`571-272-7822
`
`Paper 13
`Entered: March 18, 2021
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SUPERCELL OY,
`Petitioner,
`v.
`GREE, INC.,
`Patent Owner.
`
`IPR2020-01553
`Patent 10,076,708 B2
`
`
`
`
`
`
`
`
`
`Before LYNNE H. BROWNE, HYUN J. JUNG, and
`RICHARD H. MARSCHALL, Administrative Patent Judges.
`BROWNE, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`Denying Petitioner’s Motion to Seal
`37 C.F.R. § 42.55
`
`
`
`INTRODUCTION
`I.
`A. Background and Summary
`Supercell Oy (“Petitioner”) filed a Petition (Paper 2, “Pet.”)
`requesting institution of an inter partes review of claims 1–3 of U.S. Patent
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`IPR2020-01553
`Patent 10,076,708 B2
`No. 10,076,708 B2 (Ex. 1001, “the ’708 patent”), along with a Motion to
`Seal Exhibit 1034 and for Entry of Protective Order (Paper 3). GREE, Inc.
`(“Patent Owner”) filed a Preliminary Response (Paper 7, “Prelim. Resp.”).
`With our authorization, Petitioner filed a Reply to Patent Owner’s
`Preliminary Response Pursuant to 37 C.F.R. § 42.108(c) (Paper 8, “Prelim.
`Reply”), and Patent Owner filed a Sur-Reply to Petitioner’s Reply to Patent
`Owner’s Preliminary Response (Paper 9, “Prelim. Sur-Reply”).
`After considering the parties’ briefs and the evidence of record, we
`exercise our discretion under 35 U.S.C. § 314(a) to deny inter partes review.
`We also deny as moot Petitioner’s motion.
`B. Real Parties in Interest
`Petitioner identifies itself as the real party in interest. Pet. 1. Patent
`Owner identifies itself as the real party in interest. Paper 4, 2.
`C. Related Matters
`The parties indicate that the ’708 patent has been asserted in GREE,
`Inc. v. Supercell Oy, 2:19-cv-00310 (E.D. Tex.). Pet. 1; Paper 4, 3 (“the
`parallel district court proceeding”).
`D. The ’708 Patent
`The ’708 patent issued on September 18, 2018, and claims priority to
`foreign applications, the earliest of which was filed on June 21, 2012.
`Ex. 1001, codes (22), (30), (45), 1:7–10.
`The ’708 patent “provides a game control method, a game server, and
`a program that can increase the variations on methods for acquiring battle
`cards . . . , increase the predictability of acquisition of a card . . . with a high
`rarity value . . . , and heighten interest in the game.” Ex. 1001, 1:48–53.
`Figure 1 of the ’708 patent is reproduced below.
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`Patent 10,076,708 B2
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`Figure 1 is a block diagram of battle game server 1. Id. at 3:38–39. Figure 1
`also shows communication terminal 2 in wireless communication with battle
`game server 1. Battle game server 1 includes communication unit 10,
`memory unit 11, information presentation unit 12, and control unit 13. Id. at
`3:63–4:2. Memory unit 11 stores information “on items to provide, a total
`count of items, item type, and an acquisition count” for each user that
`operates a communication terminal 2 in tables. Id. at 4:7–10, 4:17–18. “An
`‘item’ refers to any of a variety of objects used within a game, such as a
`battle card constituting a user’s deck, a character, a weapon, armor, an
`ornament, a plant, food, and the like.” Id. at 4:11–14. The tables that store
`item information include item information tables 111 (e.g., 111a–111c) and
`user information table 112. Id. at 4:18–20. Memory unit 11 also stores item
`data 113. Id.
`According to the ’708 patent, “when a request to present information
`is received from the communication terminal 2 via the communication unit
`10, then based on the item information tables 111a to 111c, the information
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`IPR2020-01553
`Patent 10,076,708 B2
`presentation unit 12 tallies the total count of items for each item type.”
`Ex. 1001, 4:65–5:2. “The information presentation unit 12 also refers to the
`user information table 112 to calculate the acquisition count of items for
`each item type based on the identification information of provided items and
`the table identification information that correspond to the user identification
`information pertaining to the communication terminal 2.” Id. at 5:2–8. “The
`information presentation unit 12 then presents the communication terminal
`2, via the communication unit 10, with the result of [the] calculation as the
`acquirable item information.” Id. at 5:8–11.
`E. Illustrative Claim
`The ’708 patent includes independent claims 1–3, all of which
`Petitioner challenges. Claim 1 is reproduced below.
`1.
`A game control method comprising the steps of:
`(a) initializing a virtual game;
`(b) displaying, during the virtual game, a plurality of cells
`and acquirable item information that is received from a server
`over a communication line, the plurality of cells being displayed
`in the same size, wherein each of a plurality of items extracted
`from an item information table pertaining to a user is associated
`with each of the plurality of cells, the plurality of items being
`selected randomly only from items in the item information table,
`and at least one of the cells including a character which indicates
`a rarity value of an item associated with the at least one of the
`cells;
`
`(c) receiving, during the virtual game, a selection request
`selecting one of the plurality of cells and sending the selection
`request to the server; and
`(d) displaying, during the virtual game, an item associated
`with the selected cell, which is determined by the server based
`on the selection request.
`Ex. 1001, 13:51–14:13.
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`Patent 10,076,708 B2
`F. Asserted Grounds and Proffered Testimonial Evidence
`Petitioner asserts that claims 1–3 would have been unpatentable on the
`following grounds:
`References/Basis
`35 U.S.C. §
`Claim(s) Challenged
`Hawkins,2 Robbers3
`103(a)1
`1–3
`SCM,4 Stroffolino5
`103(a)
`1–3
`Pet. 3. Petitioner also provides a Declaration of Ravin Balakrishnan, Ph. D.
`Ex. 1007.
`
`II. 35 U.S.C. § 314(a)
`Patent Owner argues that “the Board should exercise its discretion
`under 35 U.S.C. § 314(a) to deny the Petition because Petitioner raises
`substantially the same arguments in a parallel district court proceeding filed
`more than one year ago and scheduled for trial in approximately two months
`(March 1, 2021).” Prelim. Resp. 1 (citing NHK Spring Co., Ltd. v. Intri-Plex
`Techs., Inc., IPR2018-00752, Paper 8, at 19–20 (P.T.A.B. Sept. 12, 2018)
`(precedential); Apple Inc. v. Fintiv, Inc., IPR2020- 00019, Paper 11, at 6
`(P.T.A.B. Mar. 20, 2020) (“Fintiv”) (precedential)).
`A. Legal Standards
`35 U.S.C. § 314(a) states that
`
`
`1 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, 125 Stat. 284 (Sept. 16, 2011), took effect on March 16,
`2013. Because the ’708 patent claims priority to an application filed before
`that date, our citations to 35 U.S.C. § 103 are to its pre-AIA version.
`2 U.S. 9,511,285, issued December 6, 2016. Ex. 1022 (“Hawkins”).
`3 U.S. 2009/0051114 A1, published February 26, 2009. Ex. 1023
`(“Robbers”).
`4 Scrabble Complete PC Manual, Infogrames Interactive, Inc., 2002.
`Ex. 1016 (“SCM”).
`5 U.S. 8,352,542 B2, issued January 8, 2013. Ex. 1024 (“Stroffolino”).
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`[t]he Director may not authorize an inter partes review to be
`instituted unless the Director determines that the information
`presented in the petition filed under section 311 and any response
`filed under section 313 shows that there is a reasonable
`likelihood that the petitioner would prevail with respect to at least
`1 of the claims challenged in the petition.
`The language of § 314(a) expressly provides the Director with discretion to
`deny institution of a inter partes review. See Cuozzo Speed Techs., LLC v.
`Lee, 136 S. Ct. 2131, 2140 (2016) (“[T]he agency’s decision to deny a
`petition is a matter committed to the Patent Office’s discretion.”);
`Consolidated Trial Practice Guide November 2019 (“TPG”) at 55 (available
`at https://www.uspto.gov/TrialPracticeGuideConsolidated).
`In exercising the Director’s discretion under § 314(a), the Board may
`consider “events in other proceedings related to the same patent, either at the
`Office, in district court, or the ITC.” TPG at 58. NHK Spring explains that
`the Board may consider the advanced state of a related district court
`proceeding, among other considerations, as a “factor that weighs in favor of
`denying the Petition under § 314(a).” NHK Spring, Paper 8 at 20.
`Additionally, the Board’s precedential order in Fintiv identifies several
`factors for analyzing issues related to the Director’s discretion to deny
`institution, with the goal of balancing efficiency, fairness, and patent quality.
`B. Applying the Fintiv Factors
`1. Whether the Court Granted a Stay or Evidence Exists that one
`may be Granted if a Proceeding is Instituted
`Petitioner argues that it “has not yet sought a stay but will do so
`should the IPR be instituted.” Pet. 69. Patent Owner responds that
`“Petitioner has not filed any motion to stay the parallel district court
`proceeding” and “there is little evidence here to suggest that the district
`court will grant a stay.” Prelim. Resp. 7 (citing Pet. 69). Patent Owner
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`argues that a stay is “extremely unlikely” because stays are denied before
`institution and an institution decision is “not due until after the jury trial in
`the parallel district court proceeding.” Id. at 7–8 (citing Ex. 2011, 1).
`Because the district court has not yet granted a stay and the record
`does not include any evidence that a stay, if requested, would be granted, we
`determine that the facts underlying this factor are neutral.
`2. Proximity of the Court’s Trial Date to the Board’s Projected
`Statutory Deadline for a Final Written Decision
`Petitioner argues that “[w]hile the trial date is currently scheduled to
`occur before the statutory deadline for the [final written decision], this factor
`should be afforded little weight, as the date is very likely to change.”
`Pet. 69. Petitioner also argues that trial dates reset when review is instituted
`and significantly slip after institution has been denied. Id. at 69–70 (citing
`Ex. 1031, 2; Ex. 1030, 3).
`Patent Owner responds that a “jury trial in the parallel district court
`proceeding is currently set to begin on March 1, 2021” and thus, “scheduled
`to conclude more than twelve months before a final written decision would
`be due in this proceeding.” Prelim. Resp. 9. Patent Owner lists several
`proceedings where the Board has denied institution based on a smaller gap
`between trial date and due date for a final written decision. Id. at 9–10.
`Patent Owner also argues that “Petitioner fails to present any specific
`evidence that the jury trial in the Eastern District of Texas in the parallel
`proceeding will not proceed on March 1, 2021, as currently scheduled.” Id.
`at 12–13. Patent Owner further argues that, “even if trial is ultimately
`delayed by a few months, it will still likely conclude well before a final
`written decision would be due in this proceeding, if the Board were to
`institute.” Id. at 15.
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`Petitioner replies that “determining the true trial date requires
`speculation.” Prelim. Reply 2. According to Petitioner, “[t]he record
`indicates that the Eastern District of Texas court is at least triple booked for
`the [current] trial date.” Id. at 2–3 (citing Ex. 1039, 1044). Petitioner argues
`that it is unlikely that jury trials will resume on March 1 because of the
`continuing pandemic. Id. at 3. Patent Owner replies that “Petitioner’s
`speculative claim that trial in the parallel district court proceeding may not
`proceed on March 1, 2021 ignores a key fact in the record: trial remains
`scheduled to proceed on March 1, 2021—which is now just one week
`away.” Prelim. Sur-Reply 1 (citing Ex. 2011, 1).
`The present record shows that, the trial date in the parallel district
`court proceeding has not been set, but will likely be set for no later than
`May, 2021. Ex. 2017; see also Ex. 2016. If review were instituted in this
`proceeding, a final written decision would be due 10 months or more after
`the trial date in the parallel district court proceeding. Id. Given the
`considerable overlap in claims, prior art, and arguments as described below,
`institution would create a potential for the district court proceeding and the
`review to arrive at inconsistent results spaced approximately 10 months
`apart. Thus, we determine that this factor weighs in favor of denying
`institution.
`3. Investment in the Parallel Proceeding by the Court and the
`Parties
`Petitioner argues that “[t]he district court proceeding is . . . only in its
`initial stages, and the court has not made any substantial investments in the
`merits of the invalidity positions.” Pet. 70. Patent Owner responds that the
`“the parties and the district court have each already invested . . . substantial
`resources in the parallel proceeding by the time this Board decides whether
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`to institute a trial in March 2021.” Prelim. Resp. 17. Specifically, Patent
`Owner asserts that “the parties have already completed claim construction
`briefing, the Court held a Markman hearing in September, and the Court
`issued its order on claim construction . . . on October 12, 2020.” Id. (citing
`Ex. 2009; E-One, Inc. v. Oshkosh Corp., IPR2019-00161, Paper 16, at 7
`(P.T.A.B. May 15, 2019). Patent Owner argues further that “[t]he district
`court and parties have each already invested, and will have invested even
`more, substantial resources in claim construction, fact discovery, expert
`discovery, dispositive motions, pretrial disclosures, and trial itself by the
`time this Board decides whether to institute a trial in March 2021.” Id. at 19.
`Patent Owner also argues that Petitioner did not file its Petition until
`twelve months after the parallel district court proceeding was initiated and
`contends with citations to other Board decisions that the unexplained delay
`weighs in favor of denying institution. Prelim. Resp. 19–20 (citing
`Ex. 2004). Petitioner replies that “[t]he Investment factor (Factor 3) is
`neutral, because, to the extent the court has invested, it invested primarily in
`non-overlapping issues, e.g., determining issues related to potential
`invalidity based on different references, or related to alleged infringement.”
`Prelim. Reply 4.
`In the parallel district court proceeding, a Claim Construction
`Memorandum Opinion and Order has been issued and by this time, the
`parties have, inter alia, completed expert discovery, filed dispositive
`motions and motions to strike expert testimony, served pretrial disclosures,
`and attended a pretrial conference. Ex. 2011; Ex. 2012, 2. The district court
`and the parties have made substantial investments in the parallel proceeding.
`The parties still have to expend significant resources to conduct the trial
`itself, as well as potential post-trial proceedings.
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`Based on the record, weighing the investments thus far made and yet
`to be made, we determine that substantial investments have been made in the
`parallel proceeding, and thus, this factor weighs in favor of denying
`institution.
`4. Overlap Between Issues Raised in the Petition and in the Parallel
`Proceeding
`Petitioner argues that “[t]he references raised in Grounds 1 and 2
`discussed herein are distinct from those raised in the related litigation.”
`Pet. 68.6 Petitioner, thus, argues there are no significant concerns regarding
`duplicative efforts or potentially conflicting outcomes. Id. at 69.
`Patent Owner responds that “[t]here is substantial overlap between at
`least the claims, grounds, and arguments presented in the Petition and what
`has been, and continues to be, litigated in the parallel district court
`proceeding.” Prelim. Resp. 21; see also Prelim. Sur-Reply 3–5 (arguing
`similarly). As an example of overlap, Patent Owner asserts that “Petitioner
`relies on the Scrabble Complete PC Manual (‘SCM’) as the primary
`reference in Ground 2 of the Petition” and “Petitioner’s expert in the parallel
`district court proceeding also relies on SCM (as well as other Scrabble-
`related materials) as allegedly disclosing limitations of claims 1–3 of the
`’708 Patent.” Prelim. Resp. 21–22 (citing Pet. 36–39, 55–57; Ex. 2006
`¶¶ 133–134). According to Patent Owner the “testimony in the parallel
`proceeding is identical to arguments made by Petitioner in the Petition
`
`
`6 Petitioner also argues that the “patent ineligibility standard” at the Office
`“is different” from the standard for jury trials. Pet. 69. However, because
`patent ineligibility has not and cannot be asserted in the present Petition, we
`do not need to address this argument.
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`regarding SCM and other Scrabble-related materials.” Id. at 22 (citing
`Pet. 20–21).
`Petitioner replies that “[t]here is no overlap whatsoever between the
`art in the IPR grounds and that applied in the litigation invalidity
`contentions.” Prelim. Reply 1. According to Petitioner, “SCM is discussed
`only in the ‘general state of the prior art’ section, not as ‘asserted prior art’”
`in a litigation expert report (Ex. 2006) and “SCM is only present in Ground
`2; Ground 1 has no overlap.” Id. (citing Ex. 2006, 2). Petitioner further
`argues that Patent Owner has reduced the claims at issue in the parallel
`district court proceeding which further reduces overlap between the parallel
`proceeding and this proceeding. Paper 10, 1 (“Patent Owner is now
`asserting only independent claim 1 of the ’708 patent.”)
`Patent Owner replies that “Petitioner does not dispute that it
`challenges the same claims of the ’708 Patent under § 103 in each of the
`instant Petition and at the district court” and “that expert testimony
`submitted by the Petitioner at the district court regarding SCM is identical to
`arguments made by Petitioner in the Petition.” Prelim. Sur-Reply 3–4
`(citing Prelim. Resp. 21–22). Patent Owner asserts even though “Petitioner
`has not formally identified SCM as ‘asserted prior art’ at the district court,”
`“the undisputed inclusion of SCM in both proceedings ‘may result in
`duplication of work and create the potential for inconsistent decisions,’
`which weighs in favor of discretionary denial.” Id. at 4 (citing Prelim. Reply
`1; Apple Inc. v. Maxell, Ltd., IPR2020-00203, Paper 12, at 14 (P.T.A.B. July
`6, 2020); Prelim. Resp. 21–24).
`The record shows that although the same claims are at issue in this
`proceeding as in the parallel district court proceeding, the same prior art is
`not. Even if Petitioner’s expert offers testimony in the district court as to the
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`general state of the art that mirror its discussion of SCM here, the invalidity
`arguments in the district court cannot be the same as the grounds here
`because they are directed to different prior art. Thus, the potential for
`inconsistent results is minimal.
`On this record, we determine that this factor weighs in favor of
`institution.
`5. Whether Petitioner and the Defendant in the Parallel Proceeding
`are the Same Party
`Patent Owner argues that “Petitioner and Patent Owner are the
`defendant and plaintiff, respectively, in the parallel district court
`proceeding.” Prelim. Resp. 24–25 (citing GREE, Inc. v. Supercell Oy, No.
`2:19-cv-00310 (E.D. Tex. filed Sept. 16, 2019); Exs. 2001–2005, 2010,
`2011). Petitioner replies that the same party factor “should be given little
`weight.” Prelim. Reply 5.
`The record shows that Petitioner and defendant in the parallel
`proceeding are the same. Thus, this factor weighs in favor of denying
`institution.
`6. Other Circumstances that Impact the Board’s Exercise of
`Discretion, Including the Merits
`Regarding the merits, Petitioner challenges claims 1–3 as
`unpatentable over Hawkins and Robbers with citations to the asserted
`references and declarant testimony. Pet. 42–55 (“Ground 1”). Petitioner
`also challenges claims 1–3 as unpatentable over SCM and Stroffolino with
`citations to the asserted references and declarant testimony. Id. at 55–67
`(“Ground 2”). For both grounds Petitioner’s challenges assert a rationale for
`combining the references.
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`For Ground 1, Patent Owner contends that “Hawkins, even in view of
`Robbers, does not disclose nor suggest” several limitations of claims 1–3.
`Prelim. Resp. 34. Petitioner replies that Patent Owner bases its arguments in
`the Preliminary Response “on limitations that are not claimed.” Prelim.
`Reply 6.
`Without conducting a full analysis of the merits and based on the
`record before us, we determine that Petitioner adequately makes an initial
`showing that Hawkins and Robbers teach or suggest the limitations of claims
`1–3 and that one of ordinary skill in the art would have combined the
`asserted references. We further determine that Patent Owner raises
`arguments that would be best decided on a full record, not the preliminary
`record before us. Accordingly, we determine that the merits of this
`challenge are neither weak nor strong.
`For Ground 2, Patent Owner contends that Petitioner fails to establish
`that SCM is a printed publication. Prelim. Resp. 41. Patent Owner further
`contends that Petitioner fails to demonstrate that SCM discloses or suggests
`a “plurality of cells and acquirable item information” as required by the
`claims at issue. Id. at 45 (citing Ex. 1001, 13:50–14:55). Petitioner replies
`that SCM is a printed publication as shown by the submitted evidence and
`testimony. Prelim. Reply 5–6 (citing Ex. 1007; Ex. 1026; Ex. 1027).
`Petitioner further replies that Patent Owner mischaracterizes its challenge.
`Id. at 8.
`Without conducting a full analysis of the merits and based on the
`record before us, we determine that Petitioner adequately makes an initial
`showing that SCM and Stroffolino teach or suggest the limitations of claims
`1–3 and that one of ordinary skill in the art would have combined the
`asserted references. We further determine that Patent Owner raises
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`arguments that would be best decided on a full record, not the preliminary
`record before us. Accordingly, we determine that the merits of this
`challenge are neither weak nor strong.
`For at least the foregoing reasons, based on the incomplete record
`before us, an initial review of the merits of Petitioner’s two grounds suggests
`that the merits are neither weak nor strong. Thus, we determine that this
`factor is neutral.
`7. Holistic Analysis of Fintiv Order Factors
`We undertake a holistic analysis of the Fintiv Order factors,
`considering “whether efficiency and integrity of the system are best served
`by denying or instituting review.” Fintiv Order, Paper 11 at 6. As discussed
`above, factors 1 and 6 are neutral, factors 2, 3, and 5 weigh toward denying
`institution, and factor 4 weighs in favor of institution.
`The evidence in the record indicates that duplication of efforts and
`potential for inconsistent results exist, because both the district court and the
`Board would consider similar issues and the district court will reach trial
`many months before we would reach a final decision. We determine that the
`facts underlying factors 2, 3, and 5 collectively outweigh the facts
`underlying factors 1, 4, and 6. Accordingly, we determine that the
`circumstances presented weigh in favor of denying institution under
`35 U.S.C. § 314(a).
`
`
`III. PETITIONER’S MOTION TO SEAL
`Petitioner filed a Motion to Seal Exhibit 1034 and for Entry of
`Protective Order. Paper 3. We do not rely on Exhibit 1034. Accordingly,
`we deny the motion as moot.
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`IV. CONCLUSION
`Based on our application of the precedential Fintiv Order factors to
`the record before us, we exercise our discretion under 35 U.S.C. § 314(a)
`and deny institution of inter partes review.
`
`
`V. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that the Petition is denied as to all challenged claims, and
`no trial is instituted;
`FURTHER ORDERED that Petitioner’s Motion to Seal Exhibit 1034
`and for Entry of Protective Order is denied as moot; and
`FURTHER ORDERED that Petitioner is authorized to file a motion to
`expunge Exhibit 1034 within 90 days after the date of entry of this Decision
`or, if a request for rehearing is filed, within 90 days after the date of entry of
`a decision on the request.
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`FOR PETITIONER:
`
`Jennifer R. Bush
`Brian M. Hoffman
`Kevin X. McGann
`Gregory A. Hopewell
`Eric Zhou
`FENWICK & WEST LLP
`jbush-ptab@fenwick.com
`bhoffman@fenwick.com
`kmcgann-ptab@fenwick.com
`ghopewell@fenwick.com
`ezhou@fenwick.com
`
`FOR PATENT OWNER:
`
`John C. Alemanni
`Andrew Rinehart
`Joshua H. Lee
`KILPATRICK TOWNSEND & STOCKTON LLP
`jalemanni@kilpatricktownsend.com
`arinehart@kilpatricktownsend.com
`jlee@kilpatricktownsend.com
`
`Scott A. McKeown
`ROPES & GRAY
`Scott.McKeown@ropesgray.com
`
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