`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Askeladden LLC Petitioner v. Sean I. McGhie and Brian K. Buchheit, Patent
`
`Owners
`
`Case IPR2015-00124
`
`US. Patent No. 8,540,152
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`PATENT OWNERS' REPLY TO OPPOSITION FOR ADDITIONAL DISCOVERY
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`
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`PROTECTIVE ORDER MATERIAL
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`The Proceeding is part of an initiative of the PQI (Ex 2033, 2034; Ex 1533, pg 8,
`
`first para). The PQI is an initiative of The Clearing House (TCH)(Ex 2033, pg 1). TCH
`
`includes PayCo and The Clearing House Association (the Association) (Ex 2028, pg
`
`2; Ex 2030). Questions regarding the PQI initiative are directed to the Association (Ex
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`2034, pg 1 — emailed PQI at theclearinghouseorg the questions). TCH is owned by
`
`Member Banks (Ex 2051). The PQI IPR initiative is funded— (Ex
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`1533, pg 10: 5‘h point)—
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`- (Ex 1533, pg 12, 2Ind point, first sentence; 4th point (2)). Selection of patents is
`
`constrained by—
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`- Individuals hold Positions
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`(referring herein to employee/committee
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`member/officer/director) indicative of blurred lines between the Acknowledged RPI
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`(Askeladden and PayCo) and the Alleged RPI (Association and Member Banks). Each
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`— for the PQI IPR initiative (Ex 1533, 2nd point). Funding
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`of the PQI initiative comes from— (Ex 1533, pg 10, 5th point
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`and Ex 2034, pg 2). PQI funding is used by the Association and Askeladden (Ex 2052,
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`2049, 2050). Asses uses is PQI IPR_
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`— (Ex 1533, pg 8, first pass,
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`item (2)).
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`Petitioner alleges requests indicative of the overlap of Positions between the
`
`Acknowledged RPI and the Alleged RPI is prohibitively burdensome and relies on
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`ASKELADDEN LLC V. SEAN MCGHIE AND BRIAN BUCHHEIT
`
`IPR2015-00124
`
`
`
`PROTECTIVE ORDER MATERIAL
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`information not in possession of the Acknowledged RPI. It is not credible that neither
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`Askeladden nor PayCo maintains a personnel system or organization chart. PayCo
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`must ensure selections of— comply with-
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`- (Ex 1533, pg 10,
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`ISt point). Regarding sufficiency of possessed information,
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`known PQI executives and known Association positions overlap (Ex 2029, 2028,
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`2030).—
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`—).
`
`Askeladden and PayCo position holders— can
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`concurrently hold positions in_ Member Banks
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`possess key Proceeding data, yet names (currently unknown) must be provided to even
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`request depositions.
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`Funding used in the Proceeding was provided for the PQI initiative by -
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`— (Ex 1533, page 10). This PQI initiative funding was consumed by
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`Askeladden and the Association(Ex 2052)._
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`_- Similarly, use of anifacts
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`funded outside Askeladden (for amounts over $1000) is a reasonable request to target
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`specific information for the Proceeding for RPI purposes_ The
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`burden of providing this information is minimal relative to its probative value.
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`ASKELADDEN LLC V. SEAN MCGHIE AND BRIAN BUCHHEIT
`
`IPR2015—00124
`
`
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`PROTECTIVE ORDER MATERIAL
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`Regarding requested dates, Petitioner relies on information that is inconsistent
`
`with norms of the industry, with regards to timelines required to produce Proceeding
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`artifacts. Clarification of these inconsistencies goes towards Patent Owners burden of
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`Persuasion, to rebut the Petitioner identified RPI as it reasonably calls into question
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`facts upon which the indicated RPI was made. Heavy reliance on- to refute the
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`rebutting of the presumption of RPI
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`is problematic,—
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`—). No attorney client
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`privilege exists between Askeladden and PayCo_
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`—) and none applies between Askeladden and the Expert.
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`Additionally, dates of deliverables are non—privileged information subject to public
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`audits and financial disclosure (e.g., IRS audits, reporting of expenses/income).
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`Lines between Acknowledged and Alleged RPI are blurred. —
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`_. RPI determinations are fact intensive ones based on the
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`totality of circumstances. The presumption of validity of the Asserted RPI is highly
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`questionable given known facts. The requested additional discovery will reasonably
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`yield significant facts to rebut the presumption (of validity of RPI) while imposing a
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`minimal burden, and should therefore be granted.
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`ASKELADDEN LLC V. SEAN MCGHIE AND BRIAN BUCHHEIT
`
`IPR2015—00124
`
`
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`42.6(e) CERTIFICATE OF SERVICE
`
`I certify that this document was served or simultaneously is being served on
`each opposing party with the filing of this document.
`I certify that the following
`exhibits being filed along with this document, if any, have been or simultaneously
`are being served on each opposing party:
`
`Exhibit Number
`
`42.6(e)(4) (iii)(A) The date and manner of service are (Electronic or Express Mail):
`June 9, 2015 (ELECTRONIC), via email to askeladdenIPR@fchs.com.
`
`42.6(e)(4)(iii)(B) The name and address of every person served are:
`
`Robert H. Fischer, Reg. No. 30,051
`Attorney for Petitioner
`Fitzpatrick, Cella, Harper &Scinto
`1290 Avenue of the Americas
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`New York, NY 10104
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`Telephone: (212) 218-2100
`Fax: (212) 218-2200
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`/BRIAN K. BUCHHEIT/
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`Brian K. Buchheit
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`Patent Owner
`14955 sw 33rd Street
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`Davie, FL 33331
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`Tel: (305) 761—1972
`Email: bbuchheit@ gmail.com
`
`
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