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Toshiba Corporation v. SPEX Technologies, Inc.

Docket IPR2018-01068, Patent Trial and Appeal Board (May 11, 2018)
Charles Boudreau, Daniel Fishman, Lynne Pettigrew, presiding
Case TypeInter Partes Review
Patent6003135
Patent Owner SPEX Technologies, Inc.
Petitioner Toshiba Corporation
Petitioner Apricorn
...
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13 Institution Decision: Trial Instituted Document

Document IPR2018-01068, No. 13 Institution Decision - Trial Instituted Document (P.T.A.B. Nov. 13, 2018)
The Joinder Motion seeks to join Petitioner as parties to Western Digital Corp. v. SPEX Technologies, Inc., Case IPR2018-00084 (“the 84 IPR”).
We dismissed that Petition as estopped under 35 U.S.C. § 315(e)(1) in view of the final written decision issued in Case IPR2017-01021 (filed by Kingston Technology Company
Patent Owner opposes the present Motion arguing: On October 16, 2017, after having reviewed two preliminary responses by SPEX and two institution decisions by the PTAB, Western Digital filed a third petition in case number IPR2018-00084 (“84-IPR”) alleging that claims 55-58 of the ’135 Patent were unpatentable over the Harari, Dumas, and PCMCIA System Architecture references.
Paper 14, 14–18 (addressing Patent Owner’s arguments concerning exercising our discretion based on the General Plastic factors).
In view of the foregoing, we determine that joinder based upon the above-noted condition will have little or no impact on the timing, cost, or presentation of the trial on the instituted grounds.
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10 Notice of Filing Date Accorded to Petition: Notice of Accord Filing Date

Document IPR2018-01068, No. 10 Notice of Filing Date Accorded to Petition - Notice of Accord Filing Date (P.T.A.B. Jun. 12, 2018)
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Such motions shall be filed in accordance with the “Order -- Authorizing Motion for Pro Hac Vice Admission” in Case IPR2013-00639, Paper 7, a copy of which is available on the Board Web site under “Representative Orders, Decisions, and Notices.” The parties are reminded that unless otherwise permitted by 37 C.F.R. § 42.6(b)(2), all filings in this proceeding must be made electronically in Patent Trial and Appeal Board End to End (PTAB E2E), accessible from the Board Web site at http://www.uspto.gov/PTAB.
Many non-profit organizations, both inside and outside the intellectual property field, offer alternative dispute resolution services.
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11 Reply: Petitioners Reply to Patent Owners Opposition to Petitioners Motion for Joinder

Document IPR2018-01068, No. 11 Reply - Petitioners Reply to Patent Owners Opposition to Petitioners Motion for Joinder (P.T.A.B. Jul. 11, 2018)
Nor has Patent Owner provided any basis to allege that Petitioners had any involvement with any of the other IPR petitions.
Patent Owner’s allegation that “Petitioners fail to identify a legitimate basis to join” the IPR is similarly incorrect.
In its Opposition, Patent Owner acknowledges that Petitioners’ IPR petition does not identify any new arguments or issues.
Patent No. 6,003,135 to disregard this policy.1 Because they have been accused of infringing the same claims as Western Digital, Petitioners also explained that joinder is appropriate because it would allow the Board to efficiently resolve substantial questions of invalidity that are common to the Petitioners and Western Digital.
To the contrary, Petitioners would be substantially prejudiced by denial of the Motion, which would allow Patent Owner to evade the substantial questions of invalidity raised by WD’s IPR in the event that WD settles with the Patent Owner prior to resolution of this proceeding.
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9 Opposition: Patent Owners Opposition to Petitioners Motion for Joinder

Document IPR2018-01068, No. 9 Opposition - Patent Owners Opposition to Petitioners Motion for Joinder (P.T.A.B. Jun. 11, 2018)

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6 Motion: Motion for Joinder

Document IPR2018-01068, No. 6 Motion - Motion for Joinder (P.T.A.B. May. 14, 2018)
Petitioners Toshiba Corporation, Toshiba America Electronic Components, Inc., and Apricorn (“Joinder Petitioners”) respectfully request joinder1 pursuant to 35 U.S.C. § 315(c) and 37 C.F.R. §§ 42.22 and 42.122(b) of the above-captioned petition for inter partes review (“Joinder Petition”)—filed contemporaneously with this Motion—with the pending inter partes review concerning the same claims of the same patent, captioned Western Digital Corporation v. SPEX Technologies, Inc., Case No. IPR2018-00084, which was recently instituted on April 25, 2018.
joinder is appropriate because it will promote efficient resolution of the validity of the involved patent, will not cause any undue delay, and will not prejudice or burden the parties in IPR2018-00084.
& Bioresources, Inc. IPR2014-00556, Paper No. 19 at 6 (July 9, 2014) (The Board is “mindful of a policy preference for joining a party that does not present new issues that might complicate or delay an existing proceeding.”).
Specifically, the Joinder Petition involves the same patent, the same claims, the same prior art, the same exhibits, the same declarations from the same experts, and the same grounds that were instituted in IPR2018-00084.
For the foregoing reasons, Joinder Petitioners respectfully request that their Petition for Inter Partes Review of the ‘135 patent be instituted, and that the proceeding be joined with Western Digital Corporation v. SPEX Technologies, Inc., Case No. IPR2018-00084.
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5 Petition: Petition for Inter Partes Review of US Patent No 6,003,135

Document IPR2018-01068, No. 5 Petition - Petition for Inter Partes Review of US Patent No 6,003,135 (P.T.A.B. May. 11, 2018)
The present Petition states obviousness grounds under 35 U.S.C. § 103 using the following publications:  U.S. Patent No. 5,887,145 to Harari et al. (“Harari”) (Ex. 1004) was filed on January 9, 1997; this reference is prior art at least under pre-AIA 35 U.S.C. § 102(e) (the ’135 Patent’s earliest claimed priority date is June 4, 1997).
It also identifies where each portion of the claim is further analyzed in the Declaration of Dr. Martin Kaliski, Ex. 1016, and why a person of ordinary skill would be motivated to modify the base reference as outlined in the obviousness combination.
“The functional module 42 may provide error detection and correction, encryption and decryption, compression and decompression of data, image, audio and voice, as well as other features useful in the mobile computing environment.” Id. at 8:60–64.
“Card services provides a software layer consisting of high-level functions that programmers can call to gain access to a card, determine its configuration requirements, and request the system resources it requires.” Id. at 28.
In addition, as discussed in claim 55A, also incorporated herein by reference, Harari discloses obtaining information from the daughter card that can be used to identify the type of target module.
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12 Notice: Petitioners Updated Mandatory Notice

Document IPR2018-01068, No. 12 Notice - Petitioners Updated Mandatory Notice (P.T.A.B. Aug. 31, 2018)
Patent 6,003,135 Pursuant to 37 C.F.R. § 42.8(b)(3), Petitioners update their mandatory notice as follows.
The real parties in interest are identified in the petition for inter partes review.
Related matters are identified in the petition for inter partes review.
Petitioners’ designation of counsel is the same as the designation of counsel in the petition for inter partes review, except for the bolded information below, i.e., the firm and address information for Petitioner Apricorn’s counsel.
Petitioners consent to electronic service by e-mail at the e-mail addresses listed below.
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