For those of that are board, like to read and need a little further VP boost/fueling.
After VPs prelim IPR response in my previous post, Samsung responded with a bunch of total BS, lies basically, to which VP filed a Surreply (on 02/08/23) to Samsung's BS filled response, which a portion of VP's response is below. Note: Samsung just recently filed the stay request in WACO:
Factor One: Despite having complete control over whether to seek a stay,
Samsung has not sought to stay the district court case despite filing its Petition over
five months ago. There is not enough time for the parties to brief or for the district
court to decide a stay motion before the institution decision, which is due by March
27, 2023. The possibility that Samsung will pursue a stay motion in the future, which
Samsung admits it will not do until after the institution decision, proves VoIP-Pal’s
point—Samsung has not and cannot show that a stay is likely.
Factor Two: Samsung’s trial date argument should be rejected because it is
based on the trial date in unrelated cases. VoIP-Pal filed its WDTX cases against
Amazon, Verizon, and T-Mobile more than five months before VoIP-Pal filed its
WDTX case against Samsung. Thus, the WDTX does not deem the cases related. Additionally, Samsung misleadingly suggests that the Court extended the trial date
in the Amazon, Verizon, and T-Mobile cases by two months. Rather, it was the parties who agreed to extend the trial date. VoIP-Pal and Samsung have no such agreement. Thus, the Board should draw no conclusions from the extension of the trial date in the Amazon, Verizon, and T-Mobile cases. Indeed, Samsung does not contend that the district case will not be tried before December 2023—the projected final written decision date.
Factor Three: Samsung’s claim that the district case is in its infancy is
incorrect. Samsung again misleadingly suggests that the district court has not issued
a claim construction order. It has. Fact discovery close in three months and trial is
only eight months away. Thus, the district court case will go to trial well before the
Board is due to issue its final written decision.
Factor Four: Contrary to what Samsung claims, the overlap of issues relating
to claim construction is of great consequence. All the terms that Petitioner offers for
construction were construed by the WDTX in the district court case. By construing
these terms again, the Board will merely be duplicating the efforts of the parties and
the WDTX.
Factor Five: Samsung concedes that this factor weighs against institution.
Factor Six: Samsung’s claim that it is unclear what tactical advantage it
derived by waiting until August 23, 2022 to file its Petition—almost nine months
after VoIP-Pal filed the district court case—is disingenuous. In the petition that
Samsung seeks to join, Meta expressly argues that Fintiv factors two and three weigh
in favor of institution because “no trial date has been scheduled” and “deadlines for
[major case milestones] have not been set” in Meta’s district court case. That would
not have been the case if Meta had filed its Petition months earlier before the WDTX
transferred the Meta district court case to the NDCAL and when Meta first asserted
in the district court case the prior art that Meta and Samsung now rely on. By waiting
to file its Petition after the WDTX transferred the Meta district court case to the
NDCAL, Samsung benefited because Meta’s tactics improved the chances of Meta’s
petition, and hence Samsung’s Petition, being granted. Accordingly, the Board
should discredit Samsung’s argument that it did not gain any advantage through
Samsung’s delay in filing a copycat petition.
AI
