Trials@uspto.gov
`571-272-7822
`
`
`
`
`Paper No. 34
`Entered: April 26, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`SAMSUNG ELECTRONICS CO., LTD,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`______________
`
`IPR2022-00222
`Patent 10,621,228 B2
`______________
`
`Record of Oral Hearing
`Held Virtually: March 16, 2023
`______________
`
`
`
`
`Before LYNNE H. BROWNE, NORMAN H. BEAMER, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`Paper No. 34
`Entered: April 26, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`SAMSUNG ELECTRONICS CO., LTD,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`______________
`
`IPR2022-00222
`Patent 10,621,228 B2
`______________
`
`Record of Oral Hearing
`Held Virtually: March 16, 2023
`______________
`
`
`
`
`Before LYNNE H. BROWNE, NORMAN H. BEAMER, and
`KEVIN C. TROCK, Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2022-00222
`Patent 10,621,228 B2
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`W. KARL RENNER, ESQ.
`JEREMY J. MONALDO, ESQ.
`HYUN JIN IN, ESQ.
`Fish & Richardson, P.C.
`Axf-ptab@fr.com
`jjm@fr.com
`in@fr.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JENNIFER HAYES, ESQ.
`MATTHEW A. WERBER, ESQ.
`Nixon Peabody LLP
`jenhayes@nixonpeabody.com
`mwerber@nixonpeabody.com
`
`
`
`ALSO PRESENT, OBSERVING:
`
`
`MR. CHRISTOPHER
`MR. SCHWARTZ
`
`
`
`
`The above-entitled matter came on for hearing on Thursday, March
`
`16, 2023, commencing at 1:00 p.m. EDT, via video-conference.
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`IPR2022-00222
`Patent 10,621,228 B2
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE BROWNE: Hello everyone. We're here for oral
`
`
`argument in IPR2022-00222. I'm Judge Browne, and with me are Judges
`Beamer and Trock. Before we begin, I have a few housekeeping -- items to
`go over. As this is a video conference, we ask that you identify yourself
`before speaking, and if you are referring to a demonstrative, that you state the
`number of the slide you are referring to. There is a court reporter in
`attendance, and we request that counsel remain for a few minutes after
`arguments are submitted for the Court -- in case the court reporter has
`questions. Each party has 45 minutes of total argument time. Please indicate
`how much time you would like to reserve for rebuttal after you make your
`appearance, and also, as a reminder, we will be holding a conference after
`this hearing. We're now on the record and I will begin with appearances.
`Who is here for Petitioner?
`
`
`MR. RENNER: Well, thank you Your Honor. This is Karl
`Renner. I'm joined by Jeremy Monaldo and Hyun Jin In.
`
`
`JUDGE BROWNE: And do you want to go ahead and tell me
`how much time you'd like to reserve for rebuttal?
`
`
`MR. RENNER: Yes, I'd like to reserve 20 minutes please.
`
`
`JUDGE BROWNE: All right. And Patent Owner, who is --
`well, who is here?
`
`
`MS. HAYES: Good afternoon, Your Honors. Jennifer Hayes
`from Nixon Peabody for Patent Owner. I will be handling the argument
`today, but with me in the room today is Mr. Werber, and Mr. Christopher and
`Mr. Schwartz are also attending via the public line.
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`IPR2022-00222
`Patent 10,621,228 B2
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`JUDGE BROWNE: Okay, great, and you can tell me how
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`much time you'd like to reserve before you begin.
`
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`MS. HAYES: I will --
`
`
`JUDGE BROWNE: We'll make every effort to take -- to keep
`track of time and let you know when you are down to about five minutes.
`That said, we're -- I think we're ready to go. Petitioner, you may start when
`you are ready.
`
`
`MR. RENNER: Thank you, Your Honor. I'll begin and Mr.
`Monaldo will be following. I'll be addressing at the front end, the noted RPI
`issues that were in the briefing, and Mr. Monaldo will be handling the more
`substantive issues thereafter. I appreciate the Board's email and clarification
`work today's hearing that we're going to be not addressing the requests that
`were made by MemoryWeb two days ago in its March 14 email. But instead
`we'll be focusing today's hearing on the substance end those RPI issues that
`were -- in the briefing and I'll be trying to maintain a clean line on that so --
`on that regard. As the email authorized the parties to address that real party
`and -- issues that were briefed. I wanted to make a couple of observations at
`the front end.
`
`
`In the Patent Owner's arguments, we wanted to note that in
`them, MemoryWeb has neither alleged nor submitted any evidence that
`informed the existence of an RPI relationship between Samsung or any other
`party, including Unified, in this proceeding. Back, as we've noted in our
`Petitioner's reply, and that's at Pages 24 and 25 of the reply. It's a relatively
`short section, as was the handling of the issue with them in the Patent
`Owner's response. What you see is that MemoryWeb -- the comments has
`neither alleged nor submitted evidence of direction, control, joint funding, or
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`IPR2022-00222
`Patent 10,621,228 B2
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`any relevant communication or coordination between Samsung and the other
`entity.
`And rather, the relevant pages of the Patent Owner's response, if
`
`
`you look at them, instead speculated over the impact of perspective findings
`in an unrelated proceeding to this, and they offered theories that were
`premised on conditions, and that would be an RPI finding in that other
`proceeding. They were not even in existence at the time, and I'll -- read two
`relevant excerpts from that just to highlight them. And one is just said --
`
`
`(Simultaneous speaking.)
`
`
`JUDGE TROCK: I'm sorry. Before you continue, this is Judge
`Trock.
`MR. RENNER: Uh-huh.
`
`
`JUDGE TROCK: You indicated that this other proceeding was
`
`
`unrelated. It appears to us, or at least to me, that it is related to the fact that it
`covers the exact same patent, the '228 patent. Is that correct?
`
`
`MR. RENNER: Certainly, Your Honor. Absolutely.
`
`
`JUDGE TROCK: All right. And so, in Petitioner's indication
`of related proceedings, that proceeding is listed, is it not?
`
`
`MR. RENNER: Yes sir. I believe that it is. I have to just check
`with them.
`JUDGE TROCK: So then, at least as far as the record is
`
`
`concerned, it appears that the proceedings are related, correct?
`
`
`MR. RENNER: Your Honor, as it relates to the same patent,
`and frankly, the same Patent Owner as well. Samsung wasn't involved in that
`proceeding and that's the relationship that I'm referring to, so --
`
`
`JUDGE TROCK: Right, but that was not my question.
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`IPR2022-00222
`Patent 10,621,228 B2
`
`MR. RENNER: Uh-huh.
`
`
`JUDGE TROCK: You indicated that these proceedings were
`
`
`not related. However, according to our rules and the requirement for parties
`to list related proceedings, you did indeed list that as related proceeding; is
`that not right?
`
`
`MR. RENNER: It is correct, Your Honor, and again, our
`reference was being made under the circumstances with respect to the patent,
`but your point is well taken and I -- don't mean to debate it as much as to
`clarify.
`JUDGE TROCK: Okay, thank you.
`
`
`MR. RENNER: Certainly. And the -- where I was heading, and
`
`
`appreciate the questions, and where I was heading is when we look at that
`Patent Owner's response and look at the arguments that were tendered in it,
`we find that there are references prospectively in -- for -- to future findings in
`that other proceeding. And really the core of the argument wasn't about
`whether there's RPI or not. It wasn't a -- debate to be had or an allegation to
`Samsung over the issue. It was an assumption of RPI status and what would
`be the impact of it. That's the nature of the argument, and I'll quote again, I
`was getting two different pieces of that argument, where in one instance it
`says, Should the Board determine in a final written decision that Samsung is
`an unnamed RPI in the Unified RPI?
`
`
`So here again, it's referring to what's happening in a different
`proceeding, if there were a finding in that. They go on to talk about the
`impact of estoppel, potentially. Later, again, after having made some
`statements, estoppel should apply if the Board rules that Samsung was an
`unnamed RPI. Again, referring to the other proceeding. Point being RPI
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`IPR2022-00222
`Patent 10,621,228 B2
`
`status is not put into question in the proceeding before us. In fact, Samsung
`wasn't a party to that proceeding as we were just talking about and given the
`seal has been imposed on relevant pages and pieces of evidence as well as
`even the finding, Samsung, even today without access to the final written
`decision and other relevant parts of that record or any allegations or frankly
`evidence, that would impugn it as an RPI to the parties of that proceeding.
`However --
`JUDGE TROCK: Counsel, this is Judge Trock again.
`
`
`MR. RENNER: Sure.
`
`
`JUDGE TROCK: Can I ask a question?
`
`
`MR. RENNER: Uh-huh.
`
`
`JUDGE TROCK: In this proceeding, did Petitioner take any
`
`
`discovery with respect to the real party-in-interest question that was raised by
`Patent Owner in the response?
`
`
`MR. RENNER: It's our position, Your Honor, that the real
`party-in-interest question wasn't really raised in the response, as much as it
`was discussed that there was something ever -- you know, elsewhere being
`contested about RPI, and nor is there any evidence -- more precisely, that was
`offered to suggest that there was any RPI status here, and in fact, when we
`look at the Petitioner's reply, you can see that was pointed out rather directly
`to them in the -- reply itself, and I will briefly just make note of that for Your
`Honors -- for convenience sake. In the reply, we indicate Petitioner disagrees
`of course, and says that, Patent Owner has neither alleged nor submitted any
`evidence of the direction, and in fact, I think I told it a moment ago to you.
`
`
`We were pointing out there and trying to be intentional in doing
`so, that the Patent Owner hadn't contended the existence of RPI in our case.
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`IPR2022-00222
`Patent 10,621,228 B2
`
`This proceeding, we weren't privy to any allegations or substantiation of an
`allegation of the RPI, so they're really -- we don't -- we weren't up against
`any evidence to confront the statement that we made in our petition, which
`has been found sufficient in the absence of the -- that kind of evidence to
`support our position on RPI being complete and thorough. So to your
`question though, directly, the answer is no, we didn't have any evidence put
`to us to question, or to investigate, or to otherwise call into question what we
`believe to be accurate in the statement that we (audio interference).
`
`
`JUDGE TROCK: So just to follow up on my question, the
`Petitioner in this case did not take any discovery on this issue? Is that what
`you're telling me?
`
`
`MR. RENNER: Your Honor, I'm telling you that, right. We
`had actually put into record, statements that we -- that there was no other
`RPI, that we were without estoppel, and nothing that the Patent Owner said
`called that into question.
`
`
`JUDGE TROCK: I understand your legal position, but what I'm
`asking you is whether or not the Petitioner took any discovery in this case of
`the RPI issue?
`
`
`MR. RENNER: The answer's, no, Your Honor.
`
`
`JUDGE TROCK: All right, thank you.
`
`
`MR. RENNER: During the reply, you can see, if you look at
`the Petitioner's reply, sorry, the Patent Owner in response merely repeated
`itself and said that if RPI were established in said other proceeding, they still
`believe that estoppel would apply. There was, again, no indication that there
`was proof of, or any indication to believe, or any reason to believe to
`substantiate an RPI finding in our proceeding. Now, to be clear,
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`IPR2022-00222
`Patent 10,621,228 B2
`
`MemoryWeb have had every opportunity to bring evidence to bear in this
`proceeding and we're talking, I understand your question about what
`evidence we have taken, what kind of discovery we've taken, but I want to
`focus for a moment on MemoryWeb.
`
`
`They had every opportunity to bring to bear, in this proceeding,
`any evidence they thought would inform the question of RPI, if they believed
`there was information to be brought. They could have brought supplemental
`information. There's -- an avenue to bring that under 42.123(b), for instance,
`if they came into possession of information. They could have asked for
`discovery. They could have brought in their own evidence if they had any
`otherwise. They didn't. There was nothing they did. Not to -- and that's
`despite the fact that we pointed out there was no evidence in this record to
`question whether our statement that there was no RPI status, our problem,
`existed.
`JUDGE TROCK: This is Judge Trock again. Whose obligation
`
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`is it in this case to name all the real parties in interest?
`
`
`MR. RENNER: It's the Petitioner's, Your Honor, and under the
`Worlds case, what we find is when the Petitioner's statement is unchallenged
`with any evidence, that's a -- proper -- statement. That's a sufficient
`statement, and that's -- we believe, so that these proceedings can be
`conducted in the manner in which they're designed, which is with special
`dispatch and efficiently, so parties aren't debating issues that are not actually
`in debate, but under Worlds you saw that the -- in that case the Patent Owner
`brought evidence forward and that was the means by which there was a flip
`of the burden of it to the Petitioner to say more, to do more.
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`IPR2022-00222
`Patent 10,621,228 B2
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`Here, we saw there such evidence, we saw no -- nothing other
`
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`than there was some supposed debate being had in a different form that didn't
`involve us, but we can't see any of the papers that relate to this, and if there
`were evidence to have been brought, we'd been happy to have confronted it.
`We saw the Patent Owner not take any such action.
`
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`JUDGE TROCK: Okay, thank you.
`
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`MR. RENNER: Certainly.
`
`
`JUDGE BROWNE: This is Judge Browne. Would you like to
`comment on the fact that the petition here covers more claims than the
`petition at issue in the other case?
`
`
`MR. RENNER: I would, Your Honor. I have two different
`issues I'd comment on as it relates to -- on the assumption there is an RPI
`status. Then what -- you know, I think that's really, maybe, the nature of part
`of the debate being. In that circumstance, Your Honor, I appreciate your
`question. This case involves more claims. Claims that were not involved in,
`as we note, the other proceeding, and any estoppel that would've come
`certainly wouldn't reach those claims. I don't know there's even an allegation
`in the arguments that have been tendered on the record by the Patent Owner,
`otherwise, and if there were such position, therefore I'd be waiving, do you
`think?
`In addition, Your Honor, the art is different and there's never
`
`
`been proof put forward by the Patent Owner that this art was art that could
`have been found, as the legal standards that even they seem to acknowledge
`would apply, that it could be found with the ordinary efforts by a skilled
`artisan, and we believe, again, it would be their proof to put that for the
`record, as of course, devoid that kind of proof.
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`IPR2022-00222
`Patent 10,621,228 B2
`
`JUDGE TROCK: Counsel, this is Judge Trock again. The first
`
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`thing I want to do is identify this other proceeding that we're talking about,
`because I don't think anyone's done that yet, so that's IPR2021-01413,
`Unified Patents v. MemoryWeb, and it also involves the same patent that's at
`issue in this case, the '228 patent. That's the first thing I wanted to do. The
`second question that I had for you, and I appreciate your clarification, that
`there are additional claims at issue in this case than in the other proceeding,
`the IPR2021-01413 proceeding.
`
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`But the question I wanted to raise with you is this, in a situation
`like we have here with regards to the real party-in-interest where the
`evidence was confidential? In that situation, what would you have Patent
`Owner do? If the information they had, which indicated that Samsung was a
`real party-in-interest with Unified Patents in the '01413 case, what evidence
`would they have had to bring forward to us or could they have if they were
`under a protective order?
`
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`MR. RENNER: So Your Honor, I think -- sorry, I think they
`could pursue that discovery and then confront that issue if that issue in fact
`came to bear. Here, there was never even an attempt to ask for third party
`discovery or to seek it, and there were procedures by which to go and
`ascertain that information. Here again, there was no effort, there was nothing
`done. There was a mere assumption that things happening, and another
`proceeding would, for some reason, transfer over. And -- I will tell you, I'm
`sympathetic to the view that to the extent there is confidentiality that is
`necessarily maintained. This isn't something the court is unfamiliar with.
`There are often circumstances where third-party information needs to be
`protected and for that reason there are means to do that.
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`IPR2022-00222
`Patent 10,621,228 B2
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`There are negotiated means to do that, and parties engage all the
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`time in trying to come up with solutions where the information that's relevant
`can be seen and put to bear where other information may not. But that is the
`party, the moving party, the party that needs to bring the evidence to bear in
`order to sustain whatever its argument is. It's their job, and frankly their
`burden to handle those issues as they come up. In this case, Samsung, and I
`haven't used the words yet, but I'll use them. Due process, we believe,
`demands that Samsung be able to see whatever evidence it is that is
`supposedly impugning it as an RPI in another proceeding, in another matter,
`and here there's -- no evidence been brought, so we are actually denied our
`opportunity to confront that evidence of these allegations.
`
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`And we think that's a -- significant problem, that a Patent Owner
`under the circumstance needs to take the steps that are necessary and do the
`things that are possible, and then when confronting issues of the type that
`you're talking about or other issues for that matter. You know, availability of
`witnesses, there's a lot of issues that can come up, but that doesn't mean we
`can assume the facts in question on behalf of the party who might confront
`those issues. There's legal process for that, and so --
`
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`JUDGE TROCK: Counsel, this is Judge Trock again. So what
`would be your solution to that problem?
`
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`MR. RENNER: In the first instance, as a party who owns the
`burden, I would move the discovery they needed. Additionally, I would
`probably seek, if I -- possessed facts, I would seek their submission and
`supplemental information. If a third party weren't compliant, I would again,
`move for compelled testimony. There are means, again, in -- proceedings to
`-- go about getting this, but I'm seeing none of that, and frankly, as Samsung
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`IPR2022-00222
`Patent 10,621,228 B2
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`would've had an opportunity to confront those process opportunities, and to
`see if they're proper, and to scope them appropriately. But here again, there's
`been no opportunity for Samsung to participate in that process, and frankly,
`Your Honors have been put in a position where you haven't had the
`opportunity to review or evaluate that either. So we believe this is actually a
`problem brought on Patent Owner by Patent Owner and it looks an awful lot
`like waiver to us.
`
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`JUDGE TROCK: Counsel, it's Judge Trock. Let me follow up,
`so if we were to open up this issue of real party-in-interest in this case and
`consider it on an evidentiary basis, what kind of time frame do you think
`would be required to allow this kind of discovery to take place?
`
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`MR. RENNER: Your Honor, I -- don't know that we've had an
`opportunity to visit that. It would certainly require each party to bring
`evidence to bear and each party to confront the evidence brought by the other
`to bear, in order for the Court to, we believe, to be a fair and full process. It's
`-- we would have to -- we'd have to go through -- we just haven't been asked
`that question, and frankly, Your Honor, I'm -- a little, I -- we'd be happy to
`work in good faith in terms of trying to come to a reasoned and reasonable
`solution to that. That certainly wouldn't be our objective otherwise.
`
`
`I would say, however, when I say we'd be happy to, to be
`completely honest with you, we wouldn't at all be happy to. We think that
`the time has passed for that. We think that this is an issue that the party, the
`Patent Owner should have brought many moons ago, and to bring it now is
`just too late, and frankly, I don't think we should be giving that kind of
`guidance to all other parties to follow either. It's a situation that there was
`plenty of opportunity.
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`IPR2022-00222
`Patent 10,621,228 B2
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`JUDGE TROCK: Well, I'm sympathetic with that point of view
`
`
`with respect to this case, but I also have concerns and I'm also sympathetic
`and concerned about the issue of due process as well as appeal.
`
`
`MR. RENNER: Uh-huh.
`
`
`JUDGE TROCK: But I want to put this question to you. What
`if there was a finding in this earlier proceeding that indeed Samsung was an
`unnamed RPI, and 315(e) estoppel would come to bear in this case. How
`should the Board, in this case, deal with that? If there is a preexisting order
`now, that Samsung is an RPI in the Unified Patents case and the question of
`estoppel arises here, how should we then deal with that?
`
`
`MR. RENNER: Your Honor, two thoughts on that. The first of
`the two thoughts is the answer to that is certainly complex. What we think
`shouldn't happen, is we don't think that the party who has created that
`problem should be relieved of the waiver that we believe they've -- put upon
`themselves. We think that the proper solution should not be that they all of a
`sudden have a chance, because there's a statutory kind of issue, I'll call it, to
`re-litigate issues or further the process here that is supposed to be, again,
`compact and proceed in an orderly fashion. So we don't think the proper
`response is to then propose or have the parties needing to go a very late
`process of discovery and briefing.
`
`
`That said, you know, there is the question of what is to be done
`there. I would be happy to -- entertain the -- that question and briefing on
`exactly how the -- impact of the waiver would come in here, and the party
`hasn't put the evidence into the record that actually substantiates, in this
`record, that there even exists RPI, and any evidence being brought to bear at
`this time, on this record is too late. Then this record's actually pretty clear.
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`IPR2022-00222
`Patent 10,621,228 B2
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`There isn't RPI status established and that's as a consequence of a party's
`actions and therefore we don't think that estoppel would come to bear, but --
`
`
`JUDGE TROCK: Well, let me just follow up with you here,
`because I hear your point on this issue of waiver, but my question is slightly
`different than that. If there is an order by the Board that Samsung was found
`to be a real party-in-interest in this earlier proceeding in and 315(e) estoppel
`is at play; how then should the Board proceed in order to allow Samsung to
`have its due process, and to have its ability to adduce evidence and put it
`before the Board to determine whether or not estoppel is appropriate in this
`case?
`MR. RENNER: Uh-huh.
`
`
`JUDGE TROCK: I'm sympathetic to the fact that your client
`
`
`was not a party to the prior proceeding. However, if there is a finding that
`Samsung was an unnamed real party-in-interest in that proceeding, then the
`estoppel question does rise, because this is a subsequent proceeding to that,
`on the same patent and there is some of the same art. There is obviously a
`difference, there are additional claims here and there's a second piece of art,
`Belitz, which is at play here, but the estoppel with respect to claims one
`through seven could still be in play.
`
`
`Now, that's the question I want you to address here. How can
`we provide Samsung with its due process, to obtain its evidence with respect
`to whether or not it was a real party-in-interest in the prior proceeding, in this
`case, for purposes not only of due process, but also for appeal purposes?
`
`
`MR. RENNER: Well, Your Honor --
`
`
`JUDGE TROCK: What would your proposal be?
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`MR. RENNER: Certainly. I would appreciate the opportunity
`
`
`to bring that back to the Board. That's a very specific question. I think I
`would -- prefer to have the opportunity to think that through and confirm, but
`I will -- start the answer, maybe beforehand, just to try to make this
`productive as we can, by saying I think we would need to have access to
`whatever evidence or -- that is impugning Samsung as RPI. RPI doesn't have
`that presently. We're not -- Samsung doesn't have that presently.
`
`
`We -- don't really know what we're being accused of or why,
`and if there's going to be -- if -- the Board were relying on a prior finding of
`RPI status, that of course is premised on some evidence, we don't even know
`what that evidence is, and it's pretty hard to fashion an acceptable answer to
`the question without really knowing what that evidence is. And I --
`understand the difficulties that that creates, but the realities are that it's -- as if
`we've been accused of something and it seems we need to be able to meet the
`accusation and the facts that are behind them, and that's --
`
`
`JUDGE TROCK: So --
`
`
`MR. RENNER: -- the fundamental -- uh-huh.
`
`
`JUDGE TROCK: So, not to interrupt, but one thought about
`what I hear you saying, just correct me if I'm misunderstanding this, is that
`giving Samsung access to the confidential record in the prior proceeding
`would be one possibility?
`
`
`MR. RENNER: Seems like that's a starting point. It seems we
`would then need to be able to test that, as if the Patent Owner had brought in
`a declaration (audio interference) all the time that we're confronting
`declaration evidence by another party, and it's being given for the facts upon
`which it's served. We would need to have the ability to test that evidence, we
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`IPR2022-00222
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`think, in order to make sure that it in fact sustains itself under the pressure
`that, you know, we would put it under as the party that would be, you know,
`facing whatever it is. And then I think much like in a normal proceeding, we
`would want to be able to bring affirmatively evidence to bear as well, so that
`we could, you know, number one, see it, number two, test it, and number
`three, confront it to the extent necessary.
`
`
`JUDGE TROCK: Okay, so then the second thought would be,
`there should be potentially a discovery period, so not only would you need to
`have access to the prior confidential record, but then also a discovery period
`in this case within which to test that evidence; is that correct?
`
`
`MR. RENNER: I believe so, and as I, as we talk about this, it
`seems that that is consistent with the way that things would've gone should
`the Patent Owner had done things on time. If they had moved for discovery,
`what would've happened? They'd have come to the -- they'd have come to
`some evidence, they'd brought that evidence forward. Samsung would've
`had an opportunity to review it and then confront it, and then, of course,
`bring evidence to bear that would demonstrate that it's -- maybe says or
`doesn't say what it's being put forward for.
`
`
`JUDGE TROCK: And then my third suggestion would be there
`should obviously be a briefing period after the close of that evidence, so that
`the parties could brief the issues to the Board, so the Board could have a full
`and complete record, which I think would be beneficial, not only for the
`parties, but will allow us to have the evidence in front of us, so we could
`make the determinations we need to make. And then will also provide a
`vehicle for appeal, so that all of this information would be in one package, in
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`one case, and it could be appealed by the parties for review. Does that seem
`like a possibility to you?
`
`
`MR. RENNER: Does all seem necessary? I -- would love to
`have an opportunity to visit whether that is sufficient, and maybe think that
`through a little more before you're live coming to that, but Your Honor, I
`believe that you're -- we are thinking the same in terms of we think that's at
`least the minimum will be needed.
`
`
`JUDGE TROCK: Well, my suggestion then would be at the
`close of this hearing, on this case, where there is a question of some
`additional motions with respect to stay and termination. So maybe we could
`also discuss this other issue about what these other suggestions would be
`with respect to providing due process, a discovery period, access to the
`confidential record and additional briefing on this issue. In this case, maybe
`we can discuss that after the close of this hearing, because I don't want to
`take up too much of your time. And we'll give you -- I'm assuming Judge
`Browne is presiding, we'll give you back some additional time here, because
`this was unexpected.
`
`
`JUDGE BROWNE: Yes, I've been trying to jump in.
`
`
`JUDGE TROCK: Sorry.
`
`
`JUDGE BROWNE: Your original 25 minutes is up. I would
`like to give you 10 minutes to address the --arguments you thought you
`would be discussing, and I will do the same for Patent Owner, so if you'd like
`to move to the rest of your case.
`
`
`MR. RENNER: Thank you, Your Honor. We'll try to be
`complete in our answers, of course. I appreciate that. Mr. Monaldo, Jeremy,
`do you want to move forward?
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`MR. MONALDO: Thank you Karl. Thank you, Your Honors.
`
`
`Start with Slide 2 of our demonstratives. You'll see that we have a table of
`contents related to the substantive issues that are involved in this case that
`direct you to where those substantive issues are found in our demonstratives,
`but before jumping into the substance, I just did want to raise one brief point
`about the Unified IPR. As Mr. Renner mentioned, we are aware that a
`decision was made and Patent Owner informed us that the decision found
`Claims 1 through 7 unpatentable, however, as Your Honors have discussed,
`the decision dealt with confidential information and its access has been
`limited to the parties and the Board only.
`
`
`Now, because Samsung is not a party to that IPR, we are unable
`to access the decision. As a consequence, we asked Patent Owner's counsel
`to provide us with a copy. Patent Owner's counsel responded that they could
`not do so, because the decision addressed Unified's confidential information,
`and that Unified was prohibiting them from providing us with a redacted
`version. Now, we're not sure why Unified controls whether or not Patent
`Owner can provide us with the public portions of the decision, but that is
`what it is, and we just wanted to make Your Honors aware that we
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