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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`TRILLER, INC.,
`Petitioner,
`
`v.
`
`TIKTOK PTE. LTD.,
`Patent Owner.
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`
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`
`
`
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`
`
`Case IPR2022-00180
`Patent 9,992,322 B2
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`___________________
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`
`
`PATENT OWNER’S OPPOSITION TO PETITIONER’S
`MOTION TO SUBMIT SUPPLEMENTAL INFORMATION
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`
`Case IPR2022-00180
`Attorney Docket No. 50048-0016IP1
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`
`I.
`II.
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`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`STANDARD FOR GRANTING A MOTION TO SUBMIT
`SUPPLEMENTAL INFORMATION ............................................................. 1
`III. ARGUMENT ................................................................................................... 3
`A. Ability to depose Dr. Shamos prior to Patent Owner’s Response
`does not justify Triller’s changing of arguments and evidence. ........... 5
`Paragraphs 5-11 of the Supplemental Shamos Declaration
`should not be admitted. ......................................................................... 7
`Paragraphs 12-13 of the Supplemental Shamos Declaration
`should not be admitted. ....................................................................... 10
`Paragraphs 14-16 of the Supplemental Shamos Declaration
`should not be admitted. ....................................................................... 11
`Paragraphs 17-25 of the Supplemental Shamos Declaration
`should not be admitted. ....................................................................... 11
`Paragraphs 26-75 of the Supplemental Shamos Declaration
`should not be admitted. ....................................................................... 14
`IV. CONCLUSION .............................................................................................. 15
`
`B.
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`C.
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`D.
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`E.
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`F.
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`
`
`- i -
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`I.
`
`INTRODUCTION
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`Case IPR2022-00180
`Attorney Docket No. 50048-0016IP1
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`Triller’s request to submit 32 pages of new declaration testimony, with only
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`a month until the Patent Owner’s Response is due, is improper at this point in the
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`proceeding. For the reasons discussed below, the Petitioner’s Motion to Submit
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`Supplemental Information should be denied.
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`II.
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`STANDARD FOR GRANTING A MOTION TO SUBMIT
`SUPPLEMENTAL INFORMATION
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`The PTAB has articulated on numerous occasions that, in addition to
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`satisfying the two requirements set forth by 37 C.F.R. § 42.123(a)1, the Board
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`should also consider if the requester “sufficiently persuaded [the Board] why the
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`supplemental information could not have been filed with the Petition or why
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`granting such a motion would be more than an opportunity to supplement a
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`petition after initial comments or arguments have been laid out by a patent
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`owner.”2 Ooma, Inc. v. Deep Green Wireless LLC, IPR2017-01541, Paper 14 at 2–
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`3 (PTAB Jan. 23, 2018) (citing Pacific Market Int’l, LLC v. Ignite USA, LLC,
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`IPR2014–00561, 2014 WL 6772228, Paper 23 at 3 (PTAB Dec. 2, 2014) (quoted
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`1 37 C.F.R. § 42.123(a) specifies that a motion to submit supplemental information
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`be made within one month of institution, and that the supplemental information be
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`relevant to a claim for which the trial has been instituted.
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`2 All emphasis added unless otherwise noted.
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`
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`1
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`
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`in Redline Detection, LLC v. Star Enivrotch, Inc., 811 F.3d 435, 446–49 (Fed. Cir.
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`Case IPR2022-00180
`Attorney Docket No. 50048-0016IP1
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`2015))) (internal quotations omitted). Indeed, “Petitioner had the burden to present
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`in its Petition information which would show a reasonable likelihood of success.”
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`Id. “Supplemental information is not intended to provide a petitioner an
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`advantageous ‘wait-and-see’ opportunity to use a patent owner’s preliminary
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`response and [the Board’s] decision on institution in order to refine or bolster
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`petitioner’s position.” Id. Requiring the Petitioner to submit such “supplemental
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`information” in the form of supplemental declaration testimony at the time of the
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`Petitioner’s Reply serves the PTAB’s goal of “securing the just, speedy, and
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`inexpensive resolution of every proceeding.” Id., 3–4; see also Rackspace US, Inc.
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`v. PersonalWeb Techs., LLC, IPR2014-00057, Paper 16 at 5–6 (PTAB Apr. 30,
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`2014).
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`A Motion to Submit Supplemental Information is improper in instances in
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`which “the petitioner sought to use the supplemental information to refine or
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`bolster challenges originally presented in the petition.” American Well Corporation
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`v. Teladoc Health, Inc., IPR2021-00748, Paper 23 at 6–7 (PTAB Feb. 28, 2022).
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`But this is exactly the scenario here, where Triller seeks to submit an additional 32
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`pages of declaration testimony directed to issues that not only were readily
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`anticipated, but that were in fact raised (at a cursory level) by the Petition itself.
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`2
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`The Board has been clear that “[t]he filing of a petition for inter partes
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`
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`review should not be turned into a two-stage process.” B/E Aerospace, Inc. v. Mag
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`Aerospace Industries, LLC, IPR2014-01510, Paper 37 at 5 (PTAB May 26, 2015).
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`Allowing Triller to submit 32 additional pages of declaration testimony, addressing
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`nearly every issue covered in the Patent Owner’s Preliminary Response (POPR)
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`and the Institution Decision, would adopt this prohibited two-stage process.
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`Ultimately, granting of Triller’s Motion to Submit Supplemental Information
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`would provide Triller with an improperly “advantageous ‘wait-and-see’
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`opportunity.” Ooma, IPR2017-01541, Paper 14 at 3–4. Denial of Triller’s motion
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`is proper.
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`III. ARGUMENT
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`The 32 page declaration that Triller seeks to enter into the record differs
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`significantly from the types of supplemental information the Board has previously
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`allowed, such as supplemental declarations that “simply correct typographical or
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`clerical errors in the [original declaration], without adding any substantive
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`information to what was intended to be included in the declaration” or information
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`that does not “change the evidence initially presented in the Petition to support
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`those grounds of unpatentability.” DraftKings Inc., v. Interactive Games LLC,
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`IPR2020-01110, Paper 16 at 9 (PTAB Mar. 11, 2021); Group III Int’l, Inc. v.
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`Targus Int’l, LLC, IPR2021-00371, Paper 33 at 6 (PTAB Sept. 17, 2021). Triller
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`3
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`seeks to submit new declaratory evidence, that currently is not cited anywhere in
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`the record, to directly address arguments made in the POPR, even though such
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`issues should have been properly addressed in the Petition. Patent Owner would
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`be unduly prejudiced if Triller were permitted to supplement the arguments made
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`in the Petition by using the arguments and analysis set forth in the POPR and
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`Institution Decision. See, e.g. Merck Sharp & Dohme Corp. v. Microspherix LLC,
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`IPR2018-00393, Paper 21 at 3 (PTAB Sept. 10, 2018) (denying motion to submit
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`supplemental information where petitioner sought to bolster its petition by
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`responding to issues raised in the patent owner’s preliminary response and issues
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`raised in the institution decision); American Well Corporation, IPR2021-00748,
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`Paper 23 at 6–7. Triller has also failed to demonstrate why “submitting the
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`evidence in one of the party’s upcoming briefs is not an option or otherwise
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`inefficient or insufficient.” Samsung Elec. Co., Ltd. et al v. Immersion Corp.,
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`IPR2018-01499, Paper 19 at 3 (PTAB, May 16, 2019).
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`Notably, Triller seeks to introduce more than 50 paragraphs of new
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`declaration testimony directed to priority of the ’322 patent to the May 2007 PCT
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`application. As discussed in more detail below (Infra, III.F), this is not a new or
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`reasonably unanticipated issue. Triller and Dr. Shamos tersely asserted in the
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`Petition that the May 2007 PCT application did not support a priority claim, taking
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`a “wait-and-see” approach that declined to specifically address relevant disclosure
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`4
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`of the May 2007 PCT (including portions that used the same terminology as the
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`claims). Triller’s attempt to submit extensive declaration testimony in response to
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`analysis of the POPR and Institution Decision is precisely the improper use of
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`Supplemental Information that the Board has warned against. Ooma, IPR2017-
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`01541, Paper 14 at 2–3; Rackspace, IPR2014-0057, Paper 16 at 6.
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`Triller’s attempted “wait-and-see” approach is particularly egregious given
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`Triller’s attempt to introduce lengthy declaration testimony while the Petition was
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`near the word count limit (certifying 13,924 words). Pet., Word Count
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`Certification. Allowing Triller to add an additional 32 pages of declaration
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`testimony that extends beyond the Petition’s arguments and that would not have fit
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`into the Petition (without substantial reductions to other portions of the Petition) is
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`highly prejudicial to Patent Owner and amounts to an end run around the word
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`count limits set forth by 37 CFR § 42.24.
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`In addition to the above considerations, which on their own justify denial of
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`the Motion to Submit Supplemental Information, Patent Owner addresses specific
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`points raised in Triller’s Motion.
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`A. Ability to depose Dr. Shamos prior to Patent Owner’s Response
`does not justify Triller’s changing of arguments and evidence.
`Triller’s assertion that Patent Owner would have the opportunity to cross-
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`examine Dr. Shamos in connection with his testimony in the supplemental
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`5
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`declaration (Mot. to Sub. Sup. Inf., 6) does not correct for Triller’s failure to
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`demonstrate why the supplemental information could not have been filed with the
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`Petition or why granting such a motion would be more than an opportunity to
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`supplement a petition after initial comments or arguments have been laid out by a
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`patent owner. First, there is currently no paper of record that cites to Dr. Shamos’s
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`supplemental declaration. It is therefore unclear how Triller plans to rely on this
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`additional testimony in its Petitioner’s Reply (or other papers in the proceeding).
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`Expecting Patent Owner to depose Dr. Shamos with respect to 32 pages of
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`additional testimony without any indication of how Triller plans to use such
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`testimony to support its arguments is unduly prejudicial towards Patent Owner and
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`allows Triller to game the IPR proceeding in a manner not contemplated by the
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`rules.
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`Second, the undue prejudice against Patent Owner is further compounded by
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`the limited period of mere weeks between potential granting of Triller’s motion
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`and Due Date 1. The supplemental declaration of Dr. Shamos was served on
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`Patent Owner only a month before Due Date 1, and a decision on the Motion
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`cannot be rendered until even later. At a minimum, the deposition of Dr. Shamos
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`must occur about a week or more prior to Due Date 1 to allow sufficient time for
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`the transcript to be obtained, reviewed, and cited in the Patent Owner’s Response.
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`Moreover, nothing in the rules contemplates a shortened timeframe of a few weeks
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`6
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`or less for Patent Owner to vet and prepare for deposition on 32 pages of new
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`testimony, in addition to the original 141 pages of testimony by Dr. Shamos
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`already submitted with the Petition. Triller’s request goes too far in ways that
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`unduly prejudice Patent Owner and jeopardize timely resolution of this Proceeding.
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`Third, Triller’s assertion that acceptance of “the Supplemental Declaration
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`of record now” would lead to “a minimum number of depositions” for the
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`proceeding is specious, at best. Mot. to Sub. Sup. Inf., 6. Triller’s Motion will not
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`reduce the number of depositions of Dr. Shamos. Triller has made no assurances
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`that it will not submit additional declaration testimony from Dr. Shamos (or
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`another expert) with its Petitioner’s Reply. Such additional testimony from Dr.
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`Shamos (or another expert) may require further deposition with respect to that
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`testimony.
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`B.
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`Paragraphs 5-11 of the Supplemental Shamos Declaration should
`not be admitted.
`In addition to the reasons for denying the Petitioner’s Motion to Submit
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`Supplemental Evidence in its entirety outlined above, the Motion should be denied
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`with respect to paragraphs 5-11 of the Supplemental Shamos Declaration for the
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`additional reason that “[a] motion to submit supplemental information is not a
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`mechanism to challenge the Board’s claim construction set forth in a Decision on
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`Institution.” Rackspace, IPR2014-0057, Paper 16 at 6; see also ZTE Corp. v.
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`7
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`ContentGuard Holdings, Inc., IPR2013-00139,Paper 27 at 3 (PTAB July 30, 2013)
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`(denying entry of supplemental information where petitioner submitted
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`information in response to Board’s claim construction in the institution decision).
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`As was the case in Rackspace, in the present proceeding, “Petitioner[] already had
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`the opportunity to submit expert declarations concerning claim construction” and
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`“Petitioner[] should have filed all of its expert declarations regarding claim
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`construction with the petition.” IPR2014-0057, Paper 16 at 6.
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`The fact that “Petitioner did not anticipate” that construction of the term
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`“software application” would be at issue (Mot. to Sub. Sup. Inf., 4-6) is due to no
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`fault of the Patent Owner or the Board, but rather due to Triller’s carelessness with
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`reviewing the claims and specification of the ’322 patent. 37 CFR § 42.104(b)(3).
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`The term “software application” appears numerous times throughout the claims,
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`including in nearly every element of claim 1. Furthermore, the ’322 patent
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`includes a clearly identified (and brief) “DEFINITIONS” section which provides
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`lexicographic definitions for a handful of terms. EX1002, 8:6-9:15. The definition
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`of the term “software application” in the ’322 patent is not hidden; it is clearly
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`identified. Yet Triller chose to ignore this straightforward definition for a term that
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`is highly relevant to the challenged claims. EX1002, 8:63-65.
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`Triller’s assertion that it be excused from anticipating construction of
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`“software application” due to capitalization rings hollow. (Mot. to Sub. Sup. Inf.,
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`8
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`4-6). Triller’s assertion ignores the fact that the term “software application” is
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`only capitalized in the “DEFINITIONS” section and appears only in lower-case
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`throughout the remainder of the specification (and claims). See, e.g. EX1002,
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`56:28-29, 59:36-37, 62:10, Claim 1. It would be illogical for the ’322 patent to
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`provide a definition of a term that does not appear anywhere else in the
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`specification. Triller plainly could have anticipated the relevance of the definition
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`of “Software Application” (capitalized) in the “DEFINITIONS” section to the use
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`of the same term “software application” (all lower-case) used throughout the ’322
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`patent. Triller’s omission was not reasonably unanticipated and does not justify
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`submission of supplemental information to challenge the Board’s claim
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`construction. IPR2014-0057, Paper 16 at 6.
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`Furthermore, even if Triller truly believed when preparing the Petition that
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`“Software Application” (capitalized) and “software application” (all lower-case)
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`were two different terms, the fact that these two terms are nearly identical (if not
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`completely identical) flagged to Triller that this issue could have been addressed in
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`the Petition. However, rather than addressing the lexicographic definition of the
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`term “software application” at the appropriate time (in the Petition), Triller is now
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`attempting to change the evidence to address shortcomings in the Petition
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`identified in the POPR. Triller should not be permitted to “change the evidence on
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`which it relied in making its original challenge” with respect to a clear-cut
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`9
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`definition of the term “software application” that was clearly identified as a
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`definition in a “DEFINITIONS” section that Triller chose to ignore when drafting
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`the Petition. American Well Corporation, IPR2021-00748, Paper 23 at 15.
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`C.
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`Paragraphs 12-13 of the Supplemental Shamos Declaration
`should not be admitted.
`In addition to the reasons for denying Triller’s Motion to Submit
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`Supplemental Evidence in its entirety outlined above, the Motion should be denied
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`with respect to paragraphs 12-13 of the Supplemental Shamos Declaration. As
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`addressed above, a clear definition of the term “software application” is provided
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`in the ’322 patent specification itself. EX1002, 8:63-65. Triller therefore should
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`have anticipated, and could have addressed in the Petition, how Abrams’ browser
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`purportedly qualifies as a software application under the definition provided in the
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`’322 patent. Triller should have anticipated that the definition of the term
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`“software application” clearly identified in a “DEFINITIONS” section of the
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`specification is applicable to how that term is interpreted in the claims and
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`addressed such issues in the Petition. Triller also had full access to the prosecution
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`history of the ’132 patent, and indeed submitted it as one of its exhibits. Triller
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`was therefore on notice as to how the term “software application” was interpreted
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`by the examiner to distinguish over the Sittig reference. POPR, 7-8. Arguments
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`with respect to the prosecution history’s effect on the term “software application”
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`10
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`should therefore also have been addressed in the Petition. Such a wholesale
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`change to Triller’s evidence and arguments should not be permitted. American
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`Well Corporation, IPR2021-00748, Paper 23 at 15-17.
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`D.
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`Paragraphs 14-16 of the Supplemental Shamos Declaration
`should not be admitted.
`In addition to the reasons for denying the Petitioner’s Motion to Submit
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`Supplemental Evidence in its entirety outlined above, the Motion should be denied
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`with respect to paragraphs 14-16 of the Supplemental Shamos Declaration. In the
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`Petition, Triller asserted (incorrectly) that the May 2007 PCT application lacked
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`adequate support for claim 6. Pet., 39-40. It was therefore up to Triller to submit
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`evidence regarding its interpretation of such terms with the Petition. And indeed,
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`the Petition cites paragraphs 67-75 of the first Shamos declaration as purportedly
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`supporting its assertions regarding the meaning of the term “track meta-data that is
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`formed as a separate meta-data layer” in claim 35. Pet., 39, fn 3. The additional
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`testimony at paragraphs 14-16 of the Supplemental Shamos Declaration should
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`have been submitted with the Petition as it was Triller that initially identified and
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`pursued this claim construction argument.
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`E.
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`Paragraphs 17-25 of the Supplemental Shamos Declaration
`should not be admitted.
`In addition to the reasons for denying the Petitioner’s Motion to Submit
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`Supplemental Evidence in its entirety outlined above, the Motion should be denied
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`11
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`with respect to paragraphs 17-25 of the Supplemental Shamos Declaration. All
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`issues with respect to whether Abrams “inherently” discloses various features were
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`injected into the proceeding by Triller itself in the Petition. Indeed, the Petition
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`asserts that one or more claim features would have been “inherent” or “inherently”
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`present in the cited references no less than 10 times. Pet., 20-24, 28-30, 41. The
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`burden is on the challenging party to demonstrate that a certain feature is
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`inherently present in the prior art. See e.g., TV Interactive Data Corp. v. Sony
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`Corp., No. C 10-0475 PJH, 2012 WL 6020113 (N.D. Cal. Dec. 3, 2012). At each
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`instance that Triller asserted that a feature was inherent in the prior art, it was up to
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`Triller to present arguments and evidence with the petition to establish such
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`inherency. Here, Triller cannot possibly show “why the supplemental information
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`could not have been filed with the Petition” with respect to issues of inherency
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`raised by Triller itself. Ooma, IPR2017-01541, Paper 14 at 2–3.
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`Furthermore, and perhaps more egregiously, the Supplemental Shamos
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`Declaration raises, for the first time in the proceeding, that it would be “obvious to
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`a POSITA” that Abrams’ cellular phones would have used “a wireless connection”
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`to perform all of the functions recited by the challenged claims. Compare EX1031,
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`¶19 with Pet., 23, 28-30, 32, 42-44. To be clear, in the original Petition, Triller
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`only asserted that “all interactions” between the cellular telephones and the server
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`“inherently occur over a ‘wireless connection’” and never asserted that it would
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`12
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`have been obvious based on Abrams to achieve such functionality. Id. Injection of
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`this new theory that “it would have been obvious to implement Abrams” such that
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`all functions occur over a wireless connection into the proceeding (EX1031, ¶19) is
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`an impermissible changing of the evidence and arguments. See Mot. to Sub. Sup.
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`Inf., 8 (“…whether the claimed subject matter still would have been obvious.”)
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`“This is not simply a case where Petitioner seeks to bolster a position that had
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`already been taken. Rather, without the proffered Supplemental [Shamos]
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`Declaration, Petitioner has not provided any rationale” as to why it would have
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`been obvious to implement Abrams’ cellular phones to perform “all interactions”
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`over a wireless connection. American Well Corporation, IPR2021-00748, Paper 23
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`at 10-12 (“the proposed Supplemental Decl[aration] seeks to change, not
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`supplement, the original arguments and evidence that Petitioner had the burden of
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`identifying with particularity at the initial filing.”), 15-17 (emphasis original).
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`Finally, Triller correctly identifies that the Board “requested the parties to
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`further address” this issue during trial. Mot. to Sub. Sup. Inf., 9. It is unclear how,
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`or even whether, Triller intends to rely upon this additional testimony from Dr.
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`Shamos in the Petitioner’s Reply (or other papers) and therefore is not relevant to
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`how the parties have addressed this issue at the current time. Such testimony on a
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`subject which the Board has requested the “parties” to address should be properly
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`submitted along with the Petitioner’s Reply and not as supplemental information.
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`13
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`F.
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`Paragraphs 26-75 of the Supplemental Shamos Declaration
`should not be admitted.
`In addition to the reasons for denying the Petitioner’s Motion to Submit
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`Supplemental Evidence in its entirety outlined above, the Motion should be denied
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`with respect to paragraphs 26-75 of the Supplemental Shamos Declaration. In the
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`Petition, Triller argued that “[t]here is no disclosure in the . . . PCT application . . .
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`of using a multitasking or multithreaded architecture to balance the computational
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`demands of a DRM (digital rights management) program.” Pet. 38. Triller further
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`asserted that “[t]here is no disclosure in the . . . PCT application of anything that
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`could reasonably be characterized as ‘track meta-data that is formed as a separate
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`meta-data layer.’” Id. Triller supported each of these assertions with citation to a
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`single paragraph of the first Shamos Declaration. Id. Triller should not be
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`permitted to supplement these two paragraphs of testimonial evidence with 50
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`additional paragraphs of testimony at this stage of the proceeding after it has had
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`the benefit of reviewing both the POPR and the Institution Decision.
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`Triller had access to the May 2007 PCT application to which the ’322 patent
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`claims priority, and indeed submitted the PCT application as one of its exhibits.
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`EX1008. The discussions of multitasking, multithreading, DRM (digital rights
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`management), track metadata, and the hierarchical relationship of such track
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`metadata layers in the PCT application addressed in the POPR provide straight
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`14
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`forward support for the recitations of claims 32, 35, and 56. POPR, 26-40. Triller
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`could have very easily keyword searched the May 2007 PCT application for terms
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`appearing in the claims to identify the support cited by the POPR and then
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`subsequently provided, in the Petition, arguments as to why these disclosures did
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`not support one or more claim elements. However, Triller chose not to do so.
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`Triller should not be rewarded for this choice by being allowed to utilize the
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`Motion to Submit Supplemental Information as “an advantageous ‘wait-and-see’
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`opportunity” to address these issues for the first time after first seeing Patent
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`Owner’s arguments in the POPR. Ooma, IPR2017-01541, Paper 14 at 3–4. It is
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`Triller that made the assertion that certain claims of the ’322 patent are allegedly
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`not supported by the disclosures of the May 2007 PCT application and it was
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`therefore Triller’s responsibility to provide arguments and evidence to support
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`such assertions in the Petition itself. Triller should not be rewarded for making
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`such unsupported assertions by being permitted to expand the arguments and
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`evidence of record at this time.
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`IV. CONCLUSION
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`For the above reasons, Triller’s Motion to Submit Supplemental Evidence
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`should be denied.
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`15
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`Respectfully submitted,
`
`/Craig A. Deutsch/
`W. Karl Renner, Reg. No. 41,265
`Dan Smith, Reg. No. 71,278
`Patrick J. Bisenius, Reg. No. 63,893
`Craig A. Deutsch, Reg. No. 69,264
`Kim H. Leung, Reg. No. 64,399
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
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`Attorneys for Patent Owner
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`Date: July 11, 2022
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`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (202) 783-5070
`Facsimile: (877) 769-7945
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`16
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`Case IPR2022-00180
`Attorney Docket No. 50048-0016IP1
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`CERTIFICATION OF SERVICE
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`Pursuant to 37 CFR § 42.6(e), the undersigned certifies that on July 11,
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`2022, a complete and entire copy of this Patent Owner’s Opposition to Petitioner’s
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`Motion to Submit Supplemental Information was provided via email to the
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`Petitioner by serving the correspondence address of record as follows:
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`Chad E. Nydegger (Reg. No. 61,020)
`Brian N. Platt (Reg. No. 62,249)
`David R. Todd (Reg. No. 41,348)
`WORKMAN NYDEGGER
`60 East South Temple, Suite 1000
`Salt Lake City, Utah 84111
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`Email:
`cnydegger@wnlaw.com
`bplatt@wnlaw.com
`dtodd@wnlaw.com
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`/Michael Stanwyck/
`Michael Stanwyck
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(650) 839-5092
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