UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARTESIAN HOME PRODUCTS
`and
`AMERICAN DIE & ROLLFORMING
`Petitioners,
`
`v.
`
`GUTTERGLOVE, INC.,
`Patent Owner.
`
`Case IPR2018-00030
`Patent 8,479,454 B2
`
`DECLARATION OF MICHAEL J. THOMAS
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 1
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`ARTESIAN HOME PRODUCTS
`and
`AMERICAN DIE & ROLLFORMING
`Petitioners,
`
`v.
`
`GUTTERGLOVE, INC.,
`Patent Owner.
`
`Case IPR2018-00030
`Patent 8,479,454 B2
`
`DECLARATION OF MICHAEL J. THOMAS
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 1
`
`
`
`I, Michael J. Thomas, declare as follows:
`
`1.
`
`I am an attorney at law, licensed to practice in the State of California
`
`and before the Board, and I am lead counsel of record for Petitioners Artesian
`
`Home Products ("Artesian Home Products") and American Die & Rollforming
`
`("ADR") (collectively "Petitioners"). I have personal knowledge of the facts set
`
`forth herein, except those matters stated upon information and belief which I
`
`believe to be true. If called to testify, I could and would testify competently to the
`
`contents herein.
`
`2.
`
`I make this declaration in part because Patent Owner Gutterglove
`
`("Gutterglove") chose to include numerous back and forth email correspondence
`
`between counsel as part of its Motion for Additional Discovery, which contains
`
`numerous inaccurate statements by counsel for Gutterglove, and which fails to
`
`include the attachments or documents referenced in the emails, and which is thus
`
`incomplete.
`
`3.
`
`During the August 22, 2018, conference call with the Board, counsel
`
`for Gutterglove, Mr. Jason Jackson, Esq., stated unequivocally that he first became
`
`aware of the term "Superior Gutter Guards" in July 2018. As I said during the
`
`conference call, this assertion was and is demonstrably incorrect. Exhibit 1017,
`
`authenticated through the Declaration of John Costello who is Petitioners' backup
`
`counsel in this proceeding and lead counsel in the co-pending patent litigation, is a
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 2
`
`
`
`copy of a "Superior Gutter Guards" product brochure served on counsel for
`
`Gutterglove at the Kutak Rock firm (specifically to attn. Jason Jackson) on March
`
`28, 2017, well more than a year earlier in the pending patent litigation. Of course,
`
`this brochure also has been publicly available online long before then, and thus
`
`could have been in counsel's possession far longer.
`
`4.
`
`In addition, Exhibit 1018, authenticated through the Declaration of
`
`John Costello, is a copy of supplemental interrogatory responses served by
`
`Artesian Home Products on July 14, 2017, upon Mr. Jackson in the co-pending
`
`patent litigation, which repeatedly references "Superior Gutter Guards" as one of
`
`the five product lines of gutter guards marketed and sold by Artesian Home
`
`Products. As indicated in the interrogatory responses, those product lines include
`
`Valor Gutter Guard, Bolt Gutter Guard, Arrow Gutter Guard, Diamond Gutter
`
`Guard, and Superior Gutter Guards. For this additional reason, Mr. Jackson's
`
`unqualified statement that he first became aware in July 2018 that Artesian Home
`
`Products had a product line called "Superior Gutter Guards" was and is incorrect.
`
`5.
`
`Despite having possessed verified discovery responses and documents
`
`referencing the Superior Gutter Guards product line for well over a year, Mr.
`
`Jackson never once asked me for any documents related to this product line, or
`
`claimed that this product line was somehow an "entity," until after he had filed
`
`Patent Owner's Response to the Petition in August 2018. By sequencing his
`
`2
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 3
`
`
`
`demands in this manner, counsel's demands have caused maximum disruption
`
`during Petitioners' time to prepare a reply in each of these IPR proceedings.
`
`6. Mr. Jackson has repeatedly and wrongly accused me, as reflected in
`
`the emails he chose to attach to the instant Motion for Additional Discovery (Ex.
`
`2058), of violating my duties under 37 C.F.R. § 42.51(b)(1)(iii), by incorrectly
`
`claiming that any documents that reference the term "Superior Gutter Guards," or
`
`the term "Artesian Home Products LLC," somehow contradict Petitioners' position
`
`that all real parties-in-interest have been named in these proceedings. Mr. Jackson
`
`is incorrect because the existence of any such documents is not inconsistent with
`
`any position taken by Petitioners in this matter.
`
`7. With respect to Mr. Jackson's accusations concerning documents
`
`having the term "Artesian Home Products LLC," he raised that issue for the very
`
`first time late in the day on Friday, July 27, 2018, as I was leaving for a nearly
`
`week long family vacation. I wrote to Mr. Jackson on August 3, 2018, within less
`
`than 24 hours of my return, and addressed his incorrect allegations concerning my
`
`clients' use of the term "Artesian Home Products LLC." Exhibit 1023 is a true and
`
`correct copy of my August 3, 2018, letter.
`
`8.
`
`I had hoped that this non-issue would be resolved by my letter, but
`
`that did not happen. Instead, as set forth in the email chains relied upon by
`
`Gutterglove, Mr. Jackson wrongly accused me of having violated section
`
`3
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 4
`
`
`
`42.51(b)(1)(iii) concerning documents with the term "Superior Gutter Guards."
`
`But it is Mr. Jackson's representations to the Board about when he learned of the
`
`product line "Superior Gutter Guards" or when he first had possession of
`
`documents referencing the term "Artesian Home Products LLC" (which
`
`Gutterglove also wrongly contends is an entity) that are incorrect and disproven by
`
`Mr. Jackson's possession of such documents years earlier.
`
`9.
`
`I have specifically asked Mr. Jackson, pursuant to section
`
`42.51(b)(1)(iii), to provide Petitioners with all documents in his possession that
`
`reference either of these terms, along with a log showing when he came into
`
`possession of these documents. Thus far, he has not complied with my request.
`
`10. A sizeable portion of the emails between Mr. Jackson and me that
`
`Gutterglove included as exhibits in support of its motion for additional discovery
`
`reference my multiple requests that Mr. Jackson de-designate certain documents
`
`which prove that other representations Mr. Jackson made to the Board during the
`
`Board's earlier August 2, 2018, hearing (namely representations that he first came
`
`into possession of documents including the term "Artesian Home Products LLC"
`
`just the week before—the last week of July 2018 so as to justify his belated request
`
`for an increase in the word count) were also incorrect. After my repeated requests,
`
`Mr. Jackson finally de-designated documents that he produced in October 2017, in
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 5
`
`
`
`the co-pending patent litigation. Those documents, Exhibit 1019, are authenticated
`
`in the Declaration of John Costello.
`
`I declare under penalty of perjury under the laws of the United States of
`
`America that the foregoing is true and correct.
`
`Michael J. Thomas
`
`Executed on this 5th day of September, 2018.
`
`5
`
`IPR2018-00030
`Petitioners Ex. 1022 p. 6
`
`
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