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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`APPLE INC.,
`Petitioner,
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`v.
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`SEVEN NETWORKS, LLC,
`Patent Owner.
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`Case IPR2020-00425
`Patent 9,438,550
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`PETITIONER’S REPLY TO
`PATENT OWNER’S PRELIMINARY RESPONSE
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`
`
`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
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`
`TABLE OF CONTENTS
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`
`I. DISCRETIONARY DENIAL OF THE PENDING PETITION IS NEITHER
`APPROPRIATE NOR EQUITABLE ........................................................................ 1
`Fintiv Factor 1: Institution would Enable a District Court Stay ............................. 3
`Fintiv Factor 2: The District Court’s Trial Calendar Is Full .................................. 4
`Fintiv Factor 3: Seven's Conduct Dictated the Timing of Apple's Petitions, which
`Outweighs the Forced Investment in Litigation ..................................................... 5
`Fintiv Factor 4: The Petition Raises Unique Issues that will Not be Resolved in
`District Court .......................................................................................................... 8
`Fintiv Factor 5: Apple’s Petition Enables the Board to Resolve Invalidity of
`Claims that might Otherwise be Reasserted ........................................................... 9
`Fintiv Factor 6: Other Circumstances Support Institution ................................... 10
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`i
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`APPLE-1001
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`APPLE-1002
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`
`UPDATED EXHIBIT LIST
`U.S. Pat. No. 9,438,550 to Fiatal, et al. (“the ’550 patent”)
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`Excerpts from the Prosecution History of the ’550 Patent (“the
`Prosecution History”)
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`APPLE-1003
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`Declaration of Mr. Edward R. Tittel
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`APPLE-1004
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`U.S. Pat. App. Pub. No. 2003/0157947 (“Fiatal”)
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`APPLE-1005
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`U.S. Pat. App. Pub. No. 2012/0221877 (“Prabu”)
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`APPLE-1006
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`U.S. Pat. App. Pub. No. 8,019,325 (“Bernard”)
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`APPLE-1007
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`U.S. Pat. App. Pub. No. 2008/0057894 (“Aleksic”)
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`APPLE-1008
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`U.S. Pat. App. Pub. No. 2006/0265503 (“Jones”)
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`APPLE-1009
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`U.S. Provisional App. No. 60/403,249 (“’249 Provisional”)
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`APPLE-1010
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`U.S. Provisional App. No. 60/346,881 (“’881 Provisional”)
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`APPLE-1011
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`U.S. Pat. App. Pub. No. 2002/0156921 (“Dutta”)
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`APPLE-1012
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`U.S. Pat. App. Pub. No. 6,934,267 (“Mannerstrale”)
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`APPLE-1013
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`U.S. Pat. No. 7,024,491 (“Hanmann”)
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`APPLE-1014
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`Seven Networks, LLC’s Identification Of Alleged Provisional
`Support (Appendix C from Seven’s Second Supplemental
`Responses and Objections to Apple’s Interrogatories 9-10),
`Seven Networks v. Apple Inc. (E.D. Tex. Dec. 16, 2019)
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`APPLE-1015-1018 [RESERVED]
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`
`ii
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`APPLE-1019
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`Apple’s P.R. 4-2 Preliminary Claim Constructions And
`Extrinsic Evidence, Seven Networks, LLC v. Apple Inc. (E.D.
`Tex. Nov. 26, 2019)
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`APPLE-1020
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`Seven Networks, LLC P.R. 4-2 Disclosures, Seven Networks,
`LLC v. Apple Inc. (E.D. Tex. Nov. 26, 2019)
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`APPLE-1021
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`U.S. Pat. App. Pub. No. 2007/0027832 (“’832 Publication”)
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`APPLE-1022
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`U.S. Patent No. 9,608,968 (“the ’968 patent”)
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`APPLE-1023
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`APPLE-1024
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`ZDNet Article: 10 Best Smartphones For The 2015 Holiday
`Season (October 22, 2015), accessed Jan. 12, 2020 from
`https://www.zdnet.com/article/10-best-smartphones-for-the-
`2015-holiday-season/
`
`Verge Article: Here Are The Coolest Things You Can Do With
`The iPhone 6S And 6S Plus (September 25, 2015), accessed
`Jan. 12, 2020 from
`https://www.theverge.com/2015/9/25/9392817/iphone-6s-6s-
`plus-tips-tricks-features
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`APPLE-1025
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`Time Article: The 10 Most Popular Podcasts Of 2015
`(December 9, 2015), accessed Jan. 12, 2020 from
`https://time.com/4141439/podcasts-most-popular-year-2015/
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`APPLE 1040
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`APPLE-1026-1038 RESERVED
`APPLE 1039
`Claim Construction Memorandum and Order, Seven Networks
`LLC v. Apple Inc., Case No. 2:19-CV-00115-JRG (E.D. Tex.)
`(March 31, 2020)
`Order Granting Joint Motion to Amend the Docket Control
`Order re Schedule of Deadlines, Seven Networks LLC v. Apple
`Inc., Case No. 2:19-CV-00115-JRG (E.D. Tex.) (March 27,
`2020)
`Apple Inc.’s Notice Regarding Prior Art Reduction, Seven
`Networks LLC v. Apple Inc., 2:19-CV-00115-JRG (E.D. Tex.)
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`APPLE 1041
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`iii
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`APPLE 1042
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`APPLE 1043
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
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`(April 21, 2020)
`Seven’s Notice Regarding Claim Reduction, Seven Networks
`LLC v. Apple Inc., Case No. 2:19-CV-00115-JRG (E.D. Tex.)
`(April 7, 2020)
`Apple’s Initial Invalidity Contentions, Seven Networks LLC v.
`Apple Inc., Case No. 2:19-CV-00115-JRG (E.D. Tex.) (August
`26, 2019)
`RESERVED
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`APPLE 1044
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`APPLE-1045 June 11, 2020 Letter from Apple Counsel to Seven Counsel
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`APPLE-1046 RESERVED
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`APPLE-1047 Joseph Guzman, “Fauci says second wave of coronavirus is
`‘inevitable’”, TheHill.com (Apr. 29, 2020), available at:
`https://thehill.com/changing-america/resilience/natural-
`disasters/495211-fauci-says-second-wave-of-coronavirus-is
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`APPLE-1048 Seven’s Notice Regarding Claim Reduction, Case No. 2:19-
`CV-115-JRG, E.D. Tex., Jan. 21, 2020
`
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`APPLE-1049 Seven’s Notice of Compliance re Service of Preliminary Claim
`Construction and Extrinsic Evidence, Case No. 2:19-CV-115-
`JRG, E.D. Tex., Nov. 27, 2019
`
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`APPLE-1050 Calendar Events Set for Nov. 2, 2020, E.D. Tex., Jun. 3, 2020
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`APPLE-1051 Collection of Seven’s Patent Infringement Complaints
`(excluding Seven’s Complaint against Apple)
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`APPLE-1052 Seven’s Complaint for Patent Infringement against Apple, Case
`No. 2:19-cv-115, E.D. Tex., Apr. 10, 2019
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`iv
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`I.
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`DISCRETIONARY DENIAL OF THE PENDING PETITION IS
`NEITHER APPROPRIATE NOR EQUITABLE
`The unique facts of this case differentiate it from cases previously denied
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`institution on a discretionary basis. Apple is merely the latest in a line of technology
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`companies targeted for assertion of Seven Networks’ (“Seven”) patent portfolio, and
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`is unlikely to be the last. In this context, the Board’s review of the pending Petition
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`will likely serve the interests of the market as a whole, just as past IPRs have proven
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`central to the efficient resolution of past cases involving Seven’s patents. Indeed, “a
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`holistic view of” the facts of this case’s relationship to the “efficiency and integrity
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`of the system” counsels toward consideration of the Petition on the merits. Apple
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`Inc. v. Fintiv, Inc., IPR2020-00019 Pap. 11, 6 (PTAB Mar. 20, 2020) (precedential).
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`Seven is a serial litigant with a history of asserting patents against successful
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`technology companies. Since 2015, Seven has filed no fewer than seven patent
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`infringement complaints, asserting at least thirty patents against companies
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`including Google LLC (“Google”), Samsung Electronics Co., Ltd. (“Samsung”),
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`ZTE (USA) Inc. (“ZTE”), and Apple. APPLE-1051. The patents asserted by Seven
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`have been, and continue to be, demonstrably weak and deserving of cancellation.
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`During the prior litigations involving Samsung, Google, and ZTE, the targeted
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`companies filed over thirty IPR petitions. See APPLE-1048. Despite Seven’s
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`attempts to derail those petitions based on procedural challenges, the Board
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`ultimately considered many on the merits, and instituted the vast majority. See id.
`1
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`Seven settled before any instituted proceeding progressed to trial, and the Board’s
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`institutions advanced efficient resolution of those cases, several of which, as here,
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`were also being tried before Judge Gilstrap in the Eastern District of Texas.
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`Twelve of the patents Seven asserted against Apple are related to the patents
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`it asserted in the prior litigations, and seven of them are related to patents against
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`which IPR petitions have previously been instituted, or were pending institution at
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`the time of settlement, but which never reached final written decision. Without
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`merits-based consideration of Apple’s petitions, Seven will undoubtedly continue its
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`campaign of litigation in asserting these same (or continuations of the same) patents
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`against other technology companies. This sort of litigation exhausts the judicial
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`system of valuable resources, as acknowledged by Congress in its enactment of the
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`AIA. See H.R. Rep. No. 112-98, pt. 1, at 40 (2011). In creating IPRs, Congress
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`noted that “litigation abuses, especially ones committed by those who thrive on low
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`quality patents, impede the promotion of the progress of science and the useful arts.”
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`153 Cong. Rec. E773 (2007). To combat these abuses, Congress recognized the
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`benefits of “allow[ing] key issues to be addressed by experts in the field”: the Board.
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`157 Cong. Rec. S5319 (Sen. Kyl).
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`In determining whether to exercise its discretion to institute IPRs, the Board
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`has recently focused on whether the same invalidity issues raised within a petition
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`are expected to be resolved in district court, prior to that petition’s projected final
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`2
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`written decision date. See NHK Spring Co. Ltd. v. Intri-Plex Techs. Inc., IPR2018-
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`00752 Pap. 8, 19-20 (PTAB Sep. 12, 2018) (precedential) (presentation of “the
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`same prior art and arguments” in the PTAB and district court weighed in favor of
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`discretionary denial). At the same time, “the Board’s cases addressing earlier trial
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`dates as a basis for denial under NHK have sought to balance considerations such
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`as system efficiency, fairness, and patent quality.” Apple Inc. v. Fintiv, Inc.,
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`IPR2020-00019 Pap. 11, 3 (PTAB Mar. 20, 2020) (precedential).
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`Consistent with Congressional intent and the goals expressed in NHK and
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`Fintiv,1 Apple asks the Board—and the Board alone—to consider the challenges
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`raised in the Petition, which are unique to the Petition. See Fintiv, 5; Intel Corp. v.
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`VLSI Tech. LLC, IPR2019-01192, Pap. 15, 11 (PTAB Jan. 9, 2020) (“the Board
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`seeks … to minimize the duplication of work by two tribunals to resolve the same
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`issue”)), 13-14; Sen. Rep. No. 110-259, at 32 (2008) (Specter); 153 Cong. Rec.
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`E773 (2007). As demonstrated below, the Fintiv factors favor institution.
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`Fintiv Factor 1: Institution would Enable a District Court Stay
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`1 The guidance set forth in NHK/Fintiv is beyond the scope of the Board’s statutory
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`authority and, if not, is arbitrary and capricious. 5 U.S.C. §§ 706(2) (A) and (C).
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`Apple nevertheless addresses each Fintiv factor in order, below.
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`3
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`The pending Petition’s institution would enable the Board to efficiently
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`resolve the issue of the ’550 patent’s invalidity, and could relieve the Eastern District
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`of Texas (“District Court”) of the need to address liability altogether, including
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`Seven’s infringement allegations, and all District Court invalidity challenges. That
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`opportunity for simplification greatly increases the likelihood of a District Court stay
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`in view of Petition institution. See NFC Techs. LLC v. HTC Am., Inc., Case No. 13-
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`CV-1058, 2015 WL 1069111 (E.D. Tex. Mar. 11, 2015) (“the most important factor
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`bearing on whether to grant a stay … is the prospect that the inter partes review
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`proceeding will result in simplification of the issues”) (Bryson); Uniloc USA, Inc. v.
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`Samsung Elecs. Am., Inc., Case No. 2:16-cv-642-JRG, 2-3 (E.D. Tex. Jun. 13, 2017)
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`(Gilstrap) (granting stay in view of the “significant likelihood that the … IPR
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`proceedings will streamline the scope of this case”).
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`Moreover, institution of IPRs against this and other Seven patents has the
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`potential to simplify other proceedings, by addressing prior art otherwise raised but
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`left unaddressed in settled IPR challenges filed by Seven’s earlier targets, and by
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`relieving future courts of the need to address the same during Seven’s serial litigation
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`campaign. For at least these reasons, Fintiv factor 1 favors institution.
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`Fintiv Factor 2: The District Court’s Trial Calendar Is Full
`As demonstrated by NHK’s procedural history, district court trial dates can
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`shift, even in normal times. See Mylan Pharma. Inc. v. Sanofi-Aventis Deutschland
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`4
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`
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`GMBH, IPR2018-01680, Pap. 22, 17 (PTAB Apr. 2, 2019) (“In the … case running
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`parallel to NHK Spring, the court ultimately moved the trial date back six months,
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`illustrating the uncertainty associated with litigation schedules”).
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`The District Court in this case is one of the busiest patent courts in the country.
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`Currently, trial in this matter is scheduled to begin on November, 2, 2020. However,
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`there are eighteen other cases scheduled to begin jury selection on November 2,
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`including a number of large patent cases. APPLE-1050, 1-9. It is reasonable to
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`expect that many of these cases will be resolved prior to trial, but it is likely that
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`more than one will remain pending as November 2 approaches. Often these later
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`cases are rescheduled for a later available month.
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`Moreover, given the inevitability of further COVID-19 outbreaks, further
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`scheduling issues cannot be ruled out, as experts have professed that they are indeed
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`likely to arise. APPLE-1047, 1 (“Fauci says second wave of coronavirus is
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`‘inevitable’”). Fintiv factor 2 therefore favors institution.
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`Fintiv Factor 3: Seven’s Conduct Dictated the Timing of Apple’s
`Petitions, which Outweighs the Forced Investment in Litigation
`In its complaint, Seven asserted sixteen patents, which contain over five-
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`hundred fifty claims. Ex. 1052. Seven did not narrow the number of patents and
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`5
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`claims it was asserting against Apple until January 21, 2020, and even then, it
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`continued to assert seventy-five claims across sixteen patents.2 Ex. 1048, 1.
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`Apple filed fourteen of its petitions before this initial identification of asserted
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`claims, and six of the remaining seven within one month of it. It is no wonder that
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`Apple needed the time taken to prepare its twenty-one petitions, as it was faced with
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`the immense burden of understanding the five-hundred fifty claims contained in
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`these patents and the potential prior art that might be relevant to them. See
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`Amazon.com, Inc. v. Customplay, LLC, IPR2018-01498, Pap. 13, 8-9 (finding that
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`waiting “to better understand the asserted claims, the bases for the infringement
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`allegations … and to identify relevant prior art” should not weigh in favor of
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`discretionary denial); 157 Cong. Rec. S5429 (Sept. 8, 2011) (Sen. Kyl) (“High-
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`technology companies … are often sued by defendants asserting multiple patents
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`with large numbers of vague claims …. [I]t is important that the section 315(b)
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`2 It is highly unlikely that Seven would attempt to try more than three or four of the
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`remaining patents before a jury, but if Seven were to eventually reassert any of the
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`sixteen patents included in Seven’s initial complaint that it subsequently dropped,
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`Apple would face the 315(b) time bar if then seeking to challenge those patents.
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`For at least this reason, discretionary denial of the pending Petition would invite
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`further litigation.
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`6
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`deadline afford defendants a reasonable opportunity to identify and understand the
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`patent claims that are relevant to the litigation”).
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`Indeed, it was not until November 27, 2019, just days before the first of
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`Apple’s petitions were filed, that Seven disclosed its “Preliminary Claim
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`Construction and Extrinsic Evidence” providing Apple one of its first insights into
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`how Seven actually read the many disputed claim terms of these patents. Ex. 1049.
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`In this context, it is laudable that Apple was able to muster the resources necessary
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`to file twenty-one petitions nearly two months before the end of the statutory period
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`provided by Congress under § 315(b). Mylan Pharma. Inc. v. Sanofi-Aventis
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`Deutschland GMBH, IPR2018-01680, Pap. 22, 18 (PTAB Apr. 3, 2019) (finding
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`that petition filed two months before bar date is “well within the timeframe allowed
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`by statute, weighing heavily in [petitioner’s] favor”).
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`Further, Apple’s substantial investment in these twenty-one petitions should
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`counterbalance—and frankly outweigh—the resources invested in the co-pending
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`litigation. Apple has paid at least $325,500 to the USPTO in fees for its twenty-one
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`petitions, not even accounting for the far greater attorney and expert fees required to
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`prepare those petitions. See 37 C.F.R. 42.15(a) (1). It would be unjust to consider
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`resources expended in District Court (equally by both parties), without considering
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`Apple resources expended to prepare the petitions that would be irretrievably lost
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`7
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`without consideration on the merits, in addition to the extensive expenses that will
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`follow in co-pending litigation for which significant milestones exist.
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`Fintiv Factor 4: The Petition Raises Unique Issues that will Not be
`Resolved in District Court
`Consistent with Congressional intent and the goals expressed in NHK and
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`Fintiv, Apple asks the Board to consider the unique challenges raised in the Petition.
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`See Fintiv, 5, 13-14; Intel, 11. Apple has eliminated any risk of duplicated effort in
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`assessing prior art by stipulating to counsel for Seven that, if the Board institutes the
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`pending Petition, Apple will not pursue district court invalidity challenges based on
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`the pending Petition’s asserted ground. APPLE-1045, 1. Even if the issue of the
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`’550 patent’s written description support is eventually tried at the district court, the
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`underlying invalidity challenge (i.e., obviousness based on Fiatal-Prabu-Bernard)
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`will not. Indeed, the overwhelming share of the Petition is directed specifically to
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`this prior art ground (41 pages) rather than the effective filing date issue (13 pages).
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`Further, the District Court will not address the validity of a substantial number of
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`the claims challenged by the Petition (see APPLE-1042)3, or apply the same
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`evidentiary standard that Congress required the Board to apply, even assuming that
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`3 Apple will continue to innovate new products, and desires Board review of the
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`additional claims to prevent future assertion by Seven in potential serial litigation.
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`8
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`the District Court will address validity at all, which is presently unknowable given
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`the potential for stay.
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`In short, the grounds proposed in the pending Petition are unique, and will
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`not be addressed in Apple’s co-pending district court litigation. For at least that
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`reason, there is no basis for discretionary denial under NHK, and Fintiv factor 4
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`favors institution. See NHK, 19-20; Oticon Medical AB et. al. v. Cochlear Ltd.,
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`IPR2019-00975 Pap. 15, 24 (PTAB Oct. 16, 2019) (precedential); Ericsson v.
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`Intellectual Ventures II, IPR2018-01689 Pap. 15, 53-57 (PTAB Apr. 16 2019).
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`Fintiv Factor 5: Apple’s Petition Enables the Board to Resolve
`Invalidity of Claims that might Otherwise be Reasserted
`Given the rapid pace of technological advancement and product development
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`made possible through the efforts of the technology companies that Seven
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`traditionally targets, Seven’s willingness to serially assert varying sets of claims
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`from previously litigated patents4 presents an ongoing threat to Apple and to other
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`4 For example, Seven previously asserted “at least claim 10” of U.S. Patent No.
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`9,516,127 (“’127 Patent”) against Samsung, Google, and ZTE. APPLE-1051, 18,
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`23, 42. Samsung and Google successfully petitioned for IPR, but in each proceeding
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`jointly moved for termination after settlement. See, e.g., Samsung Electr. Co., Ltd.
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`
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`9
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`
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`technology companies that will not be directly resolved in Apple’s District Court
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`litigation. Next Caller Inc. v. TrustID, Inc., IPR2019-00961, 14 (PTAB Oct. 16,
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`2019). For at least this reason, Apple’s status as both Petitioner and defendant is, at
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`worst, a neutral factor. Taking the relevant circumstances into account, institution
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`would serve overall efficiency and integrity, by enabling the Board to determine the
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`invalidity of claims that Seven might otherwise assert against others in the future.
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`Fintiv Factor 6: Other Circumstances Support Institution
`As the Fintiv panel noted, “if the merits of a ground raised in the petition seem
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`particularly strong … the institution of a trial may serve the interest of overall system
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`efficiency and integrity ….” Fintiv, 14-15. The present Petition is indeed
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`particularly strong considering that the primary reference (Fiatal) shares an identical
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`specification to the ’550 patent itself. Fintiv factor 6 therefore favors institution.
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`Even if one were to assume that the currently scheduled trial date is relevant
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`(and it is not, since the trial docket is full and the pending Petition’s grounds are
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`unique), the Fintiv factors favor institution. Apple respectfully submits that
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`discretionary denial would be neither appropriate nor equitable.
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`v. Seven Networks, LLC, IPR2018-01106, Paps. 29, 30. Seven now asserts a non-
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`overlapping subset of ’127 Patent claims against Apple. APPLE-1052, 54.
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`10
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
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`Respectfully submitted,
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`
`
`/W. Karl Renner/
`Dated: June 12, 2020
`W. Karl Renner, Reg. No. 41,265
`Roberto J. Devoto, Reg. No. 55,108
`Nicholas Stephens, Reg. No. 74,320
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorneys for Petitioner
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`11
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`Proceeding No.: IPR2020-00425
`Attorney Docket: 39521-0075IP1
`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR § 42.8(b), the undersigned certifies that on June 12,
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`2020, a complete and entire copy of this Petitioner’s Reply to Patent Owner’s
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`Preliminary Response, and Accompanying Exhibits, were provided via email to the
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`Patent Owner by serving the correspondence email addresses of record as follows:
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`Kenneth J. Weatherwax
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`Edward Hsieh
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`Nathan Lowenstein
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`Bridget Smith
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`Flavio Rose
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`Parham Hendifar
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`Patrick Maloney
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`Jason C. Linger
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`Email:
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`LOWENSTEIN & WEATHERWAX LLP
`1880 Century Park East, Suite 815
`Los Angeles, CA 90067
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` weatherwax@lowensteinweatherwax.com
`lowenstein@lowensteinweatherwax.com
` smith@lowensteinweatherwax.com
`rose@lowensteinweatherwax.com
` hsieh@lowensteinweatherwax.com
` hendifar@lowensteinweatherwax.com
` maloney@lowensteinweatherwax.com
` linger@lowensteinweatherwax.com
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`/Diana Bradley/
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`Diana Bradley
`Fish & Richardson P.C.
`3200 RBC Plaza, 60 South Sixth Street
`Minneapolis, MN 55402
`(858) 678-5667
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