Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ____________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________
` Caterpillar Inc.
` Petitioner
` v.
` Wirtgen America, Inc.
` Patent Owner
` ____________
` Case No. IPR2017-02188
` U.S. Patent No. 9,656,530
`---------------------------------------------------
`
` TELEPHONE HEARING
`
` Monday, October 15, 2018
` BEFORE: KEVIN CHERRY, JUDGE
` 12:01 p.m. to 12:29 p.m.
` (All parties appeared telephonically)
`
`Reported by: Judy Martin
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`CATERPILLAR EXHIBIT 1158
`CATERPILLAR v. WIRTGEN
`IPR2017-02188
`
`Page 1 of 33
`
`
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` ____________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ____________
` Caterpillar Inc.
` Petitioner
` v.
` Wirtgen America, Inc.
` Patent Owner
` ____________
` Case No. IPR2017-02188
` U.S. Patent No. 9,656,530
`---------------------------------------------------
`
` TELEPHONE HEARING
`
` Monday, October 15, 2018
` BEFORE: KEVIN CHERRY, JUDGE
` 12:01 p.m. to 12:29 p.m.
` (All parties appeared telephonically)
`
`Reported by: Judy Martin
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`CATERPILLAR EXHIBIT 1158
`CATERPILLAR v. WIRTGEN
`IPR2017-02188
`
`Page 1 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`2
`
` A P P E A R A N C E S
`DAVID K. MROZ, ESQUIRE
`JOSHUA L. GOLDBERG, ESQUIRE
`CRAIG WALTER, ESQUIRE
`OF: Finnegan, Henderson, Farabow, Garrett, &
` Dunner, LLP
` 901 New York Avenue, N.W.
` Washington, D.C. 20001
` (202) 408-4000
` david.mroz@finnegan.com
` joshua.goldberg@finnegan.com
`
`Counsel for the PETITIONER
`
`SETH R. OGDEN, ESQUIRE
`OF: Patterson Intellectual Property Law PC
` 1600 Division, Suite Number 500
` Nashville, Tennessee 37203
` (615) 242-2400
` sro@iplawgroup.com
`Counsel for the PATENT OWNER
`
`1
`2
`
`3
`
`4
`
`5
`
`6
`
`7 8
`
`9
`10
`
`11
`
`12
`
`13
`
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 2 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` P R O C E E D I N G S
` JUDGE CHERRY: Petitioner, will you make your
` appearance?
` MR. MROZ: Sure. It's David Mroz from
` Finnegan, and I have two of my colleagues with
` me -- Josh Goldberg from Finnegan and Craig Walter
` also from Finnegan.
` JUDGE CHERRY: Great, thank you, Mr. Mroz.
` Patent owner.
` MR. OGDEN: Yes, this is Seth Ogden,
` O-G-D-E-N, on behalf of patent owner, Wirtgen
` America, Inc.
` JUDGE CHERRY: Mr. Mroz, you requested the
` phone call. Can you let us know what -- let me
` know what's going on?
` MR. MROZ: Sure. So we've had previous motion
` practice whenever Wirtgen was filing their patent
` owner response and they sought discovery from a
` related ITC proceeding between the parties and we
` tried to work it out.
` It didn't quite work, so we briefed the issue
` and the result was a protective order was put in
` place in this proceeding, and we produced a subset
` of the documents requested. It was pages from a
` number of different documents. I think it ended up
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 3 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` being in the 40s somewhere.
` So the takeaway is that we now have a
` protective order in place. We've produced
` documents from the ITC proceeding, that were
` Caterpillar confidential, and Wirtgen used them in
` their analysis.
` We now -- the shoe's on the other foot, so to
` speak. We have our reply brief coming up and there
` is just one document from Wirtgen that was produced
` in the ITC case that we want to use. It's only a
` 43-page document. We want to rely on it to rebut a
` mischaracterization in their petition, and that
` mischaracterization was on page 1.
` First sentence of the last paragraph there it
` says, Patent owner was the first to recognize the
` advantages of monitoring the lifting positions of a
` road construction machine's lifting column to
` permit an operator to select the desired frame
` orientation for a particular Wirtgen operation.
` So that's an important statement in this
` petition and this document goes a long way in
` helping us rebut that. There's no other way to get
` this information, because it's -- without getting
` into the detail, because it hasn't been produced in
` this proceeding yet, it's a slide show presentation
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 4 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` and it involves some kind of Wirtgen's knowledge of
` prior art material.
` JUDGE CHERRY: Mr. Ogden, what is your
` response?
` MR. OGDEN: Thank you, Your Honor. I just
` want to address Factor 1 of the Garmin factors. I
` think that's the one that really applies here and
` the requirement that the discovery request be
` looking for something useful.
` I know the PTAB has described useful as
` meaning more than relevant or admissible, but
` favorable in substantive value to contention of a
` party moving for discovery.
` Here the problem is the document that Cat is
` requesting isn't relevant to any ground of
` unpatentability, let alone useful as the PTAB has
` defined that term and there's a couple reasons.
` Without going into the confidential aspect of
` the document, I can just say that it is a slide
` presentation comparing a Wirtgen machine to that of
` a third-party competitor and it basically compares
` the machines to show why the Wirtgen machine is
` superior.
` So here are the reasons that this doesn't rise
` to useful information. First Wirtgen's inspection
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 5 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` of a third-party machine lacks any relevance to any
` of the grounds of unpatentability asserted in the
` petition.
` We did raise a copying issue in our response
` relating to Caterpillar's copying of the claimed
` feature after tearing down a Wirtgen machine, but
` that we inspected a third-party machine has nothing
` to do with Caterpillar's actions relating to
` copying Wirtgen's commercial product --
` JUDGE CHERRY: If something was known -- but
` if something was known in the prior art and they
` copied it -- just cause they copied it from you if
` they copied a known thing in the art, doesn't
` that -- doesn't that negate the relevance of
` copying to the obviousness inquiry?
` MR. OGDEN: I agree with that, Your Honor, but
` what I would say here is there's no evidence of
` which I'm aware that suggests that the third-party
` machine that Wirtgen actually inspected included
` any of the features claimed in the patent at issue
` or even features relating thereto.
` Even assuming that the third-party machine
` that Wirtgen inspected had those features, nothing
` is discussed in the document that relates to those
` claimed features.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 6 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` I honestly don't think Caterpillar's counsel
` can make a colorful argument that anything in there
` does relate to the claimed features.
` I think that further evidence of that is that
` Caterpillar essentially refused to meaningfully
` reduce the number of pages they want from this
` document and that's because none of the pages are
` specifically relevant in any way, so they can't
` choose any pages that they want. They said they
` would not put in the final page until the end, so
` that's really the issue.
` If there was something in here that was
` relevant, then we probably wouldn't be having this
` discussion because -- I agree the shoe is on the
` other foot, but this is not a comparable situation
` because there's nothing in this document that
` relates to the claimed features.
` JUDGE CHERRY: Mr. Mroz.
` MR. MROZ: Sure. I have to be careful.
` Mr. Ogden is at liberty to get into the details
` more than I am because it's his party's documents,
` so I have one hand tied behind my back here, but
` I'll do my best.
` The document in terms of the inspection and
` the pages that we want to rely on, we really want
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 7 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` to rely on this two different ways: One to show
` the extent of the inspection, and that requires
` relying on the entire document at a broad level,
` because it's only 43-page document, and then -- we
` do have specific pages we want to rely on in
` addition to that that we plan to use in conjunction
` with other documents that do show relevance to the
` patented features.
` I can't get much more into it than that, but
` these will help us rebut -- that statement that I
` mentioned on page 1 and I know that Mr. Ogden
` disagreed with me on the relevance of it, but our
` position is it's not just relevant, it's highly
` relevant.
` It is relevant to copying too -- and you
` actually hit the nail on the head, Your Honor, when
` you talked about public features being available
` and preventing a copying defense. So that's the
` other reason we want to rely on it, but we're
` hesitant to get too much into what the features are
` in the document. So it's highly relevant. If this
` comes down to a relevance issue, it's highly
` relevant.
` JUDGE CHERRY: Mr. Ogden, how can I -- how can
` we really -- how can we really determine -- I mean,
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 8 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` he's made a case that it's -- why it would be
` relevant. I mean, without seeing the document, how
` can we really make that determination?
` MR. OGDEN: I think that's a fair point. I'll
` be honest, I'm surprised that he would continue to
` push relevance, and I note that he did not mention
` that he believes that anything that's specifically
` related to the claimed features is there.
` They want -- I think the first point he made
` was he wants to show the extent of our inspection,
` and I don't see how in any way, shape, or form the
` extent of our inspection is relevant to their
` copying. I think what he would like to argue to
` you is everybody looks at each other's stuff, so
` what we did is okay, but I don't think that's
` relevant to the issues at hand.
` I agree with you it's difficult without seeing
` the document and so maybe, you know, if you guys
` end up deciding this, you'll come to find out that
` there is nothing in this document that's relevant
` to the claimed features.
` But I would also point out that this is the
` first time that he's ever suggested to me that
` there might be certain pages that they need to rely
` on here, and we haven't had a meaningful discussion
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 9 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` about whether that might be okay. Because when I
` asked this, and I have the email, "specifically
` identify the pages", he was unable to do so and
` that's a little -- I find that a little frustrating
` to be caught on this call with him now alleging
` there are relevant pages.
` JUDGE CHERRY: Mr. Ogden, you guys don't play
` well together, we've kind of established that --
` MR. OGDEN: Right.
` JUDGE CHERRY: -- in this case, so I don't --
` I don't want to hear this tit for tat stuff.
` MR. OGDEN: Fair enough, Your Honor.
` JUDGE CHERRY: Do you understand, Mr. Mroz,
` with that caution that I just put out there?
` MR. MROZ: I do, Your Honor, sure.
` Sorry, I didn't -- I'm sorry, Your Honor, I
` didn't hear what you said for that last part.
` JUDGE CHERRY: I'm just saying like -- I just
` warned Mr. Ogden about the tit for tat. With that
` warning applying to you as well, what did you want
` to say?
` MR. MROZ: Sure. I just want to correct the
` record. I don't want to get into what Mr. Ogden
` just said, given your advice, but we disagree with
` that characterization. We had a meet and confer
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 10 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`11
` over the phone where we did discuss specific pages.
` In terms of the patented feature, that
` statement I read from page 1, Patent owner was the
` first to recognize the advantages of monitoring the
` lifting positions of a road construction machine
` lifting column to permit an operator to select a
` desired frame orientation of a particular Wirtgen
` operation, that goes to the heart of the claims and
` it's a mischaracterization in our view. I know
` that Mr. Ogden disagrees, but I think we're
` entitled to prove our side of the case.
` JUDGE CHERRY: I guess why wouldn't that be
` relevant to the state of the art, Mr. Ogden?
` MR. OGDEN: Well, I think what you'll see when
` you see this document is that there is nothing in
` this document about anything on either machine, the
` Wirtgen machine or the third-party machine,
` monitoring the lifting position on the road
` construction machines lifting columns to permit an
` operator to select a desired frame orientation for
` a particular Wirtgen operation.
` I see they have some other public documents
` that might have relevance to that, but not this CBI
` document. Without you seeing it you make a point,
` it's difficult to know what's in the document.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 11 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` JUDGE CHERRY: What is so confidential about
` this document that -- just the mere fact that
` Wirtgen inspected this machine?
` MR. OGDEN: It's a document that's generated
` that demonstrates how Wirtgen business people go
` about differentiating their machines from other
` machines.
` Wirtgen would like to protect all confidential
` information and keep it confidential whenever it
` can, so I'm advocating on the behalf of that
` confidentiality.
` JUDGE CHERRY: I mean, I guess if he's saying
` that they're going to put this together with other
` documents and you've admitted that there are --
` there may be other public documents that bear on
` this and they want to -- and they think that this
` is a part of that -- that that will help make the
` public documents more meaningful, why doesn't that
` meet the threshold of the first factor of the
` Garmin test?
` MR. OGDEN: Because I don't think this
` document does anything when it's put together with
` anything else, especially the thing -- let me just
` briefly raise the context of what's going on here.
` They want to file some exhibits related to a
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 12 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` third-party machine and they're going to start to
` demonstrate the state of the art, but they're
` trying to gap fill back for the lack of what they
` needed to have in their prima facia case.
` The reason this is an issue is that when they
` come to depose our expert, he relied on
` confidential testimony from a third-party employee
` when he gave his opinion in the ITC investigation
` parallel to this.
` The concern here is they want to use this
` asking questions and he's going to have to
` differentiate in his head what he can and can't say
` knowing that there's third-party confidential
` information that might assist in our case, and he's
` not going to be able to do this without implicating
` issues with protective order third-party
` information.
` My concern is that the more that they put in
` of this sort of thing, and this particular thing
` that I don't believe is relevant, it's going to
` make this a mess when we get around to the
` deposition, and so that's another reason I'm trying
` to, you know, be agreeable about what's relevant
` but keep out what's not relevant so that we don't
` have all this noise around everything when we have
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 13 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`14
` to answer these questions that are going to then be
` essentially derived from third-party confidential
` information, so that's just a second issue with
` this.
` JUDGE CHERRY: I guess that kind of raises a
` concern with me that there's an incomplete record.
` MR. OGDEN: In terms of if you don't have this
` particular document, the record would be
` incomplete?
` JUDGE CHERRY: Well, it concerns me that there
` is questions that may be relevant that he can't
` answer.
` MR. OGDEN: I believe that that will be the
` case.
` JUDGE CHERRY: I mean, if it's completely
` irrelevant, then why would he be even concerned
` about these questions?
` MR. OGDEN: Let me back up. The relevance
` issue is going to come in with these other
` documents --
` JUDGE CHERRY: It's really hard for me to
` totally understand what -- what you're talking
` about.
` MR. OGDEN: Right. Right. So I believe --
` you know, he can answer the questions about the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 14 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`15
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` Wirtgen document, but when they interrelate with
` these other public documents those are the ones
` where all the information that was explained in the
` public documents occurred in a confidential
` deposition.
` Now, we're between a rock and a hard place
` where he needs to explain why this document of
` Wirtgen's is not relevant, but in order to do so he
` would mostly likely need to reveal stuff that's
` based on third-party confidential information.
` So now we're in a big mess and that's really a
` big part of this issue. It's almost impossible for
` me to explain it to you without revealing all that
` information, so...
` MR. MROZ: There's a protective order in place
` at this point and we can -- if the deposition is
` the issue, we can -- we worked on this case for a
` long time together, opposing counsel, and we can
` sort through the confidentiality issue at the
` deposition.
` I don't think that should be a reason to
` preclude us from relying on what we believe is
` highly relevant evidence in supporting our case.
` In fact rebutting the positions that Wirtgen
` was able to make, because the documents we gave
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 15 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`16
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` them were confidentially in this IPR.
` MR. OGDEN: Your Honor, I just believe we're
` handicapped if my expert can't rely on this
` third-party confidential information he knows to
` essentially rebut what I expect them to argue.
` This document introduces all of this together and
` it's going to come --
` JUDGE CHERRY: I have to take your word for it
` that that's not relevant. You're --
` MR. OGDEN: That's true.
` JUDGE CHERRY: -- that if -- if the panel sees
` the document that that will be somehow misled,
` because it does seem relevant; but there's some
` other secret information that you have that would
` render it irrelevant, but you can't show it to us.
` MR. OGDEN: I think you'll see right off that
` this particular document they're seeking does not
` have any relevance to anything that's going on in
` this case, not to any ground of unpatentability
` that's at issue in this case and not to the copying
` allegations in this case.
` Like you said, I can't tell you -- I can't
` tell you why that is completely without showing you
` the document so you can see for yourself.
` JUDGE CHERRY: I'm going to have to take
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 16 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`17
` Mr. Mroz' word on -- he's represented to us that it
` is relevant to the statement you made on page 1 of
` the patent owner response.
` Do you have a response to that contention?
` MR. OGDEN: My response to that contention is
` the only thing I can tell you is nothing in the
` document relates to the advantages of monitoring
` the lifting positions in a road construction
` machine's lifting columns to permit an operator to
` select a desired frame orientation for a particular
` Wirtgen operation. There's just nothing about that
` in this document.
` JUDGE CHERRY: Mr. Mroz, what do you say to
` that?
` MR. MROZ: It's just not true. There's a
` feature described in there that if used in
` conjunction with other -- of the documents we have,
` without going into anything more than that, it is
` relevant. We just disagree.
` MR. OGDEN: One thing I would suggest is it
` would be very helpful if Mr. Mroz wanted to
` actually point me to the page, or pages, that he's
` talking about, I might be willing to forego any
` kind of issue about briefing, if that's going to be
` an issue, and just get this in with the pages that
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 17 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`18
` they want. I don't know because I haven't seen the
` pages and I don't -- he hasn't told me what they
` are.
` I could be wrong, I could be wrong. I just
` don't see anything in here. Maybe I could see his
` point of view if I knew what he was trying to say.
` MR. MROZ: At a minimum the first page is the
` one we talked about on the phone when we had a meet
` and confer, which is WA-ITC_0028023.
` MR. OGDEN: I'm sorry, Dave, I'm having a
` problem pulling this up. If you have it, I'd ask
` that you can shoot it to me, that would be helpful.
` MR. MROZ: Sure.
` MR. OGDEN: I got it. What was the last three
` digits of the page number that you referenced?
` MR. MROZ: One second, we're pulling it up
` again. We closed it out to email it to you. It's
` 023.
` MR. OGDEN: I guess the one I have is
` different. Oh, I see, gotcha.
` MR. MROZ: That's just one example of pages
` that's used with other documents to be connected to
` the relevant features.
` MR. OGDEN: I don't see it at all. To be
` honest, I just don't even see how you can assert
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 18 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`19
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` that's relevant.
` MR. MROZ: I just can't get into the document
` unfortunately. There's a picture on there --
` MR. OGDEN: I understand. I understand. I
` just -- we just disagree, that's all there is to
` it.
` MR. MROZ: Okay.
` JUDGE CHERRY: Well, it sounds like we're not
` going to reach an agreement on this call. It
` sounds like what we need is some briefing.
` Petitioner, when can you file your motion?
` MR. MROZ: Within a week?
` JUDGE CHERRY: Sure. October 22nd?
` MR. MROZ: Yes, that works.
` JUDGE CHERRY: Mr. Ogden, when do you want to
` oppose?
` MR. OGDEN: I think I should be able to do
` that -- week and a half to have opposition in by
` the close of business on the 25th.
` JUDGE CHERRY: On October 25th?
` MR. OGDEN: Yes.
` MR. MROZ: Your Honor, I just realized this
` will be relevant -- this could be relevant for a
` deposition. It's I think set for November 1st, so
` we can do it faster than a week. We can -- we can
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 19 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`20
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` do it by Friday if that works.
` MR. OGDEN: I can do by Wednesday the 24th if
` that's sufficient. If you let me know when you
` need it so that we can get a decision in time for
` the deposition so that Mr. Mroz has everything he
` needs, I'll make it happen.
` MR. MROZ: In the last, did we give a -- did
` do we have a reply?
` MR. OGDEN: I think we did.
` JUDGE CHERRY: You need a reply, Mr. Mroz?
` MR. MROZ: I don't think so. I mean, if it's
` going to put Your Honors in a bind -- well, maybe
` just like a one-page reply the day after is
` something we can do, that would be fine.
` JUDGE CHERRY: How many pages do you want for
` the motion?
` MR. MROZ: I think we only need five, given
` this has been briefed -- this issue has been
` briefed so much in the past.
` We just confirmed there was no reply brief
` last time, but we're happy to take a one-page reply
` brief or two-page reply brief.
` (Simultaneous talking)
` JUDGE CHERRY: I'm sorry?
` MR. OGDEN: I said that would be okay with me
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 20 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`21
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` if they need it.
` JUDGE CHERRY: Sure, a one-page reply. Five
` pages is okay for you, Mr. Ogden?
` MR. OGDEN: Sure, that's sufficient. I'll try
` to keep it to three.
` JUDGE CHERRY: Perhaps the parties can talk a
` little bit more and maybe reach an agreement. I
` mean, I've got to say given the discussion that
` we've had, it seems like something that we would
` have to see probably in the context of the reply
` brief to be able to make a final -- to be able to
` evaluate it ourselves.
` But, you know, we'll let -- Mr. Ogden is
` within his rights to not produce it, so we'll go
` through the motion route.
` MR. OGDEN: Dave, I would like to consult with
` the other attorneys and possibly have another phone
` call within the next day or two days before you get
` your brief written and see if we can't work it out.
` MR. MROZ: Sounds good.
` JUDGE CHERRY: Do the parties have anything
` else they want to discuss?
` MR. MROZ: One thing Mr. Goldberg just
` recommended is, if it would make it easier,
` Your Honor, we could do an in-camera review of the
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 21 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`22
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` document.
` JUDGE CHERRY: What do you think about that,
` Mr. Ogden?
` MR. OGDEN: That would be fine with me.
` JUDGE CHERRY: I'm always reluctant to do
` these things, because again it's subject to the
` protective order of ITC and I don't think that an
` in-camera review -- given that it's business
` confidential information and ITC, I'm a little
` reluctant to have you sending into us and -- I
` mean, unless Mr. Ogden -- I guess you can waive the
` confidentiality with respect to that?
` MR. OGDEN: Yes, Your Honor. I think -- we
` already have a protective order in this case, but I
` think the wording is pretty close to what's in the
` ITC. So I would think that that would make a
` filing of this confidentially with the board for
` the board's review acceptable.
` Dave, do you have a view on that?
` MR. MROZ: No, that's fine with us. You would
` have to -- that would be on your side to waive
` that.
` MR. OGDEN: Yeah, I can do that.
` JUDGE CHERRY: Would you just file -- would
` you file it -- I don't know, I've not had anybody
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 22 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`23
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` do in-camera review. I don't know what -- maybe
` Mr. Goldberg is more familiar.
` Have you just sent it to us in an email or did
` you file it in the -- file it on the docket?
` MR. GOLDBERG: This is Josh Goldberg. I've
` never actually done it, I've just heard of it being
` done --
` JUDGE CHERRY: I don't have any -- I've heard
` of it, I didn't -- I don't remember the details,
` though.
` MR. GOLDBERG: I think as a practical matter
` it could be accomplished by us filing it as either
` board's eyes only or parties and board's eyes only.
` Then in the event that the motion for additional
` discovery was not granted, then it could be
` expunged from the record.
` JUDGE CHERRY: I like that approach.
` Is that okay with you, Mr. Ogden?
` MR. OGDEN: Yes, that would be fine with me.
` I guess the question here is: Do you prefer to
` have the full briefing around it or -- I mean, I've
` said my piece and I don't know if Mr. Mroz wants to
` say more, but I can stand on what we've discussed
` today and be satisfied just with you guys taking a
` look, but I'm happy to put briefing around it if
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 23 of 33
`
`
`
` Telephone Hearing
`
`Case No. IPR2017-02188
`
`October 15, 2018
`
`24
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` that would assist the board.
` JUDGE CHERRY: Well, we need a motion to do
` things. We don't just do things. We're going to
` have a motion. Especially cause Judge Grossman and
` Judge Daniels aren't here, I think they'd benefit
` from, even though -- I want to remind the parties
` to file -- Mr. Mroz, please file the transcript as
` an exhibit once you receive it from the court
` reporter.
` MR. MROZ: Certainly.
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
