`571-272-7822
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`Paper No. ___
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`Sand Revolution II, LLC
`Petitioner
`
`v.
`
`Continental Intermodal Group-Trucking LLC
`Patent Owner
`____________
`
`Case IPR2019-01393
`Patent 8,944,740
`____________
`
`
`SUPPLEMENTAL BRIEF
`
`Respectfully submitted,
`LATHROP GPM LLP
`
`/Anna M. Quinn/
`Anna M. Quinn, Reg. No. 72,744
`A. Justin Poplin, Reg. No. 53,476
`2345 Grand Blvd., Ste. 2400
`Kansas City, Missouri 64108
`Phone: 913-451-5100
`
`
`
`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 1
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`
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`TABLE OF CONTENTS
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` Page
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`I.
`II.
`
`INTRODUCTION .......................................................................................... 1
`ARGUMENT .................................................................................................. 2
`A.
`There is very little potential for a district court stay. ........................... 2
`B.
`The district court’s trial date is months before any final
`decision. ................................................................................................ 6
`The district court’s and parties’ investment in the parallel
`litigation is substantial. ......................................................................... 7
`This proceeding and the parallel litigation involve common
`issues..................................................................................................... 8
`Petitioner is a defendant in the parallel action. .................................... 8
`E.
`No other circumstances warrant upsetting the Denial Decision. ......... 8
`F.
`III. CONCLUSION ............................................................................................. 10
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`C.
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`D.
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`i
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 2
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`
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Apple, Inc. v. Fintiv, Inc.,
`IPR2020-00019, Paper 11 (P.T.A.B. Mar. 20, 2020) ..................................passim
`Arthrex, Inc. v. Smith & Nephew, Inc.,
`941 F.3d 1320 (Fed. Cir. 2019) ............................................................................ 8
`E-One, Inc. v. Oshkosh Corp.,
`IPR2019-00161, Paper 16 (P.T.A.B. May 15, 2019) ..................................... 8, 10
`Ford Motor Co. v. Mass. Inst. of Tech.,
`IPR2020-00012, Paper 10 (P.T.A.B. Mar. 26, 2020) ..................................... 2, 10
`General Plastic Industrial Co. v. Canon Kabushiki Kaisha,
`IPR2016-01357, Paper 19 (P.T.A.B. Sept. 6, 2017) ........................................... 10
`Intuitive Surgical, Inc. v. Ethicon LLC,
`IPR2018-01703, Paper 7 (P.T.A.B. Feb. 19, 2019) .............................................. 9
`Motion Games, LLC v. Nintendo Co.,
`2014 WL 11678661 (E.D. Tex. Sept. 23, 2014) ............................................... 4, 5
`Multimedia Content Mgmt. v. Dish Network,
`No. 6:18-cv-00201 (W.D. Tex. May 30, 2019) (Ex. 2024) .................................. 5
`MV3 Partners, LLC v. Roku, LLC,
`No. 18-cv-308 (W.D. Tex. July 19, 2019) (Ex. 2023).......................................... 5
`Nat’l Oilwell Varco, L.P. v. Omron Oilfield & Marine, Inc.,
`2013 WL 6097571 (W.D. Tex. June 10, 2013) .................................................... 4
`NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc.,
`IPR2018-00752, Paper 8 (P.T.A.B. Sept. 12, 2018) ....................................passim
`Precision Planting, LLC v. Deere & Co.,
`IPR2019-01044, Paper 17 (P.T.A.B. Dec. 2, 2019) ............................................. 8
`Signal IP, Inc. v. Volkswagen Grp. of Am., Inc.,
`2015 WL 5764831 (C.D. Cal. May 26, 2015) ...................................................... 2
`ii
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`
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 3
`
`
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`
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S. Ct. 1514 (2017) ........................................................................................ 10
`Telemac Corp. v. Teledigital, Inc.,
`450 F. Supp. 2d 1107 (N.D. Cal. 2006) ................................................................ 5
`Universal Elecs., Inc. v. Universal Remote Control, Inc., 943 F. Supp.
`2d 1028, 1030–31 (C.D. Cal. 2013) ...................................................................... 4
`Statutes
`35 U.S.C. § 314(a) ........................................................................................... 1, 9, 10
`35 U.S.C. § 315(b) ..................................................................................................... 9
`Other Authorities
`PTAB Standard Operating Procedure 2 ..................................................................... 9
`PTAB Consolidated Trial Practice Guide (Nov. 2019) ........................................... 10
`
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`
`iii
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 4
`
`
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`
`
`I.
`INTRODUCTION
`Patent Owner Continental Intermodal Group-Trucking LLC (“CIG”)
`
`respectfully submits this supplemental brief pursuant to the Board’s April 7, 2020
`Order (Paper 19), directing the parties to address the application of six factors
`relating to discretionary denial under NHK Spring Co., Ltd. v. Intri-Plex Techs.,
`Inc., IPR2018-00752, Paper 8 (P.T.A.B. Sept. 12, 2018) (precedential).
`For the reasons explained in CIG’s preliminary response (Paper 8), and
`elaborated upon below, every single factor supports discretionary denial. This
`proceeding involves the same parties, same patent, same claims, same invalidity
`references, and nearly identical invalidity arguments as the parallel district court
`action. The district court trial is scheduled to occur on November 9, 2020, at least
`five months before any final written decision by the Board.
`Moreover, due to the advanced stage of the district court action, the parties
`and the district court have expended significant resources in that forum. The
`district court issued its Markman order ten months ago—rejecting the same claim
`constructions advanced by Petitioner here, and rejected again in the Board’s
`February 5, 2020 decision denying review (Paper 12) (“Denial Decision”). And in
`the past eighteen months, CIG has served initial and final infringement
`contentions, Petitioner has served initial and final invalidity contentions (and
`multiple sets of amended contentions), the parties have engaged in extensive
`written discovery and third-party discovery, produced over 30,000 documents,
`taken eight fact depositions, and prepared opening expert reports.
`The Board therefore did not abuse its discretion in denying review under 35
`1
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`
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 5
`
`
`
`
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`U.S.C. § 314(a). The Board’s denial rightly conserves the Board’s finite resources
`and promotes efficiency and fairness. To disturb that Order would burden the
`Office’s already limited resources, and would be contrary to Congress’s intent to
`“establish a more efficient and streamlined patent system that will improve patent
`quality and limit unnecessary and counterproductive litigation costs.” Ford Motor
`Co. v. Mass. Inst. of Tech., IPR2020-00012, Paper 10 at 20 (P.T.A.B. Mar. 26,
`2020) (quotation omitted).
`II. ARGUMENT
`All of the NHK factors support discretionary denial, as detailed below.
`A. There is very little potential for a district court stay.
`Petitioner asserts that courts “frequently stay proceedings before them when
`
`the Board institutes IPR review,” but it is speculation to assume that the district
`court would grant a stay here. In fact, given the advanced stage of the litigation, a
`stay is very unlikely, which is perhaps why Petitioner has not sought a stay.
`
`The district court action commenced in August 2018—a year and eighth
`months ago, which is more than “an amount of time that courts have considered
`indicative of an advanced stage in the proceedings that weighs against entry of a
`stay.” Signal IP, Inc. v. Volkswagen Grp. of Am., Inc., 2015 WL 5764831, at *3
`(C.D. Cal. May 26, 2015) (denying stay in case pending “for over a year”) (citing
`cases); Ex. 2009.1 Moreover, CIG sent notices of infringement even earlier, in
`April, May, and June 2018. Exs. 2010–2012.
`
`
`1 A list of CIG’s exhibits is provided as Exhibit 2008, per Rule 42.63(e).
`2
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`
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 6
`
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`The parties and the district court have expended significant effort and
`resources during the nearly two-year pendency of the district court action. The
`parties briefed Petitioner’s motion to dismiss in September and October 2018, and
`the court denied that motion in April 2019. Ex. 2009. The parties served initial
`infringement and invalidity contentions in November and December 2018,
`respectively. Exs. 2013–2014. CIG filed a motion to compel Petitioner to
`sufficiently identify its invalidity contentions and bases on April 5, 2019, and in
`response Petitioner served amended initial invalidity contentions on April 19,
`2019. Exs. 2009, 2015. The parties completed Markman briefing in April 2019,
`and in June 2019 the district court held a Markman hearing and issued a Markman
`order construing the claims at issue—the same claims at issue in this proceeding.
`Ex. 1011. Since then, the parties have exchanged final infringement and invalidity
`contentions, and have twice briefed motions by Petitioner to serve amended final
`invalidity contentions—one of which remains pending. Exs. 2005–2006, 2009,
`2016.
`
`In addition, since October 2018, the parties have served and responded to
`eight sets of interrogatories, nine sets of requests for production, and two sets of
`requests for admission, and have served dozens of third-party subpoenas for
`documents and deposition testimony. Exs. 2017–2019. And they have produced
`(and reviewed) more than 30,000 documents, taken eight fact depositions, and
`prepared opening expert reports. Ex. 2020.
`Further, although the district court recently extended the case schedule
`(discussed in Section II.B, infra), the bulk of fact discovery had already been
`3
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 7
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`completed, with only a handful of fact depositions remaining. And as the schedule
`currently stands, fact discovery will conclude on May 1, 2020, expert discovery
`will conclude on July 17, 2020, dispositive motions will be fully briefed by
`September 25, 2020, and trial will begin on November 9, 2020. Ex. 2021.
`If the Office were to grant Petitioner’s Request for Rehearing, and institute
`review, a final written decision would not be expected to issue until April 2021 at
`the earliest—five months after trial in the district court action. And that is
`assuming that the Office issues a decision on Petitioner’s Request within the next
`two weeks. In all likelihood, this proceeding will not be resolved until May or even
`June 2021—six or seven months after trial in the parallel action—without taking
`into account any extensions of the Office’s statutory deadline.
`District courts routinely deny stays in cases as advanced, or even less
`advanced, than the district court action here—particularly where, as here, claim
`construction is complete. See, e.g., Motion Games, LLC v. Nintendo Co., 2014 WL
`11678661, at *3 (E.D. Tex. Sept. 23, 2014) (denying stay, even though IPR had
`been instituted, where case was twenty months old, court had held Markman
`hearing, and trial was scheduled for one year later), adopted, 2014 WL 11709443
`(E.D. Tex. Oct. 30, 2014); Nat’l Oilwell Varco, L.P. v. Omron Oilfield & Marine,
`Inc., 2013 WL 6097571, at *1 (W.D. Tex. June 10, 2013) (denying stay pending
`IPR during Markman briefing because “[i]t would be a waste of judicial resources
`to stay the case now, when the matter is so close to issuance of a Markman order”
`(citing Universal Elecs., Inc. v. Universal Remote Control, Inc., 943 F. Supp. 2d
`1028, 1030–31 (C.D. Cal. 2013))).
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`4
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 8
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`Such courts recognize that a patent owner has “an interest in the timely
`enforcement of its patent rights,” and that staying litigation is unfairly prejudicial
`to the extent it delays a patent owner’s opportunity to enforce its patent rights
`against competitors. Motion Games, 2014 WL 11678661, at *3; Universal, 943 F.
`Supp. 2d at 1033–34. Given that the district court trial is set to occur months in
`advance of any final decision here, a stay would undoubtedly prejudice CIG’s
`interest in timely enforcement. Id.
`A stay is also unlikely to significantly simplify the issues in dispute, given
`that the district court is already familiar with the ‘740 Patent and already construed
`the claims at issue. See, e.g., Telemac Corp. v. Teledigital, Inc., 450 F. Supp. 2d
`1107, 1111 (N.D. Cal. 2006) (denying stay pending reexamination where court was
`“already familiar with some of Telemac’s patents”).
`
`A stay is made even less likely given that Judge Alan Albright—who
`presides over the district court action—generally does not stay litigation in favor of
`PTAB proceedings, based on patentees’ “constitutional right to assert their patent.”
`Ex. 2022. Indeed, Judge Albright has denied motions to stay under circumstances
`similar to those here. See, e.g., MV3 Partners, LLC v. Roku, LLC, No. 18-cv-308
`(W.D. Tex. July 19, 2019) (denying stay at Markman hearing, after IPR had been
`instituted) (Ex. 2023); Multimedia Content Mgmt. v. Dish Network, No. 6:18-cv-
`00201 (W.D. Tex. May 30, 2019) (denying stay one month after Markman
`hearing) (Ex. 2024). In one such case, Judge Albright noted that the defendant’s
`nine-month delay in filing its IPR petition was “a factor” in the denial. Ex. 2024 at
`3. Here, Petitioner waited eleven months to file its Petition—after it had served
`5
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 9
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`initial and amended invalidity contentions, after the court had construed the claims,
`and after a trial date had been set. This factor weighs heavily in favor of
`discretionary denial.
`B.
`The district court’s trial date is months before any final decision.
`As shown above, the district court trial is scheduled to occur on November
`
`9, 2020, at least five months (and more realistically six to seven months) before
`any final decision from the Board would be due. “If the court’s trial date is earlier
`than the projected statutory deadline, the Board generally has weighed this fact in
`favor of exercising authority to deny institution under NHK.” Apple, Inc. v. Fintiv,
`Inc., IPR2020-00019, Paper 11 at 9 (P.T.A.B. Mar. 20, 2020).
`
`That the district court schedule, including the trial date, has twice been
`extended since the Denial Decision does not warrant departure from this general
`rule. First and foremost, as shown above, the proximity of the district court trial to
`the Board’s statutory deadline—five months—remains unchanged since the Denial
`Decision.
`Second, Petitioner initially proposed these extensions, first to accommodate
`“client and attorney schedules” and then to “postpone attorney and witness travel
`for depositions” in light of the COVID-19 pandemic. Exs. 2025–2026. Petitioner’s
`proposals to extend the district court schedule should not afford it grounds for
`reconsideration of the Denial Decision, and CIG should not be prejudiced by
`accommodating these proposals. Granting Petitioner’s Request for Rehearing on
`this basis would incentivize petitioners unhappy with a denial of institution to
`simply manufacture grounds for reconsideration by forcing some delay in parallel
`6
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 10
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`litigation. Requests for rehearing should not be mechanisms for such
`gamesmanship and opportunism, nor should they afford litigants an opportunity to
`simply “update” arguments that were already unsuccessful.
`Third, there is no reason to believe that the COVID-19 pandemic will further
`delay trial, let alone by more than five months. Trials set on or after May 1, 2020
`have not been continued, and Judge Albright has made clear he will not continue
`hearings but rather will hold them telephonically. Ex. 2027. Judge Albright has
`also announced that he is “pretty certain” that a trial scheduled in another patent
`case before him “is going to go forward” in July 2020. Ex. 2022. This factor, too,
`favors discretionary denial.
`
`C. The district court’s and parties’ investment in the parallel
`litigation is substantial.
`As shown above, the district court issued its Markman order ten months ago,
`
`which alone “indicate[s] that the court and parties have invested sufficient time in
`the parallel proceeding to favor denial.” Apple, Paper 11, at 10. In addition, the
`parties have exchanged initial and final infringement and invalidity contentions;
`briefed motions relating to Petitioner’s amended invalidity contentions; engaged in
`extensive written and document discovery, and third-party discovery; taken eight
`fact depositions; and prepared opening expert reports. Moreover, Petitioner did not
`file its Petition expeditiously, but “wait[ed] until the district court trial ha[d]
`progressed significantly,” thereby imposing “unfair costs” on CIG. Id. at 11. This
`factor favors discretionary denial, as well.
`
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`7
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 11
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`D. This proceeding and the parallel litigation involve common issues.
`As shown in CIG’s preliminary response, and just as in NHK, this
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`proceeding involves the same patent, same claims, same invalidity references, and
`nearly identical invalidity arguments as the district court action. And the terms
`Petitioner proposes for construction here have been construed by the district court.
`Thus, as the Denial Decision recognized, “[t]he issues, evidence, and argument
`presented in the Petition essentially duplicate what has been and continues to be
`litigated in the Parallel District Court Case.” E-One, Inc. v. Oshkosh Corp.,
`IPR2019-00161, Paper 16 at 7 (P.T.A.B. May 15, 2019); see Apple, Paper 11, at
`12; Denial Decision at 17–18. This factor also favors discretionary denial.
`E.
`Petitioner is a defendant in the parallel action.
`This factor unquestionably supports discretionary denial because Petitioner
`
`is also a defendant in the district court action.
`F. No other circumstances warrant upsetting the Denial Decision.
`Petitioner’s Request for Rehearing does not address the NHK factors, but
`
`rather argues that NHK was “wrongly decided” and that discretionary denial cannot
`be based solely on parallel litigation. These arguments cannot properly be
`considered here. NHK is a precedential Board decision, as of May 7, 2019, and
`therefore is “binding on all future panels of the Board.”2 Arthrex, Inc. v. Smith &
`
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`2 Notably, Petitioner cites only one Board decision dated after NHK was
`designated as precedential—Precision Planting, LLC v. Deere & Co., IPR2019-
`01044, Paper 17 (P.T.A.B. Dec. 2, 2019). And in one decision cited by Petitioner,
`8
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 12
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`Nephew, Inc., 941 F.3d 1320, 1330 (Fed. Cir. 2019); see also PTAB Standard
`Operating Procedure 2, at 11. Authority lies exclusively with the Precedential
`Opinion Panel to consider these arguments, and that Panel has declined review
`(Paper 18). The Office should therefore decline to consider these arguments.
`Yet even if the Office were to consider these arguments, they are meritless.
`First, Petitioner’s argument that discretionary denial in view of parallel litigation
`negates the one-year filing period under 35 U.S.C. § 315(b) ignores that
`discretionary denial under § 314(a) necessarily means denial of a timely-filed
`petition, based on a “balanced assessment of all relevant circumstances of the
`case”—i.e., the NHK Factors. Apple, Paper 11, at 5. Petitioner’s argument focuses
`myopically on one factor—factor two, relating to the timing of trial relative to the
`timing of a final written decision—while ignoring all others.
`Second, Petitioner erroneously assumes that discretionary denial based on
`parallel litigation equates to denial on “grounds that are entirely outside of a
`petitioner’s control.” On the contrary, each of the NHK factors turn on
`developments that are at least partially within the petitioner’s control—e.g., the
`timing of the petition, investment in the parallel litigation, and overlap in issues.
`
`
`the panel suggested that its decision might have been different had it been obliged
`to follow NHK as binding authority, but at that time NHK “ha[d] not been
`designated as either precedential or informative under Patent Trial and Appeal
`Board Standard Operating Procedure 2.” Intuitive Surgical, Inc. v. Ethicon LLC,
`IPR2018-01703, Paper 7 at 12 n.7 (P.T.A.B. Feb. 19, 2019).
`9
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 13
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`Third, Petitioner’s argument that NHK encourages forum shopping is
`misplaced in light of TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S.
`Ct. 1514 (2017), which limits proper venue to the defendant’s place of
`incorporation or regular and established place of business. Petitioner admits that it
`is a Texas limited liability company with its principal place of business in Midland,
`Texas, and therefore also admits that venue is proper in the Western District of
`Texas. Exs. 2028 ¶¶ 2, 5; 2029 ¶¶ 2, 5.
`Fourth, Petitioner is wrong in asserting that parallel litigation alone cannot
`be the basis for discretionary denial under § 314(a). The Board has rejected the
`notion that “the legislative history indicates an intent to limit discretion under §
`314(a), such that it is subordinate to or encompassed by § 325(d).” General Plastic
`Industrial Co. v. Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 at 19
`(P.T.A.B. Sept. 6, 2017) (precedential). And the Office has denied petitions under
`NHK even absent grounds under § 325(d). Ford Motor, Paper 10 at 19–23; E-One,
`Paper 16 at 4–9; see also Apple, Paper 11, at 3 n.2 (parallel litigation is “separate”
`basis from § 325(d)); PTAB Consolidated Trial Practice Guide at 58 (Nov. 2019)
`(parallel litigation is “other reason[]” supporting discretionary denial).
`Accordingly, this factor favors discretionary denial, as well.
`III. CONCLUSION
`For the foregoing reasons, and for the additional reasons stated in CIG’s
`preliminary response, CIG requests that the Office deny Petitioner’s Request for
`Rehearing.
`
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`10
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 14
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of CIG’s supplemental brief,
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`Exhibits 2008 through 2029, and Certificate of Service was served on Petitioner on
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`April 13, 2020, by e-mailing a copy to the attorneys of record at the following
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`addresses pursuant to Petitioner’s consent to e-mail service.
`
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`James D. Stein (Reg. No. 63,782)
`LEE & HAYES P.C.
`james.stein@leehayes.com
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`32520132v.5
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`Naveen Modi (Reg. No. 46,224)
`Chetan R. Bansal (Ltd. Rec. No. L0667)
`PAUL HASTINGS LLP
`naveenmodi@paulhastings.com
`chetanbansal@paulhastings.com
`
`Armon B. Shahdadi (Reg. No. 70,728)
`Ben D. Bailey (Reg. No. 60,539)
`Brannon C. McKay (Reg. No. 57,491)
`Leonard J. Weinstein (Reg. No. 69,562)
`CLAYTON, MCKAY & BAILEY, PC
`armon@cmblaw.com
`ben@cmblaw.com
`brannon@cmblaw.com
`leonard@cmblaw.com
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`/Anna M. Quinn/
`Anna M. Quinn, Reg. No. 72,744
`LATHROP GPM LLP
`2345 Grand Blvd., Suite 2400
`Kansas City, Missouri 64108
`(913) 451-5100
`patent@lathropgpm.com
`
`11
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`Volkswagen Group of America, Inc., Exhibit 1009
`Volkswagen Group of America, Inc. v. StratosAudio, Inc., IPR2021-00721 - Page 15
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