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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC.,
` Petitioner,
`vs.
`CHRIMAR SYSTEMS, INC.,
` Patent Owner.
`_________________________________/
`Case IPR2016-01389
`Patent 8,155,012 B2
`Case IPR2016-01391
`Patent 8,942,107 B2
`Case IPR2016-01397
`Patent 9,019,838 B2
`Case IPR2016-01399
`Patent 8,902,760 B2
`_________________________________/
`PAGE 1 TO 40
`
`Conference Call,
`Taken at 400 Renaissance Center, Suite 2160,
`Detroit, Michigan,
`Commencing at 10:39 a.m.,
`Monday, July 31, 2017,
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`Page 2
`Before Jacquelyn S. Fleck, CSR 1352, RPR, CRR, RMR,
`
`APPEARANCES:
`(All attendees appeared telephonically.)
`
`CHRISTOPHER J. TYSON
`MATTHEW YUNGWIRTH
`Duane Morris LLP
`509 9th Street, N.W., Suite 1000
`Washington, DC 20004-2166
`(202) 776-7851
`Appearing on behalf of Petitioner Juniper
`Networks, Inc.
`
`TALIN GORDNIA
`MICHAEL FLEMING
`Irell & Manella, LLP
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-1010
`(310) 203-7038
`tgordnia@irell.com
`Appearing on behalf of the Petitioner Juniper
`Networks, Inc.
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`THOMAS A. LEWRY
`FRANK A. ANGILERI
`LISSI MOJICA
`Brooks Kushman P.C.
`1000 Town Center, 22nd Floor
`Southfield, Michigan 48075
`(248) 226-2833
`tlewry@brookskushman.com
`Appearing on behalf of the Patent Owner Chrimar
`Systems, Inc.
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`PATENT ADMINISTRATIVE JUDGES:
`Karl D. Easthom
`Gregg I. Anderson
`Robert J. Weinschenk
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` TABLE OF CONTENTS
`Witness Page
`* CONFERENCE CALL * 5
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`Page 4
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` INDEX TO EXHIBITS
`(Exhibits not offered)
`Exhibit Page
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` Detroit, Michigan
` Monday, July 31, 2017
` About 10:39 a.m.
` * CONFERENCE CALL *
` JUDGE EASTHOM: Why don't we begin,
` Mr. Lewry, patent owner. We understand you sent an
` e-mail to the Board asserting that the briefs in all of
` these cases, 1389, 1391, 1397 and 1399, the reply
` briefs filed by petitioner contain new arguments that
` are not responsive to what you have in your patent
` owner response. Is that correct?
` MR. LEWRY: Yes. This is Tom Lewry. Yes,
` that's correct. So --
` JUDGE EASTHOM: Again, why don't you go ahead
` and why don't you lay that out, tell us what you want,
` and maybe give us an example of where that occurs in
` one of these reply briefs.
` Now, before we get started -- this is, again,
` Judge Easthom speaking -- I just want to make sure that
` it seems from your e-mail and from looking at these
` briefs, that these issues are very similar. Is that
` true? There may be some outliers, but for the most
` part are your arguments directed to all four of these
` as one central theme?
` MR. LEWRY: That's correct. Yes. In terms
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` of the -- virtually all the documents are -- the
` petition, the response, the replies, are very similar
` from case to case. There are a few differences, and my
` comments will be generic to all the reply briefs.
` JUDGE EASTHOM: Okay. So would it be
` feasible to use the brief in IPR2016-01389 as the -- as
` a sort of a place to start here today?
` MR. LEWRY: Yes. Is -- I don't have it
` memorized.
` JUDGE EASTHOM: Do you have that with you?
` MR. LEWRY: Is that the 107 patent, by any
` chance?
` JUDGE EASTHOM: It's the 012 patent.
` MR. LEWRY: 012. Okay. I've been using the
` 107, but -- would you -- let me see if I can --
` JUDGE EASTHOM: Do you have the 107 marked
` up? Would it be easier to --
` MR. LEWRY: I do, if we could use that one.
` JUDGE EASTHOM: That would be fine. Let
` me -- just give me a chance to -- do you know what the
` number, IPR number is for the 107 off the top of your
` head?
` MR. LEWRY: It should be --
` JUDGE EASTHOM: I can find it.
` MR. TYSON: It should be 01391, Your Honor.
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` (Reporter clarification.)
` MR. TYSON: This is Chris Tyson. Sorry.
` JUDGE EASTHOM: Okay. So, Mr. Tyson, we're
` going to use IPR2016-01391 as an example of what you
` contend are arguments beyond the scope of the patent
` owner response. Correct?
` MR. TYSON: Correct.
` JUDGE EASTHOM: Okay.
` MR. LEWRY: Yeah. Great. Tom Lewry
` speaking.
` (Reporter clarification.)
` MR. LEWRY: I said it was Tom Lewry speaking.
` JUDGE EASTHOM: We're going to focus on
` Mr. Lewry for a while, and then we'll hear from
` Mr. Tyson, if that helps you.
` Okay. So -- so petitioner's reply brief was
` filed July 7, 2017, in this IPR2016-01391. Mr. Lewry,
` why don't you give us an example of what you're
` contending, please.
` MR. LEWRY: Yes. Thank you. Just as an
` overview, the -- in addition to the reply briefs, each
` of the replies contained a new declaration from the
` petitioner's expert, Mr. Crayford; and those were
` 60-page declarations, as compared to the -- to his
` original 87-page declaration. So he -- nearly as many
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` pages in the reply declaration as in the original.
` And, in addition, there were 23 new exhibits
` that were filed with the reply in each case. Total
` pages of the new exhibits was over 6,000 pages -- I'm
` sorry, 600 pages, excuse me, including one document
` that was, you know, alone 400 pages plus. So that's
` just to give some idea of the scope of the reply and
` how it compares to the original.
` But to -- I have a number of examples, and I
` don't necessarily have to go through them all, but the
` starting example for me has to do with a shift in focus
` with respect to Ground 1, which was a combination of
` Hunter and Bulan, B U L A N. In the original petition
` the focus in Hunter was on its Ethernet capabilities,
` and in the reply the focus shifted to something called
` IsoEthernet, which is one word, I S O E T H E R N E T.
` And one of the new exhibit was an IEEE, that's I E E E,
` 802.9 specification that was from 1994.
` When I deposed Mr. Crayford a second time on
` his new declaration, he admitted that he -- he was
` aware of the IsoEthernet specification, the 802.9
` specification, at the time of his first report, and yet
` it wasn't an exhibit, and it's now relied on heavily by
` the petitioners in their reply. And --
` JUDGE EASTHOM: Which exhibits -- excuse me,
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` this is Judge Easthom. Mr. Lewry, can you give us the
` exhibit number for that 802.9 spec you're speaking
` about.
` MR. LEWRY: Yes, it's Exhibit 1032.
` JUDGE EASTHOM: Thank you.
` MR. LEWRY: And that's the 400-page-plus
` document I referred to earlier.
` JUDGE EASTHOM: Okay. Please continue.
` Thank you.
` MR. LEWRY: Now, in the -- in the petition
` the -- there were a few instances of where they --
` where the petitioners used the term IsoEthernet, but it
` was in quotations from the Hunter reference, for
` example, at pages 8 and 26. So they were just an
` isolated mention of IsoEthernet. So they were aware of
` the IsoEthernet aspect of Hunter, but they did not
` present any arguments based on the IsoEthernet aspect
` of Hunter in their petition.
` In reply, the argument is that looking at the
` 802.9E -- 9A, excuse me, specification, which is
` Exhibit 1032, that the IsoEthernet specification
` supports their claim that the Hunter reference includes
` a 10Base-T mode -- that's 10, the number 10, word base,
` and then the letter T -- mode of operation, and that
` that new mode of operation that they're talking about
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` in the reply for the first time is the Ethernet that
` they want to point to for the combination of Hunter and
` Bulan. And that appears in the reply several pages:
` 11 to 12, 15, 18.
` And then in the Crayford second declaration
` he's got a number of paragraphs that address that in
` even more detail than the reply, paragraphs 48, 66-68,
` 73 --
` (Reporter clarification.)
` MR. LEWRY: 48, 66 to 68, 73, 79 to 80.
` And so -- and so that new focus raises new
` issues for us, of course. One of the things that it
` raises, that if this were allowed to come in, we would
` ask that we be allowed to add a -- a new exhibit which
` directly responds to the new Exhibit 1032. And that
` new exhibit is an 802.9F draft specification from the
` IEEE dated 1999, in which the specification states that
` in the 10Base-T mode of operation, remote powering
` shall not be supported. This ensures that 10Base-T
` services are unaffected by this optional feature.
` So that's evidence that we would say if
` they're allowed to bring in this IsoEthernet argument,
` that the committee that looked into adding power over
` IsoEthernet systems had the view that it should not be
` applied in the 10Base-T mode, which is a very critical
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` aspect of the issues in this case. So -- so that's one
` example of the several that I have.
` JUDGE EASTHOM: Okay. That sounds sufficient
` for our purposes to get a gist of what your argument
` is. Why don't we hear now from Mr. Tyson in response.
` This is Karl Easthom, Judge Easthom speaking.
` MR. TYSON: Thank you, Your Honor. This
` is -- oh. Are you done?
` JUDGE EASTHOM: Go ahead.
` MR. TYSON: Thank you, Your Honor.
` This is Chris Tyson speaking on behalf of
` petitioners. We disagree with Chrimar's assertions in
` this case, and, you know, I'll get specifically to the
` example that they provided. But I think when the Board
` reads Chrimar's responses and its own expert's
` declarations, Dr. Madisetti, M A D I S E T T I, so when
` the Board reads these responses, which I'm sure it has
` already, but in preparation for the oral argument when
` it -- when it reads those responses, its expert's,
` Chrimar's expert's declaration and our replies, our --
` it's clear that our replies are really nothing out of
` the ordinary. And, frankly, the only thing out of the
` ordinary in this case is the number of misleading,
` untrue and, frankly, irrelevant assertions that were
` made by Chrimar's expert in his declaration and in
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` Chrimar blindly relying on those false and irrelevant
` assertions in its responses.
` So this is not something that Juniper, as the
` original petitioner, could have predicted that
` Chrimar's going to rely on such blatantly false and
` irrelevant testimony when it drafted the petition.
` And, frankly, the precise reason that replies exist is
` so that petitioners, who have the burden of persuasion
` in IPR --
` JUDGE EASTHOM: Mr. Tyson, this is Judge
` Easthom again. I'm sorry, let me interrupt shortly.
` I'm sorry, I'd prefer not to characterize the testimony
` at this point. But if you could perhaps hone in on the
` example, I think one of them was on pages 11 to 12,
` patent owner pointed out that you're newly relying on
` 10Base-T. I think they did acknowledge that 10Base-T
` was mentioned in one of the -- I think the Hunter
` reference, but can you show us how this is a responsive
` reply, if that's your contention, on I think maybe 11
` and 12 are one of the pages that Mr. Lewry mentioned
` that you've exceeded the scope.
` MR. TYSON: Absolutely, Your Honor.
` (An off-the-record discussion was held.)
` MR. TYSON: Your Honor, do you have a copy of
` the patent owner response with you?
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` JUDGE EASTHOM: This is Judge Easthom, and I
` will -- I can get it. Yeah, I do have a copy. We do
` all have copies. So this is the response file, paper
` number 26 I think. Is that correct? Anyway.
` MR. TYSON: I believe so. Yes, Your Honor.
` JUDGE EASTHOM: Okay. So this is Judge
` Easthom, and we have the patent owner response and the
` petitioner's reply at hand. So please continue,
` Mr. Tyson.
` MR. TYSON: Thank you, Your Honor.
` Now, if you turn to page 40 of that response,
` and it's the first full paragraph on that page --
` JUDGE EASTHOM: Page 40. I think I'm -- I
` might have the wrong document. This is Judge Easthom
` again. I'm sorry, bear with me. I'm -- okay.
` Please continue. This is Judge Easthom
` again.
` MR. TYSON: Your Honor, I'm -- the first full
` paragraph of -- on page 40, it starts with the words:
` Except for hub 170. Do you see that, Your Honor?
` JUDGE EASTHOM: Yes, I do, Mr. Tyson. Thank
` you.
` MR. TYSON: Okay. So the next sentence
` starts with the words: IsoEthernet interfaces were
` part of an -- of an IEEE, that's I with three Es,
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` standard called 802.9A. And the references in the
` sentence are referring to the Hunter patent. That's
` Exhibit 1003. And the next sentence says: IsoEthernet
` used ISDN signal, and then in bold and italics it says:
` Not Ethernet signals to transmit data.
` Now, the reference in the second sentence is
` again to the Hunter patent and to Dr. Madisetti's
` declarations at paragraph 76.
` If you turn to Dr. Madisetti's declarations
` at paragraph 76, which we don't need to do right now,
` but if you take my word for it, there is no factual
` support for either of these statements. And so,
` frankly, this is the patent owner relying on
` Dr. Madisetti's testimony and that's it.
` Now, in the petition the -- I mean I took
` issue with Mr. Lewry's statement that there's a shift
` in focus in ground 1. Now, ground 1 is identical.
` We're not changing the ground; we're not -- there's
` nothing that's changed in the ground at all. And in
` the petition at pages, for example, 8 and 26 to 27 of
` the petition, the petitioners laid out why and how
` Hunter discloses Ethernet equipment. And it relies on
` a number of different references to that.
` One is the reference to Ethernet itself. The
` other is the reference to all the different types of
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` 10Base-T equipment that are referenced in the Hunter
` specification. And the other is specifically, and
` bolded, where we're talking about Ethernet equipment,
` is IsoEthernet. And we referenced these same points.
` Now, it was our -- I mean it was our belief,
` and I believe when Juniper drafted these petitions
` originally, that Dr. Madisetti wouldn't take the
` position that it did not only in this paragraph, but
` overall, that Hunter does not teach Ethernet; and,
` secondly, that Hunter said that it would take the
` position that the IsoEthernet standard does not teach
` using Ethernet signal.
` So it wasn't that we would -- that the
` petitioners could have possibly predicted that such an
` inaccurate testimony would be provided by
` Dr. Madisetti. And so our reply, which identifies the
` IsoEthernet standard that Dr. Madisetti relied on,
` without including a copy of it in his response and just
` making a statement about it, is that that testimony
` from Dr. Madisetti lacks credibility because, one, it
` reflects a deliberate misunderstanding and misreading
` of Hunter. And also --
` JUDGE EASTHOM: This is Judge Easthom again.
` I'm sorry to interrupt again, Mr. Tyson. What about
` Mr. Lewry's contention about Exhibit 1032; what would
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` that add to this trial and what -- could you respond to
` that, please.
` MR. TYSON: Yes, Your Honor. That is the
` IsoEthernet standard.
` JUDGE EASTHOM: I'm sorry, I misspoke. They
` want to add another reference that rebuts the
` IsoEthernet contention about 10Base-T. I think
` carrying power, was that the contention?
` MR. LEWRY: This is Tom Lewry. Yes.
` JUDGE EASTHOM: Okay. Thank you, Mr. Lewry.
` This is still Judge Easthom.
` Can you -- can you please respond to that
` issue, Mr. Tyson.
` MR. TYSON: Well, frankly, Your Honor, when
` on April 5th, you know, almost four months ago, when
` patent owner provided its responses in this case, it
` chose not to cite any evidence for a number of
` different assertions that it makes, this one being
` included. And what it's trying to do now is at the
` last minute attempt to introduce evidence that it
` should have introduced in the first place, and do that
` at the very last minute, when we're less than 30 days
` from the oral argument, and include, you know -- and
` their expert's testimony, that should have been
` included in the first place.
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` And in this -- this type of case, where
` petitioners have the burden of persuasion throughout
` the IPRs, that's just -- it's just not proper. If it
` wanted to include evidence to support a statement like
` it made in its patent owner response, that IsoEthernet
` uses ISDN signals, not Ethernet signals, it should have
` done so. And that way we would have had an opportunity
` to respond to that in our reply directly, and they
` would have had an opportunity, which they actually did
` already have an opportunity, to ask our -- our expert,
` Mr. Crayford.
` Now, Mr. Crayford was not prepared for that
` conversation because, again, it was Chrimar's choice
` not to include virtually any evidence for a number of
` the assertions that they made.
` So this -- this one example that we're
` providing is -- there are numerous other examples. And
` if Mr. Lewry wants to go through the different -- the
` different arguments that are considered new, I'm
` perfectly comfortable and prepared to talk about each
` of the arguments that it actually introduced in its
` responses and that we had to respond to in our replies.
` JUDGE EASTHOM: This is Judge Easthom. I
` think Mr. -- Ms. Gordnia, are you trying to say
` something?
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` MS. GORDNIA: I am, Your Honor, if I may.
` Just following up on this exhibit that Mr. Lewry
` raised, the real purpose of that exhibit being included
` at this stage is to show that the statement by
` Dr. Madisetti and Chrimar that IsoEthernet is ISDN only
` is just simply false. And the reason we included it is
` essentially to show the credibility issue with
` Dr. Madisetti's testimony and just to show the Board
` that the statement is incorrect.
` Chrimar chose to make this an issue, and
` unfortunately we had no choice but to address it; and
` in order to address it we -- the straightforward way
` for us to do it is to just provide the standard.
` JUDGE EASTHOM: Okay. This is Judge Easthom.
` What I'm kind of hearing is that Mr. Lewry's stating
` that you're relying on -- the petitioner is relying on
` 10Base-T to show that power is transmitted on 10Base-T,
` and they want to rebut that statement.
` Is that an accurate portrayal of the issue,
` Mr. Lewry?
` MR. LEWRY: Yeah, this is Tom Lewry. So
` the -- no and yes. Let me -- the -- the yes part is
` that, yes, we do want to introduce this additional
` exhibit, which is the IEEE 802.9F draft specification,
` if the 802.9, Exhibit 1032, bowed into the case.
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` But if I can respond first to the comments
` made by petitioners. And if we look at the things that
` were said, you'll find that, in fact, what we said in
` our response is directly supported by Hunter itself;
` that we did not go outside of Hunter for any
` information, and that they're using the statement from
` Hunter, which they knew about, as an excuse to
` introduce this new exhibit and these new arguments.
` And -- and in particular, the Hunter
` reference, which is 1003 in all the IPRs, on page 15
` has a paragraph and a table, and the paragraph -- it's
` part of the introduction of Hunter -- and the paragraph
` explains that there are a number of standards that are
` going to be followed if Hunter puts this system
` together. And then he has a table identifying all the
` standards and what signaling standards are going to be
` used in his system. And specifically he has the table
` and he has the words: IsoEthernet, with a circle R
` next to it, in parentheses, IEEE 802.9A, close
` parentheses. And the signaling standard he identifies
` for that is ISDN NI-2. There is no mention of
` Ethernet. That was the basis for our statement in our
` response, and there was no reference -- there was no
` intent to reference anything beyond that.
` JUDGE EASTHOM: But, Mr. Lewry -- this is
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` Judge Easthom -- are you actually contending that
` IsoEthernet doesn't use Ethernet?
` MR. LEWRY: No, that's not our contention.
` Our contention is that the Hunter -- the Hunter process
` was focused on the ISDN portions of IsoEthernet, as he
` identifies in his table. So we were not -- and my --
` our point was that they -- the petition did not present
` any evidence from Hunter, or anywhere else, that Hunter
` was referring to delivering anything other than ISDN to
` ISTE cards, which are the relevant cards here.
` The petition argues, without evidence, that
` the ISTE cards were receiving Ethernet either instead
` of or in addition to ISDN signals, and nothing in
` Hunter supports that. The only support they can have
` out of that is if they turn to this -- this other new
` exhibit they added with their reply, which is the
` specification. Turns out it's the specification for
` 9 -- 802.9 and not the specification for 9A, which is
` what Hunter referenced. I'm not sure there's a huge
` difference between the two, but there is that
` distinction.
` But in any event, once they did that, then it
` became important to have the complete record on what
` the IEEE committee was saying about power over the
` Ethernet mode. So our first position was there's
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`7/31/20177/31/2017
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` nothing in Hunter that indicates that anything but
` ISTE -- that ISDN is going to ISTE cards.
` (Reporter clarification.)
` MR. LEWRY: Anything but ISDN signals were
` being delivered to ISTE cards. So that was our
` position and our response.
` And then in their replies, when they said,
` Oh, no, Hunter's talking about IsoEthernet, and here's
` the standard.
` Now, the second point that's relevant to this
` is that Hunter uses the phrase IsoEthernet, with a
` circle R next to it, and Mr. Crayford testified at his
` second deposition that that's a reference to a
` proprietary national semiconductor chip or standard. I
` don't know what the right word is for that. But
` proprietary national semiconductor. And they have not
` put anything into the record about what the national
` semiconductor IsoEthernet proprietary design was. And
` so that's the second point.
` I didn't want to get into all these details,
` but that's the other point that I think is important
` here, is that whatever they're putting in is not the
` proprietary IsoEthernet that Hunter's referring to as
` Mr. Crayford explained.
` JUDGE EASTHOM: Okay. Well, Mr. Lewry --
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`Page 22
` again, this is Judge Easthom -- it seems just from -- I
` have to be honest, we've looked at those issues
` briefly, and we're not totally up to speed on all of
` them. And it looks like the parties can make these
` arguments at oral -- oral argument that's upcoming.
` Now, I understand -- maybe it will be more
` refined by then, but it seems to me the main issue
` right now is whether or not it would have been obvious
` to put DC power on some of these cables that are in the
` prior art, and now we're fighting over what types of
` Ethernet standards would have used them. Is that -- is
` that a fair characterization of what this issue is
` about, Mr. Lewry?
` MR. LEWRY: I would say that the issue is
` whether Hunter teaches delivering -- let me step back.
` There are two figures in Hunter that the parties are
` focused on. Figure 1 is an overview of the entire
` system. Figure 2 is a more detailed diagram of a -- of
` a circuit that is delivering phantom power over twisted
` pair wires to an ISTE card. And it's the figure 2
` example that petitioners rely on as evidence that
` Hunter discloses delivering Ethernet to systems.
` And so it's our position that Hunter doesn't
` disclose that, at least not in figure 2. And we don't
` see it anywhere else, actually. And so it's -- it's
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` more than -- it's more than obviousness. It's more
` what the -- the foundational reference teaches. The
` Bulan reference only adds a circuit breaker, basically.
` So Bulan isn't adding anything to Hunter. They're
` relying exclusively on Hunter for the teaching of
` delivering Ethernet over twisted pair wires to end
` their terminal devices. And so until they've proven
` that Hunter teaches that, it's our position that they
` don't even -- have even made the first step
` towards the -- their position.
` And certainly without the -- the new
` IsoEthernet standard, they don't have any record at all
` that Hunter teaches that. And so that was why for us
` it was -- it was new; and we think, in fairness, at
` least, we ought to be able to bring in this other
` IsoEthernet document.
` JUDGE EASTHOM: Let me ask you this,
` Mr. Lewry. Is the summation that you just provided, is
` that a -- is that a characterization of what you would
` have -- would like to put in a sur-reply?
` MR. LEWRY: I guess, yes. I mean the -- the
` sur-reply would more directly answer the new evidence.
` So the sur-reply would add the -- the new exhibit that
` indicates that even though IsoEthernet, the standard
` would permit Ethernet a 10Base-T mode of operation, it
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` still would not have -- it still does not support the
` theory that Hunter was disclosing phantom power over
` Ethernet. So it would -- that new exhibit would be
` very important to rebut that new argument.
` JUDGE EASTHOM: Okay. If we -- if we were to
` grant your -- your request, how many pages would you
` need? And consider that this is part of the record;
` this transcript will be entered into the record. So
` I'm not sure you need to add too much.
` Would it be sufficient to give you some
` limited number of pages and you summarize what --
` whatever exhibit you need? Or how many pages do you
` need?
` MR. LEWRY: We certainly wouldn't need
` anymore than ten pages. I do have a number of other
` examples we haven't talked about, but -- and there's
` one other new exhibit that came up in view of another
` new argument that they injected into the record that we
` haven't talked about yet. It's another standard,
` another specification that became relevant once they
` put some -- a new document into the reply.
` JUDGE EASTHOM: Okay. Mr. Lewry, this is
` Judge Easthom again. So I hear you saying you need ten
` pages if it's a sur-reply and two exhibits; is that
` correct?
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` MR. LEWRY: Correct.
` JUDGE EASTHOM: Okay. And then if you want
` to do a -- if you would like to file a motion to
` strike, how many pages would you need for that?
` MR. LEWRY: Well, if we could do a sur-reply,
` I don't know that we need a motion to strike. It
` was --
` JUDGE EASTHOM: Right. We're still
` considering -- thi
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