`April 15, 2021
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`IPR2021-00633
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`XILINX, LLC,
`Petitioner,
`v.
`FG SRC LLC,
`Patent Owner.
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`IPR2021-00633
`Patent No. 7,149,867
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`PATENT OWNER FG SRC LLC’S
`OPPOSITION TO PETITIONER’S MOTION FOR JOINDER
`AND
`MOTION FOR ADDITIONAL DISCOVERY
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`Paper No. 7
`April 15, 2021
`Petitioner submitted a Motion for Joinder to Intel Corporation, v. FG
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`SRC LLC, IPR2021-01449 (the “Intel IPR”) along with its Petition in the
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`present IPR which mirrors the petition in the Intel IPR. Petitioner’s Motion for
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`Joinder should be denied, and separately, its Petition should be dismissed as
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`time barred. In the alternative, Patent Owner requests authorization to file a
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`narrowly tailored Motion for Additional Discovery to fully develop the record
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`before the Board regarding the RPI relationship between time barred party
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`Amazon and current petitioner Xilinx.
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`1. FACTUAL BACKGROUND
`Xilinx’s petition concerns U. S. No. 7,149,867 (“’867 patent”).
`1.
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`Xilinx has previously filed a petition for IPR of U. S. No. 9,153,311 (“’311
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`patent”). Xilinx has been well-aware of these patents for a long time.
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`2.
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`On or around February 22, 2013, counsel for SRC Computers sent
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`a notice letter to Xilinx advising that “Our client has recently become aware of
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`Xilinx’ Zynq-7000 All Programmable SoC devices which are stated to integrate
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`an ARM® dual-core Cortex™-A9 CPU as an application processor unit in
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`conjunction with programmable logic. From the information presently
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`available to us, these devices may possibly involve SRC Computers’ patented
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`technology.”
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`3.
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`Between July 2015 and November 2015, SRC Computers and
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`Xilinx communicated regarding a potential acquisition by Xilinx of SRC
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`Computers and/or its intellectual property (“IP”). Persons involved on behalf
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`of Xilinx included Greer Person, Ron Satori, Nate Gazdik, Michael White, and
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`Ivo Bolsens. Persons involved on behalf of SRC Computers included Brandon
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`Freeman and Jon Huppenthal.
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`4.
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`A third party, 3LP Advisors, LLC (“3LP”), assisted with
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`discussions on behalf of SRC Computers.
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`5.
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`To assist Xilinx in reviewing SRC Computers’ patent portfolio,
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`3LP provided Xilinx with a list of SRC Computers’ IP, including the ’867
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`patent and, on information and belief, the ’311 patent, around Oct. 1, 2015.
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`6.
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`After breakdown of the negotiations, the ’867 patent and the ’311
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`patent were asserted against Xilinx’s customers Amazon.com, Inc. and
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`Amazon Web Services, Inc. (“Amazon”) in: SRC Labs, LLC et al., v. Amazon
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`Web Services, Inc., et al., No. 1:17-cv-01227 (E.D. Virginia), filed Oct. 18,
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`2017; SRC Labs, LLC et al., v. Amazon Web Services, Inc., et al., No. 2:18-cv-
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`00317 (W.D. Washington), filed Feb. 26, 2018; and SRC Labs, LLC et al. v.
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`Amazon Web Services, Inc. et al., Case No. 2:17-00547 (E.D. Virginia), filed
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`Oct. 18, 2017.1 In each of these cases, Patent Owner alleged that Amazon’s
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`1 Case No. 2-17-00547 was consolidated with Case No. 1-17-cv-01227, and the
`consolidated case was transferred to the Western District of Washington in Case No.
`2:18-cv-00317 on February 26, 2018.
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`products infringe the ’867 patent and the ’311 patent based on its usage of
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`Xilinx FPGA products. Upon information and belief, Xilinx has closely
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`cooperated with Amazon in its defense.
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`7.
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`Patent Owner’s complaints against Amazon included—as Exhibit
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`G—a publicly available claim chart demonstrating how the Amazon
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`Defendants’ product EC2 F1 Instance infringed the ’867 patent based on its
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`usage of a Xilinx UltraScale+ FPGA. Patent Owner’s complaints against
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`Amazon also included—as Exhibit J—a publicly-available claim chart showing
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`how the Amazon Defendants’ product EC2 F1 Instance infringed the ’311
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`patent based on its usage of a Xilinx UltraScale+ FPGA.
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`8.
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`On or around January 8, 2018, SRC Labs, LLC served Xilinx with
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`a subpoena in the Amazon Case. That subpoena explicitly referenced the ’867
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`patent and the ’311 patent.
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`9.
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`Upon information and belief, Amazon and Xilinx then cooperated
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`in their defense against and attack on Patent Owner’s intellectual property. In
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`a divide-and-conquer strategy, Xilinx filed an IPR captioned Xilinx, Inc. v.
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`Saint Regis Mohawk Tribe et al., IPR2018-01395 on July 13, 2018 challenging
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`the ’311 patent which had not yet been directly asserted against Xilinx (“Xilinx
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`’311 petition”). Amazon followed with an IPR captioned Amazon.com, Inc., et
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`al., v. St. Regis Mohawk Tribe et al., IPR2019-00103 on October 19, 2018
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`challenging the ’867 patent (“Amazon ’867 petition”). In its petition, Xilinx
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`noted the complaint against the Amazon Defendants and admitted that
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`“Amazon and Xilinx have a customer/supplier relationship” and that “Xilinx
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`UltraScale+ FPGAs and its Vivado Design Suite are referenced in the SRC
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`Labs complaint . . . .” The Xilinx ’311 petition was denied on Jan. 23, 2019.
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`IPR2018-01395, Paper No. 17. Similarly, the Amazon petition challenging the
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`’867 patent was denied on May 10, 2019. IPR2019-00103, Paper No. 22.
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`10. Upon information and belief, Amazon and Xilinx have at least one
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`indemnity agreement relating to the Xilinx products alleged of infringing the
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`’867 patent and the ’311 patent.
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`2. DISCRETIONAL DENIAL OF JOINDER IS JUSTIFIED
`The discretionary nature of joinder is designed to avoid gamesmanship
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`and prejudice to the Patent Owner. Proppant Express Investments, LLC, et al.,
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`v. Oren Tech., LLC, IPR2018-00914, Paper 38 at 11 (PTAB, March 13, 2019).
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`Congress’ intent in establishing the AIA proceedings was “to provide a
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`cheaper, faster alternative to district court litigation” that could “be used instead
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`of, rather than in addition to, civil litigation.” 157 Cong. Rec. S1363 (daily ed.
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`Mar. 8, 2011) (statement of Sen. Schumer).
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`Particularly when a time bar under 35 U.S.C. § 315(b) exists, the Board
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`will only exercise its discretion to grant joinder under § 315(c) in limited
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`circumstances. Proppant, IPR2018-00914, Paper 38 at 16. This narrow
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`exercise may be justified where, for example, a patent owner has taken certain
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`actions in a co-pending litigation (e.g., the late addition of newly asserted
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`claims). Id. at 19. No such action has been taken here by the Patent Owner.
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`Rather, Petitioner seeks to circumvent the § 315(b) time bar through its Petition
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`and Motion for Joinder to the Intel IPR. Patent Owner served its patent
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`infringement complaint on Amazon in October 2017. Petitioner’s Motion for
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`Joinder thus comes years after the §315(b) IPR deadline.
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`A. PETITIONER IS A TIME-BARRED RPI OR PRIVY TO
`AMAZON
`Amazon should have been listed as an RPI or privy to Xilinx’s ’867
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`petition. That would have time-barred the petition. To avoid this outcome,
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`Amazon and Xilinx appear to have been cooperating to take multiple shots at
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`Patent Owner’s intellectual property. Determining an RPI relationship requires
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`“a flexible approach... with an eye toward determining whether the non-party
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`is a clear beneficiary that has a preexisting, established relationship with the
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`petitioner.” Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336,
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`1351 (Fed. Cir. 2018) (“AIT”) (emphasis added); Ventex Co., Ltd. v. Columbia
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`Sportswear N.A. Inc., IPR2017-00651, Paper 148 at 6 (PTAB Jan. 24, 2019).
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`Close analysis of the interconnected relationship between Amazon and Xilinx
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`is required in this case to determine whether or not they are operating
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`independently in light of the circumstantial evidence to the contrary. The
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`sophisticated coordination of Amazon and Xilinx’s efforts supports the
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`conclusions that Amazon is an RPI.
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`Privity between two parties is a separate inquiry that can be established
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`by any one of a non-exhaustive list of factors including: “(1) an agreement
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`between the parties to be bound; (2) pre-existing substantive legal relationships
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`between the parties; (3) adequate representation by the named party; (4) the
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`non-party’s control of the prior litigation; (5) where the non-party acts as a
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`proxy for the named party to relitigate the same issues; and (6) where special
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`statutory schemes foreclose successive litigation by the non-party (e.g.,
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`bankruptcy and probate).” Taylor v. Sturgell, 533 U.S. 880, 894-94 (2008);
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`Ventex, IPR2017-00651, Paper 148 at 12. Amazon and Xilinx’s coordinated
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`behavior supports the presumption that a pre-existing substantive legal
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`relationship exists between the parties based on the supply contract with likely
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`indemnity provisions. Amazon and Xilinx’s coordinated effort makes it highly
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`likely that Xilinx is attempting to assume the role of non-party Amazon as a
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`proxy to relitigate the same issues Amazon did and could have previously
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`raised. See RPX Corp. v. Applications in Internet Time, LLC, IPR2015-0170,
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`Paper 128 at 30-38 (PTAB Oct. 2, 2020).
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`B. JOINDER WOULD INTRODUCE NEW ISSUES INTO THE
`INTEL IPR
`A motion for joinder should (1) set forth reasons why joinder is
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`appropriate; (2) identify any new grounds of unpatentability asserted in the
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`petition; (3) explain what impact, if any, joinder would have on the trial
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`schedule for the existing review; and (4) address specifically how briefing and
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`discovery may be simplified. See Kyocera Corp. v. Softview LLC, Case
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`IPR2013-00004, slip op. at 4 (PTAB Apr. 24, 2013) (Paper 15).
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`Although Xilinx asserts that is has filed a “substantively identical
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`petition and concurrent request for joinder in an understudy role” only,
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`allowing Xilinx to join the Intel IPR would raise substantial new issues
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`regarding whether Xilinx is a RPI and/or privy of Amazon. Under similar
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`circumstances, the Board denied a motion for joinder. See Unified Patents Inc.,
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`v. C-Cation Technologies, LLC, IPR2015-01045, Paper 15 at 7 (“if we institute
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`review based on the Petition and grant Petitioner’s Motion for Joinder, the real
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`party-in-interest issue potentially could sidetrack the joined proceeding,
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`shifting the focus away from the substantive issue to be addressed—the
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`patentability of claims 1, 3, and 4 of the ’883 patent.”). The same reasoning
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`applies here. Due to the overarching RPI issue, “joinder . . . could complicate,
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`rather than simplify, briefing and discovery in the [PRIMARY] IPR”). Id.
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`Here, the uncanny cooperation displayed in Amazon and Xilinx’s divide-and-
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`conquer approach of cooperative inter partes proceedings supports that
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`additional RPI/privy issues must be explored.
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`3. IN THE ALTERNATIVE, THE BOARD SHOULD GRANT
`ADDITIONAL DISCOVERY ON THE RPI ISSUE
`Alternatively, Patent Owner proposes discovery that is narrowly tailored
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`to two requests for production of non-public documents relating to Xilinx’s
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`supplier contract with the Amazon and a narrow category of communications
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`with Amazon about any matters relating to the ’867 and ’311 patents. As
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`discussed below, an order requiring Xilinx to produce this additional discovery
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`meets the Garmin factors and will aid in demonstrating that institution of this
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`IPR is barred by 35 U.S.C. §315(b).
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`A. DOCUMENTS REQUESTED
`Patent Owner requests discovery that goes to the status of Xilinx as a
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`RPI and/or privy of Amazon. This evidence directly pertains to this IPR
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`petition regarding the ’867 patent because: (1) Xilinx failed to name all RPIs in
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`its petition, as required by 37 C.F.R. §42.8(b)(1); and (2) this IPR petition is
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`time-barred by 35 U.S.C. §315(b) because RPI Amazon was served with a
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`complaint for patent infringement more than a year prior to the filing of this
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`petition. Specifically, Patent Owner seeks the following documents: (1) the
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`supplier contract[s] and any amendments or supplements thereto between
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`Amazon and Xilinx concerning the products specifically identified and accused
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`in the Amazon litigations; (2) any communications between Amazon and
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`Xilinx relating to the ’867 or ’311 patents, the products specifically identified
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`and accused in the Amazon litigations between Oct. 18, 2017 (filing date of the
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`first Amazon suit) and Mar. 15, 2021 (filing date of the current Petition); and
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`(3) any confidentiality, joint defense, or indemnification agreements related to
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`the Amazon litigations. The requested discovery is intended to be narrowly-
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`tailored to documents going to Xilinx’ status as a RPI and/or privy of Amazon.
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`B. THE INTERESTS OF JUSTICE SUPPORT PRODUCTION
`The Board applies a five factor “necessary in the interest of justice”
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`standard when deciding whether to grant additional discovery. See Garmin
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`Int’l, Inc. v. Cuozzo Speed Techs. LLC, IPR2012-00001, Paper No. 26, slip op.
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`at 6–7 (PTAB Mar. 5, 2013). In that context, the Consolidated Trial Practice
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`Guide (November 2019) states that discovery is frequently sought regarding
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`identifying RPIs. In particular, discovery as to RPI status is appropriate where
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`it is “narrowly tailored to communications ‘regarding the preparation or filing
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`of the . . . IPRs.’” Id. at 28.
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`i. There is more than a possibility or mere allegation that
`the requested discovery will yield useful information.
`Amazon’s and Xilinx’s actions strongly indicate that: (1) they have a
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`supplier contract which likely includes indemnity provisions concerning the
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`products accused of infringement in the Amazon litigations; (2) the ’867 patent
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`at issue in this IPR Petition was asserted in in the Amazon litigation and applies
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`to products made by Xilinx that are being used by its customer, Amazon; and
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`(3) based on its commonality of interests with Amazon, Xilinx filed an IPR
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`against the ’311 patent (which was denied) even though it had not been asserted
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`against Xilinx, while Amazon, on the other hand, filed a corresponding IPR
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`against the ’867 patent (which was also denied). Xilinx would have had no
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`reason to challenge either the ’311 patent or the current ’867 patent other than
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`to comply with its contractual obligations, to protect its products supplied to
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`Amazon, and to avoid adverse impacts from rulings in the Amazon litigations.
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`These facts fully support production of the relevant supplier agreement(s) and
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`the requested communications between Amazon and Xilinx under the RPI and
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`privity precedents of the Federal Circuit and the Board. Patent Owner’s
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`discovery requests, therefore, are “necessary in the interest of justice.” 35
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`U.S.C. §316(a)(5).
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`Importantly, Patent Owner does not have the burden of prove that it will
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`ultimately prevail on its § 315(b) argument. Instead, Patent Owner’s only
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`burden is to show that the requested discovery is “favorable in substantive value
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`to a contention of the party moving for discovery,” not just “relevant” or
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`“admissible.” Garmin, IPR2012- 00001, Paper No. 26, at 7.
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`The law regarding RPI has drastically changed recently. This change
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`began with the Federal Circuit’s ruling that “Congress intended for [RPI] to
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`have an expansive formulation.” Applications in Internet Time, LLC v. RPX
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`Corp., 897 F.3d 1336, 1350 (Fed. Cir. 2018). This expansive formulation is
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`described as: “the focus of the real-party-in-interest inquiry is on the
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`patentability of the claims challenged in the IPR petition, bearing in mind who
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`will benefit from having those claims canceled or invalidated.” Id. at 1348
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`(emphasis added). As the Board held in its precedential Ventex decision, this
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`“beneficiary” analysis is key to the RPI inquiry. See Ventex Co. v. Columbia
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`Sportswear N. Am., Inc., IPR2017- 00651, Paper No. 148, at 7-8 (PTAB Jan.
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`24, 2019) (finding a RPI relationship where a supplier and customer had
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`“mutual interest in the continuing commercial and financial success of each
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`other” and the customer was a “clear beneficiary” of the IPR). Here, there is
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`no doubt that Xilinx and Amazon have a specific contractual relationship
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`concerning products at issue in the Amazon litigations, and that the supplier
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`contract creates a commonality of interest in invalidation of the ’867 patent
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`challenged in this Petition. This likely explains the coordinated divide-and-
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`conquer approach Amazon and Xilinx have taken in their distributed attacks on
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`the ’867 and ’311 patents.
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`On privity, “‘[t]he legislative history [of the Leahy-Smith America
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`Invents Act (‘AIA’)] . . . lends support to the conclusion that ‘privity’ in §
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`315(b) should be given its common law meaning.’” Power Integrations, Inc.
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`v. Semiconductor Components Indus. LLC, 926 F.3d 1306, 1315 (Fed. Cir.
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`2019) (quoting WesternGeco LLC v. ION Geophysical Corp., 889 F.3d 1308,
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`1315 (Fed. Cir. 2018)). “The general definition of privity is ‘[t]he connection
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`or relationship between two parties, each having a legally recognized interest
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`in the same subject matter (such as a transaction, proceeding, or piece of
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`property).’” Applications in Internet Time, 897 F.3d at 1359 (quoting Privity,
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`Black’s Law Dictionary (10th ed. 2014)). The Supreme Court in Taylor v.
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`Sturgell, 553 U.S. 880, 894-95 (2008), provided a list of non-exhaustive factors
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`to consider for a privity analysis (the “Taylor Factors”), including:
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`(1) an agreement between the parties to be bound;
`(2) pre-existing substantive legal relationships between the parties;
`(3) adequate representation by the named party;
`(4) the non-party’s control of the prior litigation;
`(5) where the non-party acts as a proxy for the named party to relitigate
`the same issues; and
`(6) where special statutory schemes foreclose successive litigation by the
`non-party (e.g., bankruptcy and probate).
`Importantly, the Board in the precedential Ventex decision held that
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`“[a]nalysis under any one of the factors can support a finding of privity.”
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`Ventex, IPR2017- 00651, Paper 148, at 12 (citing Applications in Internet Time,
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`897 F.3d at 1360, 1363 (emphasis added)). Further, the Federal Circuit held in
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`Power Integrations that RPI and privity relationships must be evaluated up to
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`the time of institution. 926 F.3d at 1314. Here, the supplier contract between
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`Amazon and Xilinx alone meets
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`the “pre-existing substantive
`legal
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`relationships between the parties” standard in the Taylor Factors, which under
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`Ventex is sufficient to establish a privity relationship. Xilinx should not be
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`permitted to deny privity without disclosing its supplier agreement[s] to Patent
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`Owner and the Board. To do so would force Patent Owner and the Board to
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`accept Xilinx’s factual assertions and legal conclusions without any ability to
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`test or verify them. Similarly, Patent Owner believes that the specific requested
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`communications between Amazon and Xilinx will go to the extent of Amazon’s
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`coordination and common efforts with Xilinx, which again goes to several of
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`the Taylor Factors, including the proxy factor. In view of all this, it is not
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`credible for Xilinx to assert that production of the supplier agreement and the
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`requested communications will not be useful here.
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`Finally, the requested discovery is useful because it goes to the threshold
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`question of whether the IPR Petitions are time-barred. Section § 315(b)
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`provides:
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`An inter partes review may not be instituted if the petition requesting
`the proceeding is filed more than 1 year after the date on which the
`petitioner, real party in interest, or privy of the petitioner is served
`with a complaint alleging infringement of the patent.
`Here, if Amazon is a RPI or privy of Xilinx, since Amazon was sued for
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`infringement of the ’867 patent and served more than a year before the IPR
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`Petition was filed, institution is barred based on the express and unambiguous
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`language of § 315(b). Thus, the first Garmin factor is met here.
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`ii. Patent Owner Does Not Seek To Uncover Any Party’s
`Litigation Position
`Patent Owner’s request for production does not seek any party’s
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`litigation positions. Patent Owner’s request for the specific communications is
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`focused on whether those communications took place, because their existence
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`goes to the RPI and/or privy relationship with Amazon.
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`iii. The Requested Documents Are Not Public
`Patent Owner is not able to obtain the requested information through any
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`other reasonable means.
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`iv. Patent Owner’s Instructions Are Easily Understandable
`Patent Owner’s requests are straightforward. Patent Owner seeks only:
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`(1) the supplier contract[s] and any amendments or supplements thereto
`between Amazon and Xilinx concerning the Xilinx UltraScale+
`FPGA and Vivado Design Suite;
`(2) any communications between Amazon and Xilinx relating to the
`’867 or ’311 patents, or the products specifically identified and
`accused in the Amazon litigations (i.e., the Xilinx UltraScale+ FPGA
`and Vivado Design Suite) between Oct. 18, 2017 (the filing date of
`the first Amazon suit) and March 15, 2021 (the filing date of the
`current Petition); and
`(3) any confidentiality, joint defense, or indemnification agreements
`related to the Amazon litigations.
`These instructions are clear and easily understandable and, if necessary,
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`Patent Owner can work with Xilinx to provide any requested clarification.
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`v. Patent Owner’s Requests Are Narrowly Tailored And
`Not Overly Burdensome
`Patent Owner’s requested discovery is limited to the relevant contracts,
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`and particular communications regarding the ’867 and ’311 petitions limited to
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`a particular relevant timeframe. The narrowly tailored nature of this discovery
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`ensures that Xilinx will not suffer an undue burden in complying with the
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`requests. These instructions are very limited in scope and, if necessary, Patent
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`Owner can work with Xilinx to refine the specifically requested information.
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`C. TIMING OF PRODUCTION
`Patent Owner requests that Xilinx be ordered to produce the relevant
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`materials in time to allow Patent Owner to include its analysis thereof in its
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`patent owner preliminary response on June 25, 2021.
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`4. CONCLUSION
`For the above reasons, Xilinx’s Motion for Joinder should be denied.
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`Alternatively, Patent Owner requests additional discovery to allow Patent
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`Owner to develop a complete record of the relationship between time-barred,
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`non-party Amazon and Petitioner Xilinx for the Board.
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`Date: April 15, 2021
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`Respectfully submitted,
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`
`
`/Jay P. Kesan /
`Jay P. Kesan, Reg. No. 37,488
`jkesan@dimuro.com
`DIMUROGINSBERG, PC
` DGKEYIP GROUP
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`
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`/Ari Rafilson /
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`
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`Ari Rafilson, Reg. No. 58,693
`arafilson@shorechan.com
`SHORE CHAN, LLP
`901 Main Street, Suite 3300
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`1750 Tyson’s Blvd., Suite 1500
`Tysons Corner, VA 22102
`Telephone: (703) 289-5118
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`Paper No. 7
`April 15, 2021
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`Dallas, TX 75202
`Telephone: (214) 593-9110
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`Attorneys for Patent Owner
`FG SRC LLC
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`Paper No. 7
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e)(4) and 42.25(b), the undersigned certifies that on
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`April 15, 2021, a complete copy of Patent Owner FG SRC LLC’s Opposition to
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`Petitioner’s Motion for Joinder and Motion for Additional Discovery was filed
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`electronically through the Patent Trial and Appeal Board’s PTABE2E System and
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`provided, via electronic service, to the Petitioner by serving the correspondence
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`address of record as follows:
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`David Hoffman
`Kenneth W. Darby
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
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`Dated: April 15, 2021
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`/Jay P. Kesan /
`Jay P. Kesan
`Reg. No. 37,488
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`17
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