IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
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`JAGUAR LAND ROVER LIMITED,
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`BENTLEY MOTORS LIMITED,
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` Plaintiff, )
`v. ) Civil Action No.:
`) 2:18cv320
`)
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` Defendant. )
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`TRANSCRIPT OF PROCEEDINGS
`
`(Status Hearing)
`
`Norfolk, Virginia
`September 17, 2019
`
`THE HONORABLE MARK S. DAVIS
`United States District Judge
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`BEFORE:
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`Appearances:
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`LATHAM & WATKINS, LLP
` By: CLEMENT JOSEPH NAPLES
`-- and --
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`TROUTMAN SANDERS LLP
` By: KATHLEEN MICHELLE KNUDSEN
` Counsel for Plaintiff
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`HAUG PARTNERS LLP
` By: EDGAR HAUG
` ROBERT COLLETTI
`-- and --
`
`WILEY REIN LLP
` By: KRYSTAL BRUNNER SWENDSBOE
` Counsel for Defendant
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 1
`
`
`EASTERN DISTRICT OF VIRGINIA
`NORFOLK DIVISION
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` 1
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`JAGUAR LAND ROVER LIMITED,
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`BENTLEY MOTORS LIMITED,
`
`)
`)
` Plaintiff, )
`v. ) Civil Action No.:
`) 2:18cv320
`)
`)
` Defendant. )
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`TRANSCRIPT OF PROCEEDINGS
`
`(Status Hearing)
`
`Norfolk, Virginia
`September 17, 2019
`
`THE HONORABLE MARK S. DAVIS
`United States District Judge
`
` 9
`
`
`
`
`
`
`
`
`
`BEFORE:
`
`
`
`
`
`Appearances:
`
`
`LATHAM & WATKINS, LLP
` By: CLEMENT JOSEPH NAPLES
`-- and --
`
`TROUTMAN SANDERS LLP
` By: KATHLEEN MICHELLE KNUDSEN
` Counsel for Plaintiff
`
`
`HAUG PARTNERS LLP
` By: EDGAR HAUG
` ROBERT COLLETTI
`-- and --
`
`WILEY REIN LLP
` By: KRYSTAL BRUNNER SWENDSBOE
` Counsel for Defendant
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 1
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`P R O C E E D I N G S
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`(Proceedings commenced at 10:04 a.m. as follows:)
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`COURTROOM DEPUTY CLERK: In Case No. 2:18cv320, Jaguar
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`Land Rover Limited v. Bentley Motors Limited, et al.
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`Counsel for the plaintiff, are you ready to proceed?
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`MS. SWENDSBOE: We are. Thank Your Honor. Kathleen
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`Knudsen on behalf of the plaintiff, introducing my colleague,
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`Mr. Clem Naples.
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`MR. NAPLES: Good morning, Your Honor.
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`THE COURT: All right. Good morning.
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`COURTROOM DEPUTY CLERK: Counsel for the defendant,
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`are you ready to proceed?
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`MS. SWENDSBOE: Good morning, Your Honor. Krystal
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`Swendsboe on behalf of Bentley defendants. With me today are
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`co-counsel Ed Haug and Mr. Colletti. Mr. Haug will be making
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`today's presentation.
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`very much.
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`MR. HAUG: Good morning.
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`THE COURT: Good morning to all of you. Thank you
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`Well, Counsel, I have received your proposed joint
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`discovery plan, and of course noted with interest the portion of
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`it that refers to the filing on August 16th and August 23rd of
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`petitions with the PTAB. And as you can probably imagine, when
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 2
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`I saw that my thoughts went to, well, shouldn't this matter be
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`stayed pending the -- at least the decision, that initial
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`decision about the petition. So I'm happy to hear from you all
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`on that, perhaps, as a first issue to address. So Mr. Naples,
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`why don't you go ahead and start?
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`MR. NAPLES: Good morning, Your Honor.
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`THE COURT: Good morning.
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`MR. NAPLES: Clem Naples from Latham Watkins for the
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`plaintiff, Jaguar Land Rover.
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`So I understand the Court's interest in potentially
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`staying the cases pending the IPRs, and I wanted to give the
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`Court some context to the case. I think there's a number of
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`good reasons that the Court should not stay the case. And I
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`think most of the cases that you see out there these days,
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`there's very, very few that will stay, preinstitution anyway,
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`which is obviously where we are, but I understand the Court's
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`interest in it.
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`So this Court -- this case really goes back many
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`years. Back in February 2016, Bentley decided to put out a new
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`vehicle, Bentayga. And the Jaguar Land Rover team saw it and
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`thought, oh, this is an interesting vehicle, this is their first
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`off-road vehicle, they saw the Terrain Response System and
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`realized very quickly that they were infringing on Jaguar Land
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`Rover's patent. So they sent a letter and they said we saw your
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`Terrain Response system and we appreciate -- you must have
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 3
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`really liked the Range Rover system, but you're copying it and
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`you're infringing our patent. So there's some back-and-forth
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`back then, Your Honor. And Bentley identify some prior art and
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`Jaguar Land Rover then put the patent back into reissue to
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`address that prior art, and the patent came out of reissue in
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`June -- let's see, May of 2018. And Bentley still refused to
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`stop using the technology. So we brought this case, this is
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`back in June, 2018. The other thing I want to mention Your
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`Honor, is all this back-and-forth between the parties -- and I'm
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`sure Bentley will come up with something in this case -- but
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`we've never heard a non-infringement argument from them about
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`this patent. There's been the 101 motion they filed, now they
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`filed the IPRs. Like I said, I doubt they're not going to come
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`up with something, but they have never said they don't infringe
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`in all this back-and-forth. So we filed the case.
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`THE COURT: So let me ask this: Is there -- you're
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`giving me sort of an overall view. You're got suggesting that
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`their failure to assert non-infringement is a reason not to
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`stay, you're just kind of giving me an overview or --
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`MR. NAPLES: Yes. No. I mean, I think --
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`THE COURT: If you're suggesting that it has something
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`to do with the stay, tell me why.
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`MR. NAPLES: I'm going to tie it all together for Your
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`Honor. I think one, it's to provide context to you. Two, this
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`case has been going on for a while, and the idea of us staying
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 4
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`now doesn't make any sense for other reasons as well. But I
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`think that's important context that they have been kind of
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`pushing this case out over and over and over.
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`So the first thing they did, Your Honor, is they filed
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`this 101 motion back in October of 2018. And that slowed the
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`case down for about eight months while the parties briefed it
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`and the Court decided it. And of course as you know, Your
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`Honor, they lost that motion.
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`Now we are here, you know, just back in August of this
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`year they filed these two IPRs. So we took a look at the two
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`IPRs, Your Honor, and all of the primary references in those
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`IPRs were known to Bentley back in 2016 and 2017. So they could
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`have filed these IPRs before we filed suit, but they certainly
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`could have filed them on the day they filed suit. If they had
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`done that, we would be 14 months into the IPRs. Rather than do
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`that, they waited until the 101 motion got resolved, they waited
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`until basically the last minute when they would have been barred
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`from filing, to file these.
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`THE COURT: Madam Clerk?
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`(Court and courtroom deputy conferred.)
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`THE COURT: Go ahead.
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`MR. NAPLES: So because they waited so long -- and
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`they didn't have to, they could have filed this, you know, over
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`a year ago -- they waited so long, now we're in a situation
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`where the trial in this case against competitors would happen
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 5
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`before the IPR decisions are going to come out. Those aren't
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`going to be until February and March of 2021. And we've got a
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`trial date in --
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`THE COURT: That's how long it's taking now?
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`MR. NAPLES: That's -- well, that's by statute, Your
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`Honor. So because they waited, they're not going to get a
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`decision until February or March based on the filing dates of
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`their IPRs.
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`THE COURT: So you're doing this every day, probably.
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`I'm not. Tell me what you mean by statute.
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`MR. NAPLES: So it's an 18-month -- by statute, the
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`IPRs have to be decided within 18 months from the date of
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`filing. And based on the filing dates of these IPRs, these IPRs
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`won't be decided until February -- I have the exact dates if
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`you'd like them, Your Honor. But it's February and March of
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`2021.
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`THE COURT: That's if the petition is --
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`MR. NAPLES: That's if they're even granted. And --
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`THE COURT: So is there a statutory time frame for
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`deciding when the petition granting or denial decision is to be
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`made?
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`MR. NAPLES: That's going to be in March, Your Honor.
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`THE COURT: Is that by statute?
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`MR. NAPLES: Yes. Yes. So we're, we have an
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`opportunity to -- I mean, I think they can do things early, but
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 6
`
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`generally what happens is I think it's a six-month period for
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`that institution process. And I can get you the exact date.
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`But let me just check, I have them in my notes here, so I don't
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`give you the wrong dates.
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`The deadline for a decision to institute for one is
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`going to be February 25th, 2020 and the deadline for institution
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`for another is going to be March 12th, 2020.
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`THE COURT: Okay. Thank you.
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`MR. NAPLES: Then the decision on the merits are
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`basically those dates, February 25th and March 12th of 2021.
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`And as I mentioned, our trial is going to be, currently, in
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`September of 2020. So we would have our trial before these get
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`instituted.
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`The other thing -- and I alluded to it earlier, Your
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`Honor -- is they have known about this art for a long time,
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`years, and they didn't file when they could have filed. And
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`most of the art, Your Honor, that they put in the IPR has been
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`considered by the PTO in the reissue. They found another piece
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`of what they're calling prior art which we believe is
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`duplicative, but we also don't even think it's prior art. So
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`these IPRs aren't, you know, 102 bang-up IPRs that have a real
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`high likelihood of winning. They're combination of references
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`that the PTO has seen. This patent has been through a reissue
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`process already.
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`THE COURT: So when they had contacted you about these
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 7
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`prior art references initially your client decided to go back
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`and seek a reissuance? Is that what you said?
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`MR. NAPLES: Exactly, Your Honor.
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`THE COURT: And in that reissuance process did they
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`address each of the prior art references that were being
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`asserted outside of litigation?
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`MR. NAPLES: Yes. What they identified for us we put
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`in the IPR, because we wanted to make sure the PTO had chance to
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`see them. The primary references in the IPRs now -- as I
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`mentioned, most of them have been, the four I think, three or
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`three of them have been already addressed either directly or
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`because it's the same system from the same company. And they
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`found another one, I think it's from a Porsche, it's a sports
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`car they put in there, wasn't even sold in the United States
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`because you couldn't -- they found a manual that someone had
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`ordered and they're calling it prior art. It's not -- this is
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`not the strongest IPR in the universe, Your Honor. To the
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`contrary, these are a bunch of combinations of references that
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`they're putting in there. But this is, this is I think the type
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`of argument we would be making if there was institution.
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`The other important point I want to make, Your Honor,
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`is they're not even challenging all the claims in the patent.
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`So what could happen is we get discovery from them, then we
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`assert claims that aren't even in the IPR. And they can't file
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`another IPR because they're statutorily barred from filing
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 8
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`another IPR. So there's a lot of reasons why staying here
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`doesn't -- first of all, it's incredibly prejudicial to Jaguar
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`Land Rover just because we've already waited this long.
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`THE COURT: I'm sorry, let me go back. You said --
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`MR. NAPLES: Yes, Your Honor.
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`THE COURT: -- what could happen is that you get
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`discovery from them and then you assert claims that aren't in
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`the IPR. In the IPR, it's the '828?
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`MR. NAPLES: Correct, Your Honor.
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`THE COURT: Okay. And here we just have at issue in
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`our case the '828 and...
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`MR. NAPLES: Just the one patent, Your Honor.
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`THE COURT: That's it?
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`MR. NAPLES: If you reference the other patent it
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`could be the --
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`THE COURT: '776?
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`MR. NAPLES: Correct. That was the patent that was
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`reissued and became the '828.
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`THE COURT: So let me ask you this: You know, I do
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`these, a few of these a year. There's a lot in between.
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`MR. NAPLES: Hmm-hmm.
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`THE COURT: You have to refresh me a little bit.
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`MR. NAPLES: Certainly, Your Honor.
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`THE COURT: What is the standard by which the
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`reissuance decision made versus the standard that will be
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 9
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`applied in an IPR if it's granted?
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`MR. NAPLES: It would be -- I mean, there used be --
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`well, you may -- let me just -- there used to be a difference in
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`the claim construction standard between an IPR and the district
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`court proceeding and that's now the same. So it would be the
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`same there.
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`THE COURT: So when you went back to have the
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`'828 reissued in light of the asserted prior art references, the
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`decision by the examiner to issue in light of those
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`references -- I guess what I'm getting at -- is the same kind of
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`review done by the examiner in that process that's done in the
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`IPR process, if the petition is, petitions are granted here?
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`MR. NAPLES: Yes. I believe that's correct. The
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`examiner at the PTO looked at the prior art to determine if the
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`reference disclosed all the claims in combination or not. There
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`may be a evidentiary standard that could be different in between
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`the two so I don't want to misspeak. I can just double-check,
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`or counsel may know if they're the same or not. But in terms of
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`the process, the process is you submit to the Patent Office, you
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`submit the prior art to the Patent Office, they examine the
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`prior art, they determine if the claims are new, novel,
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`non-obvious in view of the prior art. That same process is
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`going to happen in the IPR. If it gets instituted. And here
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`we've got prior art references that the Patent Office has
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`considered before.
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`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 10
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`THE COURT: All right. I interrupted you. Why don't
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`you go ahead.
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`MR. NAPLES: That's fine. The other thing, Your
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`Honor, on this, you know, IPRs are changed over the years and
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`the institution rate has dropped pretty dramatically. The
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`latest statistics we pulled from this year are that about
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`60 percent of IPRs that are filed are getting instituted. And
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`of that 60 percent, roughly half or so are having all the claims
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`invalidated. So we're talking about half of 60 percent where
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`you've got all the claims in a patent invalidated in an IPR. So
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`the notion of an IPR simplifying the case isn't as strong as it
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`used to be. And here, it's particularly not strong because
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`Bentley didn't challenge all of the claims in the asserted
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`patent.
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`THE COURT: All right. Anything else?
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`MR. NAPLES: I think that's it on the IPR issue. I
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`guess the only -- well, let me hear from opposing counsel and I
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`may have some comments, I'm sure, Your Honor.
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`THE COURT: All right. Thank you, sir.
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`Happy to hear from opposing counsel.
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`MR. HAUG: Good morning. Ed Haug for the Bentley
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`defendants.
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`23
`
`Your Honor asked a very reasonable question at the
`
`24
`
`outset: Why shouldn't the case be stayed? The only reason we
`
`25
`
`have not moved to stay the case thus far is because we're not
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 11
`
`
`
` 1
`
`sure today whether all of the claims that are embraced by the
`
` 2
`
`IPRs that are filed, whether or not those are the only claims
`
` 3
`
`that the plaintiff is going to assert in this case. The amended
`
` 4
`
`complaint which was filed sets forth five claims. Five specific
`
` 5
`
`claims. We have asked JLR, the plaintiff, whether or not they
`
` 12
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` 6
`
`can confirm that those are all the claims they're going to
`
` 7
`
`assert in this case. They have come back to us and said we
`
` 8
`
`won't confirm that and that we will be giving you contentions,
`
` 9
`
`infringement contentions on October 1st, if that's the date.
`
`10
`
`That is a date that we agreed on. That's in about two weeks.
`
`11
`
`And we might need more discovery. So the point here, Your
`
`12
`
`Honor, is that if the IPRs do cover all the claims that are
`
`13
`
`being asserted in this case -- bless you --
`
`14
`
`15
`
`THE COURT: Excuse me.
`
`MR. HAUG: -- if they cover all the claims that are
`
`16
`
`being asserted we would be fine with a stay because it would
`
`17
`
`make sense. However, we are not sure because they're not
`
`18
`
`confirming those are the only claims.
`
`19
`
`Mr. Naples went on about some of the history. I'm not
`
`20
`
`going to really go back into this history unless Your Honor has
`
`21
`
`questions on that. But it's true these parties started talking
`
`22
`
`three years ago or more. And so during that three-year period,
`
`23
`
`JRL, the patentee, has had plenty of time to determine which
`
`24
`
`claims they want to assert. They also have the car, access to
`
`25
`
`the car. They have the manuals for the car which they cite in
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 12
`
`
`
` 13
`
` 1
`
`their complaint. So they have everything they need to determine
`
` 2
`
`which claims they believe are infringed. I think on October 1st
`
` 3
`
`if the case proceeds to discovery we should find out what
`
` 4
`
`additional claims, if any. And so again --
`
` 5
`
`And another big point here, Mr. Naples said that all
`
` 6
`
`of the references were already known and cited in the Patent
`
` 7
`
`Office. That's not true. The primary reference in the IPRs is
`
` 8
`
`what we call a Porsche 959 vehicle. It's a car that they
`
` 9
`
`developed a good number of years ago, well before this patent
`
`10
`
`was ever filed. And that Porsche 959 was manufactured, it was a
`
`11
`
`race vehicle, it was also used off-road, manuals were produced
`
`12
`
`for that car. Those manuals are imported to the United States,
`
`13
`
`they were used here in the United States, and that is the
`
`14
`
`primary reference. I would also add to that, during these
`
`15
`
`communications between Bentley and Jaguar, Bentley did provide
`
`16
`
`certain prior art to Jaguar which Jaguar then took through these
`
`17
`
`conversations and went to the Patent Office and reissued their
`
`18
`
`patent. They also gave them 959 Porsche references. Jaguar did
`
`19
`
`not cite that to the Patent Office. So that one has never been
`
`20
`
`reviewed by the USPTO. And as I said, it's the primary
`
`21
`
`reference that these IPRs are based on. And so --
`
`22
`
`THE COURT: How about the -- did you want to comment
`
`23
`
`on the inartfully worded question that I asked Mr. Naples about
`
`24
`
`of the standards, whether they're essentially the same standard
`
`25
`
`an examiner -- I understand that the Porsche 959 was not
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 13
`
`
`
` 14
`
` 1
`
`included in the references submitted for the reissuance --
`
` 2
`
` 3
`
` 4
`
`MR. HAUG: Right.
`
`THE COURT: -- but are they the same?
`
`MR. HAUG: I think the standard of review for whether
`
` 5
`
`or not the claims at issue in the IPRs are patentable, whether
`
` 6
`
`or not they're valid, I think the standard of review is the same
`
` 7
`
`based on looking at the prior art. However, as Your Honor just
`
` 8
`
`mentioned, the 959 prior art was never reviewed, so that will be
`
` 9
`
`de novo, if you will, by the PTAB when they look at it.
`
`10
`
`I also think the evidence is different. In other
`
`11
`
`words, in the IPRs we have also -- the IPR petition is
`
`12
`
`accompanied by declarations from experts. And so that expert
`
`13
`
`declaration clearly was not before the PTO during the reissue
`
`14
`
`examination. That is evidence that will be part of the
`
`15
`
`evidentiary record as the case is developed.
`
`16
`
`THE COURT: Again, you all do this so often, I'm sure.
`
`17
`
`I will reveal my lack of familiarity in some respect in asking
`
`18
`
`the questions. But when the reissuance procedure takes place,
`
`19
`
`is that something about which your client had notice and is
`
`20
`
`there any opportunity to speak up and say, you know, there's
`
`21
`
`something missing from --
`
`22
`
`23
`
`MR. HAUG: An intervenor? No.
`
`Well, first, yes, our client had notice that the
`
`24
`
`reissue process had been commenced and was ongoing. However,
`
`25
`
`it's an ex parte procedure. It's like when you file a patent
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 14
`
`
`
` 15
`
` 1
`
`application it's between you and the patent examiner. That's
`
` 2
`
`what happens in a reissue also. So Bentley in this case could
`
` 3
`
`not intervene, and indeed that's why when they have talks
`
` 4
`
`Bentley gave them prior art and said we think this prior art is
`
` 5
`
`relevant and Jaguar in some cases cited it and in the case of
`
` 6
`
`the 959 Porsche manual for example they did not. So they knew
`
` 7
`
`about it, but they couldn't participate in it.
`
` 8
`
`Now, there are legal consequences to reissues, and I
`
` 9
`
`mean, this starts to get a little complicated in a sense. For
`
`10
`
`example, when a reissue patent is granted, if you go to damages,
`
`11
`
`they're only entitled to damages from the date of grant of that
`
`12
`
`reissued patent going forward unless they still have an original
`
`13
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`claim, which in this case they have not asserted any of the
`
`14
`
`original claims -- that's from the first patent that was
`
`15
`
`issued -- they haven't asserted any of those claims. So the
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`16
`
`damage claim in this case really only begins with the granting
`
`17
`
`of the reissued patent which I believe was March of 2018 or so.
`
`18
`
`But again, back to the issue of stay, our position is
`
`19
`
`that if we -- if we have confirmation from plaintiff that all of
`
`20
`
`the claims they're asserting in this case are covered by the
`
`21
`
`IPRs, namely by those petitions, then we think a stay would be
`
`22
`
`appropriate. We don't know that yet, 1, because they're not
`
`23
`
`confirming that when I asked them, and No. 2, we haven't gotten
`
`24
`
`their contentions yet, which again, if the schedule is
`
`25
`
`implemented, would be due in a few weeks.
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 15
`
`
`
` 16
`
` 1
`
`And on the discovery issue, I don't know what
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` 2
`
`additional discovery they would need beyond what they already
`
` 3
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`have and what they have had access to for the last three years.
`
` 4
`
`But I really don't know. They haven't served any discovery yet.
`
` 5
`
`THE COURT: All right. So Mr. Naples said that the
`
` 6
`
`statutory time frame if institution takes place will be
`
` 7
`
`concluded after the trial date, the anticipated trial date in
`
` 8
`
`this matter, and that there's a suggestion that therefore a stay
`
` 9
`
`would not be appropriate in this case. What's your response to
`
`10
`
`that?
`
`11
`
`MR. HAUG: I think Mr. Naples is correct in his view
`
`12
`
`of the timeline. It's six months to the institution decision.
`
`13
`
`If the petitions are instituted and a trial is instituted by the
`
`14
`
`PTAB, that will be a one-year proceeding, so that will take us
`
`15
`
`out to whatever that is. February of '21?
`
`16
`
`17
`
`18
`
`THE COURT: '21.
`
`MR. HAUG: So that's correct. We agree with that.
`
`As far as the impact on the date for the trial, if the
`
`19
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`Court, if Your Honor holds that September trial date, then it is
`
`20
`
`correct that that trial will occur before there is a final
`
`21
`
`decision, a written decision from the PTAB. However, I think if
`
`22
`
`the decision of the Court is that it makes -- that it's
`
`23
`
`appropriate for the parties and the Court to stay the case
`
`24
`
`pending the outcome of the petitions, I think that also equally
`
`25
`
`applies to the trial date, would be my view.
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 16
`
`
`
` 17
`
` 1
`
`I would also point out there will be a claim
`
` 2
`
`construction, I believe, from the PTAB as part of the
`
` 3
`
`institution decision. So when this decision come down in March,
`
` 4
`
`that board will look at the claims in the patent and make a
`
` 5
`
`determination on claim construction. And I think that claim
`
` 6
`
`construction -- while not binding on Your Honor -- if you have a
`
` 7
`
`Markman hearing in this case after that, which I think now is
`
` 8
`
`we're looking at a March date in the schedule, it's not binding
`
` 9
`
`on you, but certainly I think would be relevant to the
`
`10
`
`proceedings before Your Honor.
`
`11
`
`THE COURT: So are you suggesting that we allow, at
`
`12
`
`the very least -- are you suggesting that we set dates here and
`
`13
`
`then wait for the infringement contentions date to pass before
`
`14
`
`you decide whether you want a stay? Is that sort of where you
`
`15
`
`are?
`
`16
`
`17
`
`18
`
`stay?
`
`MR. HAUG: Yes, Your Honor.
`
`THE COURT: And are you asking me not to sua sponte
`
`19
`
`MR. HAUG: No. I'm not. I think it's within your,
`
`20
`
`certainly within your discretion to do that. I'm only pointing
`
`21
`
`out why we have not moved to stay yet, because I don't know if
`
`22
`
`the claims are going to be expanded in this case.
`
`23
`
`THE COURT: And why were these IPRs filed so -- not
`
`24
`
`filed previously?
`
`25
`
`MR. HAUG: Well, they weren't filed previously
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 17
`
`
`
` 18
`
` 1
`
`because, one, the parties were in discussions. Secondly, we did
`
` 2
`
`after, this case was filed, we did move to dismiss. We thought
`
` 3
`
`that was a proper motion. And it was denied, of course. And so
`
` 4
`
`then after that happened and before the case began, in other
`
` 5
`
`words before this Rule 16 conference, we filed the IPRs.
`
` 6
`
`THE COURT: Okay. And you all met with the clerk this
`
` 7
`
`morning?
`
` 8
`
` 9
`
`10
`
`11
`
`COURTROOM DEPUTY CLERK: No, Judge.
`
`(Court and courtroom deputy conferred.)
`
`THE COURT: You didn't. Okay.
`
`All right. The law clerk has advised me on the dates
`
`12
`
`about which you all are not able to agree. So I have that here.
`
`13
`
`What time are your flights?
`
`14
`
`15
`
`16
`
`MR. HAUG: I have a flight at 2:30.
`
`MR. NAPLES: Not until 4:00, Your Honor.
`
`THE COURT: Okay. Well, let's take a short recess.
`
`17
`
`Why don't we get back together --
`
`18
`
`MR. NAPLES: Your Honor, could I just address two
`
`19
`
`issues that came up in Mr. Haug's before we recess?
`
`20
`
`THE COURT: Sure. Then I'll tell you the time for the
`
`21
`
`recess.
`
`22
`
`23
`
`24
`
`MR. NAPLES: Okay. Perfect.
`
`THE COURT: Thank you.
`
`MR. NAPLES: Just briefly, Your Honor. One, Bentley
`
`25
`
`certainly could have submitted anything it wanted to the Patent
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 18
`
`
`
` 1
`
`Office during the reissue. It could have submitted any art, any
`
` 2
`
`argument they wanted and make those arguments to the Patent
`
` 19
`
` 3
`
`Office and they didn't.
`
` 4
`
` 5
`
`The other thing is, Your Honor --
`
`THE COURT: What was Mr. Haug's point that there is
`
` 6
`
`no -- was his point there's no formal motion to intervene
`
` 7
`
`procedure? Is that what he was saying?
`
` 8
`
`MR. NAPLES: I'm not, I'm not sure if he has some --
`
` 9
`
`I'm not sure what he was saying, Your Honor, but you can submit
`
`10
`
`things --
`
`11
`
`12
`
`THE COURT: What did you understand it to be?
`
`MR. NAPLES: I think what he -- I think what he was
`
`13
`
`saying was he was trying to carve some narrow, make some narrow
`
`14
`
`scenario argument they didn't intervene. And maybe they could
`
`15
`
`have, but they didn't. I don't know. It's an ex parte process
`
`16
`
`between the patent owner and the PTAB. But third parties can
`
`17
`
`submit things, say these patents should not issue, and they
`
`18
`
`didn't.
`
`19
`
`On this Porsche reference, we don't even know if it's
`
`20
`
`prior art. We have submitted it in a continuation application
`
`21
`
`to the PTO, so the PTO is going to see it. They're going to
`
`22
`
`look at it. They're going to have their own examiner analyze it
`
`23
`
`and make whatever comments they want to make on it.
`
`24
`
`25
`
`THE COURT: Why wasn't it submitted at the reissuance?
`
`MR. NAPLES: I suspect, Your Honor, it was duplicative
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 19
`
`
`
` 20
`
` 1
`
`or it was timing. I don't know exactly when we got it from
`
` 2
`
`them. But it's, we've submitted it to the PTO in connection
`
` 3
`
`with the continuation. And as I mentioned, I don't know, it
`
` 4
`
`doesn't -- we're not sure it's even a prior art reference.
`
` 5
`
`THE COURT: I take it you didn't handle the
`
` 6
`
`prosecution?
`
` 7
`
`MR. NAPLES: Correct, Your Honor. We do not do
`
` 8
`
`prosecution.
`
` 9
`
`On this notion of we've had three years to look at
`
`10
`
`their vehicle. Yeah, we have, Your Honor. And we've put forth
`
`11
`
`our infringement contentions. Your Honor, there are claims in
`
`12
`
`the patent that require some specific things. So we need the
`
`13
`
`source code for their Terrain Response system, at minimum, to do
`
`14
`
`our analysis. And for Mr. Haug to say that, you know, we've had
`
`15
`
`all that time, we've got the vehicle, there's claims in the
`
`16
`
`patent that we think are infringed, Your Honor, but we need to
`
`17
`
`get their discovery to look at it. So that's where we're at. I
`
`18
`
`mean, we need that. And they did not challenge all the claims.
`
`19
`
`So they know -- at least they believe that not all the claims in
`
`20
`
`the patent are invalid because they didn't even challenge them
`
`21
`
`in the IPRs.
`
`22
`
`The other thing I'll say, Your Honor, is if the Court
`
`23
`
`wants to hear argument, further argument on this I would suggest
`
`24
`
`just briefing on these issues. That's -- when it's come up in
`
`25
`
`any other matter I've had, there's always been briefing. Most
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 20
`
`
`
` 21
`
` 1
`
`parties do not move preinstitution at all because it's so
`
` 2
`
`speculative as to whether something is going to be instituted,
`
` 3
`
`and then once they're instituted a party would potentially move
`
` 4
`
`to stay and then there's arguments at that period. I'm not
`
` 5
`
`trying to give you more work, Your Honor, but I think, you know,
`
` 6
`
`a full briefing and a full record on this would be very valuable
`
` 7
`
`for the Court to have on paper so you could consider it.
`
` 8
`
`THE COURT: What prejudice would there be, if any, to
`
` 9
`
`a stay -- to your client by a stay?
`
`10
`
`MR. NAPLES: Your Honor, Bentayga competes directly
`
`11
`
`with the Range Rover, right? We put the pictures of their
`
`12
`
`quote, unquote "Terrain Response System" in the complaint. It
`
`13
`
`is a dial that looks exactly like the Range Rover. They didn't
`
`14
`
`have a competing product up until 2016. So this isn't a
`
`15
`
`situation where there's a licensing entity suing someone else
`
`16
`
`and the stay doesn't matter. People are out in the world right
`
`17
`
`now deciding, am I going to buy a Bentayga or a Range Rover?
`
`18
`
`Range Rover is the well-known leader of Terrain Response. It's
`
`19
`
`brand-defining technology, Your Honor, that Bentley has put in
`
`20
`
`their vehicle. So it's prejudicial to JRL to have the Bentayga
`
`21
`
`out there using their technology. There's not -- I mean, Your
`
`22
`
`Honor, there's not a tremendous amount of litigation in the
`
`23
`
`automotive space like this, but this is an important matter for
`
`24
`
`Jaguar Land Rover. They feel very strongly that their
`
`25
`
`technology is being used by Bentley, otherwise they wouldn't
`
`Paul L. McManus, RMR, FCRR Official Court Reporter
`
`Bentley v. Jaguar, IPR2019-01539
`Bentley Ex. 1068, Page 21
`
`
`
` 1
`
`have brought this suit. We filed the case in June of 2018. We
`
` 2
`
`wa
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