throbber
Trials@uspto.gov
`571-272-7822
`
` Paper 25
`Entered: September 29, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SIERRA WIRELESS AMERICA, INC.,
`SIERRA WIRELESS, INC., and RPX CORP.,
`Petitioner,
`
`v.
`
`M2M SOLUTIONS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01073
`Patent 8,648,717 B2
`____________
`
`Before KALYAN K. DESHPANDE, JUSTIN T. ARBES, and
`DANIEL J. GALLIGAN, Administrative Patent Judges.
`
`Opinion for the Board filed by Administrative Patent Judge ARBES.
`
`Opinion Concurring filed by Administrative Patent Judge GALLIGAN.
`
`ARBES, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`Granting Petitioner’s Motion for Joinder
`37 C.F.R. § 42.122
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`Petitioners Sierra Wireless America, Inc., Sierra Wireless, Inc., and
`RPX Corp. (collectively, “Petitioner”) filed a Petition (Paper 1, “Pet.”)
`requesting inter partes review of claims 1–24 and 29 of U.S. Patent
`No. 8,648,717 B2 (Ex. 1101, “the ’717 patent”) pursuant to 35 U.S.C.
`§ 311(a) and a Motion for Joinder (Paper 2, “Mot.”) with Case
`IPR2016-00055 (“the -55 Case”). Patent Owner M2M Solutions LLC filed
`an Opposition (Paper 12, “Opp.”) to the Motion for Joinder, to which
`Petitioner filed a Reply (Paper 15, “Reply”). Patent Owner did not file a
`preliminary response pursuant to 35 U.S.C. § 313. Pursuant to 35 U.S.C.
`§ 314(a), the Director may not authorize an inter partes review unless the
`information in the petition and preliminary response “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.” For the reasons that follow,
`we institute an inter partes review as to claims 1–24 and 29 of the
`’717 patent on certain grounds of unpatentability, and grant Petitioner’s
`Motion for Joinder.
`
`
`I. BACKGROUND
`A. Related Proceedings
`Petitions requesting inter partes review of the ’717 patent were filed
`previously in Cases IPR2015-01670, IPR2015-01672, IPR2016-00054, and
`IPR2016-00853, all of which were denied.
`On August 26, 2015, Petitioner filed a petition requesting inter partes
`review of claims 1–3, 5–7, 10–24, 29, and 30 of the ’717 patent, asserting
`four grounds of unpatentability based on five prior art references.
`IPR2015-01823, Paper 1. On March 8, 2016, we instituted an inter partes
`
`
`
`2
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`review as to claims 1, 3, 5, 6, 10–13, 15–24, and 29 on three of the asserted
`grounds, but denied institution as to claims 2, 7, 14, and 30.
`IPR2015-01823, Paper 16.
`On October 21, 2015, Telit Wireless Solutions Inc. and Telit
`Communications PLC (collectively, “Telit”) filed a petition requesting inter
`partes review of claims 1–30 of the ’717 patent in the -55 Case, asserting
`14 grounds of unpatentability based on seven prior art references.
`IPR2016-00055, Paper 1. On April 22, 2016, we instituted an inter partes
`review as to claims 1–24 and 29 on five of the asserted grounds, but denied
`institution as to claims 25–28 and 30. IPR2016-00055, Paper 9 (“-55 Dec.
`on Inst.”). Telit filed a request for rehearing, which was denied. See
`IPR2016-00055, Papers 11, 13. Petitioner filed its Petition and Motion for
`Joinder with the -55 Case in the instant proceeding on May 19, 2016.
`Also, on May 23, 2016, Telit filed a petition requesting inter partes
`review of claims 25–28 and 30 of the ’717 patent and a motion for joinder
`with the -55 Case. IPR2016-01081, Papers 1, 3. In a concurrently issued
`decision, we deny Telit’s petition and motion for joinder.
`
`B. Illustrative Claim
`Claim 1 of the ’717 patent recites:
`1. A programmable communicator device comprising:
`a
`a
`programmable
`interface
`for
`establishing
`communication link with at least one monitored technical
`device, wherein the programmable interface is programmable
`by wireless packet switched data messages; and
`a processing module for authenticating one or more
`wireless transmissions sent from a programming transmitter and
`received by
`the programmable communicator device by
`
`
`
`3
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`determining if at least one transmission contains a coded
`number;
`wherein the programmable communicator device is
`configured to use a memory to store at least one telephone
`number or IP address included within at least one of the
`transmissions as one or more stored telephone numbers or IP
`addresses if the processing module authenticates the at least one
`of the transmissions including the at least one telephone number
`or IP address and the coded number by determining that the at
`least one of the transmissions includes the coded number, the
`one or more stored telephone numbers or IP addresses being
`numbers to which the programmable communicator device is
`configured
`to and permitted
`to send outgoing wireless
`transmissions;
`wherein the programmable communicator device is
`configured to use an identity module for storing a unique
`identifier that is unique to the programmable communicator
`device; and
`wherein the one or more wireless transmissions from the
`programming transmitter comprises a General Packet Radio
`Service (GPRS) or other wireless packet switched data
`message;
`and wherein the programmable communicator device is
`configured to process data received through the programmable
`interface from the at least one monitored technical device in
`response to programming instructions received in an incoming
`wireless packet switched data message.
`
`C. The Prior Art
`Petitioner relies on the following prior art:
`Publication
`International
`Patent
`Application
`No. WO 95/05609, published February 23, 1995 (Ex. 1129,
`“Eldredge”);
`
`
`
`4
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`Publication
`Application
`Patent
`International
`No. WO 97/49077, published December 24, 1997 (Ex. 1128,
`“Kuusela”);
`Publication
`Application
`Patent
`International
`No. WO 00/14984, published March 16, 2000 (Ex. 1125,
`“Sonera”);
`Publication
`Application
`Patent
`International
`No. WO 00/17021, published March 30, 2000 (Ex. 1113, “Van
`Bergen”); and
`C. Bettstetter et al., “GSM Phase 2+ General Packet
`Radio Service GPRS: Architecture, Protocols, and Air
`Interface,” IEEE COMMUNICATIONS SURVEYS, vol. 2, no. 3
`(1999) (Ex. 1114, “Bettstetter”).1
`
`D. The Asserted Grounds
`Although the Petition presents unpatentability challenges to claims
`1–30 of the ’717 patent, Petitioner states that the Petition “is narrowly
`tailored to the identical grounds of unpatentability that are [the] subject of
`[the -55 Case]” and that Petitioner “agree[s] to be bound by the Board’s
`
`
`1 Based on the current record, Petitioner has made a threshold showing that
`Bettstetter is a prior art printed publication under 35 U.S.C. §§ 102(a) and
`(b). See Pet. 14; Kyocera Wireless Corp. v. ITC, 545 F.3d 1340,
`1350–51 (Fed. Cir. 2008) (holding that a “reference is publicly accessible
`‘upon a satisfactory showing that such document has been disseminated or
`otherwise made available to the extent that persons interested and ordinarily
`skilled in the subject matter or art exercising reasonable diligence, can locate
`it.’” (citation omitted)). Also, the Leahy-Smith America Invents Act,
`Pub. L. No. 112-29, 125 Stat. 284 (2011) (“AIA”), amended 35 U.S.C.
`§§ 102 and 103. Because the ’717 patent has an effective filing date before
`the effective date of the applicable AIA amendment, we refer to the pre-AIA
`versions of 35 U.S.C. §§ 102 and 103.
`
`
`
`5
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`decision on the Request for Rehearing” in the -55 Case.2 See Mot. 1, 3, 6;
`Pet. 1, 4–5. We denied Telit’s request for rehearing. IPR2016-00055, Paper
`13. Accordingly, we understand Petitioner to be challenging claims 1–24
`and 29 of the ’717 patent based on the asserted grounds of unpatentability
`set forth in the table below, which are the unpatentability grounds on which
`we instituted a trial in the -55 Case:
`Reference(s)
`Basis
`
`Claim(s) Challenged
`
`Van Bergen
`
`35 U.S.C. § 102(b) 24
`
`Van Bergen and
`Bettstetter
`Van Bergen, Bettstetter,
`and Sonera
`Van Bergen, Bettstetter,
`and Kuusela
`Van Bergen, Bettstetter,
`and Eldredge
`
`
`
`35 U.S.C. § 103(a) 1–3, 5–18, 22, 23,
`and 29
`35 U.S.C. § 103(a) 4
`
`35 U.S.C. § 103(a) 19 and 20
`
`35 U.S.C. § 103(a) 21
`
`E. Claim Interpretation
`Petitioner makes the same claim interpretation arguments that Telit
`made in the -55 Case. Compare Pet. 8–13, with IPR2016-00055, Paper 1,
`8–13. We interpreted various limitations of the claims in the -55 Case, and
`incorporate our previous analysis for purposes of this Decision. See
`-55 Dec. on Inst. 6–12.
`
`
`2 Petitioner states that Telit in the -55 Case filed a request for rehearing
`regarding claim 26. See Pet. 4 n.3; Mot. 3. Telit, however, requested
`rehearing only as to claims 25, 27, 28, and 30. See IPR2016-00055, Paper
`11, 1.
`
`
`
`6
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`II. DISCUSSION
`A. The Petition
`Petitioner in its Petition asserts the same grounds of unpatentability as
`those on which a trial was instituted in the -55 Case. See Pet. 5; -55 Dec. on
`Inst. 48. Petitioner’s arguments are identical to the arguments made by Telit
`in its petition. Compare Pet. 13–58, with IPR2016-00055, Paper 1,
`13–56; see also Mot. 1 (arguing that the Petition “is practically a copy of the
`petition in [the -55 Case] with respect to the adopted grounds, including the
`same analyses, prior art references, exhibits, and expert testimony as in [the
`-55 Case]”). Patent Owner did not file a preliminary response. We
`incorporate our previous analysis regarding the asserted grounds of
`unpatentability, and conclude that Petitioner has demonstrated a reasonable
`likelihood of prevailing on the grounds of unpatentability asserted in the
`Petition for the same reasons. See -55 Dec. on Inst. 12–47.
`
`
`B. Motion for Joinder
`The AIA created administrative trial proceedings, including inter
`partes review, as an efficient, streamlined, and cost-effective alternative to
`district court litigation. The AIA permits the joinder of like proceedings.
`The Board, acting on behalf of the Director, has the discretion to join an
`inter partes review with another inter partes review. 35 U.S.C. § 315(c).
`Section 315(c) provides (emphasis added):
`JOINDER.—If the Director institutes an inter partes review, the
`Director, in his or her discretion, may join as a party to that
`inter partes review any person who properly files a petition
`under section 311
`that
`the Director, after receiving a
`preliminary response under section 313 or the expiration of the
`
`
`
`7
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`time for filing such a response, determines warrants the
`institution of an inter partes review under section 314.
`35 U.S.C. § 315(b) bars institution of an inter partes review when the
`petition is filed more than one year after the petitioner (or the petitioner’s
`real party-in-interest or privy) is served with a complaint alleging
`infringement of the patent. 35 U.S.C. § 315(b); 37 C.F.R. § 42.101(b).
`However, the one-year time bar does not apply to a request for joinder.
`35 U.S.C. § 315(b) (“The time limitation set forth in the preceding sentence
`shall not apply to a request for joinder under subsection (c).”); 37 C.F.R.
`§ 42.122(b). Petitioner was served with a complaint alleging infringement
`of the ʼ717 patent more than one year before filing the instant Petition. See
`Mot. 1–2; Opp. 1. Thus, absent joinder with the -55 Case, the Petition in
`this proceeding would be barred.
`Joinder may be authorized when warranted, but the decision to grant
`joinder is discretionary. See 35 U.S.C. § 315(c); 37 C.F.R. § 42.122. The
`Board determines whether to grant joinder on a case-by-case basis, taking
`into account the particular facts of each case, substantive and procedural
`issues, and other considerations. See 157 CONG. REC. S1376 (daily ed.
`Mar. 8, 2011) (statement of Sen. Kyl) (when determining whether and when
`to allow joinder, the Office may consider factors including “the breadth or
`unusualness of the claim scope” and claim construction issues). When
`exercising its discretion, the Board is mindful that patent trial regulations,
`including the rules for joinder, must be construed to secure the just, speedy,
`and inexpensive resolution of every proceeding. See 35 U.S.C. § 316(b);
`37 C.F.R. § 42.1(b).
`As the moving party, Petitioner has the burden of proof in establishing
`entitlement to the requested relief. 37 C.F.R. §§ 42.20(c), 42.122(b).
`
`
`
`8
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`A motion for joinder should: (1) set forth the reasons why joinder is
`appropriate; (2) identify any new ground(s) of unpatentability asserted in the
`petition; and (3) explain what impact (if any) joinder would have on the trial
`schedule for the existing review. See Mot. 5; Frequently Asked Question H5
`on the Board’s website at http://www.uspto.gov/ip/boards/bpai/prps.jsp.
`Petitioner should address specifically how briefing and/or discovery may be
`simplified to minimize schedule impact. See Mot. 5; Kyocera Corp. v.
`SoftView LLC, Case IPR2013-00004, slip op. at 4 (PTAB Apr. 24, 2013)
`(Paper 15) (representative).
`Petitioner argues that joinder with the -55 Case is appropriate because
`its Petition “challenges claims 1–24 and 29 based on the same grounds
`adopted by the Board in [the -55 Case], and also relies on the same analysis,
`prior art, exhibits, and expert testimony submitted by Telit.” Mot. 3, 6;
`Reply 1 (“Petitioners’ Petition in this case is identical to the Petition filed by
`Telit as to the grounds on which the Board granted institution.”). Patent
`Owner does not dispute that the asserted grounds are identical to those on
`which a trial was instituted in the -55 Case. See Opp. 2 (“[Patent Owner]
`does not object to Petitioner’s Material Fact Nos. 1-8.”). Petitioner contends
`that joinder would not result in any undue delay in the -55 Case because the
`issues are the same and joinder “will not introduce any additional arguments,
`briefing, or need for discovery.” Mot. 10.
`Petitioner also identifies various ways in which briefing and discovery
`may be simplified in a joined proceeding. Id. at 10–11; Reply 2–3. For
`example, Petitioner states that it is “willing to be limited to separate filings,
`if any, of a reasonable number of pages (e.g., seven pages) directed only to
`points of disagreement with Telit with the understanding that it will not be
`
`
`
`9
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`permitted any separate arguments in furtherance of those advanced in Telit’s
`consolidated filings.” Mot. 11. Petitioner also “agree[s] not to conduct
`additional depositions or other discovery,” and requests that it “be able to
`present arguments at the oral hearing only after Telit has completed its
`arguments, and only if there is any remaining time available.” Id. Finally,
`Petitioner states that it “will coordinate with Telit to consolidate filings,
`manage questioning at depositions, manage presentations at the hearing,
`ensure that briefing and discovery occur within the time normally allotted,
`and avoid redundancies.” Id.
`Patent Owner argues in its Opposition that Petitioner did not explain
`sufficiently how discovery and briefing could be simplified if joinder is
`granted, and that Patent Owner will be prejudiced by costs incurred to
`respond to any separate filings by Petitioner. Opp. 2–5. Patent Owner states
`that, “[a]t most, the Board should permit joinder only on the condition that
`Petitioner not file any briefs or other papers in this action or participate in
`depositions or the final hearing.” Id. at 1.
`We agree with Petitioner that the Petition raises no new issues beyond
`those already before the Board in the existing proceeding, which weighs in
`favor of joinder. See 157 CONG. REC. S1376 (daily ed. Mar. 8, 2011)
`(statement of Sen. Kyl) (“The Office anticipates that joinder will be allowed
`as of right—if an inter partes review is instituted on the basis of a petition,
`for example, a party that files an identical petition will be joined to that
`proceeding, and thus allowed to file its own briefs and make its own
`arguments.” (emphasis added)). Petitioner also consents to procedural
`protections that will retain Telit’s control over the proceeding and minimize
`
`
`
`10
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`any prejudice to Patent Owner. Accordingly, the impact of joinder on the
`existing proceeding will be minimal.
`Given all of the considerations above, we are persuaded that Petitioner
`has met its burden of demonstrating that joinder is warranted under the
`circumstances. Petitioner will have a limited role in the -55 Case, as
`explained below. If at some point the -55 Case is terminated with respect to
`any of the existing parties, the role of any remaining party or parties in the
`proceeding will be reevaluated.
`
`
`C. Patent Owner’s Motion for Pro Hac Vice Admission
`Patent Owner filed a motion requesting pro hac vice admission of
`Michelle Moran, and provided an affidavit from Ms. Moran in support of the
`request. See Paper 11; Ex. 2001. Because Ms. Moran already is authorized
`to represent Patent Owner as back-up counsel in Case IPR2016-00055 (the
`proceeding to which the instant proceeding is being joined), the motion is
`dismissed as moot. See IPR2016-00055, Paper 7 (granting Patent Owner’s
`motion for pro hac vice admission).
`
`
`D. Motions to Expunge
`Petitioner filed motions to expunge Exhibit 1130 and a notice of
`deposition (Paper 13), arguing that each document was filed by mistake. See
`Papers 7, 14. The incorrectly-filed documents will be expunged.
`
`
`
`
`11
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`III. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that an inter partes review is instituted as to claims
`1–24 and 29 of the ’717 patent;
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(a), inter
`partes review of the ’717 patent is hereby instituted commencing on the
`entry date of this Decision, and pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial;
`FURTHER ORDERED that the trial is limited to the following
`grounds of unpatentability, and no other grounds as to claims 1–24 and 29
`of the ’717 patent are authorized:
`Claim 24 under 35 U.S.C. § 102(b) as anticipated by Van Bergen;
`Claims 1–3, 5–18, 22, 23, and 29 under 35 U.S.C. § 103(a) as
`unpatentable over Van Bergen and Bettstetter;
`Claim 4 under 35 U.S.C. § 103(a) as unpatentable over Van Bergen,
`Bettstetter, and Sonera;
`Claims 19 and 20 under 35 U.S.C. § 103(a) as unpatentable over
`Van Bergen, Bettstetter, and Kuusela; and
`Claim 21 under 35 U.S.C. § 103(a) as unpatentable over Van Bergen,
`Bettstetter, and Eldredge;
`FURTHER ORDERED that Patent Owner’s motion for pro hac vice
`admission (Paper 11) is dismissed;
`FURTHER ORDERED that Petitioner’s motions to expunge (Papers 7
`and 14) are granted, and Paper 13 and Exhibit 1130 are expunged from the
`record of the instant proceeding;
`
`
`
`12
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`FURTHER ORDERED that Petitioner’s Motion for Joinder with
`Case IPR2016-00055 is granted, and Sierra Wireless America, Inc., Sierra
`Wireless, Inc., and RPX Corp. are joined as parties to Case IPR2016-00055;
`FURTHER ORDERED that Case IPR2016-01073 is instituted, joined,
`and terminated under 37 C.F.R. § 42.72, and all further filings in the joined
`proceeding shall be made in Case IPR2016-00055;
`FURTHER ORDERED that throughout Case IPR2016-00055, Telit
`and Petitioner will file papers, except for motions which do not involve the
`other party, as consolidated filings.3 Telit will identify each such filing as a
`consolidated filing and will be responsible for completing all consolidated
`filings. Petitioner may file concurrently an additional paper, not to exceed
`seven pages, which may address only points of disagreement with points
`asserted in Telit’s consolidated filing. Any such filing by Petitioner must
`identify specifically and explain each point of disagreement. Petitioner may
`not file separate arguments in support of points made in Telit’s consolidated
`filing;
`FURTHER ORDERED that, in addition to responding to any
`consolidated filing, Patent Owner may respond separately to any separate
`Petitioner filing. Any such response by Patent Owner to a Petitioner filing
`may not exceed the number of pages in the Petitioner filing and is limited to
`issues raised in the Petitioner filing;
`FURTHER ORDERED that unless given prior authorization by the
`Board, Petitioner is not permitted to engage in discovery or participate in
`
`
`3 Counsel for Telit and Petitioner should refer to the Board’s website for
`information regarding filings in the Patent Trial and Appeal Board End to
`End (PTAB E2E) system.
`
`
`
`13
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`any deposition in Case IPR2016-00055. Should Petitioner believe it
`necessary to take any further action, Petitioner should request a conference
`call to obtain authorization from the Board;
`FURTHER ORDERED that any issues regarding participation or
`timing for oral argument will be decided after any requests for oral argument
`are received in Case IPR2016-00055;
`FURTHER ORDERED that the case caption in Case IPR2016-00055
`shall be changed to reflect the joinder with this proceeding in accordance
`with the attached example; and
`FURTHER ORDERED that a copy of this Decision be entered into
`the file of Case IPR2016-00055.
`
`
`
`
`14
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`
`
`GALLIGAN, Administrative Patent Judge, concurring in part.
`I agree with the majority that granting relief pursuant to 35 U.S.C.
`§ 315(c) is appropriate under these circumstances. However, section 315(c)
`does not refer to joining a petition for inter partes review or a proceeding to
`an inter partes review. Rather, it refers to joining a “person” “as a party” to
`an instituted inter partes review. It states the following:
`(c) JOINDER.—If the Director institutes an inter partes review,
`the Director, in his or her discretion, may join as a party to that
`inter partes review any person who properly files a petition
`under section 311
`that
`the Director, after receiving a
`preliminary response under section 313 or the expiration of the
`time for filing such a response, determines warrants the
`institution of an inter partes review under section 314.
`35 U.S.C. § 315(c) (emphasis added); cf. id. § 315(d) (referring to
`“consolidation” of a pending inter partes review and “another proceeding or
`matter involving the patent”).
`As such, I concur only in the joinder of Sierra Wireless America, Inc.,
`Sierra Wireless, Inc., and RPX Corp. as parties to Case IPR2016-00055, as
`stated in Section III.
`
`1
`
`
`
`
`
`
`

`
`IPR2016-01073
`Patent 8,648,717 B2
`
`PETITIONER:
`
`Caleb Pollack
`Guy Yonay
`David Loewenstein
`Milo Eadan
`PEARL COHEN ZEDEK LATZER BARATZ LLP
`cpollack@pearlcohen.com
`gyonay@pearlcohen.com
`dloewenstein@pearlcohen.com
`meadan@pearlcohen.com
`
`PATENT OWNER:
`
`Jeffrey N. Costakos
`Michelle A. Moran
`FOLEY & LARDNER LLP
`jcostakos@foley.com
`mmoran@foley.com
`
`
`
`
`
`

`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TELIT WIRELESS SOLUTIONS INC., TELIT COMMUNICATIONS
`PLC, SIERRA WIRELESS AMERICA, INC., SIERRA WIRELESS, INC.,
`and RPX CORP.,
`Petitioners,
`
`v.
`
`M2M SOLUTIONS LLC,
`Patent Owner.
`____________
`
`Case IPR2016-000551
`Patent 8,648,717 B2
`____________
`
`
`
`
`
`
`1 Case IPR2016-01073 has been joined with this proceeding.

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