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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VIZIO, INC.,
`
`)
`
`)
`
`Petitioner,
`
`) Case Nos.
`
`vs.
`
`) IPR2018-00386
`
`) IPR2018-00437
`
`)
`
`NICHIA CORPORATION,
`
`) Patent Nos.
`
`Patent Owner. ) 9,537,071 B2
`
`) 9,490,411 B2
`
`-------------------------- )
`
`PTAB CONFERENCE CALL
`
`Monday, February 4, 2019
`
`Reported by:
`
`Stacey L. Daywalt
`
`JOB NO. 155291
`
`TSG Reporting - Worldwide 877-702-9580
`
`Vizio Ex. 1042 Page 00001
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` UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VIZIO, INC.,
`
`)
`
`)
`
`Petitioner,
`
`) Case Nos.
`
`vs.
`
`) IPR2018-00386
`
`) IPR2018-00437
`
`)
`
`NICHIA CORPORATION,
`
`) Patent Nos.
`
`Patent Owner. ) 9,537,071 B2
`
`) 9,490,411 B2
`
`-------------------------- )
`
`PTAB CONFERENCE CALL
`
`Monday, February 4, 2019
`
`Reported by:
`
`Stacey L. Daywalt
`
`JOB NO. 155291
`
`TSG Reporting - Worldwide 877-702-9580
`
`Vizio Ex. 1042 Page 00001
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`
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`Page 2
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` Monday, February 4, 2019
`
` 1:00 p.m.
`
` PTAB Conference Call, held before
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`Administrative Patent Judges Nathan A. Engels,
`
`Sally C. Medley and William V. Saindon, before
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`Stacey L. Daywalt, a Court Reporter and Notary
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`Public of the District of Columbia.
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`Page 3
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`A P P E A R A N C E S:
`
`(All appearances are telephonic)
`
` ROPES & GRAY
`
` Attorneys for Petitioner
`
` 1900 University Avenue
`
` East Palo Alto, California 94303
`
` BY: GABRIELLE HIGGINS, ESQ.
`
` CHRISTOPHER BONNY, ESQ.
`
` ROTHWELL FIGG
`
` Attorneys for Patent Owner
`
` 607 14th Street, NW
`
` Washington, DC 20005
`
` BY: MICHAEL JONES, ESQ.
`
` MARTIN ZOLTICK, ESQ.
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` ADMINISTRATIVE PATENT JUDGE: Good
`
`afternoon.
`
` This is Judge Nathan Engels. With
`
`me on the line are Judge Saindon and Judge
`
`Medley.
`
` We are here to discuss IPR2018-00386
`
`and IPR2018-00437.
`
` Who do we have on the line for the
`
`parties?
`
` MR. ZOLTIG: Good morning, Your
`
`Honors.
`
` It's Marty Zoltig and Michael Jones
`
`for Patent Owner Nichia.
`
` MS. HIGGINS: Good afternoon, Your
`
`Honor.
`
` This is Gabrielle Higgins and
`
`Christopher Bonny on the line on behalf of the
`
`Petitioner, VIZIO.
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` ADMINISTRATIVE PATENT JUDGE: Do we
`
`have a court reporter on the line?
`
` MS. HIGGINS: Yes, Your Honor.
`
` Court reporter, are you there?
`
` THE REPORTER: I am.
`
` Sorry. I was on mute.
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` ADMINISTRATIVE PATENT JUDGE: Okay.
`
` I understand we are here to discuss
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`Petitioner's request for a sur-sur-reply?
`
` MS. HIGGINS: Yes, Your Honor.
`
` ADMINISTRATIVE PATENT JUDGE: If
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`you'd like to begin and explain your position.
`
` MS. HIGGINS: Sure, Your Honor.
`
` And let me start with -- so in the
`
`board's last order of -- in IPR2018-386,
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`Paper 31, this is at Pages 3-4, and also in the
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`order in the 437 proceeding, Paper 43 at
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`Pages 3-4, the board indicated that if the
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`Petitioner can establish that the content of
`
`the sur-replies creates adequate cause for
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`sur-sur-reply, Petitioner can again request
`
`authorization to file a sur-sur-reply.
`
` Petitioner believes there is
`
`adequate cause for sur-sur-replies because
`
`Patent Owner's sur-replies contain new
`
`arguments and evidence regarding claim
`
`construction.
`
` First, let me turn to Patent Owner's
`
`sur-reply in the 386 proceeding. That is
`
`Paper 28. And our position there is that
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`Patent Owner's sur-reply contains new arguments
`
`and new evidence.
`
`For example, the sur-reply at Page 2
`
`contains new drawings made by Patent Owner not
`
`in the record and more arguments on Pages 1 and
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`2 regarding those drawings. Petitioner should
`
`not be permitted to address these new drawings
`
`and arguments.
`
`Excuse me. Petitioner should be
`
`permitted to address these new drawings and
`
`arguments.
`
`As another example, the sur-reply at
`
`Page 2 cites seven new exhibits. These are
`
`Exhibits 2022 through 2028 which Patent Owner
`
`filed for the first time with its sur-reply.
`
`This is prohibited by the August 2018 Trial
`
`Practice Guide update, which states that a
`
`sur-reply may not accompanied by new evidence.
`
`See the August guide update at Page 14.
`
`Per the practice guide update,
`
`Petitioner requests merits briefing to address
`
`the newly raised arguments and evidence.
`
`That's the Trial Practice Guide at Page 17.
`
`Further, in the sur-reply at
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`Pages 4-5, Patent Owner raises a new argument
`
`about the notch claim limitation. And this is
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`a limitation which neither party had discussed
`
`previously regarding claim construction.
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` Second, turning to Patent Owner's
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`sur-reply in the 437 proceeding -- this is
`
`Paper 39 -- this sur-reply also contains new
`
`arguments that provide adequate cause for a
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`sur-sur-reply.
`
` For example, in connection with the
`
`claim term "resin package" at issue in both
`
`proceedings, Patent Owner newly cites to a
`
`final written decision from a different
`
`proceeding on the '250 patent. See the Patent
`
`Owner's sur-reply at Page 2.
`
` Significantly, Petitioner could not
`
`have addressed that decision earlier because
`
`the final written decision issued after the due
`
`date of Petitioner's reply.
`
` Petitioner should be permitted to
`
`explain why Patent Owner's new argument
`
`regarding that decision is incorrect.
`
` As a further example, Patent Owner's
`
`sur-reply, at Page 5, contains a new legal
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`argument that mischaracterizes the law on
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`incorporation by reference. Petitioner should
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`be permitted to address Patent Owner's
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`mischaracterizations of the law.
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` For at least these reasons, there is
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`adequate cause for the board to authorize
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`sur-sur-replies.
`
` The board previously has granted
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`sur-sur-replies in similar situations,
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`specifically to address claim construction
`
`issues. For example, see IPR2017-01500, NVIDIA
`
`versus Polaris. That's Paper 20 at Page 2,
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`where the board authorized a five-page
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`sur-sur-reply.
`
` Petitioner believes the briefing
`
`here is necessary for a complete record and
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`that it would be helpful to the panel in
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`rendering its final written decisions, and
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`therefore, requests three-page sur-sur-replies
`
`in each of the proceedings.
`
` ADMINISTRATIVE PATENT JUDGE: You
`
`mentioned new arguments regarding the notch
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`limitation.
`
` What are the other limitations that
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`you contend there are new claim construction
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`positions?
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` MS. HIGGINS: So for the notch
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`limitation, Your Honor, they're making a new
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`argument and they're referencing the notch
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`limitation in connection with the claim
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`construction of an upper surface.
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` So they're making a new argument
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`about an existing claim construction argument,
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`if that makes sense, by pointing to another
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`claim construct- -- claim limitation by
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`reference.
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` MR. ZOLTIG: Your Honor, this is
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`counsel for Patent Owner.
`
` I think it might make sense if we
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`provide a little bit of clarity regarding some
`
`of what Petitioner is alleging is going on
`
`here.
`
` May I do so?
`
` ADMINISTRATIVE PATENT JUDGE: Please
`
`do.
`
` MR. ZOLTIG: Yeah.
`
` So I'll take it in turn, but it
`
`sounds like there are sort of three arguments
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`on the table. One is generically that there
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`needs to be a more complete claim construction
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`record. Two, that we've introduced new
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`arguments and evidence in the '411 case, which
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`is the 386. And that there's new arguments in
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`the '071. I'll take those in turn.
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` But starting with the '411 patent,
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`which is the 386 IPR, I just want to be clear,
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`there are no new arguments and no improper
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`introduction of new evidence. The allegedly
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`new evidence was just the demonstratives used
`
`during the transcript -- I mean, the
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`cross-examination.
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` So what we've submitted was the
`
`transcript with the demonstratives that were
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`used during the cross-examination. So nothing
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`other than the complete transcript was
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`submitted. I want to make sure that's clear.
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` So while we were questioning their
`
`expert witness, we gave him demonstratives, for
`
`instance, blow-ups of figures from the patent
`
`or similar illustrations. And he wrote on them
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`with a pen, and we asked him about them.
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` So in order to give a complete
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`record of the transcript, we submitted those
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`with the transcript. And those are part of the
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`transcript, and if you look at the transcript
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`index, they're listed.
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` So I just want to make clear. The
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`only thing submitted with our '411 sur-reply
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`was the transcript and the demonstratives from
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`the cross-examination, no new exhibits.
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` And as to new arguments, again, we
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`argued the same thing we've been arguing all
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`along, and that is that their construction, the
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`way they're reading the term "region below,"
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`which is the only real thing at issue here, is
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`improper. And we gave examples of how it's
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`improper.
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` Again, this is not a new argument.
`
`This is the same thing we said in our Patent
`
`Owner preliminary response. It's the same
`
`thing we said in our Patent Owner response. So
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`I want to make sure that's clear. The '411
`
`case has no new arguments and no new exhibits.
`
` Moving on to the '071, we didn't
`
`argue for construction of a new term. We
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`didn't raise a new claim construction issue.
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`We were simply saying that their construction
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`is inconsistent with the remainder of the
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`claim. Again, this is not new.
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` And I want to be clear. There's a
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`very complete record on claim construction
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`here. We raised the claim construction issue
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`in our Patent Owner preliminary response. Your
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`Honors acknowledged the claim construction
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`issue on institution. We set forth our claim
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`construction position in the Patent Owner
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`response, and they replied on claim
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`construction. And now we had our sur-reply on
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`claim construction.
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` There are no new claim constructions
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`in play. This is the same argument that's been
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`had since the Patent Owner preliminary
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`response, so there's nothing out of the
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`ordinary here.
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` And I think at its core what's going
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`on is that Petitioner wants the final word on
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`these issues. But I believe that's already
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`been rejected. I mean, we had the call in
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`which they wanted the sur-sur-reply, and there
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`was no cause at that time and there's still no
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`cause.
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` And I think that there are cases out
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`there -- and I have one example I can give.
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`It's IPR2017-01785, Paper 67. And that is that
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`the new standard practice is: "Patent Owner
`
`files the final brief on the merits." And we
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`think that the standard practice should apply
`
`here.
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` And so I think that's -- we want to
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`just make sure that our position's clear on
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`that.
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` MS. HIGGINS: Your Honor, may I
`
`address that briefly, please?
`
` ADMINISTRATIVE PATENT JUDGE: Yes.
`
` MS. HIGGINS: Your Honor, this is
`
`the situation where there are new arguments and
`
`there are new exhibits. And I went through
`
`examples of that for each of the two briefs.
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` First of all, we disagree with what
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`Patent Owner said about the fact that these new
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`exhibits that they filed the first time with
`
`their sur-reply are not new evidence because
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`they're part of the deposition transcript.
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` And Patent Owner is also
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`correct [sic] that these drawings that they
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`submitted were all drawings that were just from
`
`the patent. That is not correct.
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` I invite Your Honors to look, for
`
`instance, at Exhibit 2026 and Exhibit 2027.
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`You won't find those in the patents.
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` And we believe that it cannot be
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`correct that a party could mark a series of
`
`exhibits at a deposition of a rebuttal witness
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`and then call those exhibits simply part of the
`
`transcript, because in that case you could
`
`introduce new evidence all the time, and we
`
`believe that would -- that that's an end run
`
`around the August Trial Practice Guide update
`
`prohibition against new evidence.
`
` Further, that's not the only thing
`
`we're pointing to here. If Your Honor looks at
`
`the sur-reply, Paper 28 in the 386 proceeding,
`
`at Page 2, you will see there new
`
`illustrations. They were not in the record.
`
`They're not from the patent. These are new
`
`illustrations. Patent Owner could have raised
`
`them before. They chose not to.
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` We should be -- they're in
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`connection with claim construction. There
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`should be a full record on claim construction.
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`We should be entitled to address that new
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`evidence and arguments.
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`Also in connection with the '071
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`sur-reply, Paper 39, I mentioned, for example,
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`the fact that they're pointing to a final
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`written decision from another proceeding. That
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`final written decision was not even out there
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`until after the Petitioner's reply. They made
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`an argument with respect to it. We should be
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`entitled to respond to that.
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`And so there is very much here new
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`evidence and new arguments that the Petitioner
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`should be able to address, and we have set
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`forth adequate cause.
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`MR. ZOLTIG: Your Honor, may I
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`respond briefly?
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`ADMINISTRATIVE PATENT JUDGE:
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`Briefly, yes.
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`MR. ZOLTIG: Yeah. I just want to
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`address the two things.
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`One, the end run argument. While it
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`may be the case that sometimes somebody may
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`want to use a deposition for some end run
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`introduction of evidence like new art or
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`something like that, that's not what happened
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`here.
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`We gave him single page pictures and
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`asked him questions about it, and it's
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`reflected in his testimony. His testimony is
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`probably 50 percent of him talking about the
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`illustration in front of him. So the
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`transcript wouldn't make a heck of a lot of
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`sense without the full package, so of course we
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`included it.
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`This is not some end run. This is
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`not new evidence. This is just what he was
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`talking about during his deposition.
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`And the second point about the new
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`decision in the '071 case, again, that was just
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`us pointing out that their arguments are
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`inconsistent with the record and are
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`inconsistent with things that have been coming
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`out.
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`There were no new arguments about
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`what a term means. There were no new arguments
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`about the patents. It was just highlighting
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`that they're taking positions that are not
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`supported. That does not warrant a
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`sur-reply -- a sur-sur-reply.
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` Again, it sounds like they just want
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`to get last word. They want to respond to a
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`drawing we made. And that's not the standard
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`practice.
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` And one final point. They're asking
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`for three pages without any restrictions on
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`what those three pages might address.
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` The arguments they say that are new
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`are very short. For instance, the argument
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`about the purportedly new exhibits in the '411
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`is two sentences. Yet, they're asking for
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`three pages.
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` So notwithstanding that there's no
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`new evidence or arguments to be addressed, we
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`think that their request is improper in terms
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`of its breadth.
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` Thank you.
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` MS. HIGGINS: We disagree, Your
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`Honor.
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` And also with respect to the three
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`pages, we think that that is a reasonable
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`number of pages, given the number of new
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`arguments and evidence.
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` ADMINISTRATIVE PATENT JUDGE: Thank
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`you for your positions.
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` Give us a few moments and we will
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`get back with you.
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` (Recess was taken from 1:16 p.m. to
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`1:17 p.m.)
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` ADMINISTRATIVE PATENT JUDGE: This
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`is Judge Engels back on the line.
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` And we appreciate the parties' time
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`and positions.
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` We will take this matter under
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`advisement and issue an order in due course.
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` MR. ZOLTIG: Thank you, Your Honors.
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` MS. HIGGINS: Thank you very much,
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`Your Honors.
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` If Petitioner may ask, depending on
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`how long -- we requested a date of February 12
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`to file the sur-sur-replies.
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` Depending on the issuance of the
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`order, we ask that Your Honors just take the
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`deadline for us to do the briefing into
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`account.
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` Thank you.
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` ADMINISTRATIVE PATENT JUDGE: Thank
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`you.
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` We will do so.
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` And please remember to file a copy
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`of the transcript of today's call as an
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`exhibit.
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` MS. HIGGINS: We'll definitely do
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`so.
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` Thank you very much, Your Honor.
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` MR. ZOLTIG: Thank you.
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` ADMINISTRATIVE PATENT JUDGE: Thank
`
`you. Bye-bye.
`
` (Time Noted: 1:18 p.m.)
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`District of Columbia, to wit:
`
`I, Stacey L. Daywalt, a Notary
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`Public of the District of Columbia, do hereby
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`certify that the proceedings were recorded
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`stenographically by me and this transcript is a
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`true record of the proceedings.
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`I further certify that I am not of
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`counsel to any of the parties, nor an employee
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`of counsel, nor related to any of the parties,
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`nor in any way interested in the outcome of
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`this action.
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`As witness my hand and Notarial Seal
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`this 5th day of February, 2019.
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`_________________________________________
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`Stacey L. Daywalt, Notary Public
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`My Commission Expires: 4/14/2021
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`TSG Reporting - Worldwide 877-702-9580
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`Vizio Ex. 1042 Page 00020
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`
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