`
`IPR2021-00985
`U.S. Patent No. 7,292,835
`Patent Owner’s Preliminary Response
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________
`
`
`
`TCL INDUSTRIES HOLDINGS CO., LTD., HISENSE CO., LTD., and ZYXEL
`COMMUNICATIONS CORP.
`Petitioners,
`
`v.
`
`ParkerVision, Inc.
`Patent Owner.
`
`U.S. Patent No. 7,292,835
`Issue Date: November 6, 2007
`Title: WIRELESS AND WIRED CABLE MODEM APPLICATIONS OF
`UNIVERSAL FREQUENCY TRANSLATION TECHNOLOGY
`__________________________________________________________________
`
`Inter Partes Review No. IPR2021-00985
`
`__________________________________________________________________
`
`PATENT OWNER’S PRELIMINARY RESPONSE TO PETITION FOR
`INTER PARTES REVIEW OF UNITED STATES PATENT NO. 7,292,835
`
`
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`
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`TABLE OF CONTENTS
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`
`
`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`THE BOARD SHOULD EXERCISE ITS DISCRETION AND DENY
`INSTITUTION UNDER 35 U.S.C. § 314(a) AND 37 C.F.R. § 42.108(b) .... 2
`
`A.
`
`B.
`
`C.
`
`D.
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`E.
`
`F.
`
`Factor 1—The District Court Has Not Granted A Stay, And There Is
`No Evidence That The District Court Will Grant A Stay Even If A
`Proceeding Is Instituted ......................................................................... 4
`
`Factor 2—Because The Texas Cases Will Be Tried Close To The
`Board’s Projected Statutory Deadline For A Final Written Decision,
`The Board Should Deny Institution ...................................................... 6
`
`Factor 3—The Parties And The Court Have Invested Significant
`Resources In The Texas Cases, Favoring Discretionary Denial ........... 6
`
`Factor 4—Significant Overlap Between Issues Raised In The Petition
`And In The Texas Cases Supports Denial ............................................. 8
`
`Factor 5—The Petitioners and The Defendants in The Parallel
`Proceedings Are the Same Party, Supporting Denial ........................... 9
`
`Factor 6—Other Circumstances That Impact The Board’s Exercise
`Of Discretion Show That Denial Is Appropriate At This Time ..........10
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`III. CONCLUSION ..............................................................................................10
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`i
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`
`Apple Inc. v. Fintiv, Inc.,
`IPR2020-00019, Paper 11 (PTAB Mar. 20, 2020) ....................................... 2, 3, 7
`
`E-One, Inc. v. Oshkosh Corp.,
`IPR2019-00161, Paper 16 (PTAB May 15, 2019) ............................................... 7
`
`Apple Inc. v. Fintiv,
`IPR2020-00019, Paper 15 (PTAB May 13, 2020) ....................................... 6, 7, 9
`
`Google LLC v. Personalized Media Commc’ns, LLC,
`IPR2020-00720, Paper 16 (PTAB Aug. 31, 2020) ............................................... 3
`
`Kerr Machine Co. d/b/a Kerr Pumps v. Vulcan Industrial Holdings,
`LLC,
`6:20-cv-00200 (W.D. Tex. Aug. 2, 2020) ............................................................ 5
`
`Multimedia Content Mgmt. LLC v. Dish Network Corp.,
`No. 6:18-cv-00207-ADA, 2019 U.S. Dist. LEXIS 198875
`(W.D. Tex. Jan. 10, 2019)..................................................................................... 5
`
`Next Caller, Inc. v. TrustID, Inc.,
`IPR2019-00961, Paper 10 (PTAB Oct. 16, 2019) ................................................ 9
`
`NHK Spring Co. v. Intri-Plex Techs., Inc.,
`IPR2018-00752, Paper 8 (PTAB Sept. 12, 2018) ................................................. 3
`
`Nine Energy Service Inc. v. MCS Multistage Inc.,
`IPR2020-01615, Paper 18 (PTAB Mar. 24 2021) ................................................ 8
`
`Vizio, Inc. v. Polaris PowerLED Techs., LLC,
`IPR2020-00043, Paper 30 (PTAB May 4, 2020) ................................................. 9
`
`Statutes
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`35 U.S.C. § 313 .......................................................................................................... 1
`
`35 U.S.C. § 314(a) ............................................................................................. 1, 2, 3
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`ii
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`35 U.S.C. § 316(b) ..................................................................................................... 3
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`iii
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`PATENT OWNER’S EXHIBIT LIST
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`Exhibit No.
`2001
`
`Description
`Complaint, ParkerVision, Inc. v. Hisense Co., Ltd. et al.,
`Case No. 6:20-cv-00870 (WDTX)
`
`2002
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`2003
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`2004
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`2005
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`2006
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`2007
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`2008
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`2009
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`
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`Complaint, ParkerVision, Inc. v. TCL Industries Holdings
`Co., Ltd. et al., Case No. 6:20-cv-00945 (WDTX)
`
`Scheduling Order, ParkerVision, Inc. v. TCL Industries
`Holdings Co., Ltd. et al., Case No. 6:20-cv-00945 (WDTX)
`
`Scheduling Order, ParkerVision, Inc. v. Hisense Co., Ltd. et
`al., Case No. 6:20-cv-00870 (WDTX)
`
`Published Interview of Judge Albright, IAM (Apr. 7, 2020)
`
`Docket Order, Kerr Machine Co. d/b/a Kerr Pumps v.
`Vulcan Industrial Holdings, LLC, No. 6:20-cv-00200 (W.D.
`Tex. Aug. 2, 2020)
`
`Relevant Excerpts of Defendant’s Preliminary Invalidity
`Contentions, filed in ParkerVision, Inc. v. TCL Industries
`Holdings Co., Ltd. et al., Case No. 6:20-cv-00945 (WDTX)
`
`Relevant Excerpts of Defendant’s Preliminary Invalidity
`Contentions, filed in ParkerVision, Inc. v. Hisense Co., Ltd.
`et al., Case No. 6:20-cv-00870 (WDTX)
`
`Hearing transcript from ParkerVision, Inc. v. Intel Corp.,
`Case No. 6:20-cv-00108 (W.D. Texas, Sept. 2, 2020)
`
`iv
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`I.
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`INTRODUCTION
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`Pursuant to 35 U.S.C. § 313 and 37 C.F.R. § 42.107, ParkerVision Inc.
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`(“ParkerVision”) submits this Preliminary Response (“Response”) and respectfully
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`requests the Board to deny the Petition for Inter Partes Review (“Petition”) filed by
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`TCL Industries Holdings Co., Ltd., Hisense Co., Ltd., and ZyXEL Communications
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`Corp. (“Petitioners”) challenging claims 1, 12-15, and 17-20 of U.S. Patent No.
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`7,292,835 (“the ’835 patent”).
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`
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`ParkerVision requests the Board exercise its discretion under 35 U.S.C. §
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`314(a) to deny institution of the Petition because of the advanced state of parallel
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`litigation pending in the Western District of Texas, Nos. 6:20-cv-00870-ADA and
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`6:20-cv-00945-ADA (“the Texas cases”). This is one of two IPRs filed by
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`Petitioners challenging just two of the ten patents-in-suit in the Texas cases. The
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`’835 patent was asserted in complaints filed ten months ago. See Ex. 2001, 2002. In
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`those cases, infringement and invalidity contentions have already been exchanged,
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`claim construction briefs are being filed, a consolidated Markman hearing is
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`scheduled in approximately two months on November 4, 2021, and trial is set for
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`December 12, 2022 (Exs. 2003, 2004)— approximately two weeks after a final
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`written decision would be due if the Board were to institute. Notably, Petitioners
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`raise the same invalidity issues in the District Court as contained in its IPR Petition.
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`1
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`Given the current posture and schedule of the underlying Texas cases, the
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`factors set forth in Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 (PTAB Mar.
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`20, 2020) (precedential) weigh in favor of denying institution of an IPR. The Judge
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`in the Texas cases, Judge Alan D Albright, will not stay the litigation, even if the
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`Petitions are instituted. The ’835 patent is but one of ten patents being litigated, and
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`the Court has already set a trial date despite being aware of the filing of Petitioners’
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`IPR petitions. The Court and parties have already invested significant resources in
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`litigating the Texas cases, and despite what efficiencies Petitioners may urge, the
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`Board’s expenditure of resources will hardly make a dent in simplifying the parallel
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`litigation. Based on the Board’s precedential decisions discussed below, and for the
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`foregoing reasons, institution of the Petition should be denied.
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`II. THE BOARD SHOULD EXERCISE ITS DISCRETION AND DENY
`INSTITUTION UNDER 35 U.S.C. § 314(a) AND 37 C.F.R. § 42.108(b)
`
`ParkerVision sued Petitioners for infringement of the ’835 patent in the
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`Western District of Texas more than ten months ago on September 24, 2020, and
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`October 12, 2020, respectively. See Ex. 2001, 2002. As such, the Texas cases are in
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`an advanced stage and a jury trial will occur approximately two weeks after this
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`Board issues a final written decision. By the November 2022 deadline for this
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`Board’s Final Written decision, Judge Albright will have held a consolidated
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`Markman Hearing, entered a Claim Construction Order covering terms from the
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`2
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`’835 patent, and ruled on dipositive motions. See Exs. 2003, 2004. In fact, as of the
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`filing of this response, the parties have already exchanged infringement and
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`invalidity contentions, and completed a round of claim construction briefing.
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`In the Board’s precedential Fintiv decision, the Board set forth six factors for
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`determining “whether efficiency, fairness, and the merits support the exercise of
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`authority to deny institution in view of an earlier trial date in the parallel
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`proceeding.” Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 at 5-6 (PTAB Mar.
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`20, 2020) (precedential). When evaluating these factors, the Board takes a holistic
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`view of whether efficiency and integrity of the system are best served by denying or
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`instituting review.1 Google LLC v. Personalized Media Commc’ns, LLC, IPR2020-
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`00720, Paper 16 at 5 (PTAB Aug. 31, 2020) (citing Fintiv, IPR2020-00019, Paper
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`11 at 5-6). Here, the Fintiv factors weigh in favor of denying institution. See NHK
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`Spring Co. v. Intri-Plex Techs., Inc., IPR2018-00752, Paper 8 at 20 (PTAB Sept. 12,
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`2018) (precedential) (“Institution of an
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`inter partes review under
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`these
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`circumstances would not be consistent with ‘an objective of the AIA . . . to provide
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`1 Efficient administration of matters weighs against institution in this case. See 35
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`U.S.C. § 316(b). There is no question that the Board has the discretion to deny
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`institution under 35 U.S.C. § 314(a) and that the facts here fit with denial under the
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`Board’s Fintiv precedent and related line of decisions.
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`3
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`an effective and efficient alternative to district court litigation.’” (citation omitted)).
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`As such, the Board should exercise it discretion and deny institution here.
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`
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`Factor 1—The District Court Has Not Granted A Stay, And
`There Is No Evidence That The District Court Will Grant A Stay
`Even If A Proceeding Is Instituted
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`Petitioners have not asked for a stay pending inter partes review, and there is
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`no evidence that Judge Albright would grant a stay even if an IPR were instituted.
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`To the contrary, Judge Albright has repeatedly stated in the public record that he will
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`not stay a case pending an IPR. See, e.g., Ex. 2005 (Published Interview of Judge
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`Albright) (On tending not to stay cases: “I have done that because I think that people
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`have a constitutional right to assert their patent. I mean, patents are in the
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`Constitution, the right to a jury trial is in the Constitution.”).
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`First, the ’835 patent is but one of ten patents being litigated in the Texas
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`cases. Second, the fact that the Court set trial dates for the Texas cases with
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`knowledge of pending IPRs indicates that the Court will not grant a stay. In fact,
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`Judge Albright has emphasized that he has never granted a stay pending an IPR. Ex.
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`2009 (Transcript of September 2, 2020 hearing in ParkerVision, Inc. v. Intel Corp.,
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`6:20-cv-00108) at 15-16 (Judge Albright noting that the number of cases he has
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`stayed pending IPR in the Western District of Texas is zero).
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`Indeed, Judge Albright’s only decision on an opposed motion to stay pending
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`IPR—Multimedia Content Management LLC v. DISH Network LLC— indicates that
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`4
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`a stay of the Texas case would be denied. In Multimedia, Judge Albright denied a
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`motion to stay with similar facts to the Texas cases. There, (1) the defendant filed
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`IPR petitions ten months after filing of the complaint, (2) the court issued a claim
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`construction ruling before the patent owner filed a Preliminary Response, and (3) a
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`jury trial was set three months before the statutory deadline for the Board to issue a
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`final written decision. Multimedia Content Mgmt. LLC v. Dish Network Corp., No.
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`6:18-cv-00207-ADA, 2019 U.S. Dist. LEXIS 198875, at *2 (W.D. Tex. Jan. 10,
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`2019). In denying defendant’s motion to stay, Judge Albright found that a stay would
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`prejudice the plaintiff, ignore the advanced state of the proceedings, and fail to
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`simplify the issues. Id. Likewise in Kerr Machine Co. d/b/a Kerr Pumps v. Vulcan
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`Industrial Holdings, LLC, 6:20-cv-00200 (W.D. Tex. Aug. 2, 2020), Judge Albright
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`recently denied a stay noting, “[e]ven if the PTAB institutes, the Court anticipates
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`that the trial date will occur before the PGR’s final written decision.” Ex. 2009.
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`There is no reason to believe that Judge Albright would reach any different
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`result here. Indeed, the uncontroverted facts in the District Court Litigation
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`demonstrate that a stay will not be granted. In fact, Petitioners state that “no stay has
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`been requested.” Pet., 86. In view of this, and again, given Judge Albright’s explicit
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`statements on the record, as well as his prior rulings in Multimedia and Kerr
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`Machine, it is firmly established that the Court would not grant a stay. For all of
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`these reasons, factor 1 favors discretionary denial.
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`5
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
`Patent Owner’s Preliminary Response
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`Factor 2—Because The Texas Cases Will Be Tried Close To The
`Board’s Projected Statutory Deadline For A Final Written
`Decision, The Board Should Deny Institution
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`Judge Albright has set trial in the Texas case involving the ’835 patent for
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`December 12, 2022. Exs. 2003, 2004. Given that the Board will issue an institution
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`decision by November 26, 2021 (three months after the filing of this Preliminary
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`Response), any final written decision, if instituted, would be entered on or around
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`November 26, 2022. As such, the Texas cases will be tried approximately two weeks
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`after the Board’s projected statutory deadline for a final written decision.
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`Because the Board would issue a final written decision in close proximity to
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`the district court trial date, there would be no offsetting conservation of the district
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`court’s judicial resources. See Fintiv, IPR2020-00019, Paper 15 at 9 (“If the court’s
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`trial date is at or around the same time as the projected statutory deadline or even
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`significantly after the projected statutory deadline, the decision whether to institute
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`will likely implicate other factors discussed herein, such as the resources that have
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`been invested in the parallel proceeding.”).
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`Factor 2, therefore, favors discretionary denial, or is at least neutral.
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`Factor 3—The Parties And The Court Have Invested Significant
`Resources In The Texas Cases, Favoring Discretionary Denial
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`Petitioners trivialize the parties’ and Court’s significant investments of time
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`and resources in the litigation to date by ignoring all the work done and, instead,
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`6
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`mischaracterize the litigation as being in its “preliminary stages.” Pet. at 87. But in
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`doing so, Petitioners ignore Fintiv, where the Board specifically considered “the
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`level of investment and effort already expended on claim construction and invalidity
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`contentions in the District Court” in finding factor 3 weighed in favor of
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`discretionary denial. See Fintiv, IPR2020-00019, Paper 15 at 14 (PTAB May 13,
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`2020).
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`Indeed, the parties have made significant investments in the District Court
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`litigation, and that will only continue as the Board considers institution. Notably, the
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`parties have already completed a round of claim construction briefing2, served
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`lengthy preliminary infringement/invalidity contentions, and exchanged document
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`production. This Board need look no further than Fintiv to see that these types of
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`investments favor discretionary denial. See Fintiv, IPR2020-00019, Paper 11 at 10
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`(“district court claim construction orders may indicate that the court and parties have
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`invested sufficient time in the parallel proceeding to favor denial.”); see also E-One,
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`Inc. v. Oshkosh Corp., IPR2019-00161, Paper 16 at 13, 20 (PTAB May 15, 2019)
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`(denying institution where “district court ha[d] already expended substantial
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`resources” by, among other things, “receiv[ing] briefing and hear[ing] oral argument
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`2 A consolidated Markman Hearing is set for November 4, 2021, weeks before the
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`deadline for the Board’s institution decision.
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`7
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`on claim construction, and issu[ing] a claim construction ruling”); Nine Energy
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`Service Inc. v. MCS Multistage Inc., IPR2020-01615, Paper 18 at 10-11 (PTAB Mar.
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`24 2021) (finding this factor weighed in favor of denying institution despite
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`recognizing “discovery is in the early stages.”).
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`Factor 4—Significant Overlap Between Issues Raised In The
`Petition And In The Texas Cases Supports Denial
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`The overlap between the issues raised in the instant IPR Petition and in the
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`parallel District Court Litigation is substantial. The Petition alleges invalidity of all
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`claims asserted in the District Court Litigation based on overlapping primary
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`references relied upon in the Texas cases. Compare Pet., 17 with Ex. 2007, Ex. 2008.
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`Grounds I and II of this Petition rely on the Hulkko, Gibson, and Schiltz
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`references, which Petitioners also cite in the co-pending District Court Litigations.
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`See Ex. 2007, 8-9 (TCL’s Preliminary Invalidity Contentions identifying Hulkko,
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`Gibson, and Schiltz as prior art); Ex. 2008 at 8-9 (Hisense’s Preliminary Invalidity
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`Contentions identifying Hulkko, Gibson, and Schiltz as prior art). Petitioners also
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`point to the Goldberg and Thacker references (Pet., 17), which are similarly cited in
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`the co-pending Texas cases. See Ex 2007, 10; Ex. 2008, 10. As such, the District
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`Court has substantially the same obviousness allegations pending before it.
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`In addition, all but three claims challenged here (claims 18-20) will be
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`addressed in the District Court Litigation. Tellingly, Petitioners have not offered any
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`8
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`explanation as to why it is necessary for this Board to consider these unasserted
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`additional claims. Indeed, the Board has found that factor 4 favors denial of
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`institution where, as here, a petitioner fails to establish why resolution of additional
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`claims is necessary. See Next Caller, Inc. v. TrustID, Inc., IPR2019-00961, Paper 10
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`at 14 (PTAB Oct. 16, 2019) (exercising discretion to deny institution in view of a
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`district court proceeding even though the Petition addressed more claims because
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`“Next Caller does not argue that the non-overlapping claims differ significantly in
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`some way, nor does Next Caller argue whether it would be harmed if we do not
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`institute on the nonoverlapping claims.’”); Vizio, Inc. v. Polaris PowerLED Techs.,
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`LLC, IPR2020-00043, Paper 30 at 11 (PTAB May 4, 2020) (finding that the presence
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`of additional claims does not weigh against discretionary denial where there is no
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`evidence of harm to petitioner).
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`For the foregoing reasons, factor 4 also supports denial of the Petition.
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`Factor 5—The Petitioners and The Defendants in The Parallel
`Proceedings Are the Same Party, Supporting Denial
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`
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`The parties are the same in the Petition and the Texas cases. As such,
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`Petitioners must concede that this factor favors denial of institution. See Fintiv,
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`IPR2020-00019, Paper 15 at 15 (“Because the petitioner and the defendant in the
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`parallel proceeding are the same party, this factor weighs in favor of discretionary
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`denial.”).
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`9
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`Factor 6—Other Circumstances That Impact The Board’s
`Exercise Of Discretion Show That Denial Is Appropriate At This
`Time
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`There are additional weaknesses with the Petition that favor discretionary
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`denial.3 And as explained above, institution of the present proceedings will also give
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`rise to substantial duplication of efforts. It will not prevent fact discovery, expert
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`discovery, and other disputes that occur in the Texas cases, nor obviate dispositive
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`motions, pre-trial motions, or a trial.
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`For these additional reasons, factor 6 further supports discretionary dismissal.
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`III. CONCLUSION
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`For all of the foregoing reasons, ParkerVision respectfully requests the Board
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`to deny the Petition.
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`3 While this Preliminary Response addresses only the discretionary bases as to why
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`the Board should deny institution, ParkerVision submits that on the merits,
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`Petitioners have not shown that it is likely to prevail as to any of the challenged
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`claims. ParkerVision reserves the right to address, in a Patent Owner Response if
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`required, issues of claim construction not addressed by Petitioners and the failures
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`of the cited art to teach or render obvious the challenged claims.
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`10
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`Dated: August 26, 2021
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`Respectfully submitted,
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`
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`By: /Jason S. Charkow/
`Jason S. Charkow (USPTO Reg. No. 46,418)
`Chandran B. Iyer (USPTO Reg. No. 48,434)
`Stephanie R. Mandir (USPTO Reg. No. 72,930)
`jcharkow@daignaultiyer.com
`cbiyer@daignaultiyer.com
`smandir@daignaultiyer.com
`DAIGNAULT IYER LLP
`8618 Westwood Center Drive
`Suite 150
`Vienna, VA 22182
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`Attorneys for ParkerVision, Inc.
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`11
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`CERTIFICATE OF COMPLIANCE
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`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that this Patent
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`Owner’s Preliminary Response complies with the type-volume limitation of 37
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`C.F.R. § 42.24(b) because it contains 2,561 words, as determined by the word-
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`processing program used to prepare the brief, excluding the parts of the brief
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`exempted by 37 C.F.R. § 42.24(a)(1).
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`Respectfully submitted,
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`By:
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`/Jason S. Charkow/
`Jason S. Charkow
`USPTO Reg. No. 46,418
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`12
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`IPR2021-00985 (U.S. Patent No. 7,292,835)
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing PATENT
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`OWNER’S PRELIMINARY RESPONSE TO PETITION FOR INTER
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`PARTES REVIEW OF UNITED STATES PATENT NO. 7,292,835, together
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`with all exhibits filed therewith, was served in its entirety by filing these documents
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`through the PTAB E2E System, as well as by email on the following counsel of
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`record for Petitioner:
`
`kreed@kilpatricktownsend.com
`tmayle@kilpatricktownsend.com
`mferrario@kilpatricktownsend.com
`mhopkins@sjclawpc.com
`vhao@sjclawpc.com
`TCL_Hisense_ZyXel835IPR@kilpatricktownsend.com
`
`
`
`
`
`Dated: August 26, 2021
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`
`
`
`Respectfully Submitted,
`
`
`
`By:
`
`
`
`
`/Jason S. Charkow/
`Jason S. Charkow
`USPTO Reg. No. 46,418
`
`
`
`
`
`
`
`
`13
`
`
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