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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ASSA ABLOY AB, ASSA ABLOY INC., ASSA ABLOY RESIDENTIAL
`GROUP, INC., AUGUST HOME, INC., HID GLOBAL CORPORATION,
`ASSA ABLOY GLOBAL SOLUTIONS, INC.,
`Petitioner,
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`v.
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`CPC PATENT TECHNOLOGIES PTY LTD.,
`Patent Owner.
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`Case IPR2022-01089
`Patent 9,269,208
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`PATENT OWNER’S SUR-REPLY TO PETITIONER’S PRELIMINARY
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`RESPONSE REPLY
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`Petitioners contend that Apple cannot be an RPI because it purportedly has no
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`control over the Petition. Reply at 2, 8. However, the Board has repeatedly made
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`clear that “a non-party may be a real party-in-interest even in the absence of
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`control or an opportunity to control.” Cisco Sys., v. H.P Enter. Co., IPR2017-
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`01933, Paper 9 at 13 (PTAB Mar. 16, 2018) (emphasis added). Key to the RPI
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`analysis is whether Apple and Petitioners have a structured, preexisting business
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`relationship and whether Apple would receive more than a merely generalized
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`benefit if trial is instituted. AIT, LLC v. RPX Corp., 897 F.3d 1336, 1351 (Fed. Cir.
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`2018). Petitioners’ own Exhibit Nos. 1023-1027 demonstrate the specially structured
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`nature of the business relationship with Apple concerning the relevant products.1
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`Petitioners admit that the ASSA ABLOY products identified in the Parallel
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`Litigation were sent to Apple for compliance or certification purposes. See EX2032.
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`According to Petitioners, the HID and Hospitality products were submitted to Apple
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`because they work in conjunction with Apple Wallet. Reply at 8. Petitioners admit
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`1 Exhibit Nos. 1023-1027 are bare screenshots with no supporting declaration or
`other evidence to verify their authenticity or reliability and are therefore
`inadmissible under at least FRE 802, 901. Petitioners cannot satisfy their burden of
`persuasion with inadmissible evidence. See Bungie v. Worlds Inc., IPR2015-01264,
`Paper 64 at 38 (PTAB Jan. 14, 2020) (“it was incumbent upon Petitioner to provide
`persuasive argument supported by evidence to reduce or remove any speculation”
`regarding the relationship between the Petitioner and the RPI) (emphasis in original).
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`1
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`that only 56 out of the purported 34 million application developers (or 0.00017%)
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`make similar product submissions to Apple. Id. at 1, 8.
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`Petitioners also admit that relevant Yale and August products were submitted
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`to Apple to ensure compliance. Id. at 8. Petitioners submit that Apple requires similar
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`product submissions from “hundreds” of MFi participants. Id. “Hundreds” is
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`ambiguous, but even assigning it the largest possible value (999), then only 0.003%
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`of the purported 34 million developers make similar submissions. Petitioners are
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`amongst an infinitesimally small percentage of developers that have such a close
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`partnership with Apple that Apple inspects their physical products. As in Ventex,
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`Apple and Petitioners have a “specially structured, preexisting, and well-established
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`business relationship with one another” with respect to the technology at issue.
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`Ventex, IPR2017-00651, Paper 148 at 10 (PTAB Jan. 24, 2019).
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`Petitioners speculate that a finding that Apple is an RPI here would have an
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`unfairly deleterious effect on the purported 34 million app developers. Reply at 1.
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`But there is no evidence that all app developers share the exact same relationship
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`with Apple and, as demonstrated above, Petitioners’ relationship with Apple is
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`relatively unique. The Board can only be expected to consider the facts presented in
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`this case and the specific relationship between Petitioners and Apple, and not some
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`unidentified 34 million others. Petitioners’ due process argument also fails because
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`2
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`they had ample time to file their Petition before the § 315(b) time bar expired on
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`March 1, 2022. Their lack of diligence does not equate to a violation of due process.
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`Petitioners’ effort to distinguish the Apple Agreement from the DevPub
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`agreement in Bungie also fails. Reply at 5-6. The Apple Agreement requires
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`Petitioners to warrant that “none of the Licensed Applications…violate or infringe
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`any patent…or other intellectual property or contractual rights of any other person.”
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`EX2009 at 77. See also id. at 16 (to the best of developer’s knowledge, the relevant
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`products “do not and will not” violate or infringe any patents.) The warranties are
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`not merely opinions on whether the rights are clear. Rather, as in Bungie they are
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`stated with certainty, for the purpose of ensuring that the rights are cleared for use.
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`Next, Ventex does not require an “exclusivity-plus-indemnity arrangement.”
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`See Reply at 6. The Apple indemnity provision must be considered along with all
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`other relevant facts in the “flexible approach” and “expansive formulation”
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`required under AIT. See AIT at 1351. Under AIT, Apple is clearly an RPI.
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`Petitioners rely on WesternGeco LLC v. ION Geophysical Corp., 889 F.3d
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`1308 (Fed. Cir. 2018) to support its argument that Apple is not a privy under
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`Taylor Factor 2. However, in WesternGeco, the Board rejected privity “based on
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`the ambiguous, undefined nature of the underlying [indemnity] agreements.” Id. at
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`1321. As discussed in the Preliminary Response, the indemnity clauses in the
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`Apple Agreement are in no way ambiguous or undefined. Prelim. Resp. at 26-29.
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`Respectfully submitted,
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`Dated: November 7, 2022
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`/Andrew C. Ryan/
`By:
`Andrew C. Ryan
`Reg. No. 43,070
`Steven M. Coyle (pro hac vice)
`Nicholas A. Geiger (pro hac vice)
`CANTOR COLBURN LLP
`20 Church Street, 22nd Floor
`Hartford, CT 06103
`Tel: (860) 286-2929
`Fax: (860) 286-0115
`ryan@cantorcolburn.com
`scoyle@cantorcolburn.com
`ngeiger@cantorcolburn.com
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`Attorneys for Patent Owner
`CPC Patent Technologies Pty Ltd.
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`4
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on this 7th day
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`of November, 2022, service of the foregoing document was made on the counsel of
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`record for the Petitioner by filing this document through the PTAB’s P-TACTS
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`platform as well as delivering a copy via electronic mail to the following address:
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`Dion Bregman
`Andrew Devkar
`James J. Kritsas
`Morgan, Lewis & Bockius LLP
`1400 Page Mill Road
`Palo Alto, CA 94304
`HID-IPRs@morganlewis.com
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`Dated: November 7, 2022
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`By:
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`/Andrew C. Ryan/
`Andrew C. Ryan
`Reg. No. 43,070
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`5
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