhibits merely confirm the
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`accuracy of the publication status of Zhang, Gupta, and Chien cited in the Petition.
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`“Having now challenged the prior art status of these references, Patent Owner cannot
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`complain that Petitioner seeks to rebut its assertions with additional evidence.”
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`Nevro Corp. v. Boston Scientific Neuromodulation Corp., IPR2019-01315, Paper 20
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`at 4–5 (PTAB Mar. 25, 2020); see also Baker Hughes Inc. v. Packers Plus Energy
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`Services, Inc., IPR2016-00598, Paper 86 at 3 (PTAB Dec. 4, 2019) (“Having
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`submitted evidence of public accessibility sufficient to demonstrate a reasonable
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`likelihood of prevailing, Petitioner’s response to Patent Owner’s attack with
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`additional evidence bolstering its public accessibility contention is foreseeable,
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`reasonable, and not unduly prejudicial to Patent Owner.”). Moreover, Intel served
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`Exhibits 1027-1031 on Patent Owner on March 31, 2021, and Intel files this motion
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`well in advance of the deadline for Patent Owner’s Response. Thus, Patent Owner
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`is not prejudiced by granting this motion. E.g., Palo Alto Networks, Inc. v. Juniper
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`Network, Inc., IPR2013-00369, Paper 37 at 5 (PTAB Feb. 5, 2014) (“Given that
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`Patent Owner already has possession of the supplemental information, there is little,
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`if any, prejudice to Patent Owner if the information is allowed into the record.
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`Moreover, if we allow the supplemental information into the record at this juncture,
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`Patent Owner will have sufficient time to address the supplemental information
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`before filing its Patent Owner Response.”); Nevro, IPR2019-01315, Paper 20 at 5
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`(“Patent Owner will have a full and fair opportunity to challenge, and respond to,
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`this newly submitted evidence in the Patent Owner Response.”).
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`The Board has granted similar opposed motions to submit supplemental
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`information confirming the public accessibility of prior art used in the instituted
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`grounds when authorization was requested within a month of institution. E.g., Palo
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`Alto Networks, IPR2013-00369, Paper 37 at 3 (granting motion despite Patent
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`Owner’s argument that supplemental information comprising nine exhibits could
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`have been presented in Petition); see also Apple, Inc. v. Uniloc 2017, LLC, IPR2019-
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`00251, Paper 23 at 5–6 (PTAB July 20, 2020) (granting motion despite Patent
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`Owner’s argument that Petitioner failed to explain why information could not have
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`been obtained earlier); Nevro, Paper 20 at 4–5 (granting motion despite Patent
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`Owner’s argument that it would be prejudiced by supplemental information
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`comprising twenty exhibits); In-Depth Geophysical, IPR2019-00850, Paper 27 at 3
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`(granting-in-part motion as it relates to public accessibility despite Patent Owner’s
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`arguments because the supplemental information does not change the nature of the
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`grounds and Patent Owner will have ample opportunity to respond in its Response);
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`Baker Hughes, IPR2016-00598, Paper 86 at 3 (granting motion despite Patent
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`Owner’s argument that the supplemental information is new evidence of public
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`accessibility); ClearOne, IPR2019-00683, Paper 32 at 7 (granting-in-part motion as
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`to thirteen exhibits related to public availability of two references despite Patent
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`Owner’s arguments of prejudice that it injects new evidence after feedback from the
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`POPR and Institution Decision); Apple Inc. v. VirnetX Inc., IPR2015-00810, Paper
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`21 at 8 (PTAB Nov. 2, 2015) (granting motion despite Patent Owner’s argument that
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`adding nine exhibits totaling almost 900 pages was prejudicial). Accordingly, the
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`Board should grant Intel’s motion for similar reasons.
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`B.
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`Patent Owner’s anticipated arguments in opposition are unavailing.
`At the April 13 conference regarding Intel’s request for authorization to file
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`this motion, see Paper 18, Patent Owner raised various arguments in opposition to
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`the motion, but none of those arguments support denying Intel’s motion.
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`For example, Patent Owner mischaracterizes Exhibits 1030 and 1031 as
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`voluminous, comprising hundreds of pages of testimony that amounts to
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`“replacement declarations” rather than supplemental declarations and citing Yamaha
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`Golf Car Co. v. Club Car, LLC, IPR2017-02141, Paper 40 (PTAB Dec. 4, 2018), as
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`support. But the combined supplemental testimony in these exhibits is less than
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`twenty-eight pages. Dr. Gupta’s supplemental declaration (Ex. 1030) comprises only
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`five pages of testimony followed by appendices of numerous corroborating copies
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`of Zhang, Gupta, and Chien. Similarly, Mr. Munford’s supplemental declaration
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`(Ex. 1031) comprises only 31 pages of testimony, much of which includes prior
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`testimony as context that shows how the supplemental information corroborates his
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`prior analysis and conclusions. Compare Ex. 1012 ¶¶ 1–32 (discussing the basis for
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`opinion and analyzing public accessibility of Zhang, Gupta, and Chien) with Ex.
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`1031 ¶¶ 1–5, 7–14, 17, 20, 29–31, 33–34, 36, 46–48, 50-52, 63–65, 68–69
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`(corroborating prior testimony with supplemental information). The remaining
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`pages are appendices related to his curriculum vitae, MARC records, numerous
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`corroborating copies of Zhang, Gupta, and Chien, and other corroborating
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`information. Mr. Munford’s supplemental testimony therefore amounts to less than
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`19 pages on physical library copies and their corresponding MARC records,
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`copyright registration records, and IEEE Xplore search, cataloging, and indexing
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`functionality. Ex. 1031 ¶¶ 6, 15–16, 18–19, 21–28, 32–35, 37–45, 49–51, 53–62,
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`66–88. Thus, Patent Owner’s emphasis on page count is misleading. See Apple,
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`IPR2015-00810, Paper 21 at 5–6 (granting motion despite PO’s argument that
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`almost 900 pages of supplemental information was prejudicial because need to
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`respond was more limited).
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`Moreover, Patent Owner’s reliance on Yamaha is misplaced. The petitioner in
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`that case expressly sought to replace the technical expert’s original declaration with
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`a new 122-page declaration and nine new prior art references to provide
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`supplemental information on motivation to modify, point of novelty, and the state of
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`the art—a “significant change from the evidence originally presented in support of
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`the petition.” See Yamaha Golf, IPR2017-02141, Paper 40 at 5–7 (emphasis added).
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`Here, in contrast, the supplemental testimony relates to publication status and only
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`corroborates—and is consistent with—prior testimony that these references were
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`publicly accessible through conference attendance, IEEE published copies available
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`in libraries, and IEEE Xplore. See Ex. 1010 (Gupta) ¶¶ 18–26, Ex. 1012 (Munford)
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`Id. ¶¶ 20, 26, 32. Thus, Yamaha Golf is inapposite.
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`Patent Owner also misleadingly argues that the proposed exhibits are
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`inefficient and burdensome by allegedly requiring five additional depositions. Two
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`exhibits are merely chain-of-custody declarations related to the retrieval of library
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`copies of Zhang, Gupta and Chien, with little to no substantive testimony that
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`warrants cross examination. See Exs. 1028, 1029. Two exhibits are supplemental
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`declarations by witnesses that provided original testimony with the petition, see Ex.
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`1030, 1031, and each would only need to be cross examined once for their original
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`and supplemental testimony. Thus, it is more efficient to address each at this juncture
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`than in reply. Pacific Market Int’l, LLC. v. Ignite USA, LLC., IPR2014-00561, Paper
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`23 at 4 (PTAB Dec. 2, 2014) (“Making the Supplemental Declaration of record now
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`increases the likelihood that the record will be developed more fully with a minimum
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`number of depositions and without additional motion practice.”). The remaining
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`exhibit comprises two pages of substantive testimony by one witness that acts as a
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`custodian of records for IEEE. See Ex. 1027. Thus, the proposed exhibits only
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`introduce one additional witness for potential cross examination and making these
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`exhibits of record now is more efficient than if they are introduced later in reply.
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`Patent Owner also incorrectly contends that the supplemental information
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`introduces “new theories” of public availability. To the contrary, Intel established in
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`the originally submitted evidence that each of Zhang, Gupta, and Chien were
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`publicly accessible to conference attendees (Ex. 1010 ¶¶ 18, 21, 24), available as
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`printed publications in libraries (Ex. 1010 ¶¶ 19, 22, 25; Ex. 1012 ¶¶ 20, 26, 32), and
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`were publicly accessible through IEEE’s Xplore website (Ex. 1010 ¶¶ 19, 22, 26).
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`The evidence submitted here corroborates that previously-submitted evidence and
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`bases for establishing the public accessibility of Zhang, Gupta, and Chien.
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`Finally, Patent Owner wrongly contends that Intel’s submission is untimely
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`and that Intel must establish that the supplemental information could not have been
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`reasonably obtained earlier. The Board has repeatedly noted that, unlike motions
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`under § 42.123(b) or (c), a motion to file supplemental information under § 42.123(a)
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`is not required to show why the supplemental information could not have been
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`reasonably obtained earlier. See, e.g., Hulu, LLC v. Sound View Innovations, LLC,
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`IPR2018-01039, Paper 29, at 8 (PTAB Precedential Panel Dec. 20, 2019) (“After
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`institution, there is also an opportunity for the petitioner to move to submit
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`supplemental information under 37 C.F.R. § 42.123. Unless this motion is filed
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`within one month of institution, the petitioner must show ‘why the supplemental
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`information reasonably could not have been obtained earlier.’ 37 C.F.R. § 42.123(b)
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`and (c)”); Apple, IPR2019-00251, Paper 23 at 6 (rejecting Patent Owner’s argument
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`that § 42.123(a) requires Petitioner to address why information could not have been
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`obtained earlier); Palo Alto Networks, IPR2013-00369, Paper 37 at 3 (PTAB Feb. 5,
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`2014) (“We agree with Petitioner that whether ‘supplemental information
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`reasonably could have been obtained earlier’ is a requirement under § 42.123(b) and
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`(c)—not a requirement under § 42.123(a).”). Intel has not withheld evidence. To the
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`contrary, Intel served Exhibits 1027-1031 on Patent Owner on March 31, 2021, and
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`Intel files this motion well in advance of the deadline for Patent Owner’s Response.
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`Intel could not have anticipated whether or how Patent Owner would challenge each
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`reference’s public accessibility, and the Federal Circuit has confirmed that the
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`interest of justice supports admitting evidence when the opponent has an opportunity
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`to respond and produce contrary evidence. Telefonaktiebolaget LM Ericsson v. TCL
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`Corp., 941 F.3d 1341, 1345–46 (Fed. Cir. 2019). Moreover, as explained in Mr.
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`Munford’s original and supplemental declarations, libraries and other institutions
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`were closed due to the global pandemic at the time of the Petition, making physical
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`copies of the references unobtainable at that time. See Exs. 1012, 1031. Thus, Intel’s
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`motion is timely and complies with the requirements of § 42.123(a).
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`III.
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` CONCLUSION
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`Accordingly, Petitioner respectfully requests that the Board grant Petitioner
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`permission to file Exhibits 1027–31 as supplemental information.
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`Dated: April 28, 2021
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`Respectfully submitted,
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`By: /s/ Brian C. Nash
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`Brian C. Nash (Reg. No. 58,105)
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701
`Telephone: (512) 580-9629
`Facsimile: (512) 580-9601
`Email: brian.nash@pillsburylaw.com
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`Counsel for Petitioner Intel Corporation
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`CERTIFICATE OF COMPLIANCE
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`I hereby certify
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`that
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`the
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`foregoing MOTION TO SUBMIT
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`SUPPLEMENTAL INFORMATION PURSUANT TO 37 C.F.R. § 42.123(a)
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`complies with the page limitation of 37 C.F.R. § 42.24(a)(v) because it is no more
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`than fifteen pages.
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`I further certify that the foregoing Motion complies with the general format
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`requirements of 37 C.F.R. § 42.6(a) and has been prepared using Microsoft Word
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`2016 in 14-point Times New Roman proportional font.
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`April 28, 2021
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`By: /s/ Brian C. Nash
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`Brian C. Nash (Reg. No. 58,105)
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701
`Telephone: (512) 580-9629
`Facsimile: (512) 580-9601
`Email: brian.nash@pillsburylaw.com
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true copy of “PETITIONER’S MOTION TO
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`SUBMIT SUPPLEMENTAL INFORMATION PURSUANT TO 37 C.F.R. §
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`42.123(a)” was served electronically via e-mail on April 28, 2021, in its entirety on
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`the following:
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`Jay P. Kesan, Reg. No. 37,488
`DIMUROGINSBERG, PC
`DGKEYIP GROUP
`1750 Tyson’s Blvd. Suite 1500
`Tysons Corner, VA 22102
`jkesan@dimuro.com
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`Ari Rafilson, Reg. No. 58,693
`Shore Chan DePumpo LLP
`901 Main Street, Suite 3300
`Dallas, TX 75202
`arafilson@shorechan.com
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`Dated: April 28, 2021
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`
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`By: /s/ Brian C. Nash
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`
`Brian C. Nash (Reg. No. 58,105)
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701
`Telephone: (512) 580-9629
`Facsimile: (512) 580-9601
`Email: brian.nash@pillsburylaw.com
`
`Counsel for Petitioner Intel Corporation
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