`U.S. Patent No. 7,093,086
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VEEAM SOFTWARE CORPORATION
`Petitioner
`
`V.
`
`SYMANTEC CORPORATION
`Patent Owner
`
`Case 1PR2013-00 150
`U.S. Patent No. 7,093,086
`
`VEEAM SOFTWARE CORPORATION’S MOTION TO WITHDRAW ITS
`PENDING MOTION TO COMPEL THE DEPOSITION OF VMWARE
`ON THE PUBLIC AVAILABILITY OF EXHIBIT 1005
`
`Mail Slop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`1PR2013-00150 of
`U.S. Patent No. 7,093,086
`Veeam respectfully submits this unopposed motion to withdraw its November
`
`1, 2013 motion to compel third party Dan Scales, Principle Engineer at VMware,
`
`Inc., and member of the team that created VMware ESX Server, to testify by
`
`deposition regarding the public availability of VMware’s ESX Server User’s Manual
`
`Version 1.0 ("ESX Manual," submitted as Ex. 1005).
`
`(See paper 23, VEEAM
`
`SOFTWARE CORPORATION’S MOTION TO COMPEL THE DEPOSITION OF
`
`VMWARE ON THE PUBLIC AVAILABILITY OF EXHIBIT 1005). Veeam’s
`
`reasons for this motion are set forth below.
`
`1. After Veeam advised VMware that it had filed the instant motion to compel
`
`third-party testimony, Veeam and VMware discussed whether VMware could
`
`provide a declaration that would eliminate the need for a deposition of VMware or its
`
`employees.
`
`2. Veeam and Symantec advised the Board of Veeam’s discussions with
`
`VMware in their November 15, 2013 email reporting the parties’ meet-and-confer
`
`efforts.
`
`3. On December 2, 2013, VMware provided Veeam with a declaration by
`
`Regis Duchesne, Staff Engineer 2 at VMware (dated November 28, 2013), attesting
`
`to the authenticity and public availability of the ESX Manual ("the VMware
`
`-1-
`
`
`
`1PR2013-00150 of
`U.S. Patent No. 7,093,086
`
`declaration"). As a courtesy, Veeam provided Symantec’s counsel with a copy of the
`
`VMware declaration.
`
`4. On December 15, 2013, Veeam advised the Board of the VMware
`
`declaration and asked permission to serve the VMware declaration outside the
`
`deadline for service of supplemental evidence.
`
`5. Subsequently, on December 16, 2013, the Board provided Veeam with
`
`leave to serve the VMware declaration.
`
`Veeam believes that the VMware declaration resolves Symantec’s evidentiary
`
`objections to the ESX Manual and moots Veeam’s pending motion to compel the
`
`deposition of VMware on the public availability of the ESX Manual (Exhibit 1005).
`
`Veeam, therefore, requests withdrawal of its pending motion to compel
`
`third-party testimony. Veeam conferred with Symantec’s lead counsel, Joseph
`
`Richetti, who confirmed that Symantec does not plan to oppose this motion for
`
`withdrawal.
`
`-2-
`
`
`
`1PR2013-00 150 of
`U.S. Patent No. 7,093,086
`The Patent Trial and Appeal Board is hereby authorized to charge any fees
`
`associated with Inter Partes Review 2013-00 150 to Deposit Account 19-0036. Our
`
`Customer I.D. is 26111.
`
`Respectfully Submitted,
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`Lori A. Gordon
`Lead Counsel for Petitioner
`Registration No. 50,633
`
`Date: January 6, 2014
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`-3-
`
`
`
`CERTIFICATE OF SERVICE
`
`1PR2013-00 150 of
`U.S. Patent No. 7,093,086
`
`The undersigned hereby certifies that the foregoing MOTION TO
`
`WITHDRAW VEEAM’S MOTION TO COMPEL THE DEPOSITION OF
`
`VMWARE ON THE PUBLIC AVAILABILITY OF EXHIBIT 1005 was served
`
`electronically via e-mail on January 6, 2014, in its entirety on Attorneys for Patent
`
`Owner - Symantec Corporation.:
`
`Joseph J. Richetti (Lead Counsel)
`Lawrence G. Kurland (Backup Counsel)
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`
`joe.richetti@bryancave.com
`Ijkurland@bryancave.com
`
`STERNE, KESSLER, GOLDSTEIN & Fox P.L.L.C.
`
`Lori A. Gordon
`Lead Counsel for Petitioner
`Registration No. 50,633
`
`Date: January 6, 2014
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`A
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