Case: 18-1197 Document: 102 Page: 1 Filed: 08/19/2019

No. 2018-1197

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

VIRNETX INC., LEIDOS, INC.,

Plaintiffs-Appellees,
v.
CISCO SYSTEMS, INC.,
Defendant,
APPLE INC.,
Defendant-Appellant.

On Appeal from the United States District Court for the Eastern District of Texas,
No. 6:10-cv-00417-RWS, Judge Robert Schroeder, III

REPLY IN SUPPORT OF DEFENDANT-APPELLANT APPLE INC.’S

MOTION TO VACATE DENIAL OF REHEARING AND FOR LEAVE TO
FILE A SECOND PETITION FOR REHEARING AND REHEARING EN
BANC AND/OR A SUPPLEMENTAL BRIEF

BRITTANY BLUEITT AMADI WILLIAM F. LEE

WILMER CUTLER PICKERING MARK C. FLEMING
HALE AND DORR LLP LAUREN B. FLETCHER
1875 Pennsylvania Ave., NW WILMER CUTLER PICKERING
Washington, DC 20006 HALE AND DORR LLP
(202) 663-6000 60 State Street
Boston, MA 02109
THOMAS G. SPRANKLING (617) 526-6000
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, CA 94304
(650) 858-6000 Attorneys for Defendant-Appellant
Apple Inc.
August 19, 2019
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CERTIFICATE OF INTEREST

Counsel for Appellant Apple Inc. certifies the following:

1. The full name of every party or amicus represented by me is:

Apple Inc.

2. The name of the real party in interest represented by me is:

Not applicable.

3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented by me are:

None.

4. The names of all law firms and the partners or associates that appeared
for the party or amicus now represented by me in the trial court or agency or are
expected to appear in this court (and who have not or will not enter an appearance
in this case) are:

WILMER CUTLER PICKERING HALE AND DORR LLP: Jonathan G. Cedarbaum,

Rebecca Bact, Leah Litman (former), James L. Quarles III (former)
KIRKLAND & ELLIS, LLP: Robert A. Appleby, Gregory S. Arovas, Akshay S.
Deoras, David N. Draper, Jeanne M. Heffernan, Joseph A. Loy, Thomas V.
Matthew (former), F. Christopher Mizzo, John C. O’Quinn, Steve Papazian
(former), Aaron D. Resetarits, Leslie M. Schmidt
ALBRITTON LAW FIRM: Eric M. Albritton
BLANK ROME LLP: Stephen E. Edwards
DESMARAIS LLP: John M. Desmarais, Ameet A. Modi, Michael P. Stadnick
DUANE MORRIS LLP: Megan W. Olesek
FINDLAY CRAFT PC: Roger B. Craft, Eric H. Findlay
GOODWIN PROCTER, LLP: Marcia H. Sundeen
JACKSON WALKER LLP: Leisa T. Peschel

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POTTER MINTON, A PROFESSIONAL CORPORATION: Allen F. Gardner (former),

Michael E. Jones
WILLIAMS MORGAN, PC: Ruben S. Bains, Christopher N. Cravey (former)
Kyung T. Kim (former), Terry D. Morgan, Matthew R. Rodgers (former),
Danny L. Williams (former), Scott E. Woloson (former)
5. The title and number of any case known to counsel to be pending in this
or any other court or agency that will directly affect or be directly affected by this
court’s decision in the pending appeal:

• VirnetX Inc. v. Apple Inc., Nos. 17-1591, -1592, -1593 (Fed. Cir.)
(VirnetX’s appeals from Apple and Cisco reexaminations holding
unpatentable claims of U.S. Patent Nos. 7,418,504 (“the ’504 patent”) and
7,921,211 (“the ’211 patent”))

• VirnetX Inc. v. Iancu, Nos. 17-2593, -2594 (Fed. Cir.) (VirnetX’s appeals
from IPRs holding unpatentable claims of ’504 and ’211 patents) (stayed
pending resolution of Appeal Nos. 17-1591, -1592, -1593)

• VirnetX Inc. v. Cisco Systems, Inc., No. 18-1751 (Fed. Cir.) (VirnetX’s
appeal from Cisco reexamination holding unpatentable claims of ’504
patent)

• VirnetX Inc. v. Apple Inc., No. 19-1050 (Fed. Cir.) (Apple’s appeal from
district court judgment awarding damages in related case involving ’504
and ’211 patents and U.S. Patent Nos. 6,502,135 (“the ’135 patent”) and
7,490,151 (“the ’151 patent”))

• VirnetX Inc. v. Cisco Systems, Inc., No. 19-1671 (Fed. Cir.) (VirnetX’s
appeal from Cisco reexamination holding unpatentable claims of ’135
patent)

• VirnetX Inc. v. The Mangrove Partners Master Fund, Ltd., Nos. IPR2015-
01046, IPR2015-01047 (P.T.A.B.) (IPRs regarding claims of ’135 and
’151 patents, on remand from Nos. 17-1368, -1383 (Fed. Cir.))

• Inter Partes Reexamination No. 95/001,682 (PTO) (Apple reexamination

of ’135 patent)

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• Inter Partes Reexamination No. 95/001,697 (PTO) (Cisco reexamination

of ’151 patent)

• Inter Partes Reexamination No. 95/001,714 (PTO) (Apple reexamination

of ’151 patent)

Dated: August 19, 2019 /s/ William F. Lee

WILLIAM F. LEE
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000

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TABLE OF CONTENTS

Page
CERTIFICATE OF INTEREST .................................................................................i

TABLE OF AUTHORITIES .....................................................................................v

ARGUMENT .............................................................................................................1
THE COURT SHOULD VACATE THE DENIAL OF REHEARING AND
CONSIDER APPLE’S SECOND PETITION FOR REHEARING AND/OR
SUPPLEMENTAL BRIEF. ..........................................................................................1

A. VirnetX Does Not Defend The Substantive Patentability

Of Any Patent Claims Asserted Against FaceTime, Nor
Does It Deny That Those Claims’ Unpatentability
Requires Vacatur Of The Infringement And Damages
Judgments. .............................................................................................1

B. VirnetX’s Procedural Arguments Do Not Justify Ignoring

This Court’s Substantive Findings That The Asserted
’504 and ’211 Claims (Or Claims Indistinguishable
Therefrom) Are Unpatentable. .............................................................. 4

1. Apple showed ample basis for supplemental

briefing or rehearing. .................................................................. 4

2. The Court did not previously “reject[]” the

argument Apple presents now..................................................... 6

3. The 17-1591 Decision affects this co-pending case,

regardless of whether this current appeal involves
validity. .......................................................................................8

4. Deciding this case in a manner consistent with co-

pending proceedings is basic due process, not
“indefinite delay.” .....................................................................10

CONCLUSION ........................................................................................................12

CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE

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TABLE OF AUTHORITIES

CASES

Page(s)
County of Sacramento v. Lewis,
523 U.S. 833 (1998) ............................................................................................11

Fresenius USA, Inc. v. Baxter International Inc.,

721 F.3d 1330 (Fed. Cir. 2013) ....................................................................6, 8, 9

Gaia Technologies, Inc. v. Reconversion Technologies, Inc.,

104 F.3d 1298 (Fed. Cir. 1997) ............................................................................5

Imperium IP Holdings (Cayman), Ltd. v. Samsung Electronics Co.,

757 F. App’x 974 (Fed. Cir. 2019) (nonprecedential) .................................... 9-10

Mendenhall v. Barber-Greene Co.,

26 F.3d 1573 (Fed. Cir. 1994) .............................................................................. 9

Prism Technologies LLC v. Sprint Spectrum L.P.,

757 F. App’x 980 (Fed. Cir. 2019) .....................................................................10
Translogic Technology, Inc. v. Hitachi, Ltd.,
250 F. App’x 988 (Fed. Cir. 2017) (nonprecedential) ........................................10
VirnetX Inc. v. Apple Inc.,
__ F.3d __, 2019 WL 3483194 (Fed. Cir. Aug. 1, 2019) .................................2, 7

VirnetX, Inc. v. Cisco Systems, Inc.,

767 F.3d 1308 (Fed. Cir. 2014) ............................................................................ 8

VirnetX Inc. v. Cisco Systems, Inc.,

No. 18-1751, 2019 WL 2714615 (Fed. Cir. June 28, 2019)
(nonprecedential) ..................................................................................................2

XY, LLC v. Trans Ova Genetics, L.C.,

890 F.3d 1282 (Fed. Cir. 2018) ............................................................................ 9
DOCKETED CASES

VirnetX Inc. v. Apple Inc., Nos. 17-1591, -1592, -1593 (Fed. Cir.) .......................... 7

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VirnetX Inc. v. Cisco Systems, Inc., No. 18-1751 (Fed. Cir.) ................................2, 3

STATUTES AND RULES

35 U.S.C. § 317(b) .................................................................................................7, 8

Fed. Cir. R. 40(a)(4) ...................................................................................................5

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Apple respectfully submits this reply in support of its motion to vacate the

denial of rehearing and for leave to file a second petition for rehearing and rehearing

en banc and/or a supplemental brief, ECF No. 99-1 (“Motion”). This relief is

necessary to ensure that a judgment worth hundreds of millions of dollars is not

affirmed based on patent claims that, under this Court’s own decisions, either stand

invalidated or soon will be.

ARGUMENT

THE COURT SHOULD VACATE THE DENIAL OF REHEARING AND CONSIDER

APPLE’S SECOND PETITION FOR REHEARING AND/OR SUPPLEMENTAL BRIEF.

A. VirnetX Does Not Defend The Substantive Patentability Of Any

Patent Claims Asserted Against FaceTime, Nor Does It Deny That
Those Claims’ Unpatentability Requires Vacatur Of The
Infringement And Damages Judgments.

VirnetX’s 21-page opposition (“Opp.”) is notable for what it does not say.

VirnetX does not deny that, under this Court’s decisions in the last two months, none

of the patent claims asserted against FaceTime is actually patentable. It also does

not deny that it is estopped from arguing patentability of those claims in at least two

other appeals currently before this Court. And it does not deny that the

unpatentability of the claims asserted against FaceTime, if given effect in this appeal,

requires vacatur and remand of the infringement and damages judgments.

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1. VirnetX nowhere argues that any of the claims asserted against

FaceTime is actually patentable. This Court’s recent decisions now show the

following:

- Asserted claims 36, 47, and 51 of the ’211 patent were affirmed as

unpatentable on August 1. VirnetX Inc. v. Apple Inc., __ F.3d __, 2019 WL

3483194, at *13 (Fed. Cir. Aug. 1, 2019) (“17-1591 Decision”).

- Asserted claim 5 of the ’504 patent is unpatentable because it is

indistinguishable from claim 5 of the ’211 patent, which was also affirmed as

unpatentable on August 1. Id.; Motion 11-12.

- Asserted claims 1, 2, and 27 of the ’504 patent were affirmed as unpatentable

in a separate decision issued June 28. VirnetX Inc. v. Cisco Sys., Inc., No. 18-

1751, 2019 WL 2714615, at *4 (Fed. Cir. June 28, 2019) (“18-1751

Decision”). 1

VirnetX does not offer any argument that these claims are actually patentable over

the prior art as a matter of substance.

2. VirnetX also does not dispute Apple’s showing (Motion 11-17) that the

17-1591 Decision bars VirnetX from defending the patentability of claim 5 of the

1
VirnetX did not petition for rehearing of the 18-1751 Decision, despite
suggesting in this case that it would (VirnetX Supp. Br., ECF No. 92, at 5, 7) and
receiving an extension of time for doing so.

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’504 patent in two other appeals in which that claim’s patentability is directly at

issue:

First, Cisco petitioned for rehearing from the 18-1751 Decision itself, making

just that point regarding claim 5 of the ’504 patent. ECF No. 66 at 6-10, 13-16 (No.

18-1751). The panel in the 18-1751 appeal called for a response from VirnetX,

which is due August 28. ECF No. 70 (No. 18-1751). Should that panel accept

Cisco’s argument and affirm the Board’s finding that claim 5 of the ’504 patent is

unpatentable—as this Court’s precedents indicate it should—every claim asserted

against FaceTime will have been affirmed as unpatentable.

Second, the Court is also reviewing a separate agency decision holding

unpatentable claim 5 of the ’504 patent (among others)—a case in which briefing

was stayed pending issuance of the 17-1591 Decision. VirnetX Inc. v. Iancu, Nos.

17-2593, -2594 (Fed. Cir.). The 17-1591 Decision estops VirnetX from challenging

the Board’s unpatentability finding regarding claim 5 of the ’504 patent in that

appeal as well.2

3. VirnetX also does not deny that the unpatentability of the asserted

claims of the ’504 and ’211 patents makes affirmance of the district court’s

infringement and damages judgments impossible. That is because the judgments

2
Apple also intends to seek rehearing of the aspect of the 17-1591 Decision
that divided this panel regarding the Board’s authority to find claim 5 of the ’504
patent unpatentable in the reexamination requested by Apple. Motion 15.

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include millions of Mac and OS X units that were accused of infringing those patents

only, not the ’135 and ’151 patents asserted against VPN On Demand (which the

Mac and OS X products do not contain). See Motion 18; Appx2009(74:17-25).

Accordingly, this Court’s recent decisions in related cases compel the

conclusion that none of the claims asserted against FaceTime is patentable, and that

affirmance of a $439 million judgment based on such claims would be contrary to

settled precedent. The Court should therefore vacate the denial of rehearing,

consider Apple’s second petition for rehearing and/or supplemental brief—

warranted by this Court’s recent 17-1591 decision—and vacate and remand the

district court’s infringement and damages judgments.

B. VirnetX’s Procedural Arguments Do Not Justify Ignoring This

Court’s Substantive Findings That The Asserted ’504 and ’211
Claims (Or Claims Indistinguishable Therefrom) Are
Unpatentable.

Unable to suggest any substantive reason why the asserted ’504 and ’211

claims are patentable over the prior art, VirnetX advances a collection of procedural

arguments that it believes warrant ignoring the Court’s unpatentability findings in

co-pending appeals. None justifies VirnetX’s desired outcome.

1. Apple showed ample basis for supplemental briefing or

rehearing.

Apple offered the Court two avenues for considering the effect of the 17-1591

Decision in this appeal: either through a second petition for rehearing, or through a

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further supplemental brief. Motion 8-9. VirnetX does not address the second option

at all, thus implicitly conceding that it is procedurally proper. Accordingly, the

Court can and should vacate the prior denial of rehearing and consider Apple’s

proposed second petition as a supplemental brief supporting Apple’s original

petition for rehearing.

In any event, Apple presented a “legitimate basis” for a second rehearing

petition. Opp. 9. VirnetX does not deny that the Court retains jurisdiction and can

grant a second petition for rehearing. See Gaia Techs., Inc. v. Reconversion Techs.,

Inc., 104 F.3d 1298 (Fed. Cir. 1997) (granting leave to file second petition for

rehearing to address intervening authority). The standard for panel rehearing is met

because the panel’s Rule 36 affirmance, issued January 15, 2019, could not possibly

have taken account of the results of the 17-1591 Decision issued on August 1, 2019.

The Court thus necessarily “overlooked or misapprehended” the legal effects of the

17-1591 Decision, which was not available to the panel when it rendered its decision.

Fed. Cir. R. 40(a)(4). VirnetX’s assertion that Apple cites no “change in law here

that renders this Court’s summary affirmance … incorrect” (Opp. 10-11) is likewise

wrong. A precedential opinion of this Court is indisputably a binding “change in

law,” and Apple explained at length—and VirnetX does not deny—that, after the

17-1591 Decision issued on August 1, 2019, all asserted claims of the ’211 and ’504

patents (or claims indistinguishable therefrom) are unpatentable. Motion 9-17. This

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result bars affirmance here, because the accused Mac and OS X products do not

infringe any patentable claim. That is most certainly a cognizable development

warranting panel rehearing.

If panel rehearing is not granted, rehearing en banc is needed to decide

whether the Court may in fact affirm infringement and damages judgments when it

has held unpatentable asserted claims of the patents-in-suit or claims

indistinguishable therefrom. As Apple explained, such a holding would directly

contradict the Supreme Court’s and this Court’s precedent. ECF 99-2 at 1. Contrary

to VirnetX’s assertion (Opp. 10), Fresenius USA, Inc. v. Baxter Int’l Inc., 721 F.3d

1330 (Fed. Cir. 2013), did not permit such an outcome (see Motion 13-14, 17-18;

see also infra pp. 8-11), and VirnetX points to no case that did. At a minimum,

VirnetX’s protestations should be assessed when considering Apple’s

petition/supplemental brief on the merits; they are not a reason to refuse leave to

even file it.

2. The Court did not previously “reject[]” the argument Apple

presents now.

VirnetX suggests (Opp. 11) that this Court “already rejected” on August 1,

2019, an argument that Apple could not have made before August 1, 2019.

VirnetX’s assertion is illogical and inconsistent with the record.

At oral argument on January 8, 2019, Apple was clear that the three appeals

argued that day created “a variety of different possible results.” Oral Arg. 03:00-

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03:50. The Court’s questioning indicated that it was interested at the time only in

the effect of affirmance of the Cisco reexamination decision regarding the ’211

appeal alone (38:40-41:20 (Apple)), not in the combined effect of the future 17-1591

Decision and the separate 18-1751 appeal. Apple was certainly not asked what

would happen if this Court affirmed the unpatentability of all but one of the asserted

’504 and ’211 claims and a claim of the ’211 patent that VirnetX does not deny is

indistinguishable from the remaining claim of the ’504 patent.

After the 18-1751 Decision issued, Apple filed a supplemental brief in the 17-

1591 case explaining the collateral estoppel effect of the 18-1751 Decision alone.

ECF No. 95 (No. 17-1591). VirnetX responded by asserting inter alia that collateral

estoppel did not apply in the 17-1591 case for reasons that VirnetX conspicuously

does not assert here—namely that 35 U.S.C. § 317(b) barred the Board from

conducting Apple’s reexaminations at all (ECF No. 105 at 5-9), the claims at issue

were patentably distinct across the patents (id. at 10-14), and VirnetX lacked the

incentive to fully litigate the claims at issue (id. at 14-18). Thus, when this Court

stated in a footnote in the 17-1591 Decision that Apple “failed to show why collateral

estoppel is appropriate under these circumstances,” 17-1591 Decision, 2019 WL

3483194, at *11 n.15, 3 it was not referring to “circumstances” that apply here. 35

3
All emphases are added.

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U.S.C. § 317(b) has no effect in this appeal, and VirnetX does not dispute Apple’s

showing (Motion 11-17) that claim 5 of the ’504 patent is indistinguishable from

claim 5 of the ’211 patent, which VirnetX had every incentive to—and in fact did—

litigate capably. Accordingly, whatever “circumstances” the Court held made

collateral estoppel inappropriate in the 17-1591 Decision do not apply here.

The Court has not previously decided, and could not have decided, the

combined effect of the 18-1751 and 17-1591 Decisions in this case. That issue first

became ripe on August 1, 2019. It could not have been presented sooner and should

be decided now.

3. The 17-1591 Decision affects this co-pending case, regardless

of whether this current appeal involves validity.

VirnetX argues that it can escape its claims’ unpatentability “because VirnetX

is not relitigating validity in this appeal.” Opp. 14. Again, VirnetX’s argument

defies both logic and precedent.

Although this Court previously affirmed the jury’s no-invalidity

determination, VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1323-1324 (Fed. Cir.

2014), this Court must “apply intervening legal developments affecting the asserted

patent’s validity, even if the court of appeals already decided the validity issue the

other way,” Fresenius, 721 F.3d at 1342. Contrary to VirnetX’s argument, this

Court’s “precedent holds that the defense of collateral estoppel based on a final

judgment of patent invalidity in another suit can be timely made at any stage of the

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affected proceedings.” Mendenhall v. Barber-Greene Co., 26 F.3d 1573, 1579 (Fed.

Cir. 1994) (internal quotation marks omitted).

VirnetX does not even cite Mendenhall, much less seek to distinguish it. And

its attempt to carve out of XY, LLC v. Trans Ova Genetics, L.C., 890 F.3d 1282 (Fed.

Cir. 2018), situations in which validity was addressed in a prior appeal (Opp. 14-15)

is meritless. XY explained that “affirmance [of the Board’s unpatentability

determination] … has an immediate issue-preclusive effect on any pending or co-

pending actions involving the patent.” 890 F.3d at 1294; see Fresenius, 721 F.3d

at 1343-1344 (holding that even though “there had been an appellate decision

entirely resolving” the invalidity claims, “[t]he intervening decision invalidating the

patents unquestionably applies in the present litigation, because the judgment in this

litigation was not final”).4

Nor should the Court wait until the PTO formally cancels the claims. Opp.

15-16. This Court regularly vacates or reverses judgments upon this Court’s

affirmance of an unpatentability determination, before the claims found unpatentable

are formally cancelled. See, e.g., Imperium IP Holdings (Cayman), Ltd. v. Samsung

4
VirnetX’s argument that Fresenius involves not collateral estoppel, but
“extinguish[ing]” the cause of action (Opp. 15), is self-defeating. Whether through
estoppel or extinguishment, the asserted claims of the ’504 and ’211 patents can no
longer sustain VirnetX’s cause of action. The infringement and damages judgments
against FaceTime can thus no longer stand.

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Elecs. Co., 757 F. App’x 974, 980 (Fed. Cir. 2019) (nonprecedential) (holding that

liability was precluded based on panel affirming claims as unpatentable); Translogic

Tech., Inc. v. Hitachi, Ltd., 250 F. App’x 988 (Fed. Cir. 2017) (nonprecedential)

(vacating district court judgment based on panel decision affirming Board’s rejection

of asserted claims); see also Prism Techs. LLC v. Sprint Spectrum L.P., 757 F. App’x

980, 987 (Fed. Cir. 2019) (nonprecedential) (district court properly vacated

judgment after panel affirmed unpatentability). And whether the PTO has formally

cancelled claim 5 of the ’504 patent does not matter, because VirnetX does not deny

that it is indistinguishable from claim 5 of the ’211 patent, which will be cancelled.

See supra pp. 1-3.

VirnetX has shown no reason for treating claim 5 of the ’504 patent as

patentable where indistinguishable claim 5 of the ’211 patent is not. See Motion 11-

17. Accordingly, this Court should grant Apple’s Motion.

4. Deciding this case in a manner consistent with co-pending

proceedings is basic due process, not “indefinite delay.”

Finally, VirnetX repeatedly complains that resolving this appeal in a manner

consistent with co-pending proceedings regarding the asserted claims’

unpatentability amounts to “indefinite delay.” Opp. 18. VirnetX’s arguments make

clear that it is hoping to take advantage of the very “happenstance of docket

management” (id.) that it rails against. Specifically, VirnetX seeks to benefit from

the fact that this Court (A) issued a Rule 36 affirmance in this case months before it

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decided the co-pending unpatentability appeals, and (B) denied Apple’s petition for

rehearing 30 minutes after issuing an opinion that—as Apple has explained without

contradiction from VirnetX—now makes plain that all claims asserted against

FaceTime are unpatentable. 5

Apple has moved quickly to inform the Court of the consequences of the

decisions in these multiple intertwined cases. VirnetX should not be able to reap an

advantage from the fact that this one appeal, which was noticed months after the 17-

1591 and 17-1368 appeals, was put on a faster track for argument and decision. This

case should be decided based on the law—including this Court’s opinions regarding

the claims’ unpatentability and settled precedent regarding the effect of co-pending

decisions—and not based on VirnetX’s desire to preserve its windfall. County of

Sacramento v. Lewis, 523 U.S. 833, 845-846 (1998) (“[T]he touchstone of due

process is protection of the individual against arbitrary action of government[.]’”).

Therefore, even if this Court does not vacate the district court judgment now, it

should at least vacate the denial of rehearing and grant the motion for leave to file a

second petition for rehearing and rehearing en banc or a supplemental brief, and hold

5
VirnetX did not complain when this Court sua sponte delayed holding oral
argument in the 17-1591 and 17-1368 appeals for months in order to hear them in
conjunction with this case. See ECF No. 78 at 6, 16.

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the case open pending resolution of unpatentability proceedings concerning the

patents-in-suit.

CONCLUSION

The Court should vacate the denial of rehearing and grant Apple leave to file

a second petition for rehearing and rehearing en banc and/or supplemental brief.

Respectfully submitted,

/s/ William F. Lee

BRITTANY BLUEITT AMADI WILLIAM F. LEE
WILMER CUTLER PICKERING MARK C. FLEMING
HALE AND DORR LLP LAUREN B. FLETCHER
1875 Pennsylvania Ave., NW WILMER CUTLER PICKERING
Washington, DC 20006 HALE AND DORR LLP
(202) 663-6000 60 State Street
Boston, MA 02109
THOMAS G. SPRANKLING (617) 526-6000
WILMER CUTLER PICKERING
HALE AND DORR LLP Attorneys for Defendant-Appellant
950 Page Mill Road Apple Inc.
Palo Alto, CA 94304
(650) 858-6000

August 19, 2019

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CERTIFICATE OF SERVICE

I hereby certify that, on this 19th day of August, 2019, I filed the foregoing

with the Clerk of the United States Court of Appeals for the Federal Circuit via the

CM/ECF system, which will send notice of such filing to all registered CM/ECF

users.

/s/ William F. Lee

WILLIAM F. LEE
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
 Case: 18-1197 Document: 102 Page: 21 Filed: 08/19/2019

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(g), the undersigned hereby certifies that this

motion complies with the type-volume limitation of Fed. R. App. P. 27(d)(2).

1. Exclusive of the exempted portions of the motion, as provided in Fed.

Cir. Rule 27(d), the motion contains 2,600 words.

2. The petition has been prepared in proportionally spaced typeface using

Microsoft Word 2010 in 14 point Times New Roman font. As permitted by Fed. R.

App. P. 32(g), the undersigned has relied upon the word count feature of this word

processing system in preparing this certificate.

/s/ William F. Lee

WILLIAM F. LEE
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
(617) 526-6000
August 19, 2019