UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VIZIO, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORPORATION,
`Patent Owner.
`_______________
`
`Case IPR2018-01100
`Patent No. 7,915,631
`_______________
`
`PATENT OWNER’S OPPOSITION
`TO MOTION FOR JOINDER
`
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`VIZIO, INC.,
`Petitioner,
`
`v.
`
`NICHIA CORPORATION,
`Patent Owner.
`_______________
`
`Case IPR2018-01100
`Patent No. 7,915,631
`_______________
`
`PATENT OWNER’S OPPOSITION
`TO MOTION FOR JOINDER
`
`
`
`I.
`
`II.
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`Case IPR2018-01100
`U.S. Patent No. 7,915,631
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`
`
`TABLE OF CONTENTS
`VIZIO’s Motion for Joinder May Soon Be Moot Because the Parties
`Have Requested Permission to File a Motion to Terminate ............................ 2
`VIZIO’s Motion for Joinder May Be Mooted by the Termination of
`the Lowe’s IPR ................................................................................................. 3
`III. The Board Should Exercise Its Discretion to Deny Joinder ............................ 4
`IV.
`Joinder Should Be Denied Because the Petition Warrants Denial
`Under § 314(a) and the General Plastic Factors ............................................. 5
`Joinder Should Be Denied Because the Petition Warrants Denial
`Under § 325(d) ............................................................................................... 10
`VI. Conclusion ..................................................................................................... 13
`
`
`V.
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`i
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`CASES
`Amneal Pharms. LLC v. Hospira, Inc.,
`IPR2017-01054, Pap. 9 (PTAB Sept. 6, 2017) ..................................................... 3
`Cultec, Inc. v. Stormtech LLC,
`IPR2017-00777, Pap. 7 (PTAB Aug. 22, 2017) (informative) .......................... 11
`General Plastic Industrial Co. v. Canon Kabushiki Kaisha,
`IPR2016-01357, Pap. 19 (PTAB Sept. 6, 2017) (precedential) ....................... 5, 7
`Great West Cas. Co. v. Intellectual Ventures II LLC,
`IPR2016-01534, Pap. 9 (PTAB Feb. 15, 2017) ............................................ 4, 5, 6
`NetApp Inc. v. Crossroads Sys. Inc.,
`IPR2015-00777, Pap. 12 (PTAB Sept. 3, 2015) ................................................. 11
`Nidec Moto Corp. v. Zhongshan Broad Ocean Motor Co.,
`868 F.3d 1013 (Fed. Cir. 2017) ............................................................................ 4
`SAS Institute Inc. v. Iancu,
`138 S. Ct. 1348 (2018) ........................................................................................ 10
`Synaptics Inc. v. Amkor Tech., Inc.,
`IPR2017-00085, Pap. 12 (PTAB Apr. 18, 2017) .................................................. 9
`STATUTES
`35 U.S.C. § 314(a) ............................................................................................passim
`35 U.S.C. § 315 .................................................................................................. 1, 3, 4
`35 U.S.C. § 325 ........................................................................................................ 11
`OTHER AUTHORITIES
`37 C.F.R. §§ 42.20 ..................................................................................................... 4
`
`
`
`
`ii
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`LIST OF EXHIBITS
`
`EX2002
`
`Exhibit
`EX2001
`
`Description
`Complaint for Patent Infringement, Nichia Corp. v. VIZIO,
`Inc., Case No. 8:16-cv-00545 (C.D. Cal.) (Dkt. #1)
`(without exhibits)
`Proof of Service, Nichia Corp. v. VIZIO, Inc., Case No. 8:16-
`cv-00545 (C.D. Cal.) (Dkt. #16)
`EX2003 Answer to Complaint, Nichia Corp. v. TCL Multimedia Tech.
`Holdings Ltd. et al., Case No. 1:16-cv-00681 (D. Del. Nov.
`14, 2016) (Dkt. #13)
`EX2004 Answer to Complaint, Nichia Corp. v. VIZIO, Inc., Case No.
`8:16-cv-00545 (C.D. Cal. Sept. 20, 2016) (Dkt. #36)
`
`
`
`
`
`
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`iii
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`Patent Owner Nichia Corporation (“Nichia”) respectfully submits this
`
`Opposition to Petitioner VIZIO, Inc.’s (“VIZIO”) Motion for Joinder (“Motion” or
`
`Pap. 3). Nichia notes the motion for joinder may be moot. On June 12, 2018, the
`
`parties sent an email to the Board seeking authorization file a joint move to
`
`terminate this inter partes review (“IPR”) proceeding in its entirety. That request
`
`is pending.
`
`Additionally, on June 16, 2018, in the IPR to which VIZIO seeks joinder,
`
`Lowe’s Companies, Inc. et al. v. Nichia Corporation, IPR2018-00066, Nichia and
`
`the Lowe’s petitioners filed a joint motion to terminate those proceedings. If the
`
`Board were to grant that motion, there would be no IPR pending for the present
`
`IPR to join. As a result, VIZIO’s Petition could not move forward on its own since
`
`it is subject to the one-year statutory bar. Nichia served VIZIO with a complaint
`
`alleging infringement of the ’631 patent over two years ago. See 35 U.S.C.
`
`§ 315(b).
`
`Moreover, even if the motions to terminate were not allowed, the Board
`
`should exercise its discretion to deny joinder because the Petition would, if
`
`considered separately, be subject to denial under § 314(a) and therefore ineligible
`
`for joinder. This is VIZIO’s second Petition against the ’631 patent, and the fourth
`
`in a succession of petitions against the ’631 patent by members of a joint defense
`
`group. With this Petition, which copies previous petitions, Petitioner unfairly takes
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`1
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`advantage of the Board’s institution decisions on its prior petitions against the ’631
`
`patent as a roadmap to tweak previously rejected arguments.
`
`I.
`
`VIZIO’s Motion for Joinder May Soon Be Moot Because the Parties
`Have Requested Permission to File a Motion to Terminate
`Nichia has filed this opposition out of an abundance of caution, but the fact
`
`is that neither party intends to pursue this IPR. Indeed, by email correspondence to
`
`the Board dated June 12, 2018, the parties sought authorization to file a joint
`
`motion to terminate these proceedings:
`
`Petitioner VIZIO, Inc. and Patent Owner Nichia, Corp. respectfully
`request leave to file a joint motion to terminate this proceeding
`(IPR2018-01100) in its entirety. On May 29, 2018, a federal district
`court issued a claim construction order that held that a claim term in
`claim 1, the sole independent claim, of the ’631 patent is indefinite.
`In view of that development, Petitioner believes that the termination
`of these proceedings would conserve both the Board’s and the parties’
`resources. Patent Owner agrees to terminate these proceedings, and
`that doing so would conserve resources, but reserves all rights with
`respect to that claim construction order.
`
`Email to Board (June 12, 2018). The parties have also prepared the joint motion to
`
`terminate should the Board authorize them to file it. The Board should deny this
`
`motion or, to conserve additional resources, defer ruling so that, if the Board
`
`authorizes the motion to terminate, it can be filed and ruled upon, potentially
`
`avoiding the need to consider the issue of joinder.
`
`2
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`II. VIZIO’s Motion for Joinder May Be Mooted by the Termination of the
`Lowe’s IPR
`On June 16, 2018, Nichia and the Lowe’s petitioners jointly moved to
`
`terminate those proceedings in view of their recent settlement of various litigations
`
`and IPRs. See Joint Motion to Terminate, IPR2018-00066, Pap. 10 (June 16,
`
`2018). If those proceedings are terminated, then there would be no existing IPR on
`
`the ’631 patent with which to join VIZIO’s petition. Not only would joinder be
`
`impossible—see Amneal Pharms. LLC v. Hospira, Inc., IPR2017-01054, Pap. 9, at
`
`4–5 (PTAB Sept. 6, 2017) (“The Amneal IPR has been terminated. Hence, there is
`
`no pending proceeding for Petitioner to join. Accordingly, we dismiss the Motion
`
`for Joinder as moot.” (citations omitted))—but VIZIO’s petition would be subject
`
`to the one-year statutory bar, since it was served with a complaint alleging
`
`infringement of the ’631 patent over two years ago. EX2001 ¶¶ 12-17
`
`(Complaint); EX2002 (Proof of Service). The Board should deny the motion as
`
`moot or exercise its discretion to deny VIZIO’s motion for joinder under 35 U.S.C.
`
`§ 315(c) to avoid wasting resources to save VIZIO’s Petition from the statutory
`
`bar. As discussed above, VIZIO does not intend to pursue this IPR and, as
`
`discussed below, VIZIO has already prosecuted an IPR against this patent, which
`
`was denied institution. See Decision Denying Institution, IPR2017-00551, Pap. 9,
`
`(PTAB July 7, 2017). There would be no prejudice to VIZIO.
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`3
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`III. The Board Should Exercise Its Discretion to Deny Joinder
`The Board has discretion to join a party to an IPR proceeding under §315(c),
`
`but only if it determines that the party’s petition “warrants the institution of an
`
`inter partes review under section 314.” 35 U.S.C. §315(c); see also Great West
`
`Cas. Co. v. Intellectual Ventures II LLC, IPR2016-01534, Pap. 9, at 12 n.6 (PTAB
`
`Feb. 15, 2017) (“A predicate to granting joinder under Section 315(c) is that a
`
`petition merits institution under Section 314(a).”); Nidec Moto Corp. v. Zhongshan
`
`Broad Ocean Motor Co., 868 F.3d 1013, 1019 (Fed. Cir. 2017) (Dyk, J.
`
`concurring). When exercising its discretion, the Board has said it construes the
`
`rules for joinder “to secure the just, speedy, and inexpensive resolution of every
`
`proceeding.” Id. at 17–18. It is the moving party, the Petitioner, who has the
`
`burden of proving entitlement to joinder. Id. at 26–27; 37 C.F.R. §§ 42.20(c). To
`
`be granted joinder, the Petitioner must (1) set forth the reasons why joinder is
`
`appropriate; (2) identify any new ground(s) of unpatentability asserted in the
`
`petition; and (3) explain what impact (if any) joinder would have on the trial
`
`schedule for the existing review. Great West Cas., IPR2016-01534, Pap. 13, at 18.
`
`In light of recent circumstances—namely, the parties here and in the Lowe’s
`
`proceeding are all seeking termination of the IPRs—joinder is not appropriate.
`
`Furthermore, VIZIO’s Petition does not warrant discretionary institution under
`
`4
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`§§ 314(a) and 325(d) as discussed below. These considerations weigh heavily
`
`against joinder, and the Board should exercise its discretion in denying Petitioner’s
`
`Motion.
`
`IV. Joinder Should Be Denied Because the Petition Warrants Denial Under
`§ 314(a) and the General Plastic Factors
`The Board should also deny joinder because the Petition would, if
`
`considered separately, be subject to denial under § 314(a) and therefore ineligible
`
`for joinder. See Great West Cas., IPR2016-01534, Pap. 13, 27, 29–32. This is
`
`Petitioner’s second Petition against the ’631 patent. With this Petition, which
`
`copies the Lowe’s petition, Petitioner unfairly takes advantage of the Board’s
`
`institution decisions on its prior petitions against the ’631 and related patents as a
`
`roadmap to tweak previously rejected arguments as part of a serial attack on the
`
`’631 patent. Petitioner should not be allowed to use joinder as an end run against
`
`§ 314(a).
`
`As the Board in General Plastic explained, “[a]lthough . . . an objective of
`
`the AIA is to provide an effective and efficient alternative to district court
`
`litigation, we also recognize the potential for abuse of the review process by
`
`repeated attacks on patents.” General Plastic Industrial Co. v. Canon Kabushiki
`
`Kaisha, IPR2016-01357, Pap. 19, 16–17 (PTAB Sept. 6, 2017) (precedential). The
`
`Board cautioned against allowing petitioners “the opportunity to strategically stage
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`their prior art and arguments in multiple petitions, using our decisions as a
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`roadmap, until a ground is found that results in the grant of review,” which is the
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`same opportunity Petitioner attempts to exploit here through joinder. Id. at 17.
`
`The Board set forth factors it considers to evaluate follow-on petitions,
`
`taking into account inequities and prejudices to the Patent Owner. Id. at 16. Under
`
`these factors, the Petition should be denied under § 314(a) and not be joined with
`
`the Lowe’s IPR.
`
`Factor One—Same Petitioner: This is Petitioner’s second Petition against
`
`the ’631 patent, and the fourth against the ’631 patent by members of a joint
`
`defense group. VIZIO’s first petition was directed against claims 1–4, 7–8, and
`
`10–11. IPR2017-00551, Pap. 2, at 6. This second Petition is directed against
`
`claims 1–2 and 6–11. Pet. 9. The previously un-petitioned claims 6 and 9 are
`
`dependent claims directed to limitations such as additional phosphors in the
`
`claimed light emitting diode and the light emitting diode chip comprising a
`
`quantum well structure. EX1001, 31:22–24, 32:6–8. The addition of these
`
`dependent claims does not change the fact that Petitioner previously petitioned
`
`against the sole independent claim of the ’631 patent and failed to obtain
`
`institution. Factor one weights strongly against institution and joinder. Great West
`
`Cas., IPR2016-01534, Pap. 13, at 32.
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`6
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`Factor Two—Knowledge of Prior Art: Petitioner knew or should have
`
`known of all the references now asserted in the Petition at the time of its first
`
`petition. The Petition repeats Baretz, Pinnow, and Matoba from the first petition,
`
`and adds Shimizu and Nakamura. But Shimizu is a reference cited on the face of
`
`the ’631 patent, having been considered by the Patent Office during prosecution of
`
`the patent. EX1001, at 2–3. And although the specific Nakamura reference
`
`asserted by Petitioner was not before the Patent Office, it is cited in this Petition
`
`solely with respect to dependent claim 9 in Ground 3, and only for teaching a
`
`quantum well structure. Pet. 46–47. The ’631 already cites other blue LED
`
`Nakamura references that include disclosure of quantum well structures. EX1001,
`
`at 3; EX1002, at 30-31, 51-59 (IDS, Nov. 1, 2010). There is, therefore, no reason
`
`that the Petitioner “could not have found the newly asserted prior art in any earlier
`
`search(es) through the exercise of reasonable diligence.” General Plastic,
`
`IPR2016-01357, Pap. 19, at 20. Factor two weighs heavily against institution and
`
`joinder.
`
`Factor Three—Availability of Information From Prior Proceedings: The
`
`Petition benefits from the institution decision on Petitioner’s first petition against
`
`the ’631 patent as well as Petitioner’s other petitions against the related patents.
`
`Petitioner argues that because its Petition is substantively identical to Lowe’s
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`petition, “VIZIO cannot have used any prior papers or decisions as a ‘roadmap.’”
`
`Pet. 70–71. But VIZIO ignores the genesis of the Lowe’s petition, which itself
`
`argued for cancellation of the ’631 claims “over the same art and substantially
`
`identical arguments presented by TCL Multimedia Technology Holdings, Ltd. and
`
`TTE Technology, Inc. in their Petition for IPR submitted in IPR2017-02000,” and
`
`suggested that Lowe’s would seek joinder if the TCL petition were instituted.1 See
`
`Lowe’s Petition, IPR2018-00066, Pap. 1, at 1 (Oct. 12, 2017). The TCL petition
`
`was filed by VIZIO’s and TCL’s shared litigation counsel (Quinn Emanuel). See
`
`TCL Petition, IPR2017-0200, Pap. 2, at 74-75 (Aug. 25, 2017); EX2003, at 15
`
`(Quinn Emanuel listed as TCL’s counsel); EX2004, at 8 (Quinn Emanuel listed as
`
`VIZIO’s counsel).
`
`This chain of petitions may be confusing on a first pass: VIZIO seeks to join
`
`its copy-cat petition to the Lowe’s petition, which was itself a copy-cat of the TCL
`
`petition filed by VIZIO’s and TCL’s shared litigation counsel.
`
`But the point is simple: VIZIO is seeking to avoid the statutory time bar by
`
`joining the same petition VIZIO’s counsel prepared and filed for another party
`
`
`1 The TCL proceedings were ultimately terminated following the parties’
`
`settlement. Judgment, IPR2017-02000, Pap. 12 (Mar. 20, 2018).
`
`8
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`after VIZIO’s first petition failed. Requiring a patent owner to defend against
`
`serial attacks “which Petition had the benefit of adjusting its position” based on
`
`prior POPRs and institutions decisions is “fundamentally unfair.” Synaptics Inc. v.
`
`Amkor Tech., Inc., IPR2017-00085, Pap. 12, at 11 (PTAB Apr. 18, 2017) (denying
`
`institution and joinder). Factor three also weighs heavily against institution and
`
`joinder.
`
`Factor Four—Time Between Learning of the Prior Art and Filing the
`
`Petition: As already discussed, Petitioner knew of three of the references (Baretz,
`
`Pinnow, and Matoba) since at least the filing of its first petition, over eighteen
`
`months before it filed the Petition, and Petitioner should have known at that time of
`
`the other two references (Shimizu and Nakamura). Factor four, therefore, also
`
`weighs in favor of denial of the Petition and joinder.
`
`Factor Five—Petitioner’s Explanation for Time Elapsed: Petitioner provides
`
`no explanation for the time that elapsed between the time it learned of the prior art
`
`asserted in the second petition and the filing of the second petition. VIZIO could
`
`have included all of this art in its first (failed) petition. Factor five weighs in favor
`
`of denial of the Petition and joinder.
`
`Factor Six—Finite Resources of the Board: With respect to factor six, it is
`
`up to the Board to determine how best to allocate its finite resources across the
`
`9
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`many petitions it receives. Following the Supreme Court’s decision in SAS
`
`Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018), the Board’s resources will become
`
`even more stretched and the Board’s exercise of discretionary denial to control
`
`allocation of its resources is even more critical.
`
`Petitioner has had a previous opportunity to challenge the ’631 patent, and it
`
`is a waste of the Board’s resources to entertain another challenge based on
`
`references and grounds that could have been raised in the first petition.
`
`Furthermore, Petitioner and Patent Owner have already indicated their desire to
`
`terminate this proceeding. Therefore, factor six strongly supports denial of the
`
`Petition and joinder.
`
`Factor Seven—One-Year Timeline: Factor seven, which considers the
`
`Board’s statutory mandate to issue a final determination no later than one year after
`
`institution, does not weigh for or against the Petition or joinder.
`
`* * *
`
`When all seven factors are considered, the balance of the equities clearly
`
`supports denying institution under §314(a). Because the petition does not merit
`
`institution under §314(a), the Board should deny joinder for the petition.
`
`V.
`
`Joinder Should Be Denied Because the Petition Warrants Denial Under
`§ 325(d)
`The Board should also deny joinder because the Petition would, if
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`considered separately, be subject to denial under § 325(d) and therefore ineligible
`
`for joinder. In deciding whether to institute, “the Director may take into account
`
`whether, and reject the petition or request because, the same or substantially the
`
`same prior art or arguments previously were presented to the [Patent and
`
`Trademark] Office.” 35 U.S.C. § 325(d). The Board routinely denies institution
`
`where a petition recycles substantially the same art and arguments previously
`
`considered by either the original examiner or the Board. E.g., Cultec, Inc. v.
`
`Stormtech LLC, IPR2017-00777, Pap. 7, 7–14 (PTAB Aug. 22, 2017)
`
`(informative) (previously considered by examiner); NetApp Inc. v. Crossroads Sys.
`
`Inc., IPR2015-00777, Pap. 12, 7–8 (PTAB Sept. 3, 2015) (previously considered
`
`by Board). Here, all but one of the asserted references were previously considered
`
`by the Office during initial examination or VIZIO’s previous IPR proceedings.
`
`Baretz was considered by the Examiner during prosecution, and by the
`
`Board in VIZIO’s previous petition. EX1001, at 2; Decision Denying Institution,
`
`IPR2017-00551, Pap. 9, at 9-12. Matoba was considered by the Examiner during
`
`prosecution, discussed in the ’631 specification’s background section, and
`
`considered by the Board in VIZIO’s previous petition. EX1001, at 2; id. 2:5-13;
`
`Decision Denying Institution, IPR2017-00551, Pap. 9, at 9-12. Shimizu was
`
`considered by the Examiner during prosecution, and discussed in the ’631
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`specification’s background section. EX1001, at 2; id. 2:5-13. Pinnow was
`
`previously presented to the Examiner during the initial examination as well as to
`
`the Board in VIZIO’s previous petitions. EX1001, at 2; Decision Denying
`
`Institution, IPR2017-00551, Pap. 9, at 2; Decision Denying Institution, IPR2017-
`
`00552, Pap. 9, at 7; Decision Denying Institution, IPR2017-00556, Pap. 9, at 9;
`
`Decision Denying Institution, IPR2017-00558, Pap. 9, at 2. And although the
`
`specific Nakamura reference asserted by VIZIO was not previously before the
`
`Patent Office, the reference, as it is being used, substantially matches other blue
`
`LED Nakamura references that are cited in the ’631 patent and were considered by
`
`the Patent Office.
`
`Section 325(d) is meant to prevent the inefficiencies, harassment of patent
`
`owners, and abuse of process VIZIO invites here in repeating arguments already
`
`overcome by Patent Owner. Having made the strategic choice to rehash previously
`
`rejected art and arguments, VIZIO should not now be rewarded for that choice (at
`
`the Board’s and PO’s expense). VIZIO should not be able to avoid § 325(d),
`
`raising art and arguments it could not raise on its own, via joinder. Furthermore,
`
`because should the Board agree that the Petition should be denied under §§ 314(a)
`
`and 325(d), joinder for such Petition would be inappropriate and therefore should
`
`denied.
`
`12
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`VI. Conclusion
`VIZIO’s motion for joinder should be denied.
`
`
`
`Dated: June 18, 2018
`
`Respectfully submitted,
`
` /s/ David E. Cole
`
`
`David E. Cole (Reg. No. 73,084)
`PAUL, WEISS, RIFKIND,
`WHARTON & GARRISON LLP
`2001 K Street, NW
`Washington, DC 20006-1047
`(202) 223-7300
`dcole@paulweiss.com
`
`Counsel for Patent Owner
`Nichia Corporation
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`13
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §42.6(e), I certify that, on June 18, 2018, I caused true
`
`and correct copies of the foregoing PATENT OWNER’S OPPOSITION TO
`
`MOTION FOR JOINDER and Exhibits EX2001-EX2004 to be served by email
`
`on the following counsel of record for Petitioner VIZIO, Inc.:
`
`Gabrielle E. Higgins, Esq.
`James L. Davis, Jr., Esq.
`ROPES & GRAY LLP
`1900 University Avenue – Suite 600
`East Palo Alto, CA 94303
`gabrielle.higgins@ropesgray.com
`james.l.davis@ropesgray.com
`
`
`
`
`
`
`
`
`/s/ David E. Cole
`David E. Cole (Reg. No. 73,084)
`PAUL, WEISS, RIFKIND,
`WHARTON & GARRISON LLP
`2001 K Street, NW
`Washington, DC 20006-1047
`(202) 223-7300
`dcole@paulweiss.com
`
`Counsel for Patent Owner
`Nichia Corporation
`
`
`
`
`
`
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