Attorney Docket No.: C024742/0349058
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`________________
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S
`SUPPLEMENTAL EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`Patent Owner Symantec Corporation hereby objects to the admissibility of
`
`the following documents included with the Service of Supplemental Evidence that
`
`was received from Petitioner Veeam Software Corporation on September 5, 2013.
`
`Patent Owner requests that the Patent Trial and Appeal Board deny admission and
`
`consideration of the following documents on the following bases.
`
`VEEAM 1016
`Veeam v. Symantec
`IPR2013-00150
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`VEEAM SOFTWARE CORPORATION
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION
`Patent Owner
`________________
`
`Case IPR2013-00150
`U.S. Patent No. 7,093,086
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S
`SUPPLEMENTAL EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`Patent Owner Symantec Corporation hereby objects to the admissibility of
`
`the following documents included with the Service of Supplemental Evidence that
`
`was received from Petitioner Veeam Software Corporation on September 5, 2013.
`
`Patent Owner requests that the Patent Trial and Appeal Board deny admission and
`
`consideration of the following documents on the following bases.
`
`VEEAM 1016
`Veeam v. Symantec
`IPR2013-00150
`
`
`
`1.
`
`Declaration of Daniel S. Block
`
`Patent Owner objects to the admissibility of the Declaration of Daniel Block,
`
`dated September 5, 2013, including the exhibits attached thereto, on the grounds
`
`that:
`
`a.
`
`the declaration is irrelevant under Federal Rule of Evidence
`
`(“FRE”) 401 as it fails to support Petitioner’s assertions that either VEEAM 1005
`
`(VMWare ESX) or VEEAM 1006 (VMWare GSG) qualify as prior art printed
`
`publications, and, therefore, is inadmissible under FRE 402. For example, the
`
`declaration fails to provide anything to establish that the VEEAM 1005 and
`
`VEEAM 1006 documents themselves were publicly accessible, or even that they
`
`were included with any of the products identified and discussed in the declaration,
`
`prior to the date of invention for U.S. Patent No. 7,093,086 (“the ‘086 patent”);
`
`b.
`
`at least paragraphs 3 and 5 of the declaration include statements
`
`that lack the necessary foundation under FRE 602 and/or constitute inadmissible
`
`hearsay under FRE 801 and are, therefore, inadmissible under FRE 802. For
`
`example, the declaration provides nothing to suggest or establish that the declarant
`
`has any first-hand knowledge regarding the manner or circumstances in which the
`
`referenced “Media Kits” may have been distributed, the contents of any such
`
`distributed Media Kits, or when any of the products and/or documentation
`
`2
`
`
`
`discussed in the declaration may have been offered for sale or evaluation or made
`
`accessible to anyone;
`
`c.
`
`Exhibits C, D, and E to the declaration, which appear to be
`
`identical copies of the July 15, 2013, August 26, 2013, and August 29, 2013
`
`affidavits of Christopher Butler, included separately in Petitioner’s service of
`
`supplemental evidence, are also objected to for at least the reasons discussed below
`
`(infra at 4-6);
`
`d.
`
`Exhibits F, G, and H to the declaration, which are purportedly
`
`copies of certain VMware, Inc. software products, have not been authenticated as
`
`required by FRE 901; and
`
`e.
`
`to the extent that Petitioner seeks to use this declaration or the
`
`attached exhibits for any purpose other than to establish the alleged admissibility
`
`of VEEAM 1005 or VEEAM 1006, it is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`2.
`
`June 7, 2013 Affidavit of Christopher Butler
`
`Patent Owner objects to the admissibility of the Affidavit of Christopher
`
`Butler, dated June 7, 2013, including the exhibits attached thereto, on the grounds
`
`that:
`
`a.
`
`at least certain of the webpages and documents included in
`
`Exhibits A, B, and C of the affidavit are irrelevant under FRE 401 as they fail to
`
`3
`
`
`
`support Petitioner’s assertions that any of VEEAM 1005, VEEAM 1006, VEEAM
`
`1007-1009 (Suzaki), or VEEAM 1010 (Wang) qualify as prior art printed
`
`publications, and, therefore, are inadmissible under FRE 402. For example, at least
`
`pages 3-7 of Exhibit A, pages 17-53 of Exhibit B, and the entirety of Exhibit C
`
`(pages 2-1584) appear to have no relevance whatsoever, and Petitioner has not
`
`referenced or established their alleged relevance, with respect to the admissibility
`
`of any of these asserted references or any of the objections set forth in Patent
`
`Owner’s Objections to Evidence served on August 21, 2013; and
`
`b.
`
`to the extent that Petitioner seeks to use this affidavit or the
`
`attached exhibits for any purpose other than to establish the alleged admissibility
`
`of VEEAM 1005, VEEAM 1006, VEEAM 1007-1009, VEEAM 1010, or VEEAM
`
`1012 (June 23, 2001 Internet Archive pages captured through the
`
`WayBackMachine), it is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`3.
`
`July 15, 2013 Affidavit of Christopher Butler
`
`Patent Owner objects to the admissibility of the Affidavit of Christopher
`
`Butler, dated July 15, 2013, including the exhibit attached thereto, on the grounds
`
`that:
`
`a.
`
`at least certain of the webpages and documents included in
`
`Exhibit A of the affidavit are irrelevant under FRE 401 as they fail to support
`
`4
`
`
`
`Petitioner’s assertions that any of VEEAM 1005, VEEAM 1006, VEEAM 1007-
`
`1009, or VEEAM 1010 qualify as prior art printed publications, and, therefore, are
`
`inadmissible under FRE 402. For example, at least pages 6 and 8-11 of Exhibit A
`
`appear to have no relevance whatsoever, and Petitioner has not referenced or
`
`established their alleged relevance, with respect to the admissibility of any of these
`
`asserted references or any of the objections set forth in Patent Owner’s Objections
`
`to Evidence served on August 21, 2013; and
`
`b.
`
`to the extent that Petitioner seeks to use this affidavit or the
`
`attached exhibit for any purpose other than to establish the alleged admissibility of
`
`VEEAM 1005, VEEAM 1006, VEEAM 1007-1009, VEEAM 1010, or VEEAM
`
`1012, it is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`4.
`
`August 26, 2013 Affidavit of Christopher Butler
`
`Patent Owner objects to the admissibility of the Affidavit of Christopher
`
`Butler, dated August 26, 2013, including the exhibit attached thereto, on the
`
`ground that: to the extent Petitioner seeks to use this affidavit or attached exhibit
`
`for any purpose other than to establish the alleged admissibility of VEEAM 1005,
`
`VEEAM 1006, VEEAM 1007-1009, VEEAM 1010, or VEEAM 1012, it is
`
`untimely; see, e.g., 37 C.F.R. § 42.123.
`
`5
`
`
`
`5.
`
`August 29, 2013 Affidavit of Christopher Butler
`
`Patent Owner objects to the admissibility of the Affidavit of Christopher
`
`Butler, dated August 29, 2013, including the exhibit attached thereto, on the
`
`grounds that:
`
`a.
`
`at least certain of the webpages and documents included in
`
`Exhibit A of the affidavit are irrelevant under FRE 401 as they fail to support
`
`Petitioner’s assertions that any of VEEAM 1005, VEEAM 1006, VEEAM 1007-
`
`1009, or VEEAM 1010 qualify as prior art printed publications, and, therefore, are
`
`inadmissible under FRE 402. For example, at least pages 6-7 of Exhibit A appear
`
`to have no relevance whatsoever, and Petitioner has not referenced or established
`
`their alleged relevance, with respect to the admissibility of any of these asserted
`
`references or any of the objections set forth in Patent Owner’s Objections to
`
`Evidence served on August 21, 2013; and
`
`b.
`
`to the extent that Petitioner seeks to use this affidavit or the
`
`attached exhibit for any purpose other than to establish the alleged admissibility of
`
`VEEAM 1005, VEEAM 1006, VEEAM 1007-1009, VEEAM 1010, or VEEAM
`
`1012, it is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`6
`
`
`
`6.
`
`Declaration of Tom Sightler
`
`Patent Owner objects to the admissibility of the Declaration of Tom Sightler,
`
`dated September 4, 2013 on the grounds that:
`
`a.
`
`at least paragraphs 2 and 3 of the declaration include statements
`
`that lack the necessary foundation under FRE 602 and/or constitute inadmissible
`
`hearsay under FRE 801 and are, therefore, inadmissible under FRE 802. For
`
`example, the declaration provides nothing to suggest or establish that the declarant
`
`has any first-hand knowledge as to whether the document attached as Exhibit A is
`
`an accurate copy of the referenced user guide or that any such guide was
`
`disseminated or made available to anyone other than the declarant;
`
`b.
`
`the declaration is unreliable and its probative value is
`
`significantly outweighed by the danger of bias or unfair prejudice to Patent Owner
`
`and, therefore, should be excluded under FRE 403. For example, the declaration
`
`consists of nothing more than self-serving, uncorroborated statements made by a
`
`current employee of Petitioner regarding events that occurred more than 13 years
`
`ago; and
`
`c.
`
`to the extent that Petitioner seeks to use this declaration for any
`
`purpose other than to establish the alleged admissibility of VEEAM 1006, it is
`
`untimely; see, e.g., 37 C.F.R. § 42.123.
`
`7
`
`
`
`7.
`
`VMware 2 for Linux, Image of CD included with VMware 2 for Linux,
`and United States Copyright Office Copies of Assignment and Recordation
`
`Patent Owner objects to the admissibility of the VMware 2 for Linux book
`
`and associated items (i.e., items 7-10 in Petitioner’s Service of Supplemental
`
`Evidence) on the grounds that:
`
`a.
`
`the VMware 2 for Linux book is irrelevant under FRE 401 as it
`
`fails to support Petitioner’s assertions that VEEAM 1006 (VMWare GSG)
`
`qualifies as a prior art printed publication, and, therefore, is inadmissible under
`
`FRE 402. For example, Petitioner has not provided anything to indicate or
`
`establish when the book, or the CD purportedly included therewith, was
`
`disseminated or made accessible to anyone, whether the CD was included with the
`
`book prior to the date of invention of the ‘086 patent, or even that the referenced
`
`PDF file purportedly included on the CD is the same document as VEEAM 1006;
`
`b.
`
`neither the book, nor the image of the CD purportedly included
`
`therewith, have been authenticated as required by FRE 901; and
`
`c.
`
`to the extent that Petitioner seeks to use this book or CD for any
`
`purpose other than to establish the alleged admissibility of VEEAM 1006, it is
`
`untimely; see, e.g., 37 C.F.R. § 42.123.
`
`8
`
`
`
`8.
`
`Declaration of Dr. Prashant Shenoy
`
`Patent Owner objects to the admissibility of the Declaration of Dr. Prashant
`
`Shenoy, dated September 5, 2013, including the exhibits attached thereto, on the
`
`grounds that:
`
`a.
`
`the declaration is irrelevant under FRE 401 as it fails to support
`
`Petitioner’s assertion that VEEAM 1006 qualifies as a prior art printed publication,
`
`and, therefore, is inadmissible under FRE 402. For example, the declaration fails
`
`to provide anything to establish that a complete and accurate copy of the VEEAM
`
`1006 itself was disseminated or made accessible to anyone prior to the date of
`
`invention of the ‘086 patent;
`
`b.
`
`Exhibit 1 to the declaration, which appears to be an identical
`
`copy of the June 7, 2013 affidavit of Christopher Butler (also included separately
`
`in Petitioner’s service of supplemental evidence), is also objected to for at least the
`
`reasons discussed above (supra at 3-4); and
`
`c.
`
`to the extent that Petitioner seeks to use this declaration or the
`
`attached exhibits for any purpose other than to establish the alleged admissibility
`
`of VEEAM 1006, it is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`9
`
`
`
`9.
`
`IPSJ SIG Technical Report, English Translation Thereof, and Certification
`
`Patent Owner objects to the admissibility of the English translation of certain
`
`portions of the Japanese IPSJ SIG Technical Report, along with the associated
`
`items (i.e., items 12-14 in Petitioner’s Service of Supplemental Evidence) on the
`
`grounds that:
`
`a.
`
`the IPSJ SIG Technical Report is irrelevant under FRE 401 as it
`
`fails to support Petitioner’s assertions that VEEAM 1007-1009 qualifies as a prior
`
`art printed publication, and, therefore, is inadmissible under FRE 402. For
`
`example, Petitioner has not provided anything to indicate or establish the date or
`
`the manner in which this report was disseminated or made accessible to anyone;
`
`b.
`
`neither the report, nor the Suzaki document purportedly
`
`included therein, have been authenticated as required by FRE 901; and
`
`c.
`
`to the extent that Petitioner seeks to use this report for any
`
`purpose other than to establish the alleged admissibility of VEEAM 1007-1009, it
`
`is untimely; see, e.g., 37 C.F.R. § 42.123.
`
`10
`
`
`
`These objections are made within 5 business days from the September 5,
`
`2013 service of Petitioner’s supplemental evidence.
`
`Date: September 12, 2013
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti
`Reg. No. 47,024
`Lawrence G. Kurland
`Reg. No. 24,895
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorneys for Patent Owner – Symantec
`Corporation
`
`11
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`OBJECTIONS TO PETITIONER’S SUPPLEMENTAL EVIDENCE PURSUANT
`
`TO 37 C.F.R. § 42.64(b)(1) was served electronically via e-mail on September 12,
`
`2013, in its entirety on the following:
`
`Lori A. Gordon
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`lgordon-PTAB@skgf.com
`
`Michael Q. Lee
`STERNE, KESSLER, GOLDSTEIN
`& FOX P.L.L.C
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3932
`mlee-PTAB@skgf.com
`
`Respectfully submitted,
`
`By: /Joseph J. Richetti, Reg. No. 47024/
`Joseph J. Richetti
`Lead Attorney for Patent Owner
`Reg. No. 47,024
`BRYAN CAVE LLP
`1290 Avenue of the Americas
`New York, NY 10104
`General Tel: (212) 541-2000
`Direct Tel: (212) 541-1092
`Fax: (212) 541-4630
`Email: joe.richetti@bryancave.com
`
`Attorneys for Patent Owner – Symantec
`Corporation
`
`Date: September 12, 2013
`
`12
`
`
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