Paper No. _____
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`THE UNITED STATES POSTAL SERVICE (USPS)
`AND THE UNITED STATES OF AMERICA,
`AS REPRESENTED BY THE POSTMASTER GENERAL
`Petitioner,
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`v.
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`RETURN MAIL, INC.
`Patent Owner.
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`____________
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`Case CBM2014-00116
`Patent 6,826,548
`____________
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`PATENT OWNER RETURN MAIL, INC.’S
`MOTION TO EXCLUDE
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`THE UNITED STATES POSTAL SERVICE (USPS)
`AND THE UNITED STATES OF AMERICA,
`AS REPRESENTED BY THE POSTMASTER GENERAL
`Petitioner,
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`v.
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`RETURN MAIL, INC.
`Patent Owner.
`
`____________
`
`Case CBM2014-00116
`Patent 6,826,548
`____________
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`PATENT OWNER RETURN MAIL, INC.’S
`MOTION TO EXCLUDE
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`INTRODUCTION
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`ARGUMENT
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`I.
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`II.
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`Exhibit 1008 (Declaration of Dr. Joe Lubenow)
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`Exhibit 1022 (Joe Lubenow’s Notes)
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`Exhibit 1028 (Supplemental Declaration of Joe Lubenow)
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`Exhibit 1018 (USPS Redirection History)
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`Exhibit 1019 (Move Update, April 1997)
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`Exhibits 1003, 1005, 1006, 1007, 1013, and 1014
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`Exhibit 1025 (Auxiliary Markings Newsletter)
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`Exhibit 1026 (Postal Automated Redirection System)
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`III. CONCLUSION
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`TABLE OF CONTENTS
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`2
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`TABLE OF AUTHORITIES
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`Cases
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`Daubert v. Merrell Dow Pharmaceuticals, Inc.,
`509 U.S. 579 (1993)
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`Kumho Tire Co. v. Carmichael,
`526 U.S. 137 (1999)
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`Orion IP, LLC v. Hyundai Motor Am.,
`605 F.3d 967 (Fed. Cir. 2010)
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`5
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`13, 14
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`10, 11
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`Orthopedic & Sports Injury Clinic v. Wang Labs., Inc.,
`922 F.2d 220 (5th Cir. 1991)
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`PTAB Proceedings
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`The Scott Company LLC v. Encap, LLC,
`IPR2013-00110, Paper 79
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`Regulations
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`37 C.F.R. § 42.23(b)
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`37 C.F.R. § 42.64
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`37 C.F.R. § 42.64(b)(1)
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`37 C.F.R. § 42.64(c)
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`3
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`I.
`INTRODUCTION
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`Petitioner’s proffered expert, Dr. Joe Lubenow, offers opinions that are
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`unreliable and that would not help the Board “understand the evidence or to
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`determine a fact in issue.” FED. R. EVID. 702. Patent Owner Return Mail, Inc. moves
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`pursuant to 37 C.F.R. § 42.64(c) to exclude Dr. Lubenow’s opinions in Exhibit 1008,
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`1022 and 1028. Patent Owner also moves to exclude Exhibits 1003, 1005, 1006, 1007,
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`1013, 1014, 1018, 1019, 1022, 1025, and 1026.
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`In accordance with 37 C.F.R. § 42.64(b)(1), Patent Owner timely served its
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`objections on October 30, 2014 and February 24, 2015, as well as any necessary
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`objections during the deposition of Dr. Joe Lubenow. Petitioner served no
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`supplemental evidence in response to the objections. Copies of Patent Owner’s
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`objections are marked as Exhibits 2053 and 2054.
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`II. ARGUMENT
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`Exhibit 1008 (Declaration of Dr. Joe Lubenow)
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`Regarding Exhibit 1008, Dr. Lubenow is not qualified to tender expert opinion
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`in this case and his testimony is largely based on information from counsel, adopts
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`incorrect claim constructions, and consists of conclusory statements that the elements
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`of claims 39-44 of the ‘548 patent are contained in the prior art reference 1997 ACS
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`(Exhibit 1004). Further, much of Dr. Lubenow’s testimony is irrelevant to this
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`proceeding. Consequently, his opinions should be excluded.
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`Dr. Lubenow’s testimony should be excluded under Federal Rule of Evidence
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`702 because he is not qualified to act as an expert in this case. See Daubert v. Merrell
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`Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co. v. Carmichael, 526 U.S.
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`137 (1999) and their progeny. Dr. Lubenow attempts to express opinion about what
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`the prior art contained, including the operation of CFS units with respect the
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`disclosures of the 1997 ACS. In particular, there is a question as to whether optical
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`scanners were used in the 1997 ACS process at CFS units. Dr. Lubenow’s testimony
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`should be excluded because he admitted in his deposition that he does not know “the
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`internal details of the CFS operation.” Ex.1023 at 145. He has never been inside a
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`CFS unit, Ex.1023 at 172, and his testimony regarding equipment used in the CFS
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`units is based on guesses and unsupported assumptions. Ex.1023 at 173-74.
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`Dr. Lubenow’s testimony also should also be excluded under Federal Rule of
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`Evidence 702 because it will not assist the Board in understanding the evidence or
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`determining facts at issue. Further, his opinions create a significant risk of confusing
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`the issues and are misleading. FED. R. EVID. 403. For example, many of the citations
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`to 1997 ACS (Exhibit 1004) are misleading because they are incorrect, incomplete, or
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`taken out of context. In one instance, the alleged “quote” is so garbled that it takes
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`some time to figure out how Dr. Lubenow mixed and matched the language. The real
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`text of 1997 ACS reads as follows:
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`The mail forwarding process begins when (1) a postal customer
`moves and files a Postal Service Form 3575, Change of Address (COA)
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`Patent Owner’s Motion to Exclude
`Order, or (2) a customer’s postal carrier discovers that the customer no
`longer receives mail at a particular address and no Form 3575 has
`been filed. In the latter instance, the carrier files a Form 3575 on
`behalf of the customer, indicating that the customer moved and left
`no forwarding address. If this is a customer whose post office box is
`closed, a postal clerk will file a Form 3575 on behalf of the customer.
`The delivery unit sends the Form 3575 to the Computerized
`Forwarding System (CFS) unit, where it is entered into a database.
`Ex.1004 at 5. In his declaration, Dr. Lubenow’s “quote” from this paragraph reads as
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`follows:
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`1997 ACS discloses “a customer’s postal carrier discovers that the
`customer no longer receives mail at a particular address. The delivery
`unit sends the Form 3575 [change of address form] on behalf of the
`intended recipient to the CFS unit, where it is entered in the
`database.” Ex. 1004 at 4.1
`Ex. 1008 at ¶ 208. In addition to being a completely inaccurate quote, another issue
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`with his “quote” is that it focuses on a situation that does not apply to the patent-at-
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`issue because carrier-filed forms do not generate address change service notifications.
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`Ex. 1004 at 15, 24. In fact, this “quote” of Dr. Lubenow’s was also used verbatim by
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`Petitioner in its 1997 ACS anticipation argument. Petitioner (Paper 2) at 50 (see
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`discussion of claim element 42.2).
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`1 Dr. Lubenow cited to the document’s actual page number rather than the exhibit
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`page number.
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`Patent Owner’s Motion to Exclude
` Further, there is no explanation provided as to how Dr. Lubenow reaches his
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`conclusions. Orthopedic & Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224-25
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`(5th Cir. 1991). In most instances, he simply “quotes” language from 1997 ACS and
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`then states that some limitation is disclosed. Ex. 1008 at ¶¶ 208-209. His opinions are
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`not the product of reliable principles or methods, and he did not apply any reliable
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`principles or methods to the facts. Throughout his discussion of 1997 ACS, Dr.
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`Lubenow’s testimony consists of one or more “quotes” along with a conclusion.
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`Ex.1008 at 50-62. In a few instances, he also makes statements regarding one of
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`ordinary skill in the art, but it is unclear how these unsupported statements relate to
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`the issue being addressed. See id. at ¶¶ 176, 187, 193, 199, 204, 213, 224, 229.
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`Additionally, for the same reasons, many of his opinions throughout the background
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`sections and the discussion of 1997 ACS are conclusory. He provides a few “quotes”
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`and then states his conclusions. One example of this relates to claim 40’s limitation
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`“determining from the decoded data that the customer wants a corrected address to
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`be provided for at least one of the plurality of undeliverable mail items.” Ex.1008 at
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`¶¶ 188-190. Dr. Lubenow provides two “quotes.” Id. One is a statement related to
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`“participant codes.” Id. The other “quote” relates to a match in the CFS database,
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`which is followed by his conclusion that 1997 ACS discloses the limitation. Id. There
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`is no explanation, however, as to how that limitation is disclosed from these two
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`“quotes.” Id. In fact, Dr. Lubenow’s deposition testimony shows that he has very little
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`knowledge regarding the participant codes described in 1997 ACS, despite his
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`Patent Owner’s Motion to Exclude
`repeatedly conclusory comments about participant codes throughout his declaration.
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`Ex.1023 at 125, 135, 137, and 138.
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`Dr. Lubenow’s testimony also contains irrelevant information that is not
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`admissible under Federal Rules of Evidence 401-403. More specifically, ¶¶ 36-68
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`relate to Petitioner’s impermissible broadening argument, which is not one of the
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`grounds at issue in this proceeding. Board Decision (Paper 11) at 35. Further, ¶¶ 70-
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`83 relate to Petitioner’s proposed claim constructions, which were not adopted by the
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`Board. Id. at 8-11. Also, the following paragraphs relate to prior art and/or grounds
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`not at issue in this proceeding: ¶¶ 84, 86-170, 237-305. Id. at 35.
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`Further, under Federal Rule of Evidence 703, Dr. Lubenow’s testimony should
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`be excluded to the extent he relies on Exhibits 1003, 1018, and 1019, which are
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`inadmissible themselves, as discussed below.
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`Also, in addition to the bases discussed above, the following paragraphs of Dr.
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`Lubenow’s testimony should be excluded. Paragraph 3 of Exhibit 1008 should be
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`excluded under Federal Rules of Evidence 104, 401-403, 601-602, and 701-703
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`because most of the references discussed in his declaration are irrelevant to the
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`grounds at issue in this proceeding and his testimony regarding 1997 ACS should be
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`excluded for the reasons explained above. Paragraphs 4-8 of Exhibit 1008 should be
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`excluded under Federal Rules of Evidence 104, 601-602, and 702-703 because there is
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`an inadequate foundation for his testimony as an expert in this proceeding.
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`Paragraphs 27-30 of Exhibit 1008 should be excluded under Federal Rules of
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`Patent Owner’s Motion to Exclude
`Evidence 104, 401-403, 601-602, and 701-703 because they include opinions that rely
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`on claim constructions that are contrary to the claim constructions adopted by the
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`Board. Board Decision (Paper 11) at 8-11. Paragraphs 32-35 of Exhibit 1008 should
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`be excluded under Federal Rules of Evidence 104, 401-403, 601-602, and 701-703
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`because the Board’s decision to institute this proceeding makes any opinions within
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`these paragraphs irrelevant because they relate to priority based on a provisional
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`application, and priority is not an issue with 1997 ACS. Further, these opinions rely
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`on claim constructions contradicted by the Board’s claim construction adoption, and
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`they include opinions, such as what is disclosed in a priority application, that Dr.
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`Lubenow is not qualified to testify about as an expert on patent applications
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`according to his own testimony. Ex.1023 at 64:23-66:8. Dr. Lubenow testified that his
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`first patent experience was where he was listed as an inventor on an ancient reorder
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`system, which he described as a learning experience. Id. at 65:2-7. His second
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`experience was also as a named inventor, but he testified that his knowledge was really
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`just related to that particular patent. Id. at 66:6-8.
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`Paragraphs 36-68 of Exhibit 1008, relating to the ‘548 patent reexamination,
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`should be excluded under FRE 104, 401-403, 601-602, and 701-703. Based on the
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`Board’s decision, any opinions within these paragraphs are irrelevant. Further, these
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`opinions rely on claim constructions contradicted by the Board’s claim construction
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`adoption, and they include opinions that Dr. Lubenow is not qualified to testify about
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`as an expert. Paragraphs 70-83 of Exhibit 1008 should be excluded under Federal
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`Rules of Evidence FRE 104, 401-403, 601-602, and 701-703. As stated above, his
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`opinions on claim construction are irrelevant and contradicted by the Board’s claim
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`construction.
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`Further, to the extent Dr. Lubenow has attempted to provide any opinions or
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`testimony regarding patentable subject matter, any such opinions or testimony should
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`be excluded. As shown in his deposition during cross-examination, Dr. Lubenow
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`refused to answer the straight-forward question as to whether he had any opinions
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`regarding patentable subject matter. Ex.1023 at 19:4-25:23. Instead, he chose to play
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`word games and refused to answer the questions put to him on that issue. Id. It
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`should be noted that Dr. Lubenow’s declaration (Exhibit 1008) does not contain any
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`opinions regarding patent-eligible subject matter.
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`Exhibit 1022 (Joe Lubenow’s Notes)
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`The “notes” of Dr. Lubenow should be excluded based on Federal Rules of
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`Evidence 104, 401-403, 801-802, and 1001-1002. They are essentially a presentation
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`prepared by Petitioner’s attorneys at the so-called “direction” of Dr. Lubenow.
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`Ex.1023 at 11:11-20. As supported by objections made at the time, Petitioner attached
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`the “notes” as an exhibit to Dr. Lubenow’s deposition. The “notes” (1) introduced
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`new opinions not expressed in the declaration of Dr. Lubenow and in his testimony
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`to that point; 37 C.F.R. § 42.64; (2) were an improper attempt to supplement Dr.
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`Lubenow’s opinions; 37 C.F.R. § 42.64; and (3) they violated the best evidence rule
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`(FRE 1001-1002) and are hearsay (FRE 801-802). Further, Dr. Lubenow’s attempts to
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`refer to the “notes” throughout his deposition were clearly aimed at an attempt to get
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`them admitted despite the fact that they are essentially an attorney presentation in the
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`guise of a witness’s “notes.” Id.; FED. R. EVID. 401-403.
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`Exhibit 1028 (Supplemental Declaration of Joe Lubenow)
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`Regarding Exhibit 1028, Dr. Lubenow’s testimony should be excluded because
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`it is not based on sufficient facts or data, lacks explanations, and will not assist the
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`Board. Further, Dr. Lubenow expresses opinions beyond the proper scope of a reply
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`declaration and suggests irrelevant and incorrect constructions for terms. 37 C.F.R.
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`§ 42.64.
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`Dr. Lubenow’s testimony should be excluded under Federal Rules of Evidence
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`104, 601-602, and 702-703 because there is an inadequate foundation for his
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`testimony as an expert in this proceeding.
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`Additionally, Dr. Lubenow’s testimony should be excluded under Federal Rules
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`of Evidence 401-403 because his testimony regarding ZIP codes in Paragraph 14 is
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`irrelevant because the encoded data in the ‘548 patent claims relate to information
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`indicating whether the sender wants a corrected address—not ZIP codes. Also, Dr.
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`Lubenow relies on inadmissible materials in Paragraph 34, e.g. Exhibits 1018 and
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`1025, which are not admissible as explained in detail below.
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`Furthermore, Paragraphs 11-21 and 26 of Exhibit 1028 should be excluded
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`because they include testimony that belatedly presents new arguments for establishing
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`11
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`a prima facie case. This violates 37 C.F.R. § 42.23(b), and it is further supported by The
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`Scott Company LLC v. Encap, LLC, IPR2013-00110, Paper 79, at 7.
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`Exhibit 1018 (USPS Redirection History)
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`Exhibit 1018 (United States Postal Service’s Redirection History) should be
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`excluded because it is inadmissible hearsay under Federal Rules of Evidence 801-802,
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`and it is not authenticated under Federal Rule of Evidence 901. These are statements
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`made by an unidentified individual, which are not sworn testimony in a hearing or
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`trial, that are being proffered in an attempt to prove the truth of the matter asserted.
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`Further, Exhibit 1018 is not cited in the Petition. It is merely cited by Dr. Lubenow in
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`his declaration (Ex.1008) for information related to background information not
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`relevant to the specific grounds in this proceeding. Ex.1008 at ¶¶ 13, 14, 20, 21.
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`Exhibit 1019 (Move Update, April 1997)
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`Exhibit 1019 (Move Update, April 1997) should be excluded because it is
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`inadmissible hearsay under Federal Rules of Evidence 801-802, and it is not
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`authenticated under Federal Rule of Evidence 901. These are statements made by an
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`unidentified individual, which are not sworn testimony in a hearing or trial, that are
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`being proffered in an attempt to prove the truth of the matter asserted. Further, it is
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`irrelevant under Federal Rules of Evidence 401-403 because it merely relates to
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`background information. Exhibit 1019 is not cited in the Petition. It is merely cited by
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`Dr. Lubenow in his declaration (Ex.1008) for information related to background not
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`relevant to the grounds in this proceeding. Ex.1008 at ¶¶ 15, 16, 18, 19.
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`Exhibits 1003, 1005, 1006, 1007, 1013, and 1014
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`The following exhibits should be excluded as irrelevant under Federal Rule of
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`Evidence 402 because they relate to grounds not at issue in this proceeding: Exhibits
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`1003, 1005, 1006, 1007, 1013, and 1014. Board Decision (Paper 11) at 35. These
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`exhibits are irrelevant because they are alleged prior art materials, which are not
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`grounds at issue in this proceeding. Id.
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`Exhibit 1025 (Auxiliary Markings Newsletter)
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`Exhibit 1025 (Auxiliary Markings Newsletter) should be excluded because it is
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`inadmissible hearsay under Federal Rules of Evidence 801-802. These are statements
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`made by an unidentified individual, which are not sworn testimony in a hearing or
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`trial, that are being proffered in an attempt to prove the truth of the matter asserted.
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`Further, it is not the best evidence under Federal Rules Evidence 1001-1002, and it is
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`inadmissible under Federal Rules of Evidence 601-603 and 701-703 regarding the
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`article cited by Petitioner and authored by Michael M. Ludeman. Petitioner is
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`essentially trying to use this document in conjunction with 1997 ACS in its
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`anticipation argument, but tying the alleged prior art to other materials is not correct
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`for an anticipation argument. Orion IP, LLC v. Hyundai Motor Am., 605 F.3d 967, 975
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`(Fed. Cir. 2010) (holding that a patent claim is anticipated if a single prior art
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`references expressly or inherently discloses every limitation of the claim); Reply (Paper
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`22) at 14.
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`Exhibit 1026 (Postal Automated Redirection System)
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`Exhibit 1026 should be excluded because it is inadmissible hearsay under
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`Federal Rules of Evidence 801-802. These are statements made by an unidentified
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`individual, which are not sworn testimony in a hearing or trial, that are being
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`proffered in an attempt to prove the truth of the matter asserted. In fact, the only
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`reference to Exhibit 1026 in Petitioner’s Reply is to Figure 1 of Exhibit 1028. Reply
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`(Paper 22) at 11. Further, it is not the best evidence under Federal Rules of Evidence
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`1001-1002 because it is simply a drawing in an article, and it is inadmissible under
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`Federal Rules of Evidence 601-603 and 701-703 because there is nothing to show that
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`the authors of the article are qualified to provide any testimony in this proceeding.
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`Additionally, this copy of the article should be excluded because it has hand-written
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`comments and underlining, which are inadmissible under Federal Rules of Evidence
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`401-403, and also are hearsay, 801 et seq., and without foundation or authentication,
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`901. Petitioner is essentially trying to use this document in conjunction with 1997
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`ACS in its anticipation argument, but tying the alleged prior art to other materials is
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`not correct for an anticipation argument. Orion IP, 605 F.3d at 975 (holding that a
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`patent claim is anticipated if a single prior art references expressly or inherently
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`discloses every limitation of the claim); Reply (Paper 22) at 14.
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`III. CONCLUSION
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`For the reasons stated above, Exhibits 1003, 1005, 1006, 1007, 1008, 1013,
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`1014, 1018, 1019, 1022, 1025, 1026, and 1028 should be excluded, along with any
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`testimony or argument purporting to rely on them.
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`Dated: April 6, 2015
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`Respectfully submitted,
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`/Douglas H. Elliott/
`Douglas H. Elliott (Reg. No. 32,982)
`delliott@elliottiplaw.com
`Eric M. Adams (Reg. No. 56,290)
`eric@elliottiplaw.com
`THE ELLIOTT LAW FIRM, PLLC
`6750 West Loop South, Suite 920
`Bellaire, Texas 77401
`(832) 485-3508
`(832) 485-3511 fax
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`Attorneys for Patent Owner
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`The undersigned certifies that the foregoing Patent Owner Return Mail, Inc.’s
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`Motion to Exclude Evidence was served on April 6, 2015, by FEDERAL EXPRESS
`standard overnight shipping to the following attorneys of record for Petitioner as well
`as by electronic service at the e-mail address listed below.
`
`Lionel Lavenue
`Erika Arner
`Finnegan, Henderson, Farabow, Garrett & Dunner LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190
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`Elizabeth Ferrill
`Joshua Goldberg
`Finnegan, Henderson, Farabow, Garrett & Dunner LLP
`901 New York Avenue, N.W.
`Washington, D.C. 20001
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`USPS-RMI-CBM@finnegan.com
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`CBM2014-00116
`Patent Owner’s Motion to Exclude
`CERTIFICATE OF SERVICE
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`/Douglas H. Elliott/
`Douglas H. Elliott
`Registration No. 32,982
`Attorney for Patent Owner
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