`
`––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`
`––––––––––
`
`Case IPR 2017-01082
`Patent 7,682,243
`
`––––––––––
`
`PETITIONER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE EXHIBIT 2027
`
`
`
`Patent Owner does not deny that it ambushed Petitioner with a new service
`
`by mail theory and accompanying declaration by its trial lawyer Mr. Zito (Ex.
`
`2027) well after the limited discovery period set by the Board on the service issue.
`
`Instead, Patent Owner argues that the Board’s limited discovery order did not set a
`
`deadline for disclosing new facts, and that Patent Owner’s late disclosure is
`
`justified by an alleged change in position by Petitioner. Petitioner submits that the
`
`Board should reject both excuses and exclude Mr. Zito’s untimely and
`
`inadmissible declaration (Ex. 2027).
`
`First, there is no merit to Patent Owner’s contention that the Board’s limited
`
`discovery order only set a discovery deadline for disclosed theories and facts. See
`
`Paper 31 at 2 and 4. While the Board’s order referred to specific witnesses and a
`
`specific theory of service, that was for the simple reason that Patent Owner had not
`
`disclosed any other theories of service or relevant witnesses. Patent Owner’s
`
`narrow interpretation of the Board’s order should be rejected because the Patent
`
`Owner had no reasonable expectation that it could raise new, undisclosed theories
`
`of service after its initial theory failed—any theories of service should have been
`
`addressed in the preliminary response given that service issues are typically
`
`resolved by the Board in the institution decision. It is certainly fair for the Patent
`
`Owner to bear the burden of producing facts relevant to service of process in its
`
`preliminary response given that the facts surrounding any attempt to serve process
`
`1
`
`
`
`is in the unique possession of a patent owner. Finally, the Board should reject
`
`Patent Owner’s interpretation of the order because it would perversely permit the
`
`Patent Owner to rely on new facts and declarations as long as they pertain to
`
`undisclosed theories and thereby prevent the Petitioner from challenging those
`
`facts and declarations through discovery, which would violate Petitioner’s right to
`
`due process. For the reasons set forth in Petitioner’s Motion to Exclude, the Board
`
`should find that its order required that all facts relevant to service of process be
`
`disclosed during the limited discovery period. Paper 30 at 1-3.
`
`Second, there is no merit to Patent Owner’s claim that its new theory of
`
`service by mail to Cyprus was necessitated by an alleged change in Petitioner’s
`
`position on the service issue. According to Patent Owner, “Petitioner changed its
`
`position from arguing that service had never occurred in London, to the new issue
`
`of whether that service was technically proper.” Paper 31 at 4. However, Patent
`
`Owner ignores that Petitioner’s brief set forth why there is no credible evidence
`
`that Mr. Talbot (the process server) ever met Mr. Joannou (Wargaming.net LLP’s
`
`agent). See Paper 24 at 8-10. But, more importantly, Patent Owner ignores that its
`
`many failings and mistakes are not mere “technical” defects–they are fundamental
`
`failings that rendered service in the U.K. impossible. See Paper 24 at 3-8.
`
`For the foregoing reasons, Petitioner respectfully requests that the Board
`
`exclude Mr. Zito’s declaration (Ex. 2027) as inadmissible hearsay because his
`
`2
`
`
`
`declaration was not provided during the period for taking testimony on the service
`
`issue and was not subject to cross-examination.
`
`December 22, 2017
`
`Respectfully submitted,
`/Harper Batts/
`
`Harper Batts, Reg. No. 56,160
`BAKER BOTTS L.L.P.
`
`3
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
`
`Petitioner’s Reply in Support of its Motion to Exclude Exhibit 2027 contains no
`
`more than 3 pages and therefore complies with the page limitation specified by 37
`
`C.F.R. § 42.24(c)(2).
`
`December 22, 2017
`
`/Harper Batts/
`Harper Batts
`
`CERTIFICATE OF SERVICE
`The undersigned certifies that on December 22, 2017, a complete copy of
`
`the foregoing Petitioner’s Reply in Support of its Motion to Exclude Exhibit 2027
`
`was served via electronic mail to counsel for the Patent Owner at the email address
`
`designated in the Patent Owner’s Mandatory Disclosures:
`
`SUGHRUE MION PLLC
`c/o John M. Bird
`2100 Pennsylvania Ave NW
`Suite 800
`Washington, DC 20037
`gat@sughrue.com
`jbird@sughrue.com
`
`December 22, 2017
`
`/Harper Batts/
`Harper Batts
`
`4
`
`
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