IPR HEARING 5/19/2022
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` ________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ________________
`
` APPLE INC.,
` Petitioner,
`
` v.
`
` RFCYBER CORP.,
` Patent Owner.
` ________________
`
` REMOTE TELECONFERENCE IPR HEARING taken on
`MAY 19, 2022, between the hours of two o'clock in the
`afternoon and three o'clock in the afternoon of that
`day, taken remotely with all parties attending from
`various locations via teleconference, before Penny J.
`Mullen, a Certified Court Reporter (MO #808), within
`and for the State of Missouri, in a certain cause now
`pending in the United States Patent and Trademark
`Office, Before the Patent Trial and Appeal Board
`between APPLE INC., Petitioner, vs. RFCYBER CORP.,
`Patent Owner; on behalf of the Petitioner.
`
`Page 4
`
` A P P E A R A N C E S
`
` For the Petitioner:
`
` Adam P. Seitz (telephonically)
` Paul Hart
` Erise IP PA
` 7015 College Boulevard, Suite 700
` Overland Park, Kansas 66211
` (913)777-5600
` adam.seitz@eriseip.com
`
` For the Patent Owner:
` Richard Cowell (telephonically)
` Kenyon & Kenyon, LLP
` One Broadway
` New York, New York 10004
` (212)908-6277
`
` Also present: Hearing Chief, Judge Cherry.
`
`Court Reporter: (Telephonically)
`Penny J. Mullen, CCR
`Missouri CCR #808
`Lexitas Legal Services
`1608 Locust Street
`Kansas City, Missouri 64108
`(816)221-1160
`
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` UNITED STATES PATENT AND TRADEMARK OFFICE
` ________________
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ________________
`
` APPLE INC.,
` Petitioner,
`
` v.
`
` RFCYBER CORP.,
` Patent Owner.
` ________________
`
`Inter Partes Review Case No. IPR2022-00412, -00413
` U.S. Patent No. 9,189,787
`
` IPR HEARING
`
` MAY 19, 2022
`
`Page 2
`
` I N D E X
`Opening Remarks and Introduction............. 5
`Discussion................................... 6
`Closing Statements........................... 19
`Court Reporter Certificate................... 21
`
` E X H I B I T S
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` (None marked or identified.)
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`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
`
`1 (Pages 1 to 4)
`
`Fax: 314.644.1334
`
`IPR2022-00413
`Apple EX1044 Page 1
`
`

`

` IPR HEARING 5/19/2022
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` IT IS HEREBY STIPULATED AND AGREED by and
`between counsel for the Petitioner and counsel for the
`Patent Owner that this hearing may be taken in
`shorthand by Penny J. Mullen, a Certified Court
`Reporter, and afterwards transcribed into typewriting.
` * * * * *
` INTER PARTES REVIEW HEARING
` (Starting time of the hearing: 2:00 PM.)
` * * * * * * * *
` THE COURT: Good afternoon, everyone. This
`is Judge Cherry. With me on the line are co-panelists
`Scanlon and Turner. Would the parties please make
`your appearances.
` MR. SEITZ: Good afternoon, Your Honor.
`This is Adam Seitz for Petitioner Apple. With me also
`is my partner, Paul Hart. And I also asked for a
`court reporter to take this down who is on the phone
`as well.
` THE COURT: Thank you very much. Would the
`Patent Owner representative like to introduce
`yourself?
` MR. COWELL: Good afternoon, Your Honor.
`This is Richard Cowell on behalf of the Patent Owner,
`RFCyber.
` THE COURT: Would you like to make your
`
`Page 6
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`request? Let us know exactly what you want to do.
` MR. SEITZ: Thank you, Your Honor. The
`Petitions that Apple filed, the 00412 and 00413
`proceedings, both of them were copycat substantively
`identical proceedings that have sought to join
`Samsung's Petitions, the 2021-980 and -981
`proceedings.
` We filed a Motion For Joiner within the
`appropriate timeframe. There has been oppositions to
`those Motions for Joiner after the opposition and the
`reply brief was set in motion. The Motion For Joiner
`was fully briefed.
` The Motion to Terminate was filed and then
`in April the board terminated the -- the board
`terminated both of the proceedings to which we sought
`to join.
` This caused a small amount of confusion on
`my end, Your Honor. Looking through your precedent, I
`understand the termination of proceedings was
`discretionary. But looking through the precedent, it
`appears that the board typically would dismiss either
`the Petitioner only or holding the decision on
`termination of the proceeding that is sought to be
`joined so that the underlying Motion For Joiner be
`addressed.
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` So now I'm left in a little bit of a lurch
`on procedurally what happens to our Motions For
`Joiner. I don't know whether the underlying Samsung
`proceedings were meant to have been terminated only as
`to Petitioner Samsung, or if those entire proceedings
`have been terminated.
` And if that's the case, it leaves me in
`just a little bit of a question as to what happens to
`our pending proceedings which, Your Honor, were filed
`as substantively identical copycat proceedings to
`Samsung's Petition proceedings seeking to joiner.
` So I had a secondary request that really is
`contingent on the answer to the first question, that
`would be to address by way of a reply and potential
`supplemental declaration to arguments that were made,
`because my hands were tied in filing a copycat
`petition.
` But before I get into that, I did want to
`address just a confusion that was procedurally for
`what we do with the posture of our Petition which
`specifically sought to joint Samsung's proceedings
`which have now been terminated.
` THE COURT: Well, I think I can answer that
`question. I mean those proceedings were terminated.
`My understanding, though, is that neither of these two
`
`Page 8
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`Petitions, the 00412 or the 00413, are barred under
`the, what is the section, Section 315B. So in that
`case, then, I think that the Petition would just
`proceed normally to an institution decision.
` MR. SEITZ: I may have to ask for a
`clarification on that, Your Honor.
` THE COURT: Sure.
` MR. SEITZ: That certainly is correct.
`We're not barred and if that's how you're proceeding,
`I understand that. But my confusion, rather, arose
`from the precedent that's out there.
` In this instance we filed a copycat
`Petition seeking to join which was substantively
`identical to that which Samsung filed to obviously to
`take an understudy role. We can't raise any
`objections. We can use substantive arguments.
` We have the patent now where RFCyber has
`sought to raise a new argument in its patent under
`preliminary response that we could not have addressed
`in any way, shape or form in our original Petition
`because of descriptions on the understudy role in
`filing a copycat Petition.
` So if this proceeding is going to proceed
`as normal now, I would like permission to file a reply
`that addresses those new arguments that I would have
`
`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
`
`2 (Pages 5 to 8)
`
`Fax: 314.644.1334
`
`IPR2022-00413
`Apple EX1044 Page 2
`
`

`

` IPR HEARING 5/19/2022
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`been precluded in raising otherwise in the context of
`a copycat joiner Petition.
` THE COURT: Well, I mean there's nothing
`that restricts the Patent Owner from filing new
`arguments even though the joiner Petition makes no --
`it still proceeds with them filing a preliminary
`response; right?
` MR. SEITZ: I don't disagree with that
`point, Your Honor. I'm just saying procedurally I
`could have prejudiced my client to file a Petition for
`Joiner that seeks to state substantively identical to
`what was done by Samsung. New arguments have been
`raise, but they don't disagree that RFCyber has the
`right to raise an argument.
` I'm just asking for an ability to cure that
`prejudice now, because in the underlying proceeding to
`terminate, there's new arguments that have never been
`raised in either one and that I was precluded from
`raising in my original one. So I was asking for the
`right to address those new arguments.
` THE COURT: I just don't see how that's any
`different than any other Petition. I mean we don't
`grant petitions -- there has to be good cause. How is
`that good cause?
` MR. SEITZ: The good cause here, Your
`
`Page 10
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`Honor, is that if I had filed my own Petition that did
`not seek to join another party's Petition, I certainly
`could have addressed every argument that I think the
`Patent Owner would have raised, and I would be held to
`that. That is absolutely right.
` But here, we filed a Motion to Join and
`filed a copycat Petition. I sought to join as an
`understudy role. That meant that I was precluded from
`adding any new substantive arguments.
` I could not have addressed any arguments
`that the Patent Owner may have raised, because I was
`restricted to raising only the issues that were raised
`in Samsung's Petition. So that's a different
`(unintelligible).
` THE COURT: What specifically are you
`intending is the new argument that could be responded
`to?
` MR. SEITZ: Your Honor, on that point, if I
`may defer to my partner, Paul Hart, I believe he may
`have those substantive arguments in front of him, if
`you give me just the ability to do that. I may have
`lost him, Your Honor.
` MR. HART: I am here. I'm just pulling it
`up. There are new arguments in the 009 patent proffer
`that were not raised in Samsung's proffer that the
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`board did not address related to the claims' secure
`element.
` And there are also arguments in that 009
`patent proceeding related to eliminating the combined
`and related to the standard comments about the
`standards in the base reference.
` Those are two sets of arguments that were
`not raised in Samsung's proffer that the board did not
`consider in Samsung's (unintelligible) but that had
`advanced in the 009 patent proffer against us for
`which we have not yet had an opportunity to respond.
` Obviously, those are arguments that had we
`been joined to an active proceeding, we could have
`addressed in our patent reply and entered supplemental
`expert declaration. But because we joined via copycat
`petitions, we had no ability to address them up front.
` Similarly, in the 77 patent proceedings
`there is an argument about the claim language for,
`quote, getting the fund stored in the emulator, end
`quote, related to E-post transactions that are the
`subject of those claims.
` That is another argument, another
`substantive argument patent related (unintelligible)
`called a heater that was not advanced to the proffer
`in Samsung, and so the board has not considered or had
`
`Page 12
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`an opportunity to address.
` THE COURT: I mean, I guess so if we
`decided to (unintelligible) you would be able to
`respond to those, right?
` MR. SEITZ: Absolutely, Your Honor; yes.
` THE COURT: But we don't normally grant
`discretions because Patent Owner already raised
`arguments about, I mean, about the claims and about
`the motivation to bind. We don't normally in normal
`situations grant replies to preliminary response; do
`we? Have you identified any?
` MR. HART: No. We don't normally seek to
`file preliminary replies on substantive arguments.
`We've never been placed in the current situation where
`we asked to join an existing active proceeding and
`could have addressed in a substantive argument in a
`Petitioner reply through a supplemental declaration.
` So here we're kind of put in a tough spot
`where we could not address any argument because it's a
`copycat. We (unintelligible) Patent Owner to present
`to you to deny instituting identical grounds that were
`previously instituted which would deprive us of the
`opportunity to address these arguments in a Petitioner
`reply and supplemental expert declaration.
` THE COURT: Okay. That doesn't really
`
`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
`
`3 (Pages 9 to 12)
`
`Fax: 314.644.1334
`
`IPR2022-00413
`Apple EX1044 Page 3
`
`

`

` IPR HEARING 5/19/2022
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`answer my question. But let's listen to the Patent
`Owner.
` MR. COWELL: Your Honor, this is Richard
`Cowell on behalf of the Patent Owner. We believe
`Apple's request needs to be denied, because they have
`not shown good cause and can't show good cause.
` As Your Honor said, I think several times,
`this has always been the case or is often the case
`that a Petitioner raises the Petition and then a
`Patent Owner may listen to argument. And if the
`Petition doesn't have the information to overcome that
`argument, then that Petition shouldn't be instituted
`such as Apple's Petition.
` I understand they're saying the copycat
`Petition, but that was their strategic choice and
`they're bound by that choice. Case law is very clear
`that, you know, the IPR proceeding is defined by the
`content of that Petition.
` And what Apple is seeking to do here -- and
`they're calling it a reply, but it's actually a
`supplement -- they want to add new arguments and they
`want to add new evidence in the form of a declaration.
` That's just not contemplated by the rules,
`and I don't think it's covered by the rules. Apple
`could have addressed -- they're saying, no, we didn't
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`Page 14
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`have any opportunity; our hands have been tied to
`address the arguments that Patent Owners have made in
`this IPR.
` But again, they certainly could have done
`that. They chose to limit the Petition to the exact
`grounds that Samsung did. And they were not forced to
`do that.
` They had the opportunity to respond to
`these arguments that they had and could have done so.
`So we think there is no good cause. And this is the
`same as every other case when there's a Petition, and
`it has to stand or fall on its own merits. And a
`reply is generally not granted to respond to
`substantive arguments.
` And I further note that allowing us to
`claim declaration certainly is an end around word
`limits in the Petition, because now they're putting in
`substantively new arguments, substantively new
`evidence that if instituted would raise practical
`problems.
` Would those be considered part of the
`Petition a Patent Owner needs to respond to on its POR
`or are they some sort of nebulous problem? Briefly
`that's -- so for all those reasons, there was no good
`cause, and we ask that the request be denied.
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` THE COURT: Okay. Do you have anything
`else you would want to say? And I have one question
`for you, Apple counsel.
` MR. SEITZ: Yes, Your Honor.
` THE COURT: Are you still within the
`one-year time limit?
` MR. SEITZ: I believe so, Your Honor. I
`should have pulled up the dockets. But I believe the
`answer to that is yes. If you give me a moment, I can
`pull up the docket very quickly.
` MR. HART: I can confirm that we are within
`our one-year limit.
` THE COURT: And I guess the other question
`is, I mean, were you aware of these arguments when you
`filed your copycat Petition?
` MR. SEITZ: No. These arguments had not
`been raised in the POPR and Sumsung's Petition, and
`had not been raised after institution of the Samsung
`proceedings, either.
` THE COURT: Okay. I mean let me talk to my
`co-panelists. Let me mute for a minute while I speak
`with them and I'll get back to you.
` (WHEREIN, a recess was taken.)
` THE COURT: Counsel, are you there?
` MR. SEITZ: Yes, Your Honor.
`
`Page 16
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` MR. COWELL: Patent Owner is here, Your
`Honor.
` THE COURT: We are going to take it under
`advisement. But I would say that we're unlikely to
`grant this request, because, I mean, there's no normal
`requirement that we grant a reply. There has to be
`good cause shown.
` You know, Patent Owner is free to make any
`arguments in opposition to a Joiner Petition, and a
`Joiner Petition does not necessarily limit their
`argument that they can raise.
` I have had a number of cases where the
`Patent Owner raises completely different arguments,
`and the Patent Owner preliminarily responds to the
`Joiner Petition. So I don't think this is that
`unusual of a situation as you're suggesting, Mr.
`Seitz.
` The other issue, I mean, there's always the
`opportunity for you to withdraw your Petition and
`refile a Petition that is more to your liking.
` Also, you know, we haven't even considered
`your Petition yet, so it may be instituted; it may not
`be. I mean, so I think any ruling -- and if we
`institute, you will have the opportunity to respond to
`all these arguments in your reply.
`
`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
`
`4 (Pages 13 to 16)
`
`Fax: 314.644.1334
`
`IPR2022-00413
`Apple EX1044 Page 4
`
`

`

` IPR HEARING 5/19/2022
`
`Page 17
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`Page 19
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`situation.
` MR. SEITZ: I understand, Your Honor. And
`I've stated my point, that the only difference here is
`the point of context and we have not found a single
`case at all that was given this exact procedural
`context.
` So in that regard it's unique, but I
`certainly understand what you're saying with regards
`to the routine practice. And that's all I have to
`say.
` MR. COWELL: Your Honor, may I say
`something?
` THE COURT: Sure.
` MR. COWELL: Your Honor, I just want to put
`on the record as to Mr. Seitz's prejudice to
`adherence. Here it's caused by its own choice,
`strategic choice made freely to file a copycat
`Petition rather than a conventional Petition.
` And I would note that we cite in the case
`in our opposition to Apple's Motion For Joiner where a
`Motion For Joiner was made, the underlying original
`Petition was terminated, and then the board went on to
`evaluate the new joiner Petition on its own merits.
`And that's IPR2020-108.
` THE COURT: Okay. Thank you very much.
`
`Page 20
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`Anything else you wish to raise?
` MR. SEITZ: No, Your Honor.
` MR. COWELL: Nothing for Patent Owner, Your
`Honor.
` THE COURT: We have no other questions, and
`I thank the parties for their agreeing to this call.
` MR. SEITZ: Thank you, Your Honor.
` COURT REPORTER: Okay. So Adam, what would
`you like me to do with this? Are you on the phone,
`Adam? Is anyone there?
` (WHEREIN, the hearing was concluded at 2:20
`PM.)
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` So I think that those are what's weighing
`on our consideration. But we would like to have the
`parties file the transcript with the board and we'll
`issue an order after we receive the transcript.
` MR. SEITZ: Your Honor, may I ask a
`question? This is a sidetrack, if that's okay.
` THE COURT: Of course.
` MR. SEITZ: So in the event where if we
`were to, for example, withdraw our Petition like you
`noted, my concern would be the gotcha case that has
`now arisen here with the board's ability to deny under
`General Plastics.
` Like I anticipate that the Patent Owner
`would argue that we would join additionally after
`seeing substantive arguments and that should then be,
`the subsequent Petition, should be subject to either
`discretionary denial or under General Plastic.
` I mean I think that same issue applies if
`the board were to deny based on arguments that we
`could not have raised because of the posture of the
`Joiner Motion.
` If, for example, relying on the new
`arguments, if I were to attempt to file a second
`Petition, I also could envision a Patent Owner arguing
`that General Plastics would bar that scenario as well,
`
`Page 18
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`which is part of the prejudice that I'm referring to
`here which is why I believe there is good cause.
` I think this has put us behind, put
`Petitioner Apple in a darned-if-you-do,
`darned-if-you-don't scenario if you're given a
`discretionary denial of claims that General Plastics
`with any sort of follow-on petitions or withdrawal of
`Petition or follow-on Petition.
` THE COURT: I mean I can't issue rulings on
`things that haven't happened yet. You know, I think
`that those are all considerations for you and your
`client to deal with. I can't give advice or any
`rulings.
` MR. SEITZ: I understand, Your Honor. I
`wanted the prejudice that Apple is going to be subject
`to in the event of a denial, the arguments to be clear
`on the record.
` THE COURT: No, I understand that. But I
`would like to note that that same kind of prejudice
`exists in every single Petition where the Patent Owner
`raises arguments in a preliminary response, but we
`don't grant replies as a matter of course.
` So I think that that's the way the game is
`played here. So I think that's, you know, I don't see
`how this situation differs that much from any other
`
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`LEXITAS LEGAL
`Phone: 1.800.280.3376
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`5 (Pages 17 to 20)
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`Apple EX1044 Page 5
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`

`

` IPR HEARING 5/19/2022
`
`Page 21
`
` CERTIFICATE OF REPORTER
`STATE OF MISSOURI )
` ) ss.
`CITY OF KANSAS CITY)
` I, Penny J. Mullen, a Certified Court
`Reporter within and for the State of Missouri, do
`hereby certify that the witness whose testimony
`appears in the foregoing hearing was taken by me to
`the best of my ability and thereafter reduced to
`typewriting under my direction; that I am neither
`counsel for, related to, nor employed by any of the
`parties to the action in which this hearing was taken,
`and further that I am not a relative or employee of
`any attorney or counsel employed by the parties
`thereto, nor financially or otherwise interested in
`the outcome of the action.
`
` ____________________________
` Penny J. Mullen, CCR #808
`
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`LEXITAS LEGAL
`Phone: 1.800.280.3376
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`6 (Page 21)
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`Apple EX1044 Page 6
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`

`

`
`
` IPR HEARING 5/19/2022 IPR HEARING 5/19/2022
`
`A
`ability 9:15
`10:21 11:16
`17:11 21:8
`able 12:3
`absolutely 10:5
`12:5
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`Adam 4:3 5:15
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`adam.seitz@e...
`4:6
`add 13:21,22
`adding 10:9
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`addressed
`6:25 8:19 10:3
`10:10 11:14
`12:16 13:25
`addresses 8:25
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`advanced 11:10
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`advice 18:12
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`16:4
`afternoon 3:12
`3:12 5:10,14
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`AGREED 5:1
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`amount 6:17
`answer 7:13,23
`13:1 15:9
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`Appeal 1:2 3:2
`3:18
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`
`5:13
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`5:15 6:3 13:19
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`April 6:14
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`arguing 17:24
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`11:18,22,23
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`8:16,25 9:5,12
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`10:10,20,24
`11:3,7,12 12:8
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`14:2,9,14,18
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`B
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`B 2:7
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`behalf 3:20
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`Broadway 4:10
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`C
`
`C 4:1
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`calling 13:20
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`14:11 17:10 19:5
`19:19
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`cause 3:16 9:23
`9:24,25 13:6
`13:6 14:10,25
`16:7 18:2
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`19:16
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`21:1
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`Cherry 4:12 5:11
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`18:6
`claims' 11:1
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`client 9:10 18:12
`Closing 2:4
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`5:11 15:21
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`16:13
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`www.lexitaslegal.comwww.lexitaslegal.com
`
`
`LEXITAS LEGALLEXITAS LEGAL
`
`Phone: 1.800.280.3376Phone: 1.800.280.3376
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`
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`Fax: 314.644.1334Fax: 314.644.1334
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`Apple EX1044 Page 7
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`

`

` IPR HEARING 5/19/2022
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`differs 18:25
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`first 7:13
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`Introduction
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`N 2:1 4:1
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`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
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`Fax: 314.644.1334
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`IPR2022-00413
`Apple EX1044 Page 8
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`

`

` IPR HEARING 5/19/2022
`
`nebulous 14:23
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`oppositions 6:9
`order 17:4
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`Owner 1:8 3:8
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`record 18:17
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`refile 16:20
`regard 19:7
`regards 19:8
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`relying 17:22
`Remarks 2:2
`REMOTE 3:10
`remotely 3:13
`replies 12:10,13
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`14:13 16:6,25
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`14:22 16:24
`responded
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`responds 16:14
`response 8:19
`9:7 12:10 18:21
`restricted 10:12
`
`www.lexitaslegal.com
`
`LEXITAS LEGAL
`Phone: 1.800.280.3376
`
`Fax: 314.644.1334
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`IPR2022-00413
`Apple EX1044 Page 9
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`

` IPR HEARING 5/19/2022
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`18:23
`we'll 17:3
`we're 8:9 12:18
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`We've 12:14
`weighing 17:1
`went 19:22
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`withdraw 16:19
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`withdrawal 18:7
`witness 21:6
`word 14:16
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`times 13:7
`tough 12:18
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`transcript 17:3,4
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