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Another Apple IPR scheduled for the circular fileThe PTAB decided to institute an IPR of the '697 patent based on details in Apple's petition. Following are excerpts from VirnetX's response. From Section II - Apple relied exclusively on Mr. Fratto’s declaration to support its Petition, not once citing Beser itself in its application of the reference to the challenged claims. (See Paper No. 19 at 3-5; Paper No. 1.) The Decision also relies extensively on Mr. Fratto’s testimony, citing Mr. Fratto’s declaration 41 times. (See Paper No. 15.) Both Apple’s and the Decision’s analyses are based on testimony that should not be given any weight, see Sundance v. DeMonte, supra, so the Board should enter judgment against Apple and terminate this proceeding for this reason alone. From Section III - Over the course of several years, Mr. Fratto has made public statements on Twitter that reveal his bias against VirnetX’s patents. (See, e.g., Ex. 2026 at p. 73, l. 22 - p. 74, l. 13; see also Exs. 2008-2020.) Mr. Fratto was first retained by Apple in 2011, when he asked on Twitter for suggestions for a rate to charge as a patent consultant. See, e.g., Ex. 2026 at p. 58, ll. 17-18, and p. 82, l. 3 - p. 83, l. 8; Ex. 2011.) Shortly thereafter, Mr. Fratto revealed that he does not view himself as being neutral. Rather, Mr. Fratto announced that he views his role as including “patent busting” rather than “patent consulting.” (Ex. 2018; Ex. 2026 at p. 94, ll. 4-11.) Later in 2013, Mr. Fratto went further, posting that “if someone wants to retain me as an expert witness to bust [a patent] I will do it for free just to screw them.” (Ex. 2015, emphasis added; Ex. 2026 at p. 91, ll. 5-15.) Not only is Mr. Fratto purposefully trying to “bust” VirnetX’s patents, he is using improper techniques to do so. Two months after signing his declaration in this matter, Mr. Fratto announced that he has “come to the conclusion patent disputes aren't won on merits but rather who can bury who under a mountain of paper.” (Ex. 2013, emphasis added; Ex. 2026 at p. 94, l. 17 - p. 95, l. 6.) In this context, it is not surprising that Mr. Fratto chose to sign a lengthy 201-page declaration filled with inaccurate conclusions that are refuted below. In 2012, only one week before signing a declaration in the 95/001,788 reexamination of a VirnetX patent, Mr. Fratto posted on Twitter that “every so often I look at the cluster [censored] over stupid, obvious patents, and it pisses me off anew. So short sighted and idiotic.” (Ex. 2019; Ex. 2026 at p. 86, l. 1 - p. 87, l. 21.) Given that Mr. Fratto’s only patent work has been against VirnetX, the bulk of Mr. Fratto’s anti-patent Twitter posts are really against VirnetX patents. (See Ex. 2026 at p. 49, l. 17 - p. 50, l. 9.) Mr. Fratto views “expert witnesses” such as himself as benefiting personally from the type of attack he has mounted here. (Ex. 2017; Ex. 2026 at p. 92, l. 20 - p. 93, l. 14.) Mr. Fratto’s bias is not a minor point. It affects his analysis. During his deposition, Mr. Fratto admitted: “[t]o the best of my recollection, I don’t think I have ever concluded that claims were not obvious or not anticipated.” (Ex. 2026 at p. 58, l. 19 - p. 59, l. 1, emphasis added.) Mr Fratto has also never taken these proceedings seriously, even posting one day before his deposition in this matter that “Council [sic] says I’m not allowed to make faces or gestures at opposing [counsel] during a deposition. That’s no fun.” (Ex. 2008; Ex. 2026 at p. 91, l. 16 - p. 92, l. 16.) He then begrudgingly stated, “I will be professional, I suppose.” (Ex. 2008.) |
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Msg # | Subject | Author | Recs | Date Posted |
71137 | Re: Another Apple IPR scheduled for the circular file | EricVHCCartman | 30 | 9/1/2014 1:05:57 PM |
71139 | Re: Another Apple IPR scheduled for the circular file | castletower | 42 | 9/1/2014 1:09:08 PM |
71140 | Re: Another Apple IPR scheduled for the circular file | embraceyourinnerhillbilly | 25 | 9/1/2014 1:59:10 PM |