UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAP AMERICA, INC.
`Petitioner
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`v.
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`PI-NET INTERNATIONAL, INC.
`Patent Owner
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`Case CBM2013-00013
`Patent 8,037,158
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`PETITIONER’S REPLY TO PATENT OWNER’S
`OPPOSOTION TO MOTION TO EXCLUDE EVIDENCE
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`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SAP AMERICA, INC.
`Petitioner
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`v.
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`PI-NET INTERNATIONAL, INC.
`Patent Owner
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`Case CBM2013-00013
`Patent 8,037,158
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`PETITIONER’S REPLY TO PATENT OWNER’S
`OPPOSOTION TO MOTION TO EXCLUDE EVIDENCE
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`Mail Stop "PATENT BOARD"
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Petitioner SAP America, Inc. files this Reply to Patent Owner’s Opposition
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`to Motion to Exclude pursuant to 37 C.F.R. § 42.64(c), and according to the
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`Scheduling Order (Paper 10). The Board should reject Patent Owner’s arguments
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`about the admissibility of Exhibits 2014-2106, 2018, and 2019 because they rely
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`on inapposite case law and are inadmissible.
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`1. Exhibits 2014-2016, 2018, and 2019 are not properly authenticated.
`The Board should exclude Exhibits 2014-2106, 2018, and 2019 because they
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`are not authenticated as explained in SAP’s motion to exclude. See Paper 47.
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`In its opposition, Patent Owner makes three incorrect assertions as to why
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`Exhibits 2014-2106, 2018, and 2019 are authentic. First, Pi-Net argues that they
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`these documents are authentic because of circumstantial indicia of authenticity. See
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`Paper 50, pgs. 1-3. Second, that Dr. Arunachalam has properly provided evidence
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`sufficient to show that the documents are what Pi-Net claims them to be. See Paper
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`50, pg. 3. Third, that these exhibits are self-authenticating. These arguments are
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`without merit.
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`Pi-Net’s first argument—that “printouts of electronic information have long
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`been held to be admissible—relies on a faulty premise. See Paper 50, pg. 1. The
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`issue here is not whether printouts can be admissible, but whether these printouts
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`are admissible. And the cases Pi-Net relies on do not support their broad
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`proposition that any printouts of any webpages, as Pi-Net seemingly argues here,
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`are admissible. Importantly, SAP does not argue that properly authenticated
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`electronic information is inadmissible, but rather that Exhibits 2014-2106, 2018,
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`and 2019 are not properly authenticated and are therefore inadmissible.
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`Loraine v. Markel American Insurance Co., 241 F.R.D. 534, 576–583 (D.
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`Md. 2007), the case Pi-Net cites for its broad proposition, actually supports SAP’s
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`position. In that case, the court analyzed the various ways in which electronic
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`records could be authenticated. Id. In particular, the court noted that electronic
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`evidence could be authenticated by “hash values” (or “hash marks”), examining
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`metadata, public records, by describing a process or system that produces accurate
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`results per Fed. R. Evid. 901(b)(9), or the myriad official records authorized by
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`Rule 902. None of these apply here. Pi-Net does not provide any hash values,
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`metadata, or describe a process or system that produced accurate results. And none
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`of these exhibits are the type of records contemplated by Rule 902.
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`Instead, Pi-Net relies incorrectly on two cases that found webpage printouts
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`authenticated because of circumstantial evidence. Notably, Pi-Net’s sole support
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`for these so-called circumstantial indicia of authenticity is that Pi-Net itself
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`provided dates and web addresses. See Paper 50, pg. 3. But these two “indicia” do
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`not “overcome the presumption that the information [] discovered on the internet is
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`inherently untrustworthy. See St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76. F.
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`Supp. 2d 773, 775 (S.D. Tex. 1999).
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`These exhibits are printouts of webpages. And Pi-Net’s sole attempt to
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`authenticate these exhibits is a single sentence in Dr. Arunachalam’s February 26,
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`2014 declaration: “Each of the above-mentioned exhibits is a true, authentic and
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`correct copy of the corresponding original document, as described above.” But Dr.
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`Arunachalam has no basis to make such a statement. Now Pi-Net argues that Dr.
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`Arunachalam need not have personal knowledge but instead Pi-Net merely needs
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`to only produce evidence sufficient to support a finding. See Paper 50, pg. 3.
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`This, however, confuses the ways in which a document can be authenticated.
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`Dr. Arunchalam may authenticate if based on personal knowledge, or Pi-Net could
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`use other evidence if it is sufficient. What Pi-Net cannot do is shoestring in the
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`other indicia to support Dr. Arunchalam’s statement that the exhibits are “true,
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`authentic, and a correct copy of the original document.” Simply put, Dr.
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`Arunchalam has no support for that statement.
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`Finally, Pi-Net argues that Exhibits 2014-2106, 2018, and 2019 are self-
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`authenticating because of copyright and trademark symbols. See Paper 50, pg 3.
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`For this proposition, Pi-Net relies on Alexander v. CareSource, 576 F.3d 551 (6th
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`Circuit). But that case dealt with using a document printed on the opponent’s own
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`letterhead. Id. at 561. Alexander does not stand for the broad proposition that
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`anything with a “TM” or “©” symbol is self-authenticating and nothing in Fed. R.
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`Evid. 902(7) supports such a position. Pi-Net cites to nothing to support a finding
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`that random printouts from alleged third-party websites are self-authenticating
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`because someone put “TM” or “©” on the page.
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`Moreover, Patent Owner’s assertion that these exhibits are not hearsay
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`because they show the “effect on a person of ordinary skill in the art” is incorrect.
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`See Paper 50, pg. 4. Patent Owner’s own statement in their opposition is that it
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`cited to these exhibits “in order to establish what the Exhibits actually teach….” Id.
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`Pi-Net’s reliance on Neev v. Abbott Med. Optics, Inc., 09-CIV-146, 2012 WL
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`1066797 (D. Del. Mar. 26, 2012) does not provide them any support. That case
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`analyzed whether statements about the general state of the art at the time of the
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`invention would be admissible.
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`Here, Pi-Net uses the exhibits as factual support for their positions. For
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`example, in its Corrected Response to the Petition, Pi-Net cites to Wikipedia
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`(Exhibit 2018) for what the term “Web application” means. See Paper 36, pg. 18.
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`Pi-Net does not cite Wikipedia for the effect that description has on persons of
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`ordinary skill in the art, contrary to its assertion now. Instead, Pi-Net is plainly
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`using the Wikipedia entry as factual support. This is hearsay and improper.
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`2. Conclusion
`For the reasons stated in this Reply and in its original Motion to Exclude,
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`SAP asks the Board in its role as gatekeeper to prevent Pi-Net from relying on
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`unauthenticated or hearsay documents. These exhibits do not meet the threshold
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`for admissibility and should be prevented from entering the record.
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Michael Q. Lee/
`Michael Q. Lee
`Registration No. 35,239
`Attorney for Petitioner
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`Date: June 3, 2014
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
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