UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALIVECOR, INC.,
`Petitioner
`
`v.
`
`APPLE INC.,
`patent Owner
`____________
`
`Case No. IPR2024-00169
`U.S. patent No. 10,076,257 B2
`____________
`
`PETITIONER’S CONDITIONAL MOTION FOR JOINDER
`TO INTER PARTES REVIEW IPR2023-00745
`
`
`
`
`Mail Stop PATENT BOARD
`patent Trial and Appeal Board
`US Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313-1450
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ALIVECOR, INC.,
`Petitioner
`
`v.
`
`APPLE INC.,
`patent Owner
`____________
`
`Case No. IPR2024-00169
`U.S. patent No. 10,076,257 B2
`____________
`
`PETITIONER’S CONDITIONAL MOTION FOR JOINDER
`TO INTER PARTES REVIEW IPR2023-00745
`
`
`
`
`Mail Stop PATENT BOARD
`patent Trial and Appeal Board
`US Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313-1450
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`
`STATEMENT OF PRECISE RELIEF REQUESTED ............................. 1
`I.
`STATEMENT OF MATERIAL FACTS .................................................... 4
`II.
`III. STATEMENT OF REASONS FOR RELIEF REQUESTED .................. 5
`A.
`Joinder is Appropriate ............................................................................... 5
`B.
`No New Grounds of Unpatentability ........................................................ 7
`C.
`Joinder Will Not Impact Any Trial Schedule. ........................................... 8
`D.
`Joinder Would Simplify Briefing and Discovery. ..................................... 8
`IV. PETITIONER’S RANKING OF PETITIONS ......................................... 10
`A.
`This Petition and the AliveCor Petition Are Materially Different .......... 10
`B.
`Petitioner Ranks the AliveCor Petition Ahead of This Petition .............. 11
`V. CONCLUSION ............................................................................................ 13
`
`
`
`i
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`
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`CASES PAGE(S)
`AliveCor, Inc. v. Apple Inc.,
`IPR2023-00950 (PTAB) ..............................................................................passim
`Apple Inc. v. AliveCor, Inc.,
`Case No. 4:22-cv-07608-HSG (N.D. Cal.) ........................................................... 4
`Apple Inc. v. INVT SPE LLC,
`IPR2019-00958, Paper 9 (PTAB May 30, 2019) ................................................. 9
`Apple Inc. v. Masimo Corp. et al.,
`Case No. 1:22-cv-01378-MN (D. Del.) ................................................................ 4
`Apple Inc. v. Speir Techs. Ltd.,
`IPR2023-00305, Paper 9 (PTAB May 15, 2023) ............................................. 2, 3
`Apple Inc., v. Uniloc
`2017 LLC, IPR2020-00854, Paper 9 (PTAB Oct. 28, 2020) ............................... 6
`Code200, UAB v. Bright Data Ltd.,
`IPR2022-00861, Paper 18 (PTAB Aug. 23, 2022) ........................................... 2, 7
`Dell Inc. v. Alacritech, Inc.,
`IPR2018-01307, Paper No. 8 (PTAB Jan. 11, 2019) ........................................... 8
`Dell Inc. v Network-1 Security Solutions, Inc.,
`IPR2013-00385, Paper No. 17 (PTAB July 29, 2013) ......................................... 5
`General Plastic Indus. Co. v. Cannon Kabushiki Kaisha,
`IPR2016-01357, Paper 19 (PTAB Sept. 6, 2017) ......................................... 2, 6, 7
`Masimo Corp. v. Apple Inc.,
`IPR2024-00071 (PTAB) ....................................................................................... 4
`Motorola Mobility LLC v. SoftView LLC,
`IPR2013-00256, Paper 10 (PTAB June 20, 2013) ............................................. 10
`
`
`
`ii
`
`
`
`
`
`Network-1 Techs., Inc. v. Hewlett-Packard Co.,
`981 F.3d 1015 (Fed. Cir. 2020) .......................................................................... 12
`Noven Pharmaceuticals, Inc. v. Novartis AG,
`IPR2014-00550, Paper 38 (PTAB Apr. 10, 2015) ............................................. 10
`STATUTES
`35 U.S.C. § 315(c) ..................................................................................................... 5
`35 U.S.C. §315(e)(2) ................................................................................................ 12
`OTHER AUTHORITIES
`37 C.F.R. § 42.53 ..................................................................................................... 10
`37 C.F.R. § 42.122(b) ................................................................................................ 5
`
`
`
`
`iii
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`
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`
`
`I.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`Petitioner AliveCor, Inc. (“Petitioner” or “AliveCor”) hereby conditionally
`
`moves for joinder of AliveCor’s contemporaneously filed petition for inter partes
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`review of claims 1-4 and 8-22 of U.S. Patent No. 10,076,257 (the “’257 patent”)
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`with the instituted petition for review filed by Masimo Corporation, IPR2023-00745
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`(“Masimo Proceeding” and “Masimo,” respectively).
`
`The Masimo Proceeding was filed on March 22, 2023, on the same patent and
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`the same claims as this Petition. This Petition and supporting declaration are
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`substantively identical to the petition and declaration submitted in the Masimo
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`Proceeding. More specifically, and for the purpose of joinder and maintaining an
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`action before the PTAB, Petitioner hereby asserts that the same claims are
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`anticipated and/or obvious over the same prior art based on the same arguments
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`presented by the same expert as in the Masimo Proceeding.
`
`AliveCor respectfully requests that the Board institute review in this
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`proceeding and grant this joinder motion if, and only if, the Board has previously
`
`denied institution in AliveCor, Inc. v. Apple Inc., IPR2023-00950 (the “AliveCor
`
`Proceeding”).1 Specifically, in the AliveCor Proceeding, Apple has advocated for
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`
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`1 Given the deadline for Joinder in the Masimo Proceeding, Petitioner must move
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`for joinder now and cannot wait for the decision in the AliveCor Proceeding.
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`
`
`1
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`
`
`
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`discretionary denial in view of the Masimo Proceeding. Should the Board deny
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`institution at Apple’s urging, the Board should institute this proceeding to preserve
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`efficiency and fairness.
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`AliveCor submits that the circumstances and the necessity of this filing are
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`unique due to Apple’s litigation strategy. Apple chose to accuse Masimo of
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`infringement months before AliveCor, putting AliveCor in the position of filing
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`second at the PTAB. Now AliveCor is faced with the possibility of discretionary
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`denial even though it acted expeditiously upon being served with a complaint for
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`infringement. Institution of this copycat Petition, should AliveCor’s Proceeding be
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`discretionarily denied, best balances the Board’s policy goals. Indeed, in cases like
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`this one, the Board does not weigh the majority of the General Plastic factors against
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`the Petitioner especially when an earlier petition is discretionarily denied and the
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`second petition is a copycat thereby avoiding any road-mapping concerns. Code200,
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`UAB v. Bright Data Ltd., IPR2022-00861, Paper 18 at 5 (PTAB Aug. 23, 2022)
`
`(precedential) (“Where the first-filed petition under factor 1 was discretionarily
`
`denied or otherwise was not evaluated on the merits, factors 1−3 only weigh in favor
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`of discretionary denial when there are ‘road-mapping’ concerns under factor 3 or
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`other concerns under factor 2.”).
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`Conversely, if the Board institutes review in the AliveCor proceeding,
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`AliveCor withdraws this motion and the corresponding Petition. See Apple Inc. v.
`
`
`
`2
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`
`
`
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`Speir Techs. Ltd., IPR2023-00305, Paper 9 (PTAB May 15, 2023) (denying
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`institution and denying petitioner’s motion for conditional joinder because the Board
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`concurrently instituted review in Apple’s original petition). AliveCor makes this
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`request to ensure that it is a named petitioner in one—and only one—instituted inter
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`partes review proceeding. In this way, consistent with the Board’s policy goals,
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`AliveCor seeks a fair and efficient resolution to its dispute with Patent Owner while
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`still affording itself the opportunity to pursue invalidity at the PTAB.
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`To be clear, AliveCor prefers and requests consideration of its original
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`petition in the AliveCor Proceeding (the “AliveCor Petition”). The AliveCor Petition
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`raises three distinct sets of grounds based on new prior art combinations: U.S. Patent
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`Publication No. 2007/0021677 (“Markel”) as a single-reference obviousness
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`ground, Markel in view of U.S. Patent No. 6,775,566 (“Nissilä”), and Markel in view
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`of U.S. Patent No. 5,191,891 (“Righter”). Each ground of the AliveCor Petition
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`relies on a materially different disclosure in Markel—alone and in combination with
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`Nissilä and Righter—to render obvious all claims of the ’257 patent, whereas this
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`copycat Petition leaves claims 5-7 unchallenged. Markel discloses an embodiment
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`of its electronic device with an electrode molded into the audio output portion, which
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`is not addressed at all in this Petition. Each ground of the AliveCor Petition provides
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`a compelling case of obviousness that AliveCor believes should be instituted on the
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`merits.
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`
`
`3
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`
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`
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`Because Apple has accused AliveCor of infringing the ’257 patent in district
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`court and AliveCor believes the ’257 patent is unpatentable, AliveCor has a strong
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`interest in pursuing a case of unpatentability at the PTAB.
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`II.
`
`STATEMENT OF MATERIAL FACTS
`
`Apple Inc. (“Patent Owner”) purportedly owns the ’257 patent.
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`The following litigation or inter partes reviews related to the ’257 patent are
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`pending:
`
`• Masimo Corp. v. Apple Inc., IPR2023-00745 (PTAB);
`• AliveCor, Inc. v. Apple Inc, IPR2023-00950 (PTAB);
`• Masimo Corp. v. Apple Inc., IPR2024-00071 (PTAB);
`• Apple Inc. v. Masimo Corp. et al., Case No. 1:22-cv-01378-MN
`(D. Del.); and
`• Apple Inc. v. AliveCor, Inc., Case No. 4:22-cv-07608-HSG (N.D. Cal.).
`Apple asserted the ’257 patent against AliveCor in Apple Inc. v. AliveCor,
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`Inc., Case No. 4:22-cv-07608-HSG (N.D. Cal.), two months after Apple asserted the
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`’257 patent in an unrelated case against Masimo in Apple Inc. v. Masimo Corp. et
`
`al., Case No. 1:22-cv-01378-MN (D. Del.). Other than the ’257 patent, Apple
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`asserted different patents against AliveCor and Masimo, accusing vastly different
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`products of infringing in different jurisdictions months apart. There is no other
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`overlap between the two litigations.
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`
`
`4
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`
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`On March 22, 2023, Masimo petitioned for inter partes review of the ’257
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`patent in the Masimo Proceeding (IPR2023-00745). On June 7, 2023, entirely
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`independent of Masimo, AliveCor petitioned for inter partes review of the ’257
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`patent in the AliveCor Proceeding based on new grounds and new prior art
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`(IPR2023-00950). AliveCor now seeks to join the Masimo Proceeding if, and only
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`if, the Board denies institution in the AliveCor Proceeding.
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`III. STATEMENT OF REASONS FOR RELIEF REQUESTED
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`The Board has discretion to, and should, join this proceeding with the Masimo
`
`Proceeding. See 35 U.S.C. § 315(c); 37 C.F.R. § 42.122(b). The motion for joinder
`
`is timely because it is submitted within one month after the institution date of the
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`Masimo Proceeding. See 37 C.F.R. § 42.122(b). In considering a motion for joinder,
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`the Board considers the following factors: (1) the reasons why joinder is appropriate;
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`(2) new grounds of unpatentability asserted in the petition; (3) the impact (if any)
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`joinder would have on the trial schedule for the existing review; and (4) how briefing
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`and discovery may be simplified. See Dell Inc. v Network-1 Security Solutions, Inc.,
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`IPR2013-00385, Paper No. 17 at 4 (PTAB July 29, 2013). All of these factors weigh
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`in favor of joinder.
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`A.
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`Joinder is Appropriate
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`Joinder is appropriate here because joinder will not add any new substantive
`
`issues, delay the schedule, burden deponents, or increase needless filings. Any
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`5
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`additional cost to Patent Owner would be minimal. On the other hand, denial of
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`joinder would prejudice AliveCor if, and only if, the AliveCor Petition is denied.
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`This is particularly true if Masimo settles with Patent Owner. Just recently, the U.S.
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`International Trade Commission issued an exclusion order against Patent Owner’s
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`watches found to infringe Masimo’s patents. See Inv. No. 337-TA-1276. That order
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`may yield a settlement.2
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`In the event the Board denies institution in the AliveCor Proceeding, this
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`would be AliveCor’s only petition challenging the patentability of the ’257 patent.
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`While the Board has previously applied the factors espoused by General Plastic
`
`Indus. Co. v. Cannon Kabushiki Kaisha, IPR2016-01357, Paper 19 at 16 (PTAB
`
`Sept. 6, 2017) (precedential) to a joinder petition of a petitioner that previously filed
`
`its own petition, the Board should not and need not do so in this case, especially
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`given the conditional nature of this petition. Apple Inc., v. Uniloc 2017 LLC,
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`IPR2020-00854, Paper 9 (PTAB Oct. 28, 2020) (precedential). This case is
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`distinguishable over Apple given that if AliveCor’s Proceeding is denied, it will be
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`
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`2 This Petition and Motion for Joinder are being filed within one year of AliveCor
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`being served with a complaint for infringement. As such, should Apple settle with
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`Masimo and terminate the Masimo Proceeding, the Board should grant this
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`proceeding for the reasons it instituted in the Masimo Proceeding.
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`
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`6
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`
`
`
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`because of discretionary denial. As instructed by the Director, General Plastic
`
`factors 1-3 do not weigh in favor of discretionary denial. Code200, UAB v. Bright
`
`Data Ltd., IPR2022-00861, Paper 18 at 5 (PTAB Aug. 23, 2022) (precedential)
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`(“Where the first-filed petition under factor 1 was discretionarily denied or otherwise
`
`was not evaluated on the merits, factors 1−3 only weigh in favor of discretionary
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`denial when there are ‘road-mapping’ concerns under factor 3 or other concerns
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`under factor 2.”).
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`Indeed, factors 4-7 weigh in favor of institution given that it would have been
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`wasteful for Petitioner to pursue joinder any earlier, and the filing date of this
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`Petition is within the one-month timeline set by the Board’s rules. Moreover, both
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`parties will benefit from confining adjudication on certain invalidity grounds to a
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`single forum, and Petitioner is willing to serve as an “understudy” in the Masimo
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`Proceeding, which is fully consistent with the Board’s statutory goal.
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`B. No New Grounds of Unpatentability
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`This Petition and the petition in the Masimo proceeding are substantially the
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`same, challenging the same claims based on the same prior art grounds and evidence,
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`including an identical declaration from the same expert. Petitioner has copied the
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`substance of the petition in the Masimo proceeding for the purpose of joinder and is
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`filing its accompanying expert declaration.
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`7
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`
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`Petitioner does not seek to introduce grounds or claims not currently in the
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`Masimo Proceeding. In the event the Board denies institution in the AliveCor
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`Proceeding, AliveCor agrees to proceed solely on the grounds, evidence, and
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`arguments advanced, or that will be advanced, in the Masimo Proceeding as
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`instituted. Thus, joinder would be the most efficient and economical manner to
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`proceed. See, e.g., Dell Inc. v. Alacritech, Inc., IPR2018-01307, Paper No. 8 (PTAB
`
`Jan. 11, 2019) (granting motion for joinder where the petition challenged the same
`
`claims on the same grounds).
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`C.
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`Joinder Will Not Impact Any Trial Schedule.
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`Petitioner consents to the current schedule in the Masimo Proceeding and will
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`not request any alterations to any schedule that may issue in the Masimo Proceeding
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`based on the requested joinder. Further, this Petition does not include any new
`
`grounds of unpatentability. As such, joinder of this case will not introduce any new
`
`prior art, experts, or grounds for unpatentability into the Masimo Proceeding.
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`D.
`
`Joinder Would Simplify Briefing and Discovery.
`
`As the prior art and bases for unpatentability in the petitions in both this IPR
`
`and the Masimo Proceeding are the same, the same arguments will be made in both
`
`proceedings. Both Petitioner and Masimo rely on the same expert to support
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`identical arguments.
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`8
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`
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`Further, AliveCor agrees to take an “understudy” role in this joined
`
`proceeding, so long as Masimo remains an active party in the joined proceeding.
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`See, e.g., Apple Inc. v. INVT SPE LLC, IPR2019-00958, Paper 9 at 5–8 (PTAB May
`
`30, 2019) (granting IPR where petitioners requested an “understudy” role).
`
`Petitioner will assume a primary role only if Masimo ceases to participate in the IPR.
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`This will avoid lengthy and duplicative briefing. And because this Petition relies on
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`the same expert declaration, only a single deposition is needed for the proposed
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`joined proceeding.
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`Specifically, AliveCor expressly agrees, upon
`
`joining
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`the Masimo
`
`Proceeding, that the following conditions, as previously approved by the Board in
`
`similar circumstances, shall apply so long as the current petitioner remains an active
`
`party:
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`a) all filings by AliveCor in the Masimo Proceeding shall be consolidated with
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`the filings of the current petitioner, unless a filing concerns issues solely
`
`involving AliveCor;
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`b) AliveCor shall not be permitted to raise any new grounds in this proceeding
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`not instituted by the Board in the Masimo Proceeding, or introduce any
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`argument or discovery not introduced by the current petitioner;
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`c) AliveCor shall be bound by any agreement between Patent Owner and the
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`current petitioner concerning discovery and/or depositions; and
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`9
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`
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`d) AliveCor at deposition shall not receive any direct, cross-examination or
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`redirect time beyond that permitted under 37 C.F.R. § 42.53 or any agreement
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`between Patent Owner and the current petitioner.
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`See Noven Pharmaceuticals, Inc. v. Novartis AG, IPR2014-00550, Paper 38 at 5
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`(PTAB Apr. 10, 2015). Unless and until the current petitioner ceases to participate,
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`AliveCor will not assume an active role in the Masimo Proceeding.
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`Agreeing to an “understudy” role removes any potential “complication or
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`delay” caused by joinder, while providing the parties an opportunity to address all
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`issues that may arise and avoiding any undue burden on Patent Owner, Masimo, and
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`the Board. See, e.g., Motorola Mobility LLC v. SoftView LLC, IPR2013-00256,
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`Paper 10 at 8–10 (PTAB June 20, 2013).
`
`IV. PETITIONER’S RANKING OF PETITIONS
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`A. This Petition and the AliveCor Petition Are Materially Different
`
`In materially different ways, the AliveCor Petition and this Petition each
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`demonstrate that the ’257 patent’s claims are unpatentable albeit based on materially
`
`different embodiments of Markel.
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`The AliveCor Petition raises three distinct sets of grounds based on new prior
`
`art combinations: Markel as a single-reference obviousness ground, Markel in view
`
`of U.S. Patent No. 6,775,566 (“Nissilä”), and Markel in view of U.S. Patent No.
`
`5,191,891 (“Righter”). Each ground of the AliveCor Petition relies on a materially
`
`
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`10
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`
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`
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`different disclosure in Markel—alone and in combination with Nissilä and Righter—
`
`to render obvious all claims of the ’257 patent. Markel discloses an embodiment of
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`its electronic device with an electrode molded into the audio output portion, which
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`is not addressed at all in this Petition.
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`The AliveCor Petition and this Petition further diverge by applying materially
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`different secondary references. The AliveCor Petition relies on Nissilä and Righter,
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`whereas this Petition relies on Mills. The Petitions diverge even further by raising
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`different arguments for why a POSITA would have been motivated to combine the
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`prior art references.
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`Finally, this Petition leaves three claims left unchallenged, whereas the
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`AliveCor Petition challenges all claims of the ’257 patent.
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`In all these ways, the AliveCor Petition and this Petition offer non-redundant,
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`non-duplicative, and substantially dissimilar challenges to the ’257 patent.
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`B.
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`Petitioner Ranks the AliveCor Petition Ahead of This Petition
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`Petitioner prefers and requests initial consideration of the AliveCor Petition
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`before the Board considers this Petition and its accompanying conditional motion
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`for joinder. As discussed above, each ground of the AliveCor Petition provides a
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`compelling case of obviousness based on prior art combinations that the Board has
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`not yet considered. Petitioner has a strong interest in prosecuting a case of
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`unpatentability before the Board, and Petitioner would prefer to prosecute on the
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`
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`11
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`
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`Grounds that it set forth in the AliveCor Petition. AliveCor respectfully requests that
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`the Board institute review in this proceeding and grant this joinder motion if, and
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`only if, the Board has previously denied institution of the AliveCor Petition. That
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`is, if the Board institutes review of the AliveCor Petition, AliveCor withdraws this
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`motion and the petition. Conversely, if the Board were to decline to institute review
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`on the AliveCor Petition, AliveCor request consideration and institution of this
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`proceeding.
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`Furthermore, instituting review in the AliveCor Proceeding would promote
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`efficiency for all parties involved. For example, institution could preclude or abridge
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`a jury trial on invalidity by encouraging a stay. AliveCor already filed motion to stay
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`the district court litigation. EX1022. Institution of review could also lead to a final
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`written decision that estops Petitioner under 35 U.S.C. §315(e)(2) from asserting
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`certain grounds of invalidity in the district court litigation. The scope of estoppel
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`would be broader if the AliveCor Proceeding is instituted and proceeds to a final
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`decision than if Petitioner is merely joined to the Masimo Proceeding. See Network-
`
`1 Techs., Inc. v. Hewlett-Packard Co., 981 F.3d 1015, 1026-28 (Fed. Cir. 2020)
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`(finding scope of estoppel narrowed when petitioner was limited to joining instituted
`
`proceeding).
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`If the Board were to decline to institute review on the AliveCor Petition in the
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`AliveCor Proceeding, the next best course of action would be to institute review on
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`
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`12
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`
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`this Petition and grant Petitioner’s conditional motion for joinder. As with the
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`AliveCor Proceeding (albeit to a lesser extent), institution and joinder would
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`promote efficiency in the Litigation, at least with respect to the grounds of this
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`Petition, and would do so at no expense or prejudice to Patent Owner.
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`V. CONCLUSION
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`For the foregoing reasons, Petitioner AliveCor, Inc. respectfully requests if,
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`and only if, the Board has previously denied institution of the AliveCor Proceeding,
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`that the Board institute this Petition for inter partes review of U.S. Patent No.
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`10,076,257 and join this proceeding with Masimo Corp. v. Apple Inc.,
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`IPR2023-00745.
`
`
`Dated: November 15, 2023
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`
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`
`
`
` Respectfully submitted,
`
`By: /Christopher TL Douglas/
`Christopher TL Douglas
`(Reg. No. 56,950)
`ALSTON & BIRD LLP
`101 S. Tryon Street
`Charlotte, NC 28280
`Phone: (704) 444-1119
`
`Attorney for Petitioner
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`13
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`
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`CERTIFICATE OF SERVICE
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`The undersigned certifies pursuant to 37 C.F.R. §42.6(e) and §42.105 that on
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`November 15, 2023, a true and correct copy of the Conditional Motion for Joinder
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`and Petition for Inter Partes Review of U.S. Patent No. 10,076,257 challenging
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`claims 1-4 and 8-22 was served via UPS Next Day Air®:
`
`62579 - APPLE INC./BROWNSTEIN
`c/o Brownstein Hyatt Farber Schreck, LLP
`675 15th Street
`Suite 2900
`Denver, CO 80202
`UNITED STATES
`
`Service copies are also being sent via email to litigation counsel of record:
`
`Adam R. Alper
`adam.alper@kirkland.com
`Akshay Sunil Deoras
`akshay.deoras@kirkland.com
`Kirkland & Ellis LLP
`555 California Street
`San Francisco, CA 94104
`415-439-1476
`415-439-1500 (fax)
`
`Michael Woodrow De Vries
`michael.devries@kirkland.com
`Kirkland & Ellis LLP
`555 South Flower Street
`Suite 3700
`Los Angeles, CA 90071
`213-680-8590
`213-680-8500 (fax)
`
`Kat Li
`kat.li@kirkland.com
`
`
`
`14
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`
`
`
`
`Kirkland & Ellis LLP
`401 Congress Avenue
`Austin, TX 78701
`512-678-9167
`
`Greg Polins
`greg.polins@kirkland.com
`Kirkland & Ellis LLP
`300 North LaSalle Street
`Chicago, IL 60654
`312-862-3511
`312-862-2200 (fax)
`
`Leslie M Schmidt
`leslie.schmidt@kirkland.com
`Kirkland and Ellis LLP
`601 Lexington Avenue
`New York, NY 10022
`212-446-4763
`
`
`
`
`November 15, 2023
`Date
`
`
`
`
`By /Christopher TL Douglas/
`Christopher TL Douglas (Reg. No. 56,950)
`
`
`
`15
`
`
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