UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`PARROT SA. and PARROT, INC.
`Petitioners
`
`V.
`
`DRONE TECHNOLOGIES, INC.
`Patent Owner
`
`Case IPR2014-00732
`
`Patent 8,106,748
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
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`EXCLUDE THE D’ANDREA DECLARATION [EXHIBIT NO. 1011|
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`

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`Patent Owner's Reply in Support of Motion to Exclude
`Case IPR2014—00'132
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`EXHIBIT LIST
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`
`
`Exhibit No.
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`1002
`
`1003
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`1004
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`1005
`
`1006
`
`1007
`1008
`
`1009
`1010
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`1011
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`Descri I tion
`
`U.S. Patent 5,043,646
`
`French Patent No. 2789765
`
`Certified Translation of French Patent No. 2789765
`
`U.S. Publication No. 200610144994
`
`Exhibit Intentionaiiv Le iBlank
`
`U.S. Patent No. 7,219,861
`U.S. Patent No. 6,151,529
`
`U.S. Patent No. ”1,145,551
`U.S. Publication No. 20041263479
`
`Date Filed
`51612014
`
`51612014
`
`51612014
`
`51612014
`
`51612014
`
`n1 a
`
`51612014
`
`51612014
`51612014
`
`Declaration of Dr. Raffaello D’Andrea (Attachments A-C)
`
`51612014
`
`U.S. Patent No. 613,809 to Tesla (“Tesla")
`1011, Att. A
`U.S. Patent No. 3,101,569 to Giardina (“Giardina”)
`1011, Art. B
`U.S. Patent No. 8,012,411 (“Jouanet”)
`1011, Art. C
`1011 (corrected) Corrected Declaration of Dr. Raffaello D‘Andrea
`51612014
`1012
`Claim Chart
`21912015 1013 Declaration of Deborah Skolaskj
`
`
`
`1014
`Declaration of James Hopenfeld
`21912015
`
`1015
`Declaration of Dr. Raffaello D’Andrea
`21912015
`
`1016
`
`101?
`
`1018
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`Dr. D‘Andrea Deposition Transcript (Jan. 8, 2015)
`Email from Dr. Raffaello D'Andrea to James Hopenfeld
`dated A 6130,2014
`
`Email from James HOpenfeld to Dr. Raffaello D’Andrea
`
`51612014
`51612014
`51612014
`
`
`
`611012015
`611012015
`
`1 611012015
`
`
`
`dated April 29, 2014
`Not filed
`D’Andrea Deposition Exhibit — Declaration Signature
`
`Pa e, ‘071
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`
`
`
`
`
`
`
`
`
`
`
`D’Andrea Deposition Exhibit — Appendix A, Materials
`
`Considered by Dr. Raffaello D'Andrea
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`
`
`2003
`D'Andrea Dmition Exhibit ~ Smith Patent
`\lot filed
`2004
`D’Andrea Deposition Exhibit - Potiron Patent, French
`Not filed
`2005
`D’Andrea Deposition Exhibit — Translations Certification
`1 Not filed
`
`
`2006
`D’Andrea Deposition Exhibit — Declaration, “0'71
`Not filed
`
`D’Andrea De osition Exhibit — Lee Patent, ‘071
`Not filed
`
`
`2008
`
`2009
`
`2010
`
`
`
`2011
`
`
`
`D’Andrea De osition Exhibit — Bathiche Patent
`
`D'Andrea Deposition Exhibit — Declaration, "148
`D’Andrea Deposition Exhibit — Parrot Exhibits 101 1 and
`1010
`
`D'Andrea Deposition Exhibit — Lee Patent, “"148
`
`ii
`
`
`
`Not filed
`
`
`
`Not filed
`
`Not filed
`Not filed
`
`
`
`
`Not filed
`
`

`

`Patent Owner's Reply in Support of Motion to Exclude
`Case IPR2014—00732
`
`
`
`
`
`Description
`l
`Exhibit No.
`
`1 Declaration of Robert Sturges
`2013
`
`2014
`T. Terr email to Board, dated 1/281’2015
`
`2015
`
`Januar 22, 2015 Ob'cction Letter
`
`
`Date Filed
`2111,2015
`2116112015
`
`5/27/2015
`
`iii
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`

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`Patent Owner’s Reply in Support of Motion to Exclude
`Case lPR2014-00732
`
`I.
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`PETITIONERS BLAME PATENT OWNER FOR THE TIMING
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`No matter how hard Petitioners try to make it so, Patent Owner is not at fault
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`here.
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`It was Petitioners who directed Dr. D’Andrea to sign detached signature
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`pages while they continued to revise his declarations. It was Petitioners who filed
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`his declaration without the signature page.
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`It was Petitioners who expected this
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`Honorable Board to rely on the declaration, which in fact it did when it instituted
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`trial. And perhaps most significantly, it was Petitioners who remained silent after
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`the defective declaration was exposed during the January 2015 Board-ordered
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`D’Andrea deposition.
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`Weeks passed without Petitioners uttering a word to the Board about their
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`defective declaration. Ex. 2014. And it is quite possible that Petitioners might
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`never have raised the issue at all but for Patent Owner reasserting its objections
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`upon receipt of the deposition transcript. Ex. 2015.
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`Now, in opposition to a timely, well-founded motion to exclude, Petitioners
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`actually argue that “Patent Owner does not offer any explanation as to why it could
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`not have objected within ten days of service of Prof. D’Andrea’s declaration [_i.e.,
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`May 20, 2014], as the mistaken signature page was readily apparent.” Paper No. 23
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`at 3 (emphasis added).
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`If the defect “was readily apparent,” why didn’t Petitioners
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`do anything to fix it? And why should Patent Owner be blamed for raising the
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`issue once Petitioners revealed the problem?
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`

`

`Patent Owner’s Reply in Support of Motion to Exclude
`Case IPR2014—00?32
`
`This Honorable Board and the Patent Owner repeatedly requested the
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`original signature pages, but they never materialized. Petitioners have remained
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`strangely silent about their absence, offering absolutely no explanation as to their
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`whereabouts, and no hint of any efforts to try to locate them. As a result, the
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`crucial evidence regarding signing the pages comes from Dr. D’Andrea himself:
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`“It may be that it never happened.” Ex. 2012, 73:10.
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`Petitioners’ prior knowledge of their “readily apparent” defect would explain
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`lead counsel‘s inexcusable interference with the deposition, including instructing
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`the witness during questions about the missing signatures. Ex. 2012, 74:12-80z3.
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`Petitioners’ prior knowledge of their “readily apparent" defect would also
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`explain why they waited to see if Patent Owner pursued the objections before they
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`notified this Honorable Board about the defective declaration upon which it relied.
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`And Petitioners’ prior knowledge of their “readily apparent” defect would
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`explain the curious inconsistencies about when Petitioners allegedly became aware
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`of the defect, i.e., “in January W Dr. D’Andrea’s deposition,” (Skolaski Decl.,
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`Ex. 1013, (H 6), “[d|u_rigg Prof. D’Andrea’s [January 8, 2015] deposition,”
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`(Hopenfeld Decl, Ex. 1014, ‘l[ 5), or “fie; Patent Owner sent Petitioner a letter
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`dated January 22, 2015." Terry email to Board, Ex. 2014 (emphasis added to all).
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`Patent Owner timely raised well-founded objections, when they became
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`known, giving Petitioners ample opportunity to attempt to address the problems.
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`

`

`Patent Owner‘s Reply in Support of Motion to Exclude
`Case IPR2014—00732
`
`II.
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`PETITIONERS MISREPRESENT THE FACTS ON KEY ISSUES
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`Petitioners’ opposition misrepresents the facts on several significant issues:
`
`1.
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`Petitioners cannot (and therefore do not) point to anywhere in
`the deposition transcript (Exs. 2012 and 1016) where
`Dr D Andrea confirmed his declarations during the deposition;
`
`Petitioners dispute their clear and unambiguous representation
`to this Board (Ex. 2014) of when they learned of the defect;
`they now claim that January 22 was instead‘ when Petitioner
`learned that the error was subject to Patent Owner’s objection.”
`Paper No.23 at l l.
`
`Petitioners argue that the record is “unequivocal” that the only
`revisions they made to the declarations after Dr D‘Andrea’s
`alleged April 30 sign--ofi were “typographical.” 1d. Petitioners
`however, refused to produce the prior versions for comparison
`with what they filed with the Board on May 6 1d. at 13
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`III. DR. D’ANDREA WAS NOT PART OF THE CONSPIRACY
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`At page 4 of their Reply (Paper No. 23), Petitioners argue that Patent Owner
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`believes that Dr. D’Andrea was part of a conspiracy to defraud this Board. To be
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`clear, Patent Owner has no reason to believe that Dr. D'Andrea was part of any
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`conspiracy. Rather, Patent Owner knows, based on the record, that Dr. D’Andrea
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`was duped by Petitioners into being “nothing more than a ‘highly qualified [and
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`handsomely compensated] puppet.” Numerics, Inc. v. Baiujj‘”, Inc, 2014 US. Dist.
`
`LEXIS 1716759, slip op. at *12, No. 13-110049 (ED. Mich. Dec. 16, 2014).
`
`U.)
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`

`

`Patent Owner’s Reply in Support of Motion to Exclude
`Case [PR2014-00732
`
`IV.
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`PETITIONERS’ ADMISSIONS ARE DEVASTATING
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`Apparently oblivious to what they are admitting, Petitioners freely
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`acknowledge that they continued to make revisions to the declarations after
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`Dr. D‘Andrea purportedly signed off. Paper No. 23 at 5. Petitioner-s see no
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`problem with (i) a declarant signing a detached signature page, (ii) without taking
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`the time to even review the latest revisions (Ex. 1017), (iii) after which counsel
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`continues to revise the declaration, and then (iv) files the declaration without
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`review or subsequent signing by the declarant. Such practice cannot be tolerated;
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`it reduces the declaration to mere lawyer argument. If such procedures were
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`tolerated, declarants could never truthfully aver “that the foregoing is true and
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`correct,” as required under 28 U.S.C. § 1746.
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`V.
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`THE REPLACEMENT EMAIL HAS BEEN DOCTORED AS WELL
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`Petitioners now concede that the email (Att. A to BK. 1015) previously
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`presented to this Honorable Board as a “true and correct copy” was not. Paper
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`No. 23 at 8. Petitioners blamed software gremlins (id.) and produced a
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`replacement email which is no better. Ex. 1017. This time, however, no one
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`swears that the replacement email is “a true and correct copy,” and with good
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`reason.
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`In the replacement email, the missing “To” and “Cc" fields reappeared,
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`but the “Sent” field has been inexplicably replaced with a “Date” field; the time is
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`different (and more precise), i.e., “5:34:24 AM” instead of“5:33 AM;” and in the
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`

`

`Patent Owner’s Reply in Support of Motion to Exclude
`Case lPR2014-00732
`
`“Attachments” field, the semicolons have disappeared and the file names are
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`stacked instead of appearing on one line (as in the originally produced email).
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`Of course, neither of these emails is a copy of the actual email retrieved
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`from Dr. D’Andrea’s “Sent” folder. That email, like the missing original signature
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`pages, is deemed “irrelevant” by Petitioners. Paper No. 23 at 9.
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`VI.
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`PETITIONERS DISMISS THE TELL-TALE OFF-WHITE A4 PAPER
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`Petitioners cannot explain away the tell-tale off-white A4 paper, so they do
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`not even try. Paper No. 23 at 9-10. Both curative declarations show Dr. D’Andrea
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`signing off-white, A4esize paper. Ex. 1015 and Ex. 1014 ofthc ‘730 IPR. And yet,
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`the alleged signature pages for his May 2014 petition declarations appear
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`(uncharacteristically for Dr. D’Andrea) on plain white, 81/2 by l 1-inch paper.
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`Ex. 1015, Att. A. This, despite Dr. D’Andrea's present-sense impression looking
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`at a copy during his deposition: “It‘s just funny to see it in a different sized paper
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`and color.” Ex. 2012, 17624—5.
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`Whatever Dr. D’Andrea signed, if anything, it was not the declaration that
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`Petitioners filed with Paper No. 1. Patent Owner’s motion to exclude should be
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`GRANTED.
`
`Date: June 17, 2015
`
`/Gene A. Tabachnick/
`Gene Tabachnick; Reg. No. 33,801
`James Dilmore; Reg. No. 51,618
`BECK & THOMAS, PC.
`
`Pittsburgh, PA 15216-1808
`(412) 343-9700
`
`

`

`Patent Owner‘s Reply in Support of Motion to Exclude
`Case IPR2014-00?32
`
`CERTIFICATE OF SERVICE
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`Pursuant to 37 CPR. § 42.6, the undersigned certifies that on June 17,
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`2015, a copy of the foregoing document was served by email upon the following:
`
`James E. Hopenfeld (liczipenfcld(fitoshuliungcrnn)
`Tammy J. Terry (terry@oshuliungwom)
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`and via FedEx:
`
`James E. Hopenfeld
`Tammy J. Terry
`Osha Liang LLP
`909 Fannin Street, Suite 3500
`Houston, Texas 77010
`
`IGene A. Tabachm'ck /
`
`

`

`