`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`––––––––––
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`
`––––––––––
`
`Case IPR 2017-01082
`Patent 7,682,243
`
`––––––––––
`
`PETITIONER’S BRIEF ON THE ISSUE OF WHETHER
`THE PETITION IS BARRED UNDER 35 U.S.C. § 315(b)
`
`
`
`
`
`
`Petitioner Wargaming Group Limited respectfully requests that the Board
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`find that the instant petition for inter partes review is not barred under 35 U.S.C.
`
`§ 315(b) because (1) the Patent Owner voluntary dismissed without prejudice the
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`infringement action against Wargaming.net LLP, which is the real-party-in-interest
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`that Patent Owner claims was served, and (2) there is no credible evidence that the
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`Patent Owner served Wargaming.net LLP with a proper summons and complaint
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`alleging infringement of the ’243 Patent.
`
`I.
`
`Applicable Law
`
`“An inter partes review may not be instituted if the petition requesting the
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`proceeding is filed more than 1 year after the date on which the petitioner, real
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`party in interest, or privy of the petitioner is served with a complaint alleging
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`infringement of the patent.” 35 U.S.C. § 315(b) (emphasis added). The Board has
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`previously rejected the argument that the “mere receipt of a complaint” is enough
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`to trigger § 315(b), finding that “[w]e do not believe that the Congress intended to
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`have the time period start before a petitioner is officially a defendant in a law suit.”
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`Motorola Mobility LLC v. Arnouse, Case IPR2013-00010, Paper 20 at 3-5 (PTAB
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`Jan. 20, 2013). Instead, § 315(b) requires that the petitioner be “served with a
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`summons before the one-year time period for filing an inter partes review petition
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`is triggered.” Id. at 6.
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`1
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`
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`II. The petition cannot be barred under § 315(b) because the infringement
`action against Wargaming.net LLP was voluntarily dismissed without
`prejudice under Fed. R. Civ. P. 41(a).
`
`The Board should find that the instant petition cannot be barred by the
`
`alleged service of a complaint on Wargaming.net LLP because the Patent Owner
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`voluntarily dismissed its infringement action against Wargaming.net LLP without
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`prejudice under Federal Rule of Civil Procedure 41(a)(1). See Ex. 1013 (parties’
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`stipulated motion that “[p]ursuant to Rule 41(a)(1) of the Federal Rules of Civil
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`Procedure, Wargaming.net LLP shall be dismissed without prejudice as a party to
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`this action”); Ex. 1026 (order granting dismissal without prejudice).
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`In a precedential decision interpreting § 315(b), the Board explained that
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`“[t]he Federal Circuit consistently has interpreted the effect of [dismissals under
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`Federal Rule of Civil Procedure 41(a)] as leaving the parties as though the action
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`had never been brought.” Oracle Corp. v. Click-to-Call Techs. LP, IPR2013-
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`00312, Paper 26 at 17 (PTAB Oct. 30, 2013). The Board held that a voluntary
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`dismissal without prejudice “nullifies the effect of the service of the complaint”
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`and cannot bar a petition under § 315(b). Id. Because the Patent Owner voluntarily
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`dismissed without prejudice its infringement action against Wargaming.net LLP,
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`the alleged service of a complaint for that action cannot bar the instant petition
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`§ 315(b).
`
`2
`
`
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`III. Wargaming.net LLP was not properly served with a summons and
`complaint alleging infringement of the ’243 Patent.
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`The Board should find that there is no credible evidence that the Patent
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`Owner properly served Wargaming.net LLP with a summons and complaint
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`alleging infringement of the ’243 Patent for several reasons. First, the process
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`server has admitted that the proof of service filed with the Patent Owner’s
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`Preliminary Response is not true and accurate. Second, the Patent Owner’s new
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`and untimely proof of service contains a void summons that was not issued by the
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`district court with the required signature and court seal. Third, the Patent Owner’s
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`failure to move for entry of default is evidence that the Patent Owner did not
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`believe service was proper. Finally, the consistent and credible testimonial
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`evidence indicates that Wargaming.net LLP was not served.
`
`A.
`
`Patent Owner’s process server admitted that the proof of service
`submitted with the Preliminary Response is not an accurate copy
`of the documents that he claims to have served.
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`The Patent Owner did not file any proof of service in the district court before
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`the instant petition was filed. In its Preliminary Response, Patent Owner claimed
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`that the petition was barred under § 315(b) because, “[a]s attested to in the Witness
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`Statement of Service in Civil Action No. 2:15-cv-01260 by John Frederick Talbot,
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`Mr. Talbot served Mr. Costas A. Joannou, who received service on behalf of
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`Wargaming.net LLP, on December 10, 2015, in London, England.” Paper 8 at 4.
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`Notably, Patent Owner originally filed a version of Mr. Talbot’s Witness Statement
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`3
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`
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`that was incomplete because it did not have a copy of Exhibit A, which the
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`statement describes is “a bundle containing a copy of each of the documents so
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`served.” See Ex. 2002. At Petitioner’s request, Patent Owner filed another version
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`of Mr. Talbot’s Witness Statement that included Exhibit A as Exhibit 2002
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`Supplemental. See Paper 9.
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`Petitioner deposed Mr. Talbot in London, England. At the deposition, Mr.
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`Talbot admitted that Exhibit A, although prepared a mere three days after he
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`allegedly served Wargaming, was incorrect and is not an accurate copy of the
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`documents that he allegedly served on Mr. Joannou for Wargaming.net LLP. Mr.
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`Talbot was asked to match the documents in Exhibit A to his witness statement
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`(Ex. 2002 supp.) with the list of documents that he was instructed to serve on page
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`3 of the Hague Request for Service (Ex. 2007). See Ex. 1025 at 18:21–19:8
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`(identifying Ex. 2007), 21:15–22:14 (explaining the list of documents), 23:21–
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`24:3. Mr. Talbot admitted that there were several problems with the bundle of
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`allegedly served documents. First, the bundle did not have a copy of the
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`“Summary” that is listed on the Hague request. Id. at 30:24–31:5. Mr. Talbot stated
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`that he would normally serve a copy of a “Summary” listed in a Hague request. Id.
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`at 31:6–10. Therefore, the omission of the “Summary” document indicates that Mr.
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`Talbot either failed to serve the documents as he was instructed or that Exhibit A is
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`not a true and accurate copy of the documents that he allegedly served.
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`4
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`
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`Second, the bundle of allegedly served documents did not have a copy of the
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`“Notice” listed on the Hague request. Id. at 31:22–25. Mr. Talbot’s testimony
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`establishes that this omission of a document from the bundle is significant because
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`“it is inconceivable that [the Notice] was not served because it is the top sheet. It is
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`-- it is always there. It would not not be there.” Id. at 31:12–21. Finally, Mr. Talbot
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`admitted that the bundle was “abnormal” because it contained four copies of the
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`purported summons. Id. at 36:5–13. He also stated his belief that the bundle he
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`attached to his witness statement did not have four copies of the purported
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`summons. Id. These discrepancies are all evidence that either (1) Mr. Talbot failed
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`to serve documents as instructed and as stated in the proof of service, or (2) the
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`proof of service is wrong. Either way, the errors are evidence that Mr. Talbot’s
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`testimony is not credible and is not corroborated by contemporaneous documents.
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`When examined by the Patent Owner, Mr. Talbot admitted that the bundle of
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`documents attached to his Witness Statement as Exhibit A are not the documents
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`that he allegedly served on Wargaming.net LLP:
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`Q. Do you believe that the documents in Exhibit A are a complete or
`an incomplete collection of documents that you had served that day?
`A. They are most definitely not the bundle that I served, whether
`they are incomplete or completely wrong I don't know, but they are
`certainly not what I served. . . .
`
`Id. at 73:3–10 (emphasis added).
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`5
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`
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`Q. And so, it's your position that this is an inaccurate exhibit. This
`exhibit A to the --
`A. Proof of service.
`Q. Exhibit 2002, is not an accurate -- not the same -- not the
`documents that you served that day or that you presented to Mr.
`Bridgeman?
`THE WITNESS: That is correct, they are not -- that bundle, within
`2002, after the first page, the first double page, 1 and 2, is not an
`exact representation of what I served that day.
`
`Id. at 74:21–75:9 (emphasis added and objection omitted).
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`In view of the evidence that the proof of service submitted by the Patent
`
`Owner in this proceeding is not true and accurate, Petitioner submits that the Board
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`should find that Wargaming.net LLP was not properly served with a complaint.
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`B.
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`Patent Owner’s new, but untimely, proof of service establishes
`that the process server did not have a properly issued summons,
`and could not have properly served Wargaming.net LLP.
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`Thirteen days after Mr. Talbot’s London deposition, Patent Owner filed yet
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`another different version of Mr. Talbot’s Witness Statement and Exhibit A. See
`
`Exs. 2019 at 3–38 and 2020 at 6–41. If this latest version is believed,1 then it
`
`that
`conclusively establishes
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`1 Because the new witness statement was produced after Mr. Talbot’s deposition,
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`the Patent Owner failed
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`to properly serve
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`Petitioner was precluded from challenging its accuracy through cross-examination.
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`Thus, the Patent Owner should not be permitted to rely on the new statement.
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`6
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`
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`Wargaming.net LLP because the alleged summons did not bear the clerk’s
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`signature or the district court’s seal. See Exs. 2019 at 7 & 21 and 2020 at 10 & 24.
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`Federal Rule of Civil Procedure 4(a)(1) expressly provides that “[a]
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`summons must: . . . (F) be signed by the clerk; and (G) bear the court’s seal.” The
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`Third Circuit has explained that “[t]he issuance of a summons signed by the Clerk,
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`with the seal of the Court, and the time designated within which defendant is
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`required to appear and attend, are essential elements of the court’s personal
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`jurisdiction over the defendant.” Ayers v. Jacobs & Crumplar, P.A., 99 F.3d 565,
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`568–69 (3d Cir. 1996) (finding that a summons lacking the clerk’s signature and
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`the court’s seal is void). In addition, the requirement that the district court’s clerk
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`issue the summons is not a mere technicality, but instead “assures the defendant
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`that the process is valid . . . .” Id. at 569. The Board should find that the instant
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`petition is not barred under § 315(b) because Patent Owner’s new “proof of
`
`service” shows that the alleged service could not be proper because the summons
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`was not issued by the district court with the required signature and required seal.
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`C. The Patent Owner’s actions are inconsistent with its argument
`that service was proper.
`
`Patent Owner’s claim that service was perfected on Wargaming.net LLP in
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`December 14, 2015 is inconsistent with its actions—Patent Owner did not move
`
`for entry of default despite no appearance or answer being filed within 21 days.
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`Instead, Patent Owner agreed to extend the time for defendant’s response to April
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`7
`
`
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`1, 2016 in exchange for defendants’ agreement to waive service. See Ex. 1027. It
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`makes little sense that the Patent Owner would have agreed to such a lengthy
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`extension of time unless it knew that service was not proper.
`
`D. The only reasonable conclusion that can be drawn from the
`testimonial evidence is that Wargaming.net LLP was not served.
`
`Petitioner alleges that Mr. Joannou accepted service for Wargaming.net LLP
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`at the registered office in England. However, Mr. Joannou’s declaration
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`establishes: (1) that he does not remember meeting Mr. Talbot or any attempted
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`service, (2) there Mr. Joannou was likely not present at the registered office at the
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`time of the alleged service, and (3) that the registered office’s established
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`procedures for logging and forwarding served documents indicate that no
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`documents were served on Wargaming.net LLP in December 2015. Moreover, the
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`Patent Owner cannot credibly challenge Mr. Joannou’s declaration in view of the
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`fact that it chose to cancel Mr. Joannou’s deposition. In addition, Mr. Talbot’s
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`testimony to the contrary should be given little weight in view of Mr. Talbot’s
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`financial interest at stake and the fact that he has admitted his Witness Statement
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`and Exhibit A (Ex. 2002 supp.) is not correct.
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`1. Mr. Joannou’s testimony demonstrates that Wargaming.net
`LLP was not served as claimed by Mr. Talbot.
`
`Mr. Joannou is the vice chairman of Wargaming.net LLP’s former
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`accounting and auditing firm. Ex. 1017 ¶ 2. He does not recall ever meeting Mr.
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`8
`
`
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`Talbot, ever confirming to Mr. Talbot that he was authorized to accept service for
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`Wargaming.net LLP, or ever receiving any documents from Mr. Talbot. Id. ¶¶ 4, 8.
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`Mr. Joannou reviewed Exhibits 2001 and 2002, and he has no recollection of
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`receiving the allegedly served papers. Id. ¶¶ 3–4, 8. Mr. Joannou’s diary from
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`December 10, 2015 confirms that he was most likely attending meetings in Central
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`London and was not at his office at the time of the alleged service. Id. ¶ 5 and p.
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`10. Patent Owner noticed Mr. Joannou’s deposition for London, only to cancel it.
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`Mr. Joannou’s firm has a long-standing practice for handling letters received
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`on behalf of clients such as Wargaming.net LLP: in all such cases, that the firm
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`makes a record of such activity, and that the firm immediately arranges to send the
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`letters to the client via courier and charges the client for the courier fees. Ex. 1017
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`¶¶ 6–7. Mr. Joannou’s records show several courier shipments and charges were
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`made to Wargaming.net LLP over the years, but the last shipment to
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`Wargaming.net LLP was made in September 2015—months before Mr. Talbot
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`allegedly served Wargaming.net LLP in December 2015. Id. ¶ 7 and pp. 6, 8. Mr.
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`Joannou states that there is no record of any courier fees charged to Wargaming.net
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`LLP in December 2015, or the months thereafter, as there would have been if he
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`had received any materials on behalf of Wargaming.net LLP. Id. ¶¶ 6–8.
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`2. Mr. Talbot’s testimony should be given little, if any, weight.
`Petitioner submits that the Board should give little weight, if any, to Mr.
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`9
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`
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`Talbot’s testimony. First, Mr. Talbot has a significant financial interest at stake.
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`Mr. Talbot was instructed to serve Wargaming.net LLP by Legal Language
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`Services. Ex. 2018 ¶ 4. Legal Language Services is Mr. Talbot’s biggest customer,
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`and accounts for roughly a third of his service instructions. Ex. 2018 ¶ 5; Ex. 1025
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`at 16:9–18. Second, Mr. Talbot admitted that he relies upon the witness statement
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`and exhibit that he prepares after a serve to know what documents were in fact
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`served. Ex. 1025 at 27:7–28:2. As set forth above, Mr. Talbot has admitted that the
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`records for this particular service are not correct. Third, Mr. Talbot has little
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`recollection now of the events that occurred nearly two years ago. For example,
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`Mr. Talbot could not remember anyone else that he spoke to at the registered
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`office, describe the office where service allegedly occurred, or even if it was
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`necessary to sign-in to access the building. Id. at 56:5–58:9.
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`* * *
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`For the foregoing reasons, Petitioner requests that Board find that the
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`petition is not barred under § 315(b) because Patent Owner voluntarily dismissed
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`its infringement action against Wargaming.net LLP without prejudice, and there is
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`no credible evidence that the Patent Owner successfully served a valid summons
`
`and complaint alleging infringement of the ’243 Patent on Wargaming.net LLP.
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`November 17, 2017
`
`
`Respectfully submitted,
`
`/Harper Batts/
`
`Harper Batts, Reg. No. 56,160
`BAKER BOTTS L.L.P.
`
`
`
`10
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`
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
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`Petitioner’s Brief on the Issue of Whether the Petition is Barred Under 35 U.S.C.
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`§ 315(b) contains no more than 10 pages and therefore complies with the page
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`limitation specified in the Board’s Order on Conduct and Schedule of the
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`Proceeding. See Paper 16 at 4.
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`November 17, 2017
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`/Harper Batts/
`Harper Batts
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on November 17, 2017, a complete copy of
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`the foregoing brief was served via electronic mail to counsel for the Patent Owner
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`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
`
`November 17, 2017
`
`
`
`/Harper Batts/
`Harper Batts
`
`11
`
`
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