D ow N E Y B R A N D
`
`Michael J. Thomas
`mthomas@downeybrand.com
`916.520.5310 Direct
`916.520.5710 Fax
`
`Downey Brand LLP
`621 Capitol Mall, 18‘“ Floor
`Sacramento, CA 95814
`916.444.1000 Main
`downeybrond.com
`
`August 3, 2018
`
`VIA E-MAIL JASON.JACKSON@KUTAKROCK.COM
`
`Jason S. Jackson
`
`Kutak Rock LLP
`
`The Omaha Building
`1650 Famam Street
`
`Omaha, NE 68102-2186
`
`Re:
`
`Artesian Home Products, et a]. v. Gutterglove, Inc.
`
`Dear Counsel:
`
`I write in filrtherance of our email exchange which started with your email sent Friday, July 27,
`2018 (one week ago today) at 4:38 pm. As you know, that was my last day in the office before
`leaving for vacation, and I have been on vacation and did not return to my office until yesterday,
`Thursday, August 2, 2018. Moreover, your email late Friday afternoon came in after I had
`already left the office. Nevertheless, I attempted to respond to the substance of your email
`during my family vacation, but I have not had time until today to fillly address the actual issues
`raised in your email. That is partly due to the fact that I was tied up with your client’s other
`counsel, Eric Jeppson, for four hours yesterday evening discussing settlement options at his
`request, rather than focusing on your email demand.
`
`In your emails, you asserted for the first time that certain publically available documents, which
`you chose not to identify in your opening email, revealed the existence of an entity you contend
`is “Artesian Home Products LLC.”
`
`Although you assert the referenced documents have been publically available since no later than
`2016, you never raised this issue before, and never brought your concern to my attention before
`last week. I would also note that your email was the first I had heard of any documents
`referencing “Artesian Home Products LLC.” I do not represent any such entity. During our
`conference call with the PTAB yesterday, you represented to the Board that you never had
`possession or knowledge of any such documents revealing any reference to Artesian Home
`Products LLC until one week ago, which was your justification for not having raised your
`request for additional pages sooner. The Board relied on that representation and granted your
`requested word count extension in all three petitions.
`
`|PR2018—00015
`
`Petitioners Ex. 1025 p. 1
`
`IPR2018-00015
`Petitioners Ex. 1025 p. 1
`
`

`

`Jason S. Jackson
`
`August 3, 2018
`Page 2
`
`In your emails, you openly acknowledged that there is no such actual entity registered with the
`California Secretary of State, or in any other state, by the name of Artesian Home Products,
`LLC. Nevertheless, you alleged that because my client, Artesian Home Products (which is a
`registered California corporation and which has no “Inc.” in its name despite its corporate
`status), has apparently used that name on certain publically available warranties offered to
`customers, that this constitutes “proof’ of the existence of a “partnership” called Artesian Home
`Products, LLC. You also allege that because that alleged “partnership” is not party to the IPR
`petitions, that it is an unnamed real party in interest.
`
`In your emails, you alleged that the “general partners” of this supposed “partnership” were the
`petitioners Artesian Home Products (a corporation) and ADR, Inc. (a corporation). You offered
`no evidence to support that allegation, and you offered no evidence of the existence of any such
`partnership.
`
`You also reasoned that because California law prohibits the use of a fictitious business name
`(FBN) that includes the letters “LLC” unless the actual entity is an LLC, the name “Artesian
`Home Products, LLC” cannot possibly be the fictitious business name of either of the corporate
`Petitioners. You then followed that with a nonsequitur, and argued that the name “Artesian
`Home Products, LLC” must therefore be the name of an unidentified secret “partnership.” When
`I pointed out the obvious flaw in your reasoning (which also precludes the name from being an
`FBN for partnership since partnerships also are not LLCs), you never addressed my observation.
`
`Your email then went on to accuse me of engaging in unethical conduct by supposedly Violating
`section 42.51(b)(l)(iii) concerning the service of information that is inconsistent with a position
`taken during the proceeding. You contend that any document on which either Petitioner used the
`name Artesian Home Products LLC, is somehow inconsistent with the position that all real
`parties in interest have been included in these matters.
`
`For a number of reasons, I disagree with your assertions. The existence of any documents that
`contain the name “Artesian Home Products LLC” says nothing about whether such an entity,
`assuming for the sake of argument it existed (it does not), is a real party in interest under the
`controlling PTAB authority.
`I am unaware of any authority for the proposition that the test of
`what is a real party in interest turns on the name used. Thus, there is nothing about the
`documents you demanded one week ago (for the first time) that would in any way be inconsistent
`with any position Petitioners have taken before the PTAB. For instance, if Petitioners had
`represented to the PTAB that then had never used any name other than their formal business
`names registered with the California Secretary of State, (they never did take that position) the
`documents you reference might tend to be inconsistent with such a representation. But of course
`Petitioners never made any such representation.
`
`Your characterization of “long-overdue” information is without merit, because: a) no documents
`are due at all since nothing about any such documents is inconsistent with any petition we have
`taken in the proceedings, b) we had no idea you were contending the documents were
`
`DOWN EYBRAND
`
`IPR2018—00015
`Petitioners Ex. 1025 p. 2
`
`IPR2018-00015
`Petitioners Ex. 1025 p. 2
`
`

`

`Jason S. Jackson
`
`August 3, 2018
`Page 3
`
`inconsistent an until last Friday, after I had already left the office, and was preparing to leave
`town; and c) I was entirely unaware of this issue or the existence of any documents referencing
`Artesian Home Products LLC until you brought that to my attention this past week. For these
`reasons, no documents are “due,” and no document can be “long-overdue.”
`
`Given that you stated that you found the warranties referencing Artesian Home Products LLC on
`my clients’ websites, and you contend they have been there since 2016, I do not find credible
`your allegation that you just now found these documents. Your Preliminary Response to all
`three Petitions focused heavily on your baseless real party in interest allegations, and thus your
`contention that you just obtained these documents is not credible. The more reasonable
`explanation of what is going on here, is that you have been holding this issue in reserve in order
`to pretend you have some evidence of misconduct when in fact there is none whatsoever,
`because the Patent Owner’s position on the merits is not well taken.
`
`Notwithstanding all of the foregoing, I have confirmed as you asked that my suspicion that I
`provided in my preliminary email response was in fact correct. Put differently, the existence of
`documents that reference “Artesian Home Products LLC” are simply mistakes by my client and
`nothing more. This appears to be driven by a number of factors, including my clients’ lack of
`sophistication, the fact that their corporate entity Artesian Home Products has no Inc. in the
`name which leads to confusion, and the fact that a number of the documents you reference were
`originally created for Quincy Home Products, LLC, (an entity which no longer exists), and my
`client utilized the preexisting documents by changing the term Quincy to Artesian, and left the
`rest of the former name intact by mistake. Since you have brought these mistakes to my clients’
`attention, they are taking steps to correct the mistakes and to remove references to LLC and have
`endeavored to correct them wherever they may exist, but this may take a bit more time. For
`instance, the Valor warranty has already been corrected online.
`
`Your contention that they cannot be mistakes because my client now uses sophisticated counsel
`(namely my law firm) is Without merit because my law firm does not assist my client on such
`transactional matters, and only represents Petitioners in this IPR, and only began doing so less
`than a year ago. Such documents are not evidence of any partnership, and are not evidence of
`the existence of any unnamed real party in interest. As stated, there is no partnership. As you
`yourself confirmed, there also is no registered entity Artesian Home Products LLC in any state in
`the United States. But even if there was a partnership, your email never explained how or why,
`assuming a partnership did exist, it would qualify as an actual real party in interest.
`
`Notwithstanding the foregoing, out of an abundance of caution only, and not because Petitioners
`have any obligation to provide them, I am providing simultaneously with this letter a series of
`documents I have been able to obtain that include the term “Artesian Home Products LLC” just
`as you requested. You specifically asked for “web sites, warranties, advertisements, product
`materials, correspondence, and the like identifying Artesian LLC.” I have been unable to find
`any websites, advertisements, or product materials, but have found various agreements and
`
`DOWN EYBRAND
`
`|PR2018—00015
`Petitioners Ex. 1025 p. 3
`
`IPR2018-00015
`Petitioners Ex. 1025 p. 3
`
`

`

`Jason S. Jackson
`
`August 3, 2018
`Page 4
`
`correspondence, which I have provided to you. The bates range is IPR—PETITIONERSOOOOO] -
`IPR-PETITIONERSOOOI44.
`
`I recall emails where we approved your request for the standard protective order, and thus we
`have labeled these documents accordingly. That said, because the rules apparently would allow
`you client to access the documents, we have through necessity redacted the documents as well,
`but the purpose for which you have sought these documents is fully satisfied.
`
`Very truly yours,
`
`DOWNEY BRAND
`
`
`
`
`
`W
`
`.
`
`Michael
`
`MJT
`152730] .1
`
`Enclosures
`
`cc:
`
`John Costello
`
`DOWN EYBRAND
`
`IPR2018—00015
`Petitioners Ex. 1025 p. 4
`
`IPR2018-00015
`Petitioners Ex. 1025 p. 4
`
`