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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SPLUNK INC.
`Petitioner,
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`v.
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`SABLE NETWORKS, INC.
`Patent Owner.
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`Case No. IPR2022-00228
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`U.S. Patent No. 8,243,593
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`REPLY IN SUPPORT OF MOTION FOR JOINDER TO RELATED
`INSTITUTED INTER PARTES REVIEW UNDER 37 C.F.R. §42.122(B)
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`IPR2022-00228
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`Petitioner Splunk Inc.’s “me-too” petition is virtually identical to
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`Cloudflare’s petition, asserting the same grounds, relying on the same prior art
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`analysis, and using the same expert and testimony. Joinder in such a scenario is
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`appropriate and consistent with the Board’s well-settled joinder practice.
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`Sable mischaracterizes Splunk’s positions and the Board’s rules and
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`requirements. Splunk did not carve out any exceptions from its role as an
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`understudy to Cloudflare’s petition. Splunk’s proposal is in line with prior Board
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`decisions on joinder. If joinder is granted, Splunk would participate in the capacity
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`prescribed by the Board. Sable’s request that Splunk withdraw its exhibits is
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`contrary to the Board’s well-settled practice. Similarly, Sable’s assertion that
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`Splunk’s agreement to post-joinder cooperation is insufficient is unsupported.
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`I.
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`Splunk’s Proposal Is Consistent With the Board’s Practice and Splunk
`Will Defer To The Board’s Preference
`Splunk did not carve out any exceptions from its role as an understudy to
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`Cloudflare’s IPR. Splunk stated in its Motion that “[a]bsent termination of
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`Cloudflare as a party to the proceeding, Splunk anticipates participating in the
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`proceeding in a limited capacity.” (Paper No. 3 at 1.) And to the extent Splunk
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`does participate, Splunk has agreed to coordinate with Cloudflare. (Id. at 7.)
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`The Board routinely grants motions for joinder where Petitioner agreed to
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`participate as Splunk proposes. See, e.g., Advance Micro Devices, Inc. et al. v.
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`Monterey Research, LLC, IPR2021-00776, Paper No. 13 at 22 (PTAB Oct. 13,
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`1
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`IPR2022-00228
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`2021); Taiwan Semiconductor Manufacturing Co., Ltd. v. Arbor Global Strategies,
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`LLC, IPR2021-00736, Paper No. 9 at 8 (PTAB Jun. 11, 2021); Taiwan
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`Semiconductor Manufacturing Co., Ltd. v. Arbor Global Strategies, LLC,
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`IPR2021-00737, Paper No. 10 at 8 (PTAB Jun. 11, 2021); Taiwan Semiconductor
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`Manufacturing Co., Ltd. v. Arbor Global Strategies, LLC, IPR2021-00738, Paper
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`No. 9 at 9 (PTAB Jun. 14, 2021); Hyundai Motor Co. v. Am. Vehicular Scis. LLC,
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`IPR2014-01543, Paper No. 11 at 2-4 (PTAB Oct. 24, 2014); Dell Inc. v. Network-1
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`Sec. Sols., Inc., IPR2013-00385, Paper No. 17, at 6-10 (PTAB Jul. 29, 2013);
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`Motorola Mobility LLC v. Softview LLC, IPR2013-00256, Paper No. 10 at 4-5
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`(PTAB June 20, 2013). Splunk will defer to the Board’s preference on this issue
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`and participate in the capacity prescribed by the Board.
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`II.
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`Splunk Should Not Be Required To Withdraw Its Exhibits
`Sable’s demand that Splunk “be required to withdraw all its exhibits” is
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`unsupported. Contrary to Sable’s assertions, the Board routinely grants joinder
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`without requiring the joined petitioner to withdraw its exhibits, even when
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`substantially the same evidence was filed. See, e.g., Pfizer, Inc. v. Sanofi-Aventis
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`Deutschland GmbH, IPR2019-01022, Paper No. 12 at 9 (PTAB Aug. 19, 2019)
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`(granting joinder where petitioner “presents nearly identical arguments and relies
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`on substantially the same evidence”); Oracle Corp. et al. v. RealTime Data LLC,
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`IPR2016-01671, Paper No. 15 at 3 (PTAB Mar. 8, 2017) (granting joinder where
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`2
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`IPR2022-00228
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`Petition “copies verbatim the challenges set forth in the petition[] and relies upon
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`the same evidence, including the same expert declaration.”); Nokia v. Oyster
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`Optics, LLC, IPR2018-00984, Paper No. 9 at 3 (PTAB Jul. 27, 2018) (same).
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`Sable has not pointed to any contrary decision.
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`III. Splunk’s Agreement To Cooperate Post-Joinder Is Sufficient
`Splunk has agreed to serve as an understudy in the joined IPR unless
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`Cloudflare stops actively participating, at which point Splunk would assume an
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`active role.1 The Board routinely grants joinder based solely on the Petitioner’s
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`representations of post-joinder cooperation. See, e.g., Priceline.com LLC v. DDR
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`1 Sable’s assertion that “Splunk offers no evidence or averments substantiating that
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`Cloudflare has agreed to any of this” asks the Board to ignore Splunk’s
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`representation on that very point. (Paper No. 6 at 7; Motion at 2.) Splunk’s
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`representation in its motion should have been sufficient, but Splunk hereby
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`reaffirms it: Splunk conferred with Cloudflare and Cloudflare indicated it does not
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`oppose Splunk’s joinder. Ecobee, Inc. v. Ecofactor, Inc., IPR2021-01052, Paper
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`No. 7 at 6 (PTAB Oct. 7, 2021) (granting joinder where, inter alia, “Petitioner
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`further indicates that [first petitioner] does not oppose the request joinder”);
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`Ecobee, Inc. v. Ecofactor, Inc., IPR2021-00792, Paper No. 7 at 6 (PTAB Oct. 1,
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`2021) (same). Sable offers nothing to the contrary.
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`3
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`IPR2022-00228
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`Holdings, LLC, IPR2019-00435, Paper No. 9 at 8 (PTAB Jun. 10, 2019) (granting
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`Motion for Joinder where, inter alia, “Petitioner has agreed to consolidate filings
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`and to take an understudy role”).
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`Sable fails to cite any authority to support its argument that the Board must
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`obtain the original petitioner’s explicit agreement to post-joinder cooperation.
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`Samsung Elecs. Co. v. Arendi S.A.R.L. is inapposite. IPR2014-01144, Paper No.
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`11 at 6 (PTAB Oct. 2, 2014). In Arendi, Samsung proposed additional pages for
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`briefing, “introduce[d] new evidence and arguments,” and “fail[ed] to set forth
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`how briefing and discovery are simplified.” Id. at 5.
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`By contrast, Splunk has agreed to coordinate with Cloudflare to consolidate
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`any filings, manage questioning at depositions, manage presentations at the
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`hearing, ensure that briefing and discovery occur within the time normally allotted,
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`and avoid redundancies. If the Board prefers, Splunk will also obtain authorization
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`from the Board prior to separate substantive filing (if any), limit such filings to
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`only points of disagreement with Cloudflare (Splunk does not anticipate any), and
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`not file separate arguments in support of points already made by Cloudflare.
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`Sable also mischaracterizes Lupin Ltd. v. Senju Pharm. Co., Ltd., IPR2015-
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`01871, Paper No. 13 (PTAB Jan. 25, 2016). Sable contends that Lupin stands for
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`the proposition that “the Board has required promises of post-joinder cooperation
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`from a first petitioner to be substantiated if joinder is granted.” (Paper No. 6 at 7-8
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`4
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`IPR2022-00228
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`(emphasis added).) But in Lupin, the Board granted joinder based on the second
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`petitioner agreeing to assume an understudy role. IPR2015-01871, Paper No. 13 at
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`4-6 (explicitly noting that “[the second petitioner’s] representations . . . effectively
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`overcome [patent owner’s] objections to joinder”). The Board only referenced the
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`first petitioner’s agreement to permit the second petitioner to rely on the same
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`expert. Id. at 4-5. Here, Splunk relies on the same expert and testimony submitted
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`by Cloudflare, and as noted in Splunk’s Motion, Cloudflare has indicated that it
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`does not oppose Splunk’s Motion. Splunk is open to a telephonic hearing with the
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`Board and the other parties to confirm Cloudflare’s non-opposition to Splunk’s
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`Motion and the parameters of Splunk’s understudy role.
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`IV. CONCLUSION
`Because Splunk’s “me-too” petition and proposal for joinder are consistent
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`with the Board’s practice, Splunk requests that the Board grant Splunk’s Motion.
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`5
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`IPR2022-00228
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`Dated: January 27, 2022
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`Respectfully submitted,
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`By: / Alex S. Yap /
`Alex S. Yap
`Registration No.: 60,609
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard, Suite 6000
`Los Angeles, CA 90017
`Email: ayap@mofo.com
`Tel: 213-892-5688
`Fax: 213-892-5454
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`6
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`IPR2022-00228
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`CERTIFICATE OF SERVICE
`I hereby certify that the attached MOTION FOR JOINDER TO RELATED
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`INSTITUTED INTER PARTES REVIEW UNDER 37 C.F.R. §42.122(B) was
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`served as of the below date via email to the following counsel of record for the
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`Patent Owner:
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`Kenneth J. Weatherwax
`LOWENSTEIN & WEATHERWAX LLP
`1880 Century Park East, Suite 815
`Los Angeles, CA 90067
`weatherwax@lowensteinweatherwax.com
`Sable_IPRs@lowensteinweatherwax.com
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`Dated: January 27, 2022
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`By: / Alex S. Yap /
`Alex S. Yap
`Registration No.: 60,609
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard, Suite 6000
`Los Angeles, CA 90017
`Email: ayap@mofo.com
`Tel: 213-892-5688
`Fax: 213-892-5454
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`7
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