From:
`To:
`Cc:
`Subject:
`Date:
`Attachments:
`
`Matthew Smith
`Precedential_Opinion_Panel_Request
`Andrew Baluch; #ValtrusIPR [Int]; Harbour, Michael; Lindsay, Jonathan; Zhong, Annita
`RE: IPR2022-01545, IPR2022-01497
`Wednesday, June 21, 2023 7:41:47 PM
`01-12.pdf
`
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`Honorable Precedential Opinion Panel,
`
`Google objects to Valtrus’s email below as argumentative. However, to correct the record set
`forth by Valtrus, Google notes that it had no communication with any representative of Micro
`Focus until June 12, 2023, which, according to Valtrus’s email below, was after the
`deterioration in the relationship between Valtrus and Micro Focus. Further, Valtrus’s email
`partially quotes a June 9, 2023 letter from Micro Focus to Valtrus. This letter was attached to
`Valtrus’s motion to compel filed in Utah, and is likewise attached here. The full text of this
`letter makes plain why the relationship between Micro Focus and Valtrus deteriorated.
`
`Respectfully,
`
`Counsel for Petitioner Google LLC
`
`Matthew A. Smith
`SMITH BALUCH LLP
`(202) 669-6207
`smith@smithbaluch.com
`
`From: Lindsay, Jonathan <jlindsay@irell.com>
`Sent: Wednesday, June 21, 2023 8:53 AM
`To: Precedential_Opinion_Panel_Request@USPTO.GOV
`Cc: Matthew Smith <smith@smithbaluch.com>; Andrew Baluch <baluch@smithbaluch.com>;
`#ValtrusIPR [Int] <ValtrusIPR@irell.com>; Harbour, Michael <MHarbour@irell.com>
`Subject: IPR2022-01545, IPR2022-01497
`
`Dear Precedential Opinion Panel,
`
`On June 16, 2023, Patent Owner Valtrus Innovations Limited (“Valtrus”) sought guidance and
`an order (Paper 22) from the Board in IPR2022-01545, -01497 regarding potential interference
`by Petitioner Google LLC (“Google”) of the conduct of discovery authorized by the Board in
`this matter. Specifically, Valtrus sought a further order from the Board requiring Petitioner to
`disclose communications it has had with third party Micro Focus regarding the subject matter
`or compliance with a subpoena Valtrus issued in accordance with the Board’s order. While a
`conference call was initially scheduled with the Board regarding Valtrus’s request, the call
`IPR2022-01545
`Ex. 3003
`
`

`

`was subsequently canceled. We were informed the call was canceled because Google had
`filed a Precedential Opinion Panel (“POP”) review request on June 6, 2023 and, pursuant to
`PTAB Standard Operating Procedure 2, Revision 10, at 6-7 (“Precedential Opinion Panel
`Review Process”), the POP now maintains authority over all issues in this case until further
`notice.
`
`Therefore, Valtrus now respectfully seeks the same guidance and order from the POP
`regarding this same time-sensitive issue. The facts of the situation are as follows:
`
`After the Board’s discovery order was issued, Valtrus promptly served the authorized
`subpoenas on third party Micro Focus, the holder of the source code in this matter. Initially,
`Micro Focus was cooperative and was working with Valtrus to facilitate both review of the
`source code and related documents along with a deposition of a corporate representative. On
`June 8, 2023, however, Micro Focus suddenly asserted that the subpoenas were premature and
`not valid (based in part on Google’s pending motion for reconsideration). MicroFocus stated
`that it therefore considered the matter “closed.” Since then, MicroFocus has not responded to
`any of Valtrus’s further communications.
`
`Valtrus emailed Petitioner Google’s counsel asking, “has any representative of Google been in
`communication with Micro focus, its counsel or affiliates regarding this subpoena.” After
`receiving no response, Valtrus emailed Google’s counsel again seeking an answer. Google
`declined to directly address Valtrus’s question, but instead stated that the parties should have a
`teleconference with the Board to discuss “the nature of any obligations the parties may have to
`one other concerning communications with non-party targets of Valtrus’ discovery requests”
`along with a few other items.
`
`On June 19, 2023, Valtrus filed a motion to compel Micro Focus to comply with the
`subpoenas in the District of Utah.
`
`Based on these facts, and given the very time-sensitive nature of the issue, Valtrus seeks an
`order from the POP requiring Petitioner to disclose the communications it has had with Micro
`Focus regarding the subject matter or compliance with the subpoena. Valtrus is concerned that
`Petitioner is attempting to deter targets subject to a valid subpoena from cooperating with the
`process.
`
`The parties had previously indicated availability Friday (6/23) for a conference call.
`
`Jonathan M. Lindsay
`IReLL & MANeLLA LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Direct: 949.760.5220
`
`
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