U.S. PATENT AND TRADEMARK OFFICE
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
`
`UNIFIED PATENTS, INC.,
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG S.A. & UNILOC USA,
`Patent Owner.
`__________________________________
`
`Case IPR 2018-00199
`Patent 7,092,671 B2
`__________________________________
`
`Record of Oral Hearing
`Oral Hearing Held: February 28, 2019
`__________
`
`Before MIRIAM L. QUINN, CHARLES BOUDREAU, GARTH D. BAER,
`Administrative Patent Judges.
`
`
`__________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________
`
`UNIFIED PATENTS, INC.,
`Petitioner
`
`v.
`
`UNILOC LUXEMBOURG S.A. & UNILOC USA,
`Patent Owner.
`__________________________________
`
`Case IPR 2018-00199
`Patent 7,092,671 B2
`__________________________________
`
`Record of Oral Hearing
`Oral Hearing Held: February 28, 2019
`__________
`
`Before MIRIAM L. QUINN, CHARLES BOUDREAU, GARTH D. BAER,
`Administrative Patent Judges.
`
`
`
`Case IPR 2018-00199
`Patent 7,092,671 B2
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`DAVID L. CAVANAUGH, ESQ.
`ELLYAR Y. BARAZESH, ESQ.
`of: Wilmer, Cutler, Pickering, Hale and Dorr, LLP
`1875 Pennsylvania Avenue, NW
`Washington, D.C. 20006
`(202) 663-6025
`david.cavanaugh@wilmerhale.com
`ellyar.barazesh@wilmerhale.com
`
`ON BEHALF OF THE PATENT OWNER:
`
`BRETT MANGRUM, ESQ.
`of: Etheridge Law Group, PLLC
`2600 E. Southlake Boulevard
`Suite 120
`Southlake, Texas 76092
`(817) 470-7249
`brett@etheridgelaw.com
`
`The above-entitled matter came on for hearing on Thursday,
`February 28, 2019, commencing at 3:00 p.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`P-R-O-C-E-E-D-I-N-G-S
`
`(2:58 p.m.)
`JUDGE BAER: Okay, good afternoon, everyone. We are here for a
`final hearing in IPR 2018-00199, which is between Petitioner, Unified
`Patents and -- I'm sorry. Yes, between Petitioner Unified Patents and Patent
`Owner Uniloc.
`I'm Judge Baer, and we have appearing remotely, Judge Boudreau
`and Judge Quinn, as well. Let's go ahead and get the parties' appearances,
`please, if you would. Petitioner, you can go first.
`MR. BARAZESH: Sure. My name is Ellyar Barazesh. I'm counsel
`for Petitioner. And with me is Dave Cavanaugh, as well.
`JUDGE BAER: Great. Thank you.
`MR. MANGRUM: Good afternoon again, Your Honors. This is
`Brett Mangrum and -- you going to be okay remotely? And I will be
`presenting on behalf of Uniloc.
`JUDGE BAER: Great. Thank you. Welcome, thank you all for
`coming. We appreciate you coming here.
`Okay, we set forth the procedure in our hearing notice, but just to
`remind everybody how this will go, each party will have 30 minutes of total
`argument time.
`Please keep in mind that whatever you project up on the screen,
`Judges Boudreau and Quinn will not be able to see. So, if you would refer
`
`3
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`to the slide number you're referring to, that way we can keep the record
`clear, and that way Judges Quinn and Boudreau what slide you're talking
`about.
`
`We'll remind the parties that under no circumstances should you
`object to the other party's materials during their argument time. So, if you
`want to object, that's fine. You can do that during your own argument time.
`But please save that for your argument time.
`We noted in an email to the parties that we would make
`accommodations for a sealed portion of this hearing. And we'd actually like
`to begin the hearing with addressing the RPI issue.
`So, what we'd like to do is go ahead and excuse anyone who's not
`signed a protective order acknowledgment. So, obviously, that's just going
`to be you all over here, since Mr. Mangrum is the only one here for patent
`owner. So, where does that put you all?
`MR. CAVANAUGH: Your Honor, we have all signed the
`protective order. It's our confidential information. So, that's -- I think we're
`fine.
`
`JUDGE BAER: Great. Any objection, Mr. Mangrum?
`MR. MANGRUM: Only to the extent that we haven't received any
`copy of the signed acknowledgment from opposing counsel. I have signed
`the protective order copy.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`4
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`JUDGE BAER: And you would agree that it's going to be all their
`information anyway. Correct?
`MR. MANGRUM: Yes. And for that reason we have no objection.
`I just want to clarify the record that there's been no documentation of a
`signed acknowledgment.
`JUDGE BAER: Great. Okay. Like I said --
`MR. CAVANAUGH: I'm sorry, Your Honor. We do have a
`signed -- if the patent owner would like to see them, we have signed copies.
`JUDGE BAER: That's really up to you all. That's fine. You can
`exchange those after the hearing. So -- as I said, we'd like to start with the
`RPI issue. So, if -- Petitioner, if you would like to reserve some specific
`time -- we may get to the substance anyway, but if you would like, you're
`certainly welcome -- either party actually is welcome to reserve specific time
`to address the merits outside of the RPI, you're welcome to do that. But
`otherwise, we'll just go forward and start with the RPI issue.
`So, does that make sense? Are there any particular questions for
`Petitioner?
`MR. CAVANAUGH: No, Your Honor.
`JUDGE BAER: And from patent owner?
`MR. MANGRUM: Not from patent owner, Your Honor.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`
`5
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`JUDGE BAER: Great. So, with that we are ready to begin. As I
`said, each party will have 30 minutes of time. Petitioner, do you wish to
`reserve some rebuttal time?
`MR. CAVANAUGH: Yes. We'd like to -- and I'll get to the
`podium.
`JUDGE BAER: Sure.
`MR. CAVANAUGH: Your Honor, we'd like five minutes of
`rebuttal time. We anticipate, unless Your Honors have a lot of questions,
`that the RPI issue should take five or ten minutes, and then the balance of it
`we would reserve for the technical merits.
`But of course, if Your Honors have questions about the RPI issue,
`we're happy to entertain them, as long as Your Honors have questions.
`JUDGE BAER: Well, why don't we start with the RPI issue, and
`we'll just kind of go as long as it goes. If there's a point at which you'd like
`to stop and turn to different issues, you can certainly let us know.
`But we'll start with -- you said you'd like to reserve four minutes?
`MR. CAVANAUGH: Five minutes.
`JUDGE BAER: Five minutes. So, we'll start with that. We'll start
`with 25 minutes and you'll get a yellow light with five minutes to go. So,
`with that, whenever you're ready.
`MR. CAVANAUGH: Very good, Your Honor. Thank you. This is
`Dave Cavanaugh with the Petitioner, Unified Patents, and I'm going to fast-
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`6
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`forward through much of the technical discussion to the RPI issue, which is
`on slide 28 of the presentation.
`And I have a couple of preliminary comments regarding the RPI
`issue. And that RPI, as Your Honors know, has kind of spurred some
`additional, like, discovery, discussion, after the RPX-AIT case in the
`summertime, and, you know, the parties have exchanged voluntary
`discovery. And, like, we have responded to questions.
`I think, Your Honors, in view of AIT, you know, there are two
`questions Your Honors can raise. Has AIT changed the law, changed the
`standard of RPI determinations. And the answer to that is no, AIT doesn't
`articulate a new standard or a different standard. The AIT case points back
`to the trial practice guide, the governing document of practitioners and the
`PTAB, for this particular issue.
`One of the questions -- and I'll talk about what the trial practice
`guide provides with regard to the AIT case -- but the second question that I
`think Your Honors should ask and answer for this proceeding, is whether
`there's any evidence that's been proffered in this proceeding, that addresses
`the articulated standard of RPX in a way that would indicate that Unified has
`not complied with the RPI standard in designating the RPIs for this
`proceeding.
`Again, Unified's position is that that answer is no, that there is no
`evidence in the record, even with the volume of information that we
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`7
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`voluntarily provided to the Patent Owner here, Uniloc, we have provided
`information, but none of that information even remotely rises to the level of
`an RPI determination that we have not complied with the RPI responsibility.
`So, with those two preliminary comments, I'd like to address like
`foundationally, like what it is that the RPI determination or the RPI inquiry
`should enquire.
`I think, Your Honors, in a variety of different cases, and this is not
`the first case that Unified has been both challenged on RPI, but then, also,
`have addressed it in significant ways, and there's been no board, no panel,
`that has found RPI to not have been, or to be an issue with regard to Unified
`patents.
`JUDGE BAER: But can you just address the opposite of that --
`JUDGE BOUDREAU: Mr. Cavanaugh, can you cite any cases that
`have come out since the RPX versus the AIT case that have concluded that
`Unified was not obligated to identify its members as RPIs?
`MR. CAVANAUGH: Yes, Your Honor. I believe there are five of
`them that have come down at the -- and I am looking at my notes to see if I
`have them.
`And I think -- why don't I ask my colleague to look at that. I
`think -- would you confirm that these are the cases?
`So, on slide 29, which you're -- kind of said, previewing where I was
`going --
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`8
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`JUDGE QUINN: But does this -- I'm sorry, I just want to clarify.
`The cases we're interested in are cases in which, like my colleague said, are
`whether Unified Patents is not obligated to list its members of RPIs. That
`decision.
`Not -- we're not looking for cases in which Unified Patents was a
`petitioner and there wasn't sufficient evidence to even raise the issue of RPI
`because there was no discovery, or things of that procedural nature. We are
`aware those exist.
`MR. CAVANAUGH: Okay, Your Honor. And so, your question,
`just so I understand it, is whether or not there's been a panel that has made
`the determination that Unified should name -- should not name its members
`as RPIs.
`JUDGE QUINN: Correct, based on evidence of record of your
`practices and things similar to the evidence we have seen here.
`MR. CAVANAUGH: As I stand here, I can't point to a particular
`case that has identified that particular comment.
`There may be a comment in one of the cases, but I'm not aware of
`that. But I will look once I'm off the podium, to confirm that.
`But even so, there has been a volume of discovery regarding
`Unified's practices, regarding Unified's activities with regard to its members
`and its business practices.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`9
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`And I think that from the core principles of whether there's direction,
`funding or control, because as you go through the trial practice guide, those
`are the kinds of things that are relevant to the RPI determination.
`And, Your Honor, here in this proceeding, there is no evidence that
`any of the members have directed, or directly funded, or controlled, these
`proceedings.
`In fact, as the evidence in the record indicates,
`expressly prohibits that.
`JUDGE QUINN: Can I interrupt you there?
`MR. CAVANAUGH: Sure.
`JUDGE QUINN: We -- what I'm looking for, to be honest with you,
`is, what evidence do we have that, vis-a-vis the relationship of Unified and
`its members, that aligns with what the Federal Circuit said in the AIT
`case -- Federal Circuit faulted the board for not looking deeper into that
`relationship -- and the nature of the company, itself, and that also being a
`factor.
`
`
`
`And what I'm looking for is that relationship, which the Federal
`Circuit noted that it was an equitable -- from the practical and equitable
`standpoint, who stands to benefit from the results of that tribunal?
`And so, from where I stand, your contractual obligations with your
`members may put a wall between the control issue, but it doesn't explain that
`the relationship between United and its members is such that you do not
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`10
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`align your interests -- you do not perform actions that don't align with the
`interests of your members.
`MR. CAVANAUGH: Thank you, Your Honor, for that question. I
`want to respond in two ways. One, the AIT case does talk about a beneficial
`relationship. That -- and different than, say, what the facts were in the AIT
`case.
`
`We do not have a beneficial relationship with our members. What
`we do have are technology zones that we've divided into, and so we work
`like toward removing what we consider to be invalid patents on technology
`zones.
`
`And, you know, we don't know whether any particular activity, any
`particular filing, that we would do actually is beneficial to any one member,
`or all members, or even non-members of a technology sector.
`Because what we do is, we look at the prior art, we look at the
`claims, and we file a petition when we think the claims don't meet the
`statutory requirement of patentability.
`JUDGE QUINN: But why would you do that if it doesn't benefit
`absolutely anybody you're interested in?
`MR. CAVANAUGH: It benefits anyone with a product in a zone
`of -- within a particular technology zone, which is how Unified divides their
`business.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`11
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`So, there is no particular benefit for any particular member. And,
`you know, we don't -- in fact, we cannot know whether or not an IPR would
`benefit a particular member, because, one, we don't talk to them about the
`particulars of the IPR, but even more fundamentally, you know, we take
`positions based on invalidity.
`We have no idea what the non-infringement positions are. We have
`no idea what the 112 issue -- I'm sorry, what claims issues might be present.
`So, all of those things are just unknowable to us. And, you know, if
`your question is whether or not there's some undifferentiated benefit to the
`industry, a particular technology sector, or the public-at-large, because a
`patent has been challenged or canceled as a result of Unified's activity, I
`think that's the business model.
`But to the extent that that gets translated into a particularized benefit
`for a particular member, or even group of members, that's just simply
`unknowable.
`JUDGE BAER: Is Unified aware --
`JUDGE BOUDREAU: And how does that distinguish the
` from the relationship between RPX
`relationship between Unified and
`and Salesforce that was at issue in the AIT case?
`MR. CAVANAUGH: I think there are a number of different
`distinctions, and I think I have a couple of slides on that. To the extent that
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`12
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`there are, you know -- the AIT case and, you know, the RPX model, is just
`very different than Unified's model.
`And, you know, we -- and this is our slide, I think, 30, now -- 20,
`yeah, 30 -- you know, we protect technology zones. We don't protect
`members.
`And that's clear from our -- the way that we do our business, the way
`we structure our business, members don't have control or an opportunity to
`control Unified, and, you know, there -- in fact, as I mentioned a moment
`ago, the contract requires them not to have any control.
`We don't work on behalf of members to resolve their litigations.
`That's a difference. And you'll see that what I'm doing is looking at some of
`the salient features in the RPX case with Salesforce, versus the -- or
`with -- in the AIT case, with how Unified structures its business with any
`particular member, including the member that may also be a party to a
`litigation here, for this patent.
`JUDGE BAER: Is Unified taking into consideration whether
`members have been sued on a particular patent when it determines what
`patents to challenge in an IPR?
`MR. CAVANAUGH: No, Your Honor. They do not.
`JUDGE BAER: Is Unified aware of what patents have been asserted
`against its members, generally?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`13
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`MR. CAVANAUGH: Generally, I can't speak to the specifics of
`anything in particular. But in general, they do follow the industry. You
`know, the fact that a particular litigation has been filed, I think they are
`aware of litigations that are filed.
`I don't think they -- but on a particular litigation, I can't speak with
`any certainty whether this or any other litigation is the subject of
`consideration.
`I think Kevin Jakel's declaration does speak to that in terms of like
`how they understand their role and what they do to select patents associated
`with where they want to go with their IPRs.
`JUDGE QUINN: Well, actually, that declaration doesn't really
`explain how those patents are selected. It just vaguely states that they don't
`have input from the particular entities, but it doesn't describe how do you
`select patent X for an IPR, other than to mention some deterrent value to a
`technology zone, and there is no explanation as to how that value is
`determined.
`And my question to you is, is there any consideration of the litigation
`activity concerning patents in that technology zone, in order to assign a
`deterrent value?
`
`MR. CAVANAUGH: Not that I'm aware of, Your Honor, in this
`case or any other case. I think their selection of a patent associated with
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`14
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`determining whether or not to file an IPR, like clearly, there has to be a prior
`art search.
`Clearly, there has to be some consideration of what claims might be
`not meeting a statutory requirement for patentability, whether it's 102, 103 in
`the pre-AIA cases.
`And I think that those -- it is kind of that consideration. It's those
`determinations that govern whether or not they're going to file it.
`I think, also, they consider, you know, where that patent is in the
`technology sector. But aside from that, I'm not sure that they have any rules
`that they go by to consider whether or not to file an IPR.
`And then, clearly, I will say that they believe that once they go
`through the process and they've identified prior art, that the prior art
`challenges are going to merit kind of consideration to the board about
`validity.
`But I think that that's kind of the sine qua non of getting the Petition
`on file. Does that answer your question, Your Honor?
`JUDGE QUINN: Somewhat, but I want to ask you, then, a follow-
`up. Then, it sounds like you do your own determination, and then, entities
` do their own determination. And you're telling me it's pure
`coincidence that you would file a petition around the same time the party
`files a petition.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`15
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
` or any
`MR. CAVANAUGH: We have no knowledge of what
`other member would be doing regarding a particular, like, IPR filing.
`And, you know, just having filed a number of different IPRs, if
`there's a two- or three-day kind of sequence between it, and, you know, we
`don't know about what the other side has done.
`Like, it is just -- like the filing process of preparing -- the preparing
`process of preparing and filing an IPR takes time.
`And I can't speak to why there might have been, you know, a two- or
`three-day, or a week, or some other period of time, between filings. That's
`simply not something that I know about.
`JUDGE QUINN: Great. That's why I asked if it was pure
`coincidence. Because, if you can't tell, then it's just coincidence.
`MR. CAVANAUGH: That's right. It is -- as far as I know, it is
`coincidence. And, you know, it is, you know -- I think that that's kind of the
`dynamic that Unified's confronted with.
`I mean, they are willing to choose which patents they want to pursue.
`You know, they would like to be out in front and to file when they are
`satisfied that they have a meritorious case.
`Sometimes, it takes time once they make that determination and get
`it on file.
`But because there is no consideration from any members and there's
`no communication with any members about anything Unified does with
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`16
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`regard to the preparation and filing of IPRs, that it is any, like, coincidence,
`or any timing sequences, is just simply coincidence, or even random.
`JUDGE BOUDREAU: Is there any reason in this case not to list the
`members that would benefit as the real parties in interest in this case?
`MR. CAVANAUGH: I think Your Honor raises a very good point
`in the sense that there is no time-bar issue, which, you know, as I was going
`through, one of the ones I was going to raise going through the differences
`between what was in the AIT case and what's relevant to these particular
`facts, is there is no time-bar that we're working with.
`And, in fact, that's -- I think that it was a determination of why the
`Fed Circuit was looking in the AIT case and in some ways encouraging the
`board to look more deeply at the facts associated with the RPI determination
`there.
`
`That simply is not the case here. To the extent of whether or not
`there is any hindrance, I mean, without having a time-bar that Unified is
`working with, certainly we want to comply with the law.
`Certainly, we -- you know, our interpretation of what the law
`requires, as articulated in the trial practice guide and in other cases,
`including AIT, that we've fully satisfied what the RPI requirement is.
`But in terms of there is no reason why -- if the law was different, or
`
`if instructed otherwise, we would, you know, certainly comply with the
`law.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`17
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`JUDGE BAER: Could I push you a little bit on the coincidence
`point? You said that you were not aware of any communications related to
`the Petition, and that it's just coincidence that this Petition relies on the same
`prior art
` -- principally, the same prior art
`
`
`of
`
`.
`Is it possible that there would be communications that you are
`unaware of? And what I'm asking is, did you principally prepare the brief?
`Are you aware of what went into this brief?
`MR. CAVANAUGH: Yeah, I am aware of what went into the brief.
`And, you know, there was no communication. If I said I'm not aware of it,
`it's just -- it's a kind of reflexive, lawyerly response.
`JUDGE BAER: But you prepared this brief and you were not aware
`positions in its brief
`. Is that correct?
`MR. CAVANAUGH: That's correct, Your Honor. And, you know,
`I'm happy to go through a few more of my slides. I think I've answered
`many of the topics that I wanted to raise.
`And this -- you know, I think that we don't have an attorney-client
`relationship which, to Judge Boudreau's question earlier, that is another
`difference between us and the other case.
`And we, of course, you know, our business model, as well as our
`agreements, all prevent communication between our clients.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`18
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`And, you know, none of the facts here, and this is on slide 31,
`Unified's practices ensure that it retains control.
`You know, and I want to be clear that we have voluntarily produced,
`you know, a number of documents, and of the nature of the relationship of
`Unified with our members in all the IPRs that we are a part of. And that's
`what I think is key here.
`And the -- you know, I think that in the last point is probably my last
`point that I'm going to raise, Judge Boudreau, there is no time-bar, which I
`think was one of the core facts of what this was --
`JUDGE BAER: I don't disagree with you that it was a core fact.
`That seems to resonate with me, as well. I just don't know that I see that in
`the opinion.
`Where in the opinion can we tie their decision to -- how do we tie the
`Federal Circuit's decision to the fact that Salesforce was actually time-barred
`because they had already filed a petition and lost on that petition?
`MR. CAVANAUGH: I think that -- I agree with you. It's not kind
`of expressly stated perhaps in the most clean way. But I do think clear in the
`dynamic that was presented, the facts associated with the case and as it went
`up to the Fed Circuit, I think that truly was an issue.
`How to tie it into that case? I think it probably goes to like why RPI
`might be an issue, why it might be that. So, I think it answers the why
`question.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`19
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`Like, we don't have the same motivation as perhaps was present in
`the other case.
`JUDGE BAER: One additional question for you before you sit
`down. Are you aware, we asked you earlier, of any cases that addressed
`Unified's alleged failure to name RPI, that its decisions were being patented?
`Are you aware of other cases right now where this is an issue, where
`this issue has been briefed and argued, but there hasn't been a decision on it,
`specifically with Unified?
`MR. CAVANAUGH: I think there's a collateral case with Uniloc
`that has not yet been decided.
`JUDGE BAER: Okay.
`MR. CAVANAUGH: And there may be one or two others. And I
`can get you a list, Your Honor, if that would be helpful.
`JUDGE BAER: That'd be great. Anything further from my
`colleagues?
`JUDGE QUINN: I have one last question. It seems to me that the
`factor that doesn't bode well for you is that the interests of Unified, I mean
`the business model of Unified, is precisely to do what it's doing here, is to
`assert invalidity of the patents in the patent office. Do you have any other
`business goals that are not in that vein, and that we have not seen from your
`records?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`20
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`MR. CAVANAUGH: Sure. We've provided -- and part of it is in
`the record -- we provide information to members -- you know, data sets to
`members -- that are outside the course of filing IPRs.
`We also file things other than IPRs. Unified, you know, as part of
`our contract, considers whether reexamination might be a vehicle for
`challenging a patent.
`And so, I think there are a number of other things that Unified does
`that are outside the course of this IPR proceeding. This kind of PTAB
`proceeding.
`Unified's business is, you know, is evaluating and, like, challenging
`patents for technology sectors. I think that that's pretty clear for the record.
`I mean, I think that the nature of what we do, though, is to like look
`at patents for particular technology sectors or sections, or technology areas,
`and challenge those that we think are invalid. And there's plenty of cases
`that say that that's okay.
`JUDGE QUINN: I'm sorry. You said that there are plenty of cases
`that stated that's okay?
`MR. CAVANAUGH: To challenge patents that are -- like I'm not
`saying the RPI issue. To challenge patents. Like, that is the process of an
`IPR, is to challenge the validity of patents. And that's all I meant, Your
`Honor.
`
`JUDGE QUINN: Okay. Thank you.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`21
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`MR. CAVANAUGH: Thank you.
`JUDGE BAER: Thank you, counsel. Okay, Mr. Mangrum, would
`you like to preserve any time for a sur-rebuttal?
`MR. MANGRUM: Yes, Your Honor. I'd like to reserve five
`minutes to the extent the questioning allows.
`Just to I understand the process here, Your Honors, are we kind of
`bifurcating this hearing such that I will first present on only the RPI issue?
`JUDGE BAER: We would like you to start on the RPI issue. We
`don't have -- if you want to address the substantive issues, you're welcome
`to. But we'd like for you to start with the RPI issues, and we are not going to
`add additional time to the 30 minutes for the substantive issues. So --
`MR. MANGRUM: I will sit down, let him use his remainder of
`time, and then stand back up for my case-in-chief. I do it all at once is what
`you're saying.
`JUDGE BAER: You're welcome to reserve the five minutes and to
`come back with the five minutes, and you can sort of address what you want.
`We'd like you to start with the RPI issue, but how you divide your 25
`minutes here between the RPI issue and the substantive case is really up to
`you.
`
`MR. MANGRUM: That answers my question. Thank you, Your
`
`Honor.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`22
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`JUDGE BAER: Okay. All right, with that you may begin when
`you're ready.
`MR. MANGRUM: I want to clarify one thing for the record that's
`very important.
`Uniloc has not alleged that all members of Unified Patents need to be
`named here. When you look at the papers, what Uniloc's done is provided
`evidence -- quite a bit of evidence -- to show that
`, in
`particular, should have been named.
`So, the question's not, should all members be named. It's those
`parties in particular.
`JUDGE BAER: And why are they special?
`MR. MANGRUM: Well, part of the reason is we've looked at the
`contracts associated with those two parties, and there's Unified Patents
` exactly what they did
`here, is take efforts to file IPR patents. And this is exactly what they did.
`So,
` is to do exactly what they did here.
`.
`Now, as Judge Quinn mentioned, the contract is kind of careful to
`suggest there's no direct control. But that doesn't change the fact
`
`.
`
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`
`23
`
`
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`Who benefits from this? The party that's
`.
`And I want to draw Your Honors' attention to the last slide of the
`presentation, slide 38.
`JUDGE BAER: Is this your presentation or theirs?
`MR. MANGRUM: Sorry, it's our presentation.
`JUDGE BAER: Thank you.
`MR. MANGRUM: Uniloc's presentation?
`And here -- so, he's suggested -- opposing counsel suggested there
`was no evidence on record that Unified's ever singled out
`
`.
`Now, granted, the production was pretty lean. We expected there
`would have been a lot more communications here. But we did receive this,
`and this is a communication specific to this IPR.
`So, slide 38, it references Exhibit 1018. Sorry, I'm not sure if
`that's -- wait a minute. What it is, just for the record, is an email between
`. That's
`. And it specifically calls out
`Unified and
`two parties that have been sued on this patent.
`This is an email -- sorry. To suggest there's no singling out of
` is just false.
`I also want to point out the fact -- this is in our briefing -- we show a
`number of cases that Unified's filed against Uniloc. And you have to admit
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`
`24
`
`
`
`Case IPR2018-00199
`Patent 7,092,671 B2
`when you look at the facts, I would be surprised if there is a private patent-
`holder larger than Uniloc that has as many active patents as Uniloc does.
`So, you know, like it's hundreds -- hundreds of patents. But which
`patents are being selected by Unified to challenge? It's the ones that Uniloc
`has asserted against Unified's members.
`It's a repeated pattern. Uniloc sues a case, several months later there
`is an IPR filed. And so, to suggest that there's no bearing -- and, in fact, I
`object to the unsworn testimony that was offered here today, that Unified
`doesn't look at the -- who's sued.
`First of all, if he wants to offer that testimony, I would have deposed
`him on that point. But the facts strongly suggest otherwise, when you just
`look at the facts and look at a pattern of behavior.
`Unified -- Uniloc -- sorry, the names are so similar. Uniloc sues.
`Months later, Unified challenges.
`And we see this over and over again. Which p
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
