102. On or about March 8, 2010, trial in the Microsoft Litigation commenced. During trial, one or more witnesses for VirnetX, including inventor Edmund Munger, testified that the claims of the ’135 patent were conceived no earlier than three months after September 23, 1999, placing the alleged date of conception for claims 1–10 and 12 of the ’135 patent on or about December 23, 1999. 103. At trial, Microsoft alleged, in part, that claims 1–10 and 12 of the ’135 patent were anticipated by Aventail. Microsoft presented evidence, including testimony from Aventail’s co-founder Chris Hopen, that Aventail was publicly available at least as early as June 1999. During trial, VirnetX did not dispute the publication date of Aventail. Therefore, at least as of March 16, 2010, VirnetX was aware of evidence proffered by Microsoft that Aventail was published at least as early June 1999. 104. VirnetX never disclosed to the Patent Office the evidence presented by Microsoft at trial that Aventail was publicly available as early as June 1999. Instead, once reexamination of the ’135 patent resumed, VirnetX responded to the pending office action rejection, in part, by asserting that Aventail should not be considered prior art because no evidence had been submitted by Microsoft that established the actual publication date: B. Aventail has not been shown to be prior art under § 102(a) The Office Action and the Request both fail to demonstrate the actual publication date of Aventail necessary to establish a prima facie showing that Aventail is prior art. Both the Office Action and the Request assert that Aventail was published between 1996 and 1999 without any stated support. Request at 5; Office Action at 2. The Patent Owner can only presume that this assertion arises from the copyright date range printed on the face of the reference. See Aventail at i. This copyright date range is not, however, the publication date of Aventail. *** Thus, the Patent Owner respectfully submits that the Office Action has failed to establish that Aventail is prior art to the rejected claims. Accordingly, the Patent Owner respectfully requests that the § 102(a) rejection over Aventail be Case 6:12-cv-00855-RWS Document 219 Filed 03/27/15 Page 61 of 71 PageID #: 9687 62 withdrawn, and the rejected claims 1 and 10, as well as claims 3, 4, 6-9 and 12 depending thereupon, be confirmed. See Response to Office Action in Reexamination, 95/001,269, April 15, 2010 at 2 and 3–4.