`Tel: 571-272-7822
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`Paper 71
`Entered: May 16, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ABB, INC.
`Petitioner
`
`v.
`
`ROY-G-BIV CORPORATION
`Patent Owner
`____________
`
`Cases IPR2013-00063
`Patent 6,513,058 B2
`____________
`
`Before THOMAS L. GIANNETTI, JENNIFER S. BISK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`GIANNETTI, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`IPR2013-00063
`Patent 6,513,058 B2
`
`I.
`
`INTRODUCTION
`
`A. Background
`
`This case is one of a series of inter partes reviews (IPRs) initiated by
`
`ABB, Inc. (“Petitioner”), challenging various patents owned by ROY-G-BIV
`
`Corp. (“Patent Owner”). In that connection, the Board has issued two final
`
`decisions in related proceedings: IPR2013-00062 (Paper 84, “the ’062
`
`Decision”) and IPR2013-00074 (Paper 80). In addition, there is a related
`
`district court litigation between the parties in the Eastern District of Texas,
`
`captioned ROY-G-BIV Corporation v. ABB, Ltd. et al., 6:11-cv-00622-LED
`
`(E.D. Tex.).
`
`In this proceeding, Petitioner requested an inter partes review of
`
`claims 1-5 of U.S. Patent No. 6,513,058 B2 (Ex. 1001, “the ’058 patent”).1
`
`Patent Owner filed a Preliminary Response. Paper 22. The Board granted
`
`the Petition and instituted trial for claims 1-5. Paper 24. Although several
`
`grounds were proposed by Petitioner, the Board instituted trial on a single
`
`ground: obviousness over the combination of the Gertz, Stewart, and
`
`Morrow references discussed below.
`
`During trial, Patent Owner filed a Response (“PO Resp.”) addressing
`
`the obviousness challenge, accompanied by an expert declaration from
`
`David B. Stewart, Ph.D. (Ex. 2013), author of the Stewart thesis relied upon
`
`by Petitioner. Paper 27. Petitioner filed a Reply (“Pet. Reply”) and, for the
`
`first time in this proceeding, presented expert testimony, namely,
`
`
`1 Initially Patent Owner filed an incorrect petition. Paper 4. A corrected
`petition (“Pet.”) was submitted as Exhibit 1032 to Petitioner’s motion to
`correct (Paper 8), which motion was granted by the Board. Paper 21. The
`references in this decision are to the corrected petition, Ex. 1032 (“Pet.”).
`
`
`
`2
`
`
`
`IPR2013-00063
`Patent 6,513,058 B2
`
`declarations from Richard Voyles, Ph.D. (Ex. 1130), and Nikolaos
`
`Papanikolopoulos, Ph.D. (Ex. 1132). Paper 38.
`
`Petitioner’s experts, Drs. Voyles and Papanikolopoulos, worked in the
`
`same laboratory at Carnegie Mellon University as Dr. Stewart, and were
`
`presented by Petitioner to rebut Dr. Stewart’s expert testimony. Patent
`
`Owner also has filed a Motion to Exclude Evidence (Paper 45) and a Motion
`
`to Submit Supplemental Information (Paper 63). An oral hearing was held
`
`on February 27, 2014. A transcript of the hearing is included in the record
`
`as Paper 70 (“Transcript”). This Final Decision will refer to the Final
`
`Decision in IPR2013-00062 (“the ʼ062 Decision”) and will, in places, rely
`
`on the Board’s analysis therein.
`
`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
`
`Decision is entered pursuant to 35 U.S.C. § 318(a). For the reasons
`
`discussed below, we determine that Petitioner has not met its burden to
`
`prove by a preponderance of the evidence that claims 1-5 of the ʼ058 patent
`
`are unpatentable.
`
`B. The ’058 Patent
`
`The technology of the ʼ058 patent is the same as that described in our
`
`ʼ062 Decision at pages 3-4. The patent at issue there, U.S. Patent 6,516,236
`
`(“the ’236 patent”), is related to the ʼ058 patent.2 For the purposes of this
`
`Decision, therefore, we rely upon that prior description in the ’062 Decision.
`
`
`2 The ’236 patent is a continuation of U.S. Patent Application No.
`09/191,181 (now abandoned). The ’058 patent is a continuation-in-part of
`the same application.
`
`
`
`3
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`
`
`IPR2013-00063
`Patent 6,513,058 B2
`
`
`C. Illustrative Claim
`
`Claim 1 is reproduced below, with emphasis added:
`
`1. A system for allowing an application program to
`communicate with any one of a group of supported hardware
`devices, the system comprising:
`
`a software system operating on at least one workstation, the
`software system comprising
`
`at least one application program comprising a set of
`component functions defining a desired motion
`sequence, the desired motion sequence being
`comprised of primitive operations that are necessary
`to define the desired motion sequence and non-
`primitive operations that may be simulated using a
`combination of primitive operations,
`
`a core set of core driver functions, where each core driver
`function is associated with one of the primitive
`operations,
`
`an extended set of extended driver functions, where each
`extended driver functions is associated with one of the
`non-primitive operations,
`
`component code associated with each of the component
`functions, where the component code associates at
`least some of the component functions with at least
`some of the driver functions,
`
`a set of software drivers, where each software driver is
`associated with one of the hardware devices and
`comprises driver code for implementing the driver
`functions, and
`
`a control command generating module for generating
`control commands based on the component functions
`of the application program, the component code
`associated with the component functions, and the
`driver code associated with the software drivers; and
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`
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`4
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`
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`IPR2013-00063
`Patent 6,513,058 B2
`
`
`a network communication protocol that allows the control
`commands to be communicated from the control
`command generating module on the at least one
`workstation to at least one of the supported hardware
`devices over a network.
`
`D. The Prior Art References Relied On By Petitioner
`
`The following table identifies the Gertz, Stewart, and Morrow
`
`references referred to above:
`
`Gertz
`
`Stewart
`
`Morrow
`
`Matthew Wayne Gertz, A Visual
`Programming Environment for Real-Time
`Control Systems (Ph.D. dissertation, Carnegie
`Mellon University)
`David Bernard Stewart, Real-Time Software
`Design and Analysis of Reconfigurable Multi-
`Sensor Based Systems (Ph.D. dissertation,
`Carnegie Mellon University)
`J. Dan Morrow, Bradley J. Nelson, & Pradeep
`Khosla, Vision and Force Driven
`Sensorimotor Primitives for Robotic Assembly
`Skills, INST. FOR SOFTWARE RES., paper 574
`
`Nov.
`22,
`1994
`
`Apr.
`1,
`1994
`
`Ex.
`1002
`
`Ex.
`1004
`
`Jan. 1,
`1995
`
`Ex.
`1005
`
`II. DISCUSSION
`
`A. Antedating Gertz and Morrow
`
`1.
`
`Background
`
`As in IPR2013-00062 and IPR2013-00074, Patent Owner contends
`
`that the claimed invention of the ’058 patent was conceived prior to
`
`November 22, 1994, before the earliest date of publication alleged for Gertz
`
`and Morrow, and constructively reduced to practice on May 30, 1995, the
`
`filing date of the “priority application” (serial no. 08/454,736) that led to the
`
`ʼ058 patent. PO Resp. 6-12. Patent Owner further contends that the
`
`inventors were reasonably diligent from November 21, 1994, to the date of
`
`
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`5
`
`
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`IPR2013-00063
`Patent 6,513,058 B2
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`the constructive reduction to practice. Id. at 12-14. Patent Owner contends
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`that, as a consequence, neither Gertz nor Morrow qualifies as prior art. Id. at
`
`14. See 35 U.S.C. § 102(g) (2011); Mahurkar v. C.R. Bard, Inc., 79 F.3d
`
`1572, 1576 (Fed. Cir. 1996) (“Thus, under section 102(a), a document is
`
`prior art only when published before the invention date.”).
`
`In support, Patent Owner relies here on the same declaration
`
`testimony of its founder, chairman, and chief technical officer, David W.
`
`Brown, and accompanying evidence that was relied on in IPR2013-00062
`
`and IPR2013-00074. See Exs. 2012 through 2012-6.
`
`2.
`
`Discussion
`
`For the reasons discussed in the ’062 Decision, we determine that the
`
`testimony and documents offered by Patent Owner are not sufficient to
`
`establish that the invention date of claims 1-5 is prior to the publication date
`
`of Gertz and Morrow. Mr. Brown’s testimony is not sufficient as evidence
`
`of diligence and his own time records are inadequate as corroboration. ʼ062
`
`Decision 9-13.
`
`The additional cases and arguments presented here by Patent Owner
`
`(Paper 54 (“PO Surreply”), 2-4) do not convince us otherwise. For example,
`
`Ex Parte Hook, 102 USPQ 130 (BPAI 1953), a non-precedential Board
`
`decision, concludes that the Examiner erred in holding that the averments
`
`made by the affiant in a Rule 131 affidavit must be corroborated. The case
`
`does not address the issue for which it is cited by Patent Owner, namely,
`
`whether independent corroboration is required “in court.” PO Surreply 2. In
`
`fact, Hook acknowledges that a different rule applies in litigation,
`
`distinguishing a decision relied on by the Examiner requiring corroboration
`
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`6
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`IPR2013-00063
`Patent 6,513,058 B2
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`of inventor testimony because “this ruling was made in reference to
`
`testimony before the Court.” Hook, 102 USPQ at 131. Lazare Kaplan Int’l
`
`v. Photoscribe Techs., Inc., 628 F.3d. 1399 (Fed. Cir. 2010), also is
`
`distinguishable. In that case, there was independent evidence corroborating
`
`the testimony of the inventor (Gresser), including confirming testimony
`
`from Lazare’s senior vice president, as well as a video and photograph
`
`illustrating Gresser’s machine in operation. Id. at 1375. In Adenta GmbH v.
`
`OrthoArm, Inc., 501 F.3d 1364 (Fed. Cir. 2007), unlike here, corroboration
`
`was provided by: “a number of statements made by different witnesses, all
`
`corroborating each other, accompanied by various supportive and consistent
`
`documents. The testimony of the witnesses together with the documentary
`
`evidence provided a coherent and convincing story.” Id. at 1371.
`
`Patent Owner relies also on a number of district court decisions. We
`
`find these unpersuasive. For instance, in Ritter v. Rohm & Haas Co.,
`
`271 F.Supp. 313 (S.D.N.Y 1967), a pre-Federal Circuit decision, the district
`
`court acknowledged that a split of authority on the requirement for
`
`independent corroboration existed before the Federal Circuit was formed:
`
`“We have found no case in [the Second Circuit] expressly dealing with the
`
`nature of the corroborative evidence required. Decisions elsewhere are
`
`split.” Id. at 320. The district court in Ritter, however, did not have the
`
`benefit of the Federal Circuit’s later guidance in such cases as Mahurkar,
`
`and, therefore, reached a different conclusion on the need for independent
`
`corroboration that is not reflective of the law as it stands today. Sperry
`
`Prods., Inc. v. Aluminum Co. of Am., 171 F. Supp. 901 (N.D. Ohio 1959), is
`
`likewise a pre-Federal Circuit district court decision, and therefore is not
`
`persuasive authority today. Finally, in Purdue Pharma L.P. v. Boehringer
`
`
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`7
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`IPR2013-00063
`Patent 6,513,058 B2
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`Ingelheim GmbH, 98 F.Supp.2d 362 (S.D.N.Y 2000), the district court relied
`
`on the declaration of Robert F. Kaiko to support a finding of reduction to
`
`practice of the ʼ331 patent in suit. Id. at 385. Kaiko was not a named
`
`inventor of the ʼ331 patent; in fact, the district court denied patent owner
`
`Purdue’s motion to amend the patent to include Kaiko as an inventor on that
`
`patent. Id. at 384. Therefore, Kaiko’s testimony was not inventor testimony
`
`requiring independent corroboration under Mahurkar.
`
`3. Morrow Publication Date
`
`At the final hearing, Patent Owner challenged the January 1, 1995,
`
`date of Morrow, asserting that Petitioner had not met its burden of proof that
`
`the reference was published on that date. Transcript 24-28. But Patent
`
`Owner acknowledged that it has not moved to exclude Morrow. Id. at 25.
`
`Instead, Patent Owner directed the Board to a footnote concerning Morrow
`
`in its Patent Owner Response. Id. at 26.
`
`We have reviewed the record, including the cited footnote, and
`
`conclude that Patent Owner’s challenge to Morrow is untimely. Patent
`
`Owner waited until final hearing to make this argument. The footnote cited
`
`by Patent Owner merely states that “Petitioner has not established the 1-1-
`
`1995 date on page 1 of Morrow is the publication date of reference.” PO
`
`Resp., 9 n.2. It does not state an objection to the admissibility of the
`
`reference. Morrow was cited and discussed in the Petition (Ex. 1032, 20).
`
`Under our rules, an objection to such evidence must be served within ten
`
`business days of the institution of trial. 37 C.F.R. § 42.64(b)(1).
`
`Furthermore, Patent Owner never followed up with a motion to exclude,
`
`waiting instead until the final hearing to raise the issue again. See 37 C.F.R.
`
`
`
`8
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`IPR2013-00063
`Patent 6,513,058 B2
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`§ 42.64(c) (“A motion to exclude evidence must be filed to preserve any
`
`objection.”)
`
`We recognize, as Patent Owner contends, that the burden of proving
`
`that Morrow is a prior art publication falls on Petitioner. On the other hand,
`
`a final hearing is not the place to advance a new theory of the case. Office
`
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012)
`
`(“No new evidence or arguments may be presented in the oral argument.”)
`
`In light of our disposition of this proceeding, however, we do not need to
`
`reach the issues of whether the record evidence is sufficient to satisfy that
`
`burden, or whether a footnote reference amounts to a waiver of Patent
`
`Owner’s challenge to Morrow as a prior art publication. See SmithKline
`
`Beecham v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (arguments
`
`raised in footnotes are waived). We are mindful, however, of the fact that
`
`Patent Owner did not challenge the January 1, 1995, publication date of
`
`Morrow in either IPR2013-00062 or IPR2013-00074.
`
`B. Claim Construction
`
`Consistent with the statute and the legislative history of the Leahy-
`
`Smith America Invents Act, the Board will interpret claims of an unexpired
`
`patent using the broadest reasonable construction in light of the specification
`
`of the patent. See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
`
`48,766 (Aug. 14, 2012); 37 C.F.R. § 42.100(b). Claims are to be given their
`
`broadest reasonable interpretation consistent with the specification, reading
`
`the claim in light of the specification as it would be interpreted by one of
`
`ordinary skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359,
`
`1364 (Fed. Cir. 2004).
`
`
`
`9
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`IPR2013-00063
`Patent 6,513,058 B2
`
`
`For purposes of this Decision, we construe only the terms “component
`
`function” and “component code” because these terms are determinative, for
`
`the same reasons as explained in the ’062 Decision.
`
`1.
`
`“component function”
`
`The parties present the same opposing views on the construction of
`
`this term as those discussed in the ’062 Decision at page 14. See PO Resp.
`
`19; Pet. Reply 8. For the reasons set forth in the ’062 Decision at pages 14-
`
`15, we conclude that the broadest reasonable interpretation of the term
`
`“component function” requires an action carried out by a program or routine,
`
`regardless of whether the action is defined by executable code. This is
`
`consistent with the Specification of the ’058 patent, which explains that
`
`“[t]he application program 26 comprises a sequence of component functions
`
`arranged to define the motion control operations necessary to control a
`
`motion control device to move an object in a desired manner.” Ex. 1001,
`
`col. 7, ll. 54-58.
`
`2.
`
`“component code”
`
`The parties have the same disagreement on the construction of this
`
`term as that discussed in the ’062 Decision at page 15. See PO Resp. 20;
`
`Pet. Reply 8. For the reasons discussed in the ’062 Decision at pages 15-16,
`
`we determine that the term “component code” requires program instructions.
`
`This is consistent with the Specification of the ’058 patent, which explains
`
`that “the software system designer writes component code that associates at
`
`least some of the component functions with at least some of the driver
`
`functions.” Ex. 1001, col. 7, ll. 17-20.
`
`
`
`10
`
`
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`IPR2013-00063
`Patent 6,513,058 B2
`
`
`C. Summary of Expert Testimony
`
`
`
`As in IPR2013-00062, three experts—Drs. Stewart, Voyles, and
`
`Papanikolopoulos—testified in this case. Their declarations here are similar
`
`to those submitted in IPR2013-00062 which are discussed in the ’062
`
`Decision at pages 16-21. As the issues raised here relative to the component
`
`function and component code limitations are the same, we rely on that
`
`analysis for the purposes of this Decision.
`
`D. Obviousness Based on Gertz, Stewart, and Morrow
`
`Petitioner challenges claims 1-5 as being unpatentable under
`
`35 U.S.C. § 103(a) based on the combination of Gertz, Stewart, and
`
`Morrow. Claim 2 depends from claim 1. Claims 3 and 4 are independent.
`
`Claim 5 depends from claim 4. All five claims contain the “component
`
`function” and “component code” limitations.
`
`As discussed in the ’062 Decision, we give significant weight to the
`
`testimony of Patent Owner’s expert, Dr. Stewart, that actions in Gertz are
`
`not the same as the claimed component functions and that Gertz does not
`
`describe any code (i.e., the claimed component code) that associates
`
`component functions with driver functions, as claimed. ʼ062 Decision 22-
`
`25. Petitioner does not provide sufficient evidence to rebut this testimony.
`
`Thus, as described below, we are not persuaded that Petitioner has
`
`established, by a preponderance of the evidence, that the combination of
`
`Gertz, Stewart, and Morrow renders claims 1-5 unpatentable under 35
`
`U.S.C. § 103(a).
`
`Similar to Petitioner’s challenge to the patentability of claim 1 in
`
`IPR2013-00062, Petitioner’s challenge here relies on Gertz for the claimed
`
`
`
`11
`
`
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`IPR2013-00063
`Patent 6,513,058 B2
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`component function and component code features. Pet. 26, 30-31;
`
`Pet. Reply 11-13. Stewart and Morrow are relied upon for additional
`
`features of the claims. Because Petitioner’s challenge fails with respect to
`
`the component function and component code features of the claims, we do
`
`not need to address issues regarding Stewart and Morrow. Therefore, the
`
`discussion below focuses on Gertz.
`
`1.
`
`“component function”
`
`The contentions presented on this claim feature are similar to those in
`
`IPR2013-00062. Petitioner relies on Gertz’s “actions” to meet this claim
`
`limitation. Pet. 26; Transcript 17:21-24. Patent Owner contends that
`
`Gertz’s “actions” are not component functions. PO Resp. 19, 27 (citing
`
`Stewart’s Declaration, Ex. 2013 ¶ 40).
`
`For the reasons set forth in the ’062 Decision, we agree with Patent
`
`Owner and determine that Petitioner has not persuasively explained why
`
`information regarding the arrangement of control tasks defines an “action
`
`carried out by a program or routine,” as required by a component function.
`
`ʼ062 Decision 23. Thus, Petitioner has not established, by a preponderance
`
`of the evidence, that Gertz teaches the claimed component functions.
`
`2.
`
`“component code”
`
`The contentions presented on this claim feature are similar to those in
`
`IPR2013-00062. Petitioner relies on Gertz as disclosing this feature. Pet.
`
`30-31. Again, Petitioner does not point to any specific element or feature
`
`disclosed in Gertz as teaching the claimed component code and, instead,
`
`explains that “ordinary artisans would recognize . . . that the configuration
`
`
`
`12
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`
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`IPR2013-00063
`Patent 6,513,058 B2
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`files that [Gertz] creates comprise software code that binds various
`
`components together into a programming sequence (including Turing
`
`equivalents) that have been the basis of computer programming for over a
`
`century.” Pet. Reply 11. Patent Owner responds that Gertz’s configuration
`
`files do not connect the control tasks and configurations to actions using
`
`code. PO Resp. 29-30 (citing Stewart’s Declaration, Ex. 2013 ¶ 44).
`
`
`
`For the reasons set forth in the ’062 Decision, we agree with Patent
`
`Owner and determine that Petitioner has not persuasively explained why the
`
`configuration information in Gertz includes an “action statement in a
`
`computer language.” ʼ062 Decision 24-25. Thus, Petitioner has not
`
`established, by a preponderance of the evidence, that Gertz teaches or
`
`suggests the claimed component code.
`
`E. Motion to Exclude
`
`Patent Owner seeks to exclude certain “new” arguments made in
`
`Petitioner’s Reply (Paper 45 at 2) and portions of Petitioner’s expert
`
`testimony (Id. at 9). For example, Patent Owner alleges that the arguments
`
`related to Gertz teaching the claimed core driver function as a result of the
`
`cycle function in the method of a port-based object raises a new argument
`
`(id. at 2), and that testimony of Petitioner’s expert, Dr. Papanikolopoulos,
`
`advances a new position on driver functions (id. at 12-13). Because we have
`
`not relied upon these arguments, they do not affect our decision. The issues
`
`raised in Patent Owner’s Motion to Exclude are moot, and the Motion is,
`
`therefore, dismissed.
`
`Although we ultimately do not rely on these arguments for our
`
`decision, we note that a motion to exclude evidence normally is not the
`
`
`
`13
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`IPR2013-00063
`Patent 6,513,058 B2
`
`proper vehicle for resolution of a dispute regarding reply arguments and
`
`evidence exceeding the proper scope of a reply. A motion to exclude “must
`
`identify the objections in the record.” 37 C.F.R. §42.64(c). In the Motion,
`
`Patent Owner does not identify where in the record an objection originally
`
`was made. If an issue arises regarding whether a reply argument or evidence
`
`in support of a reply exceeds the scope of a proper reply, the parties should
`
`contact the Board to discuss the issue.
`
`F. Motion to Submit Supplemental Information
`
`Patent Owner sought to file supplemental information (the McClung
`
`deposition) that, in Patent Owner’s view, provides independent
`
`corroboration of conception. Paper 63. An identical motion was filed in
`
`IPR2013-00062 (Paper78). As Petitioner points out in opposing the motion,
`
`the proffered materials do not corroborate diligence and, therefore, do not
`
`overcome the defect in the proof on that issue. Paper 69, 5. For the reasons
`
`discussed in the ʼ062 Decision, the motion is moot and is therefore
`
`dismissed. ʼ062 Decision 12-13.
`
`
`
`III. CONCLUSION
`
`We conclude that Petitioner has failed to meet its burden of proof, by
`
`a preponderance of the evidence, that claims 1-5 of the ʼ058 patent are
`
`unpatentable under 35 U.S.C. § 103 as obvious over Gertz, Stewart, and
`
`Morrow. This is a final written decision of the Board under 35 U.S.C.
`
`§ 318(a). Parties to the proceeding seeking judicial review of the decision
`
`must comply with the notice and service requirements of 37 C.F.R. § 90.2.
`
`
`
`
`
`14
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`IPR2013-00063
`Patent 6,513,058 B2
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`IV. ORDER
`
`In consideration of the foregoing, it is
`
`ORDERED that Petitioner has failed to prove by a preponderance of
`
`the evidence that claims 1-5 of U.S. Patent No. 6,513,058 B2 are
`
`unpatentable; and
`
`FURTHER ORDERED that Patent Owner’s Motion to Exclude and
`
`Motion to Submit Supplemental Information are dismissed.
`
`
`
`
`
`
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`15
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`IPR2013-00063
`Patent 6,513,058 B2
`
`
`For PETITIONER:
`
`Rick McLeod
`Michael Jones
`KLARQUIST SPARKMAN LLP
`rick.mcleod@klarquist.com
`michael.jones@klarquist.com
`
`Steven Auvil
`Squire Sanders (US) LLP
`Steven.Auvil@squiresanders.com
`
`For PATENT OWNER:
`
`Richard Black
`FOSTER PEPPER PLLC
`blacr@foster.com
`
`Richard S. Meyer
`BOIES, SCHILLER & FLEXNER LLP
`meyer@BSFLLP.com
`
`Douglas R. Wilson
`HEIM, PAYNE & CHORUSH LLP
`dwilson@hpcllp.com
`
`
`
`16
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