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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`__________________
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`SAMSUNG ELECTRONICS CO., LTD. et al,
`Petitioner,
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`v.
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`MEMORYWEB, LLC,
`Patent Owner.
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`Case IPR2022-00222
`Patent 10,621,228
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`PETITIONER’S REPLY BRIEF ON ADDITIONAL DISCOVERY
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` INTRODUCTION
`MemoryWeb’s request for additional discovery should be denied, as it falls
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`Proceeding No.: IPR2022-00222
`Attorney Docket: 39843-0117IP1
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`far short of the elevated “interests of justice” standard necessary for obtaining
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`additional discovery in IPR proceedings and instead seeks to perpetuate the
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`prejudice it brought upon Samsung by untimely raising RPI issues in this
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`proceeding and addressing RPI/estoppel in a proceeding that did not involve
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`Samsung. 35 U.S.C. § 316(a)(5); Garmin Int’l, Inc. v. Cuozzo Speed Techs. LLC,
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`IPR2012-00001, Paper 26, 6 (PTAB 2013) (precedential).
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`Indeed, rather than properly substantiating its request for discovery and
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`making a good faith effort to rely on relevant evidence, MemoryWeb chose to
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`simply point to the vacated RPI Order and related findings reached in the Unified
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`IPR, which was conducted without Samsung’s participation and vacated by
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`Director Order based on concerns that it “prejudices Apple and Samsung by
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`‘prejudg[ing] the RPI issue without their participation’”.1 MemoryWeb
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`acknowledges as much in its opening brief, noting that “MemoryWeb’s document
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`subpoena requests that Unified produce certain exhibits from the Unified IPR
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`relating to the RPI Order’s finding that Samsung was an RPI.” PO Brief, 16.
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`When not relying on prejudicial findings from the Unified IPR,
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`MemoryWeb’s justification is exposed as speculative, lacking evidence to justify
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`1 All emphasis added unless otherwise noted.
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`against clear safeguards established by Garmin, which demands an evidence-
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`backed showing by MemoryWeb sufficient to meet the heightened “interests of
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`justice” standard. Garmin, 6; Axonics Modulation Techs., Inc. v. Medtronic, Inc.,
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`Paper 24, 6-7 (PTAB 2020); Kamada, Ltd. v. Grifols Therapeutics Inc., IPR2014-
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`00899, Paper 22, 4-5 (PTAB 2015).
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` MEMORYWEB’S DISCOVERY REQUEST PERPETUATES THE
`PREJUDICE AGAINST SAMSUNG
`As noted in Samsung’s opening brief, MemoryWeb has prejudiced Samsung
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`by, among other things, frustrating the efficiency and speed of this IPR in
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`advancing unjustifiably delayed and unprecedented post-hearing discovery and
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`briefing. Indeed, MemoryWeb has prejudiced Samsung by delaying substantive
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`findings on fully briefed and argued issues of unpatentability based entirely on
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`MemoryWeb-imposed delays. And, MemoryWeb threatens to burden the Director,
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`burden the Board, and frustrate Congressional intent by extending this proceeding
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`beyond the Congressionally-mandated one-year period for completion, all in
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`service of MemoryWeb’s choice to delay seeking discovery. Pet. Brief, 2-3.
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`Through its present discovery request, MemoryWeb once again seeks to
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`prejudice Samsung by seeking unjustified discovery of documents from the
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`Unified IPR—namely the vacated RPI decision and related documents from that
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`proceeding—that Samsung had no say in. Contrary to MemoryWeb’s assertions,
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`MemoryWeb yet again imposes prejudice against Samsung by relying upon
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`2
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`prejudiced findings reached in a different proceeding where Samsung could not
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`participate, effectively denying Samsung an opportunity to review much less have
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`“an opportunity to adequately respond” to evidence believed to justify discovery.
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`PO Brief, 13.
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`A. MemoryWeb Seeks to Incorporate Prejudicial Documents under the
`Guise of Proper Evidence
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`Rather than bringing forth “a threshold amount of evidence or reasoning
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`tending to show beyond speculation that something useful will be uncovered,” as
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`required by Garmin and properly identifying the type of evidence it now seeks in
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`relation to the RPI issue, MemoryWeb simply relies on findings of the vacated RPI
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`Order—to the contravention of Director Vidal’s decision to vacate the RPI Order
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`in the first place. Silicon Labs v. Cresta Tech., IPR2014-00728, Paper 31, 34
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`(PTAB 2014).
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`To justify its motion for additional discovery, MemoryWeb cites just five
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`exhibits, none of which constitutes admissible “evidence” that justifies additional
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`discovery. Paper 41 (Petitioner’s Objections To Evidence). Indeed, the only one
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`of these exhibits that includes any factual discussion of the relationship between
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`Samsung and Unified is Ex. 2038—the RPI Order in the Unified IPR. But that
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`Order has been expressly vacated as improper and, thus, cannot be used as a basis
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`to force discovery upon Samsung in this proceeding. The Order also is heavily
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`3
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`redacted, which prevents Samsung from adequately assessing the factual findings
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`that led to it. Samsung cannot be expected to defend itself against things it cannot
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`even see. Due process requires more, and Samsung’s due process rights would be
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`violated if it was forced into additional proceedings with additional discovery
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`solely on the basis of an Order (1) that has been vacated, (2) that was secured
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`without Samsung’s participation, and (3) that relies on factual findings that
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`Samsung cannot even review.
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`Ultimately, MemoryWeb is using its unjustified discovery request to seek an
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`incomplete and imbalanced representation of the RPI issue, thereby furthering the
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`prejudice against Samsung while enticing the Board to come to the same
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`conclusion it did without Samsung’s participation—all resulting from
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`MemoryWeb’s gamesmanship to leave Samsung out of an RPI record, which
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`MemoryWeb now seeks to import into Samsung’s proceeding against the spirit of
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`Dir. Vidal’s decision. Starting from a position of prejudice and prejudgment
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`unfairly forces Samsung to fight an uphill battle. On this basis alone,
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`MemoryWeb’s intent is clear and its request should be denied.
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`B. MemoryWeb’s Request Could and Should Have Been Brought Earlier
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`After deliberately refraining from timely entry of RPI-related discovery
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`requests in this proceeding based on a wait-and-see approach, MemoryWeb now
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`contends that targeted evidence “could not have been obtained earlier” and that its
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`consideration “would be in the interests-of-justice.” Pet. Brief, 1-11; PO Brief, 13.
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`Not so.
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`MemoryWeb points to the “RPI Order and the Director Decision” as
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`documents that did not exist earlier and thus “could not have been obtained
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`earlier.” PO Brief, 14. But, the RPI Order and the Director Decision are not
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`relevant evidence. The RPI Order, in particular, was vacated by the Director. And
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`the fact that the RPI Order and the Director Decision were not available earlier
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`should have no bearing whatsoever on whether MemoryWeb could have raised the
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`RPI issue in this proceeding in a timely manner. Indeed, MemoryWeb’s actions
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`demonstrate the same, as MemoryWeb raised the issue in the Unified proceeding.
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`There is no excuse for MemoryWeb to not have known that the Unified IPR was
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`the wrong forum to be challenging the RPI issue. Pet. Brief, 11-13.
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`MemoryWeb further contends that “[t]he Director Decision provided
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`explicit guidance that ‘[t]he Board can and should make a determination’ of
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`Samsung’s RPI status in this proceeding.” PO Brief, 7. But the Director
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`Decision never provided such an express order to upend PTAB procedure and
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`pursue belated post-hearing discovery on RPI issues in this proceeding. Rather,
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`the Director Decision merely pointed out that the Unified IPR was the wrong
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`forum to debate the RPI status, in so doing noting that “[t]he Board should not
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`5
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`have determined whether Apple and Samsung are RPIs” in the Unified proceeding.
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`Director Decision, 5.
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`More, it is undisputed that all other documents MemoryWeb now seeks
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`through discovery were available well before—and in many times over a year
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`before—the POR date in this proceeding. Exs. 2033-2035. Yet, MemoryWeb fails
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`to explain its failure to timely seek this other evidence.
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`Providing due process and an opportunity to be fairly heard underlies all
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`activity before the PTAB, and here, under seal, with cloak and dagger,
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`MemoryWeb clearly sought to resolve issues without voice by the implicated
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`stakeholders (i.e., Samsung and Apple); imagination isn’t necessary, nor is
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`precedent, to know that one must argue the point in the case implicating the to-be-
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`aggrieved party, and that a decision to forego doing so will be at the movant’s
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`peril. Had the Unified IPR reached a FWD and closed before Samsung’s IPR was
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`filed, would that have precluded MemoryWeb’s RPI/estoppel argument? Of
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`course not—as with all types of estoppel arguments, MemoryWeb could bring its
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`RPI/estoppel argument in the impacted proceeding, Samsung’s IPR, which it could
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`have and should have done here. The fact that the allegedly estoppel-inducing
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`proceeding was still open changes nothing and does not excuse MemoryWeb from
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`timely confronting the aggrieved party, Samsung, with its arguments. Nothing
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`prevented MemoryWeb from asking for the information it now seeks during the
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`regular course of this proceeding.
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`While some of the RPI-related materials in the Unified IPR were designated
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`as confidential, MemoryWeb fails to explain why subpoena requests could not
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`have been made earlier in this proceeding, just as they are being made now.
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`MemoryWeb’s position on this point is internally inconsistent: either they could
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`not have been made at all (clearly not MemoryWeb’s position, as revealed by their
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`current request) or they could have been made earlier. All evidence points to the
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`latter, as MemoryWeb developed the arguments/evidence it now seeks through
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`discovery in the Unified proceeding, and simply chose not to pursue them in the
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`presence of Samsung, in furtherance of its desired gamesmanship.
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`The various excuses MemoryWeb provides for its late request are also to no
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`avail. For example, pointing to Worlds where the Federal Circuit clearly explained
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`that “IPR petitioner’s initial identification of the real parties in interest should be
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`accepted unless and until disputed by a patent owner,” MemoryWeb contends that
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`Worlds nevertheless does not address the facts of the present case “where the
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`patent owner must prove that a non-party failed to identify the petitioner as an RPI
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`during a different proceeding filed by the non-party, which is what is now required
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`by the Director Decision.” PO Brief, 8; Worlds Inc. v. Bungie, Inc., 903 F.3d
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`1237, 1243 (Fed. Circ. 2018). This rationale falls flat for several reasons. First,
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`MemoryWeb grossly mischaracterizes the Director Decision. In that decision,
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`Director Vidal simply noted that the “Board should not have determined whether
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`Apple and Samsung are RPIs” in the Unified proceeding. Director Decision, 5.
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`That statement requires nothing more, and certainly no more than the clear
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`precedent set forth in SharkNinja. Moreover, Worlds does make apparent the
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`proceeding in which a challenge is to be brought, as it deals with the rights of
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`petitioner, and makes clear the commonsense notion that those rights must be
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`challenged in the proceeding involving the petitioner whose rights are jeopardized.
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`Here, the rights in question are Samsung’s, and consistent with Worlds where
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`questions were resolved in the proceeding involving petitioner Bungie whose
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`rights were jeopardized, the question should have been raised in the Samsung
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`proceeding.
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`MemoryWeb further asserts that the “the Director Decision substantially
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`expanded SharkNinja’s holding and represents new guidance or an intervening
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`change in the law” and further that the Director Decision “significantly expanded
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`SharkNinja beyond its holding and the facts in that case.” PO Brief, 9. This is
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`again a blatant mischaracterization of the Director Decision, which simply noted,
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`as per SharkNinja, that an RPI determination should not be made in a proceeding
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`where doing so is “not necessary to resolve that proceeding.” Director Decision, 5.
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`Despite MemoryWeb’s repeated attempts at characterizing the Director’s
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`Decision as “new guidance turning the procedure MemoryWeb followed on its
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`head,” even a cursory reading of the Decision reveals that it is nothing more than a
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`straight-line application of well-established PTAB precedent. PO Brief, 13. That
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`is, contrary to MemoryWeb’s assertions, the Director Decision flows directly from
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`SharkNinja and merely applies it precisely in the manner SharkNinja intended:
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`parties who want to have the truth of the matter resolved with respect to RPI issues
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`should do so in the proceeding that implicates the to-be-aggrieved party. The
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`bottom line is that the Unified IPR was the wrong forum to bring the RPI issue and
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`MemoryWeb should have known that.
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`Kofax likewise confirms—not permits—the untimeliness of MemoryWeb’s
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`discovery request. PO Brief, 10 (citing Kofax, Inc. v. Uniloc USA, Inc. et al.,
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`IPR2015-01207, Paper 24, 1, 4 (PTAB 2016). Indeed, unlike in Kofax where the
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`aggrieved party (Zebra) had voluntarily entered into an RPI relationship that
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`ultimately led to its estoppel, no such fact pattern exists here for Samsung. In
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`contrast, Samsung explicitly stated that it was not an RPI to petitions “filed by
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`Unified Patents LLC (IPR2021-01413)” and “filed by Apple Inc. (IPR2022-
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`00031).” Petition, 92. MemoryWeb does not disagree. PO Brief, 8 (MemoryWeb
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`“does not contend that Samsung’s identification of RPIs in this proceeding is
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`incorrect”).
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` MEMORYWEB’S DISCOVERY REQUESTS OF UNIFIED ARE
`OVERLY BROAD, WILL NOT RESULT
`IN ADMISSIBLE
`“EVIDENCE,” AND COULD BE GENERATED BY OTHER MEANS
`As an initial matter, MemoryWeb’s discovery requests of Unified rely on
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`unreasonably broad definitions and instructions.2 At each turn, MemoryWeb asks
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`for “the broadest possible meaning” in its requests. Ex. 2033, 1, 3-4; Ex. 2034, 1,
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`3-4. The “broadest possible” is not narrowly tailored and, contrary to what
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`MemoryWeb stated in its opening brief that it tailored its requests, these requests
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`are by definition beyond a reasonable scope to the relevant issue of whether
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`Samsung and Unified are RPIs.
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`MemoryWeb also offers unreasonably broad definitions for Samsung,
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`Unified, and MemoryWeb, which include “past and present officers, directors,
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`affiliates, brokers, agents, representatives, employees, servants, accountants,
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`investment bankers, attorneys, and all other persons acting directly or indirectly
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`under its control and including all affiliated companies or entities, including
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`2 Samsung first received MemoryWeb’s discovery requests on June 30 when
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`MemoryWeb filed its motion and opposes them. Samsung’s email
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`communications with MemoryWeb prior to June 30 did not address these
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`discovery requests, did not express a lack of opposition to them, and merely
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`confirmed that Samsung would comply with discovery if ordered by the Board.
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`parents, subsidiaries, predecessors, successors, partners, and joint ventures.” Ex.
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`2033, 1-2; Ex. 2034, 1-2. It even broadly redefines the terms “and” and “or” with
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`the intent of “bring[ing] within the scope of the discovery request all responses
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`that might otherwise be outside of its scope.” Ex. 2033, 4; Ex. 2034, 4. And,
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`MemoryWeb advances confusing and unnecessary instructions. Ex. 2033, 4-7.
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`These definitions/instructions are not narrowly tailored and not appropriate for
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`PTAB discovery (Factors 4 and 5).
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`Further, MemoryWeb’s document requests are unlikely to lead to admissible
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`evidence (Factor 1) and relate to things that could be generated by other means
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`(Factor 3).3 MemoryWeb’s Requests 1-2 (the vacated RPI Order and oral hearing
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`transcript from the Unified IPR) are emblematic of the problems with
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`MemoryWeb’s requested discovery. These requests seek discovery of a “result”—
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`not “evidence.” These requests are highly prejudicial, include hearsay from the
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`Unified IPR, and, because Samsung was not involved in the Unified IPR, would
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`frustrate due process if entered into this record. To the extent the Board considers
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`MemoryWeb’s motion to terminate and authorizes further proceedings (it should
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`3 As discussed above, MemoryWeb’s only support for its requested discovery is
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`the public version of the Board’s vacated RPI Order, which cannot be used as the
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`basis to support discovery against Samsung in this proceeding.
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`not), without question, a new oral hearing transcript will be generated that properly
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`involves Samsung and a new decision will be made that properly relates to the
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`record in this proceeding. Thus, these requests would not lead to admissible
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`“evidence” (Factor 1) and could be generated by other means that afford Samsung
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`due process (Factor 3).
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`The same is true for MemoryWeb’s Requests 3-5, which are directed to
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`testimony from Kevin Jakel provided in the Unified IPR. This testimony is
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`inadmissible hearsay that was developed in a different proceeding without
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`Samsung’s involvement. Without question, the same evidence could be generated
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`through a direct examination of Mr. Jakel in this proceeding with Samsung’s
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`participation. Authorizing these requests for inadmissible hearsay is unnecessary,
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`prejudicial, and violates Samsung’s due process rights.
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` MemoryWeb’s Request 6 asks for “the Samsung Membership Agreement.”
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`Yet, MemoryWeb provides no justification for why it needs compelled third party
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`discovery of an agreement that is has requested production of from a party to this
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`proceeding.
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`MemoryWeb’s Requests 7-11 relate to various exhibits submitted by
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`MemoryWeb in the Unified IPR. MemoryWeb’s motion did not specifically
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`address these exhibits, did not offer any explanation for why it would need to
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`compel Unified to produce its own exhibits, and has offered no explanation as to
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`what this evidence is or why it is needed.4 With its treatment, MemoryWeb has
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`not only failed to equip Samsung to respond to Requests 7-11, it has failed to meet
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`its burden to demonstrate that the discovery is “in the interests of justice.”
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`MemoryWeb’s deposition request of Unified fares no better. MemoryWeb’s
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`first three deposition topics are not “topics” at all—they are requests for prior
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`“testimony” of Mr. Jakel in the Unified IPR. As mentioned above, this testimony
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`is inadmissible hearsay that was developed in a different proceeding without
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`Samsung’s involvement. The Board should afford Samsung due process and
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`decline MemoryWeb’s request to simply “import” the deposition testimony from
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`the Unified IPR into this proceeding.
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`Indeed, importing the prior testimony from the Unified IPR would be highly
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`prejudicial and burdensome to Samsung. Instead of dealing with only new
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`testimony properly generated in this proceeding, it would require Samsung to
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`contend with both the prior testimony (developed without Samsung’s participation)
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`and the new testimony, unduly complicating the process and compounding the
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`burden on Samsung. That is unfair and the same evidence could quite clearly be
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`4 Samsung checked the Unified IPR proceeding on the P-TACTS system for
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`additional information on these exhibits, but could not locate public versions of
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`any of MemoryWeb’s briefing in that proceeding.
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`generated by other means—a direct examination of Mr. Jakel in this proceeding
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`(Factor 3).
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`As to MemoryWeb’s last deposition topic, it allows questions on the “contents
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`… of all Documents … submitted into evidence during the Unified IPR.” This is
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`clearly overbroad and not narrowly tailored to the RPI issue. Indeed, such a broad
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`scope would allow MemoryWeb to question Mr. Jakel about anything in the
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`Unified IPR. Yet, Samsung is not a party to the Unified IPR and is not privy to all
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`of the evidence submitted during the Unified IPR. Thus, such a broad deposition
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`topic would allow MemoryWeb to question Mr. Jakel about evidence to which
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`Samsung is blind, which is clearly improper. And it would allow MemoryWeb to
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`question Mr. Jakel on topics that are irrelevant to RPI or Unified (e.g., the scope
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`and content of the prior art references and the ’228 patent). This is not a narrowly-
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`tailored deposition topic, nor is its scope well defined.
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` MEMORYWEB’S DISCOVERY REQUESTS OF SAMSUNG ARE
`UNSUPPORTED AND OVERLY BROAD
`MemoryWeb points to only one agreement—“Samsung’s membership
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`agreement with Unified”—to justify its requests for discovery on Samsung. Yet,
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`MemoryWeb requests “All agreements or contracts between Samsung and
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`Unified” and “All Communications with Unified.” Ex. 2035, 2-3.
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`At most, MemoryWeb has alleged that one agreement between Samsung and
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`Unified exists. MemoryWeb offers no evidence or justification that its requested
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`discovery would lead to other agreements or contracts beyond the noted
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`“membership agreement.”
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`And MemoryWeb provides no basis for requesting “Communications.”
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`MemoryWeb does not even attempt to demonstrate that non-privileged
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`communications between Samsung and Unified exist and would lead to useful
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`information that is relevant to an RPI determination. MemoryWeb has simply not
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`met its burden to demonstrate that there is more than a possibility and mere
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`allegation that something useful will be discovered through it broad discovery
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`requests on Samsung (Factor 1).
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`MemoryWeb’s requests also are unreasonably broad and difficult to
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`understand. MemoryWeb has not limited its requests to any particular range of
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`time and places no limits on the requested agreements (“All agreements or
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`contracts”). MemoryWeb also proposes unreasonably broad definitions for
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`Samsung, Unified, and MemoryWeb, which include “all … current and former
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`parents, subsidiaries, affiliates, predecessors, successors, employees, managers,
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`officers, directors, partners, agents, representatives, attorneys, or anyone acting or
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`purporting to act on its behalf or control.” Ex. 2035, 1-2. With these definitions,
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`MemoryWeb’s request would require Samsung to investigate an unreasonably
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`large number of people and organizations, many of which Samsung has no ability
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`to control or even contact (e.g., former employees of Samsung, anyone purporting
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`to act on Samsung’s behalf, attorneys of Unified, etc.). That type of investigation
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`is likely impossible, much less something that could reasonably be completed
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`within the five months remaining in this proceeding. To illustrate, as written,
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`MemoryWeb’s requested discovery would require Samsung to produce all
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`agreements between a former Samsung employee and a former Unified employee,
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`even if they had nothing to do with Samsung, Unified, or MemoryWeb. It also
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`covers “All Communications … about [an unreasonably broadly-defined]
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`Unified,” and “All Communications … relating to [an unreasonably broadly-
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`defined] MemoryWeb.” Because MemoryWeb chose not to narrowly tailor its
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`discovery request of Samsung and, instead, provided confusing instructions that
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`are unreasonably broad, MemoryWeb’s requested discovery does not comport with
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`Board rules and should be denied (Factors 4 and 5).
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` CONCLUSION
`MemoryWeb’s motion for additional discovery should be denied.
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`Dated: July 14, 2023
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`/W. Karl Renner/
`W. Karl Renner, Reg. No. 41,265
`Jeremy J. Monaldo, Reg. No. 58,680
`Hyun Jin In, Reg. No. 70,014
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorneys for Petitioner
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`CERTIFICATION UNDER 37 CFR § 42.24
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`Under the provisions of 37 CFR § 42.24(d), the undersigned hereby certifies
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`that the word count for the foregoing Petitioner’s Reply Brief on Additional
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`Discovery totals 3,389 words, which is less than the 3,500 allowed by the Board’s
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`Order of June 15, 2023.
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`Dated: July 14, 2023
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`/W. Karl Renner/
`W. Karl Renner, Reg. No. 41,265
`Jeremy J. Monaldo, Reg. No. 58,680
`Hyun Jin In, Reg. No. 70,014
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorneys for Petitioner
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`Proceeding No.: IPR2022-00222
`Attorney Docket: 39843-0117IP1
`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e), the undersigned certifies that on July 14,
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`2023, a complete and entire copy of this Petitioner’s Reply Brief on Additional
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`Discovery was provided by email to the Patent Owner by serving the email
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`correspondence addresses of record as follows:
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`Jennifer Hayes
`George Dandalides
`Matthew A. Werber
`Nixon Peabody LLP
`300 South Grand Avenue, Suite 4100
`Los Angeles, CA 90071-3151
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`Email: jenhayes@nixonpeabody.com
`gdandalides@nixonpeabody.com
`mwerber@nixonpeabody.com
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`/Michael Stanwyck/
`Michael Stanwyck
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`202-783-5070
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