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` TELECONFERENCE - 6/3/15
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`-----------------------------
`PETROLEUM GEO-SERVICES, INC.,
` Case No.
` Petitioner, IPR 2014-01475
` -01476, -01477
`vs. 01478
`
`WESTERNGECO, LLC,
` Patent Owner.
`------------------------------
` ** T E L E C O N F E R E N C E **
`
`(ALL PARTICIPANTS APPEARING TELEPHONICALLY)
`
`BOARD MEMBERS:
` JUDGE SCOTT DANIELS
` JUDGE BRYAN MOORE
`
` Wednesday, June 3, 2015
`
`Reported by: Susan S. Klinger, RMR-CRR, CSR
`Job No. 94323
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 1
`IPR2015-00565
`ION v WesternGeco
`
`
`
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` TELECONFERENCE - 6/3/15
`UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`-----------------------------
`PETROLEUM GEO-SERVICES, INC.,
` Case No.
` Petitioner, IPR 2014-01475
` -01476, -01477
`vs. 01478
`
`WESTERNGECO, LLC,
` Patent Owner.
`------------------------------
` ** T E L E C O N F E R E N C E **
`
`(ALL PARTICIPANTS APPEARING TELEPHONICALLY)
`
`BOARD MEMBERS:
` JUDGE SCOTT DANIELS
` JUDGE BRYAN MOORE
`
` Wednesday, June 3, 2015
`
`Reported by: Susan S. Klinger, RMR-CRR, CSR
`Job No. 94323
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 1
`IPR2015-00565
`ION v WesternGeco
`
`
`
` TELECONFERENCE - 6/3/15
`
`Page 2
`
` Wednesday, June 3, 2015
` 3:01 p.m.
`
` Teleconference taken stenographically
`before Susan S. Klinger, a Registered Merit
`Reporter and Certified Realtime Reporter of the
`State of Texas.
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`WesternGeco Ex. 2042, pg. 2
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 3
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` TELECONFERENCE - 6/3/15
`A P P E A R A N C E S:
`Attorneys for Petitioner:
` Ms. Jessamyn Berniker, Esq.
` Mr. David Berl, Esq.
` Mr. Thomas Fletcher, Esq.
` WILLIAMS & CONNOLLY
` 725 Twelfth Street, N.W.
` Washington, DC 20005
`
`Attorneys for the Patent Owner:
` Mr. Michael Kiklis, Esq.
` Mr. Chris Ricciuiti, Esq.
` OBLON, McCLELLAND, MAIER & NEUSTADT
` 1940 Duke Street
` Alexandria, Virginia 22314
`
`Attorneys for Ion:
` Mr. Karl Renner, Esq.
` Mr. Roberto Devoto, Esq.
` FISH & RICHARDSON
` 1425 K Street, N.W.
` Washington, DC 20005
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 3
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 4
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` TELECONFERENCE - 6/3/15
` P R O C E E D I N G S
` JUDGE DANIELS: Good afternoon.
`This is Judge Daniels. I also have on the
`line Judge Moore. We have quite a few
`parties on the line it seems like. Let me
`ask first who is here for Petitioner?
` MS. BERNIKER: Yes, this is Jessamyn
`Berniker on behalf of petitioner, Petroleum
`Geo-Services, and with me is David Berl and
`Tom Fletcher.
` MR. RENNER: Carl Renner and Rob
`Devoto from Fish & Richardson on behalf of
`Ion Geophysical Corporation.
` MR. KIKLIS: Mike Kiklis, your Honor
`for WesternGeco from Oblon, with me is
`Chris Ricciuiti of our firm. And also, I
`believe, inhouse counsel Brigitte Echols is
`on the line as well.
` JUDGE DANIELS: Did someone arrange
`for a court reporter?
` MR. KIKLIS: Yes, your Honor.
`Patent owner arranged for a court reporter
`and there is one on the line.
` JUDGE DANIELS: Thank you. Since
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 4
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 5
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` TELECONFERENCE - 6/3/15
`this one, since this request for a
`conference was requested by Ms. Berniker, I
`will let you go ahead.
` MS. BERNIKER: Thank you, your
`Honor. So the principal issue is what we
`briefly mentioned in our email, which is
`that WesternGeco on Monday filed their new
`POPR, which was supposed to be addressing
`the Ion specific issues. And in their
`POPR, they actually included several new
`arguments and several pieces of evidence
`that are not on the certificate at all,
`including many that relate to the validity
`case. And it is our view that that is
`improper and prejudices PGS.
` So if I could discuss that for a
`second, talk about how we got here. You
`remember, I'm sure, that Ion sought joinder
`in January, and at that point argued that
`WesternGeco should not be permitted to have
`a POPR. The parties briefed the various
`issues and argued about the joinder, so
`that the Tribunal and the Board granted
`joinder on April 23rd.
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 5
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 6
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` TELECONFERENCE - 6/3/15
` Just after that we deposed
`WesternGeco's secondary consideration
`witness in the PGS case and it became clear
`that large portions of his statement were
`entirely unsupported. And it appeared that
`WesternGeco at that point understood that
`they had series problems in their case,
`because a few days later they decided
`essentially to ask for a mulligan and they
`came to this Board and said suddenly for
`the first time that they actually needed a
`POPR before joinder was granted. And this
`is the first time they argued this. It had
`been 14 months since Ion first addressed
`this as that wasn't required.
` In any event, in their rehearing
`papers to the Board, where they said that
`they needed a POPR they specifically told
`the Board that they needed it in order to
`raise petitioner specific defenses against
`Ion. And they repeatedly throughout that
`paper identified those as an RPI issue,
`collateral, estoppel and Res Judicata.
` So when you granted that, I believe
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 6
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 7
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` TELECONFERENCE - 6/3/15
`without knowing, I believe you granted that
`under the impression that they were going
`to brief these three issues. And when you
`granted it, you ordered that the schedule
`of the proceeding wasn't going to change
`and that there would be no additional
`briefing for WesternGeco.
` Well, when they did finally submit
`their new POPRs last Monday or this past
`Monday, they didn't, they didn't limit
`their briefing to those three, quote, Ion
`specific issues. And instead, they decided
`to try to make an effort kind of
`supplementing the record on the invalidity
`argument.
` By that point we had also deposed
`our second substantive expert, and I think
`they recognized there were serious
`deficiencies in their case, because they
`actually even say in their briefing in
`their POPR they have a whole section,
`Section 4 of each POPR that is entitled,
`that relate to the validity issues. And
`they acknowledge with respect to some of
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 7
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 8
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` TELECONFERENCE - 6/3/15
`them that the reason they're adding these
`additional arguments is because they hadn't
`done it in the first place.
` So for example, with respect to
`secondary consideration they acknowledge in
`their papers they say they only recently
`understood that there was going to be some
`question of whether or not the Q-Marine
`product is an embodiment of the patented
`invention. And even though it was always
`their burden to prove in the first instance
`that the Q-Marine valued their patented
`invention, they wanted proof that they had
`consideration. They hadn't done that. And
`so they say in their papers oh, we're now
`on notice of this so we would like to add
`some more evidence of this on the subject.
` The same thing applies to other
`validity issues. They cite some new
`materials from the ETO which they
`mischaracterize, nonetheless they cite
`essentially trying to supplement the
`argument that they made in their original
`patent owner response to the PPS via the
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 8
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 9
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` TELECONFERENCE - 6/3/15
`POPR. And in so doing, they also
`specifically say that the Board should
`consider these arguments in both
`proceedings because obviously they relate
`to validity.
` So it is certainly our view that,
`you know, the new evidence is certainly not
`particularly strong. It is evidence they
`didn't think they should cite in the first
`instance, it is not their best case but
`they tried to dump it in probably to
`strengthen their case. But in any event,
`it is improper to supplement the record
`vaguely after their patented response was
`filed and due, after PGS deposed their
`witness and a week before PGS replies are
`due in this case. In this case our replies
`are due on Monday.
` And suddenly we have to contend with
`new alleged evidence that they, that they
`are including in this case. This violates
`the Board's schedule, it seriously
`prejudices PGS.
` So in the first instance I think it
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 9
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 10
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` TELECONFERENCE - 6/3/15
`is important to recognize that this Board
`has ruled time and time again that the
`rules do not authorize a patent owner to
`file to certify, amend their briefing, file
`any sort of substantive papers after the,
`the patent owner response has been filed.
`And that is exactly what they are doing in
`this paper, and it is entirely improper.
` So our, if you would like authority
`on that proposition by the way, so the
`trial reference guide at 48769 supports
`that, the MOBOTIX case IPR 201300335, paper
`36 supports that. The PGS interactive
`case, IPR20130033, paper 79 supports that.
`And we can keep going, but I will leave it
`at those.
` So it is our view as petitioner PGS
`that one of two things should happen.
`Either joinder should be denied and the new
`POPR and the exhibits secondary should be
`expunged or the Section 4 of the new POPR
`should be stricken as unauthorized pursuant
`to Section 42.7(a). And you have
`previously struck unauthorized papers under
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 10
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 11
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` TELECONFERENCE - 6/3/15
`that provision including in the MOBOTIX
`case that I cited a minute ago.
` Alternatively they should be struck
`as improper supplemental information under
`Section 42.123, because that information is
`not permitted without a showing that they
`couldn't have submitted evidence earlier
`which they plainly could have.
` Obviously as I mentioned in the
`alternative we have always been opposed to
`the joinder in this case. Joinder is
`particularly improper when it is going to
`mess up the schedule of the case. And that
`happens often when patent owners add new
`responses and new arguments in their POPRs.
`So in the face of the West case,
`CBM201500009, paper 22, the Board denied
`joinder because the patent owner had raised
`new substantive arguments in their POPR,
`and concluded that it was going to have a
`material impact on the trial schedule, and
`therefore, shouldn't be permitted. And as
`you know, your joinder authority repeatedly
`takes into consideration the question of
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 11
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 12
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` TELECONFERENCE - 6/3/15
`what is going to happen to a schedule if a
`party is joined.
` Here we see what is happening is
`that WesternGeco is using this as an excuse
`to drag out the proceedings and that is to
`PGS's detriment. And that is not, that is
`not permissible.
` One other issue that I think is
`worth raising before I let you move on to
`someone else here is WesternGeco is not
`done. They claim that they're still
`entitled to yet another brief. And they
`actually claim that they're entitled to a
`new patent owner response complete with new
`declarations presumably on validity and
`everything else.
` So like I said earlier, it looks
`like they're looking for a mulligan.
`They're not happy with how the case has
`gone and they want to have yet another set
`of rounds in this case. Pursuant to the
`authority that I cited a few minutes ago,
`they are not permitted to have this many
`bites at the apple. They were supposed to
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 12
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 13
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` TELECONFERENCE - 6/3/15
`put in their evidence in their patent owner
`response and they failed to do it, that is
`the end. And so in our view that would be
`entirely prejudicial to PGS and is
`inconsistent with what the Board has done
`in the past in situations of joinder.
` So for example, in the Microsoft v.
`IPR, licensee case IPR20150074, paper 21
`you had another situation where there was a
`joinder. And the Board felt that after the
`patent owner filed a POPR and the joinder
`was granted, there would be no additional
`patent owner papers permitted, no
`additional new patent owner response. And
`that is absolutely the appropriate ruling
`here where they have already extensively
`briefed all of the issues.
` And then the only way to not
`prejudice PGS, because we, we should not be
`in a situation where we lose the schedule
`that we have worked very hard to preserve
`where we're facing a district court, two
`district court cases on these very patents.
`And to the extent that for the very reason
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 13
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 14
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` TELECONFERENCE - 6/3/15
`joinder is permitted, we believe that it is
`clear that WesternGeco should not be able
`to give some more papers.
` The ultimate problem that is
`extremely immediate, however, is we have
`our reply brief deadline on Monday. If, if
`it is still an open question about whether
`WesternGeco is going to get new papers, I
`think it is important that we do something
`to address that before PGS has to file a
`reply brief, because I don't think it is
`appropriate for them to continue to see our
`brief and then file another responsive
`brief after that. So if they're going to
`have another brief, it is important that we
`somehow deal with that before we file our
`reply brief.
` And frankly if they're not, then we
`need to talk about how to address the fact
`that they just dumped a number of new
`arguments and new pieces of evidence on us
`that we have not had the ability to, the
`time or space frankly to address in the
`last two days.
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 14
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 15
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` JUDGE DANIELS: I was, I'm looking
`at their -- they're addressing Ion's prior
`statements and, and the adjudications in
`Section 4. Is there something specific in
`what is specifically in there? I'm looking
`at it right now. Can you just tell me what
`is, give me an example of what they're
`doing there and I think it starts on page
`28 or 29.
` MS. BERNIKER: Absolutely. And one
`of the things I should ask you what brief
`you are looking at, so we're looking at the
`same page.
` JUDGE DANIELS: Right. I was
`looking at the one in 67.
` MS. BERNIKER: Right, okay. So one
`of the things they do is they spend a bunch
`of time talking about these ETO
`proceedings. And they certainly
`mischaracterize what has happened in the
`ETO. They're now trying to rely on
`statements by the ETO, not just statements
`by Ion but statements by the ETO on how to
`interpret prior art references. They couch
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 15
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 16
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`that in what they claim are admissions by
`Ion.
` Now, I think that is a big problem
`even with the admission by Ion, because
`those should not be coming in against PGS.
`This is one of the reasons that we oppose
`joinder in the first instance. We said
`look, you have an evidentiary issue because
`those are not admissions by PGS. They're
`not properly in the case against PGS. To
`the extent they come in against Ion,
`they're not going to be considered against
`the Board even though we have had no
`opportunity to assess them or the people
`who wrote them or anything else.
` So the first figurative statement by
`Ion are problems, but moreover, WesternGeco
`specifically argued that what happened in
`the ETO is claims that some statements by
`the ETO are actually relevant to this
`proceeding. And so what you will see in
`terms of what happens on page 30 they start
`telling you that you should defer to the
`ETO. And they cite this Judge Easterburg's
`
`TSG Reporting - Worldwide
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`
`WesternGeco Ex. 2042, pg. 16
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 17
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`opinion, and then in the next page, on page
`31 they tell you this is exactly the same
`issue that is coming up in the PGS case and
`so they said you should defer to it. You
`should -- this is the middle of the page on
`page 31, these teachings of the prior art
`are entitled to significant deference in
`evaluating the Ion petition as well as any
`underlying PGS proceeding.
` So it is not just Ion admissions,
`although certainly some of what they do is
`include Ion admissions that we think are
`both improper in terms of being
`inadmissible against PGS but also whether
`or not they're admissible against us they
`are something we should be permitted to
`respond to. I think we have all discussed
`the fact that Ion is not going to be
`responding in any substantive way in this
`proceeding. And to the extent that
`WesternGeco is citing new evidence, we need
`an opportunity to respond to it.
` For example, on the secondary
`consideration they include a bunch of
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 17
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 18
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`narrative statements by Ion that the
`Q-marine allegedly embodies the claimed
`invention. Well, there is nothing in the
`statement that they cite that addresses
`which patent claims, which limitations or
`which claim construction is being used, but
`we need an opportunity to brief that and
`show that. And frankly, ideally we would
`have had an opportunity to use those
`documents with their witnesses and question
`them on them, but we have been deprived of
`that because they filed this information so
`late.
` JUDGE DANIELS: So we have ETO, we
`have got the ETO issue, ETO issue and then
`we've got the -- and then just secondary
`considerations the commercial embodiments.
` MS. BERNIKER: Yes. And then in the
`other brief they also cite a declaration
`from Dr. Workman that they rely on. And
`again, this is a document they've had in
`their possession for years, elected not to
`rely on in the first place and they now
`essentially mischaracterize what
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 18
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 19
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` TELECONFERENCE - 6/3/15
`Mr. Workman said, and tried to use that as
`evidence presumably of how you should
`interpret his patent. That is, I would
`say, I think those are basically the three
`categories. You know there is a series of
`Ion admissions that they included, so I'm
`not sure we certainly described all of
`them.
` JUDGE DANIELS: Right, okay and I
`don't have, we will look at them while
`we're on the phone. I won't dig into them
`either, let me ask you this. How much time
`did you, how much time do you, would you
`reasonably need? The Board is capable of
`evaluating the evidence, of course, weight
`should be given as to whether it is late or
`not, but practically speaking, how much
`time would you need? If they are due
`Monday, you are due Monday, how much time
`would you need to respond to these, these
`positions in Section 4?
` MS. BERNIKER: So let me add one
`thing before I answer your question, if you
`don't mind, which is WesternGeco also sent
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`WesternGeco Ex. 2042, pg. 19
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 20
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` TELECONFERENCE - 6/3/15
`20 pages addressing the RPI issue. Which
`they can argue is an Ion specific issue,
`but it is essentially the same set of
`arguments they've made against us. And it
`is basically a more fulsome version of
`those arguments. So I think at this point
`we would be seeking to address that as
`well, and there are some new arguments that
`they put in there that we would need to
`address.
` To answer your question more
`generally, I think that it is imperative to
`us to maintain the schedule. Under those
`circumstances we will, I think, be prepared
`to -- if we have 10 more days and moved our
`replies to June 18th, I think we would be
`prepared to address these issues
`recognizing that is not a huge amount of
`time. I think it is something we would do
`in order to make it in the schedule, but I
`think there is a few critical components to
`coming to that conclusion which is that is
`on the assumption that we're keeping our
`hearing schedule and the rest of the case
`
`TSG Reporting - Worldwide
`(877) 702-9580
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`WesternGeco Ex. 2042, pg. 20
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 21
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` TELECONFERENCE - 6/3/15
`schedule, which is important to us, because
`WesternGeco has had months to write these
`things. And we are confining ourselves to
`a short period of time in order to maintain
`that schedule.
` The other thing I would add is I
`think we need more space as well, because
`they have had 20 pages here directed
`essentially to PGS issues, so we would
`request another 15 pages to be able to
`address these, these arguments and this new
`evidence. 20 pages of RPI alone I think it
`is 30 pages are PGS-related issues.
` And I guess the last point I would
`make is all of this, as I see it, would be
`dependent on a conclusion that they aren't
`going to be entitled to file more papers,
`because I don't think we should be in a
`position to file our reply papers only to
`have them file yet another set of briefs.
` JUDGE DANIELS: Is there a request
`at the moment to file, to file more?
` MS. BERNIKER: Yes, it is included
`in their preliminary response. They say
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 21
`IPR2015-00565
`ION v WesternGeco
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`
`
`Page 22
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` TELECONFERENCE - 6/3/15
`specifically at the end of their brief that
`they should be permitted another patent
`owner response and that the entire schedule
`should be changed at the very end of their
`papers starting about page 34.
` JUDGE DANIELS: I guess I assume,
`Mr. Kiklis, you have a response.
` MR. KIKLIS: Yes, your Honor. You
`know first, your Honor, we don't oppose
`PGS's request for additional time and
`additional pages; 10 days and 15 pages,
`we're fine to respond to that, for them to
`have an opportunity to respond to these
`arguments.
` I want to mention that it is not our
`case that is falling apart, your Honor, it
`is their case, because what they're trying
`to keep out of the Board's eyes, sight are
`two important statements regarding the key
`references here; Ion's admission from the,
`from the ETO, from the ETO opposition that
`the 636 PC doesn't teach a global control
`system. And the declaration that Ms.
`Berniker referred to from Dr. Workman
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 22
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 23
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` TELECONFERENCE - 6/3/15
`himself admits, this is our Exhibit 2149,
`admits that his patent doesn't teach
`lateral steering.
` What is remarkable about that
`exhibit is it is really trustworthy
`evidence because it was proffered by Ion
`not us. So this is very, very difficult
`evidence for them to deal with and that is
`why you see them reacting the way that they
`are.
` I want to point out to the Board
`that it is the statute, I believe 315(c)
`that guarantees us a preliminary response
`and we simply took and did that. The Board
`gave us the opportunity for preliminary
`response, we never waived a preliminary
`response, again, that is part of the
`statute itself. It is guaranteed to us.
`We did that.
` We filed the exact preliminary
`response that we would have filed had we
`been given the opportunity. Just because
`we had to ask for the, the preliminary
`response shouldn't be used as a basis to
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 23
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 24
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` TELECONFERENCE - 6/3/15
`limit our scope of our response. So we
`followed the Board's order, we filed a
`preliminary response. We did nothing wrong
`here, your Honor, we just filed the
`preliminary response.
` I will also point out for the
`Board's knowledge that PGS was aware of
`this evidence. They were aware of the
`Workman declaration. It was produced to
`them on February 10th, because they
`specifically wanted the complete Ion
`litigation record so that they could vet it
`before bringing this case and they had that
`in February of 2014. They had possession
`of this Workman declaration and they knew
`about the ETO opposition. In fact, they
`cross-examined our expert Dr. Triantafillou
`with documents from the ETO opposition.
` So they knew of all of this evidence
`ahead of time. However, having said that,
`we are very willing to be, to give PGS a
`chance to respond. So they're requesting
`10 days and 15 pages, we're fine with that.
` MS. BERNIKER: May I respond
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 24
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 25
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` TELECONFERENCE - 6/3/15
`briefly, your Honor?
` JUDGE DANIELS: Sure.
` MS. BERNIKER: First of all,
`Mr. Kiklis didn't address the point that
`they should not be filing yet another
`brief, another patent and a response. When
`I asked him about it during our
`conversation yesterday, he was not willing
`to represent that they wouldn't do that.
`So to the extent they sound amenable at
`this point I'm grateful. I think it is
`important that we confirm they will not be
`filing a patent and a response after our
`reply brief.
` Two other minor points. I don't
`want to get into the merits too much. I
`know you probably don't want us to do that.
`The ETO actually expressly held that the
`reference has a global control system and
`what WesternGeco is doing in the brief is
`hardly factually correct. Let's put it
`that way. We will be addressing that in
`our reply.
` As to the Workman declaration -- by
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 25
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 26
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` TELECONFERENCE - 6/3/15
`the way, both of these, quote, key
`documents as he just explained should have
`been in their patent and a response if they
`were so key, but apparently they didn't
`think they were. And even at this time
`when the Workman declaration was prepared,
`it did not say what he just said it said.
`But in any event, WesternGeco has
`previously argued that it did not say what
`WesternGeco now says. So we will be
`addressing the merits in our supplemental,
`in our additional briefing.
` JUDGE DANIELS: Let me just, let me
`go off line here for a minute and speak
`with Judge Moore. And it is two issues I'm
`going, I'm going to look at here. It looks
`like maybe we're all on the same page for
`some extra time and some extra pages. Let
`me talk to Judge Moore about the issue of
`the patent owner, potential patent owner
`response. Those are the two main issues.
` MR. RENNER: Your Honor, this is
`Carl Renner for Ion. I don't want to
`interject to a great extent. If I could
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 26
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 27
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` TELECONFERENCE - 6/3/15
`have just a word on what I believe the
`policy implications here relating to
`joinder is really a different issue than
`what has been discussed by either of the
`two parties. Would that be okay to have a
`moment on that?
` JUDGE DANIELS: Sure.
` MR. RENNER: You know I just wanted
`to point out that, that the notion of
`whether the patent owners preliminary
`response, the content there of the
`selection of issues and the selection of
`the items to be brought into a case would
`have to be used as a basis for making a
`determination on whether or not to, to join
`proceedings, it seems puts wholly in the
`party's hands that might be motivated to
`keep a party out, the decision that that
`third-party who is complying with the
`rules, timely filing things and asking for
`joinder.
` And in this case, for instance,
`being willing to take a complete back seat
`but for this call and that this is a
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 27
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 28
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` TELECONFERENCE - 6/3/15
`preliminarily kind of response call, not
`even making remarks is what our expectation
`is. I just wanted to point that that might
`lead to the wrong policy considerations and
`perhaps promote the wrong kinds of
`behaviors in future cases and behaviors by
`patent owners in particular. So with that,
`I'm happy to answer any questions, I just
`wanted to make sure that point wasn't lost.
` JUDGE DANIELS: No, thank you. To
`the extent you have noted, yes, there is a
`lot of policy and pragmaticism to the facts
`and questions and issues and discussion
`that go to the question of joinder. There
`is complicated decisions sometimes. Let me
`go off line to talk to Judge Moore and I
`will be back in a few minutes.
` (Off the record.)
` JUDGE DANIELS: Hi, we're back. I
`was just looking at the schedule. It
`doesn't look like there is any other, that
`if we granted the 10 days it doesn't look
`like it would impact any of the other, the
`other dates. It was the June 18th, which
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 28
`IPR2015-00565
`ION v WesternGeco
`
`
`
`Page 29
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` TELECONFERENCE - 6/3/15
`is the 10 days would take it back to; is
`that correct?
` MS. BERNIKER: We think we agreed
`that we don't think the other date needs to
`move.
` MR. KIKLIS: I believe that our
`observations on cross-examination, your
`Honor, are due on June 22nd?
` JUDGE DANIELS: Yes.
` MR. KIKLIS: Then we have
`depositions. We need to find out,
`obviously we need to know from the other
`side and they haven't told us yet if
`they're going to have any reply declarants.
`We need to know who their identities are so
`that, of course, we can file a notice with
`the Board and so that we could prepare, and
`what dates are we going to have those
`depositions on so we would be good to have
`that.
` MS. BERNIKER: Your Honor, in view
`of how the depositions of their witnesses
`went, we have decided that we're not going
`to submit reply declarations. So I think
`
`TSG Reporting - Worldwide
`(877) 702-9580
`
`WesternGeco Ex. 2042, pg. 29
`IPR2015-00565
`ION v WesternGeco
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`Page 30
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`that takes the depositions off the table
`and it also takes the observation of
`cross-examination off the table.
` JUDGE DANIELS: Okay. So we will
`issue, I will issue an order in the next
`day or two doing that, granting 10 more
`days and 15 more pages. As far as, as far
`as the patent owner response, we're not,
`we're not going to grant that. That will
`be in the order as well. There is, you
`know, the petition, the petition itself
`hasn't changed and there is certainly no
`time to, to -- basically there is no time
`to do the patent owner response. And with
`the petition remaining
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