UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`JIAWEI TECHNOLOGY (HK) LTD., JIAWEI TECHNOLOGY (USA) LTD.,
`SHENZHEN JIAWEI PHOTOVOLTAIC LIGHTING CO., LTD., ATICO
`INTERNATIONAL (ASIA) LTD., ATICO INTERNATIONAL USA, INC.,
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN LUEN CHINA),
`COLEMAN CABLE, LLC, NATURE’S MARK, RITE AID CORP., SMART
`SOLAR, INC., AND TEST RITE PRODUCTS CORP.
`Petitioner,
`
`v.
`
`SIMON NICHOLAS RICHMOND
`Patent Owner.
`______________
`
`Case No. IPR2014-00938
`Patent 7,429,827
`
`PETITIONER'S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`JIAWEI TECHNOLOGY (HK) LTD., JIAWEI TECHNOLOGY (USA) LTD.,
`SHENZHEN JIAWEI PHOTOVOLTAIC LIGHTING CO., LTD., ATICO
`INTERNATIONAL (ASIA) LTD., ATICO INTERNATIONAL USA, INC.,
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN LUEN FLORIDA),
`CHIEN LUEN INDUSTRIES CO., LTD., INC. (SHIEN LUEN CHINA),
`COLEMAN CABLE, LLC, NATURE’S MARK, RITE AID CORP., SMART
`SOLAR, INC., AND TEST RITE PRODUCTS CORP.
`Petitioner,
`
`v.
`
`SIMON NICHOLAS RICHMOND
`Patent Owner.
`______________
`
`Case No. IPR2014-00938
`Patent 7,429,827
`
`PETITIONER'S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`
`I.
`
`Introduction.
`
`Under 37 C.F.R. §42.64(c) and the Scheduling Order (Paper No. 21),
`
`Petitioner respectfully moves to exclude portions and some in their entirety of
`
`Exhibits 2021, 2022, 2023, 2042, 2050, 2052, 2054, 2062 and portions of Papers
`
`34 and 37, relying on that evidence, all proffered with the Patent Owner’s motion
`
`to terminate or patent owner response. The Federal Rules of Evidence (FRE)
`
`apply to these proceedings according to §42.62(a), and these rules support the
`
`objections contained herein.
`
`II.
`
`Exhibits 2042, 2050, 2052, 2054, and 2062 Should Be Excluded as
`Containing inadmissible Hearsay.
`
`A.
`
`Patent Owner’s Linkedin Profiles Contain Inadmissible
`Hearsay.
`
`Exhibits 2042, 2050, 2052, 2054, and 2062 should also be excluded as
`
`inadmissible hearsay. See FRE 801 and 802; see also United States v. Jackson,
`
`208 F.3d 633, 637 (7th Cir. 2000) (web postings from the Internet were
`
`inadmissible hearsay); St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d
`
`773, 775 (S.D. Tex. 1999) (“Internet [evidence] is adequate for almost nothing,
`
`even under the most liberal interpretation of the hearsay exception rules….”).
`
`Petitioner preserved its objections by filing and serving its Notice of Objection to
`
`Evidence, Paper 38.
`
`2
`
`
`
`Patent Owner relies on the information in Exhibits 2042, 2050, 2052, 2054,
`
`and 2062 for the truth of the matter asserted, e.g., that Coleman employees had
`
`dual roles at both Southwire and Coleman. (See Paper No. 37). But, Patent Owner
`
`provided no foundational evidence or testimony to establish that Exhibits 2042,
`
`2050, 2052, 2054, and 2062 meet a hearsay exception. For example, Patent Owner
`
`has not established that Exhibits 2042, 2050, 2052, 2054, and 2062 were made “at
`
`or near the time” of the act purported to be true, i.e., the time of filing of the
`
`petition. See FRE 803(6). This is not surprising given that Petitioner explained the
`
`Coleman employee’s actual roles differed from that reflected on LinkedIn. (Ex.
`
`1044, Cochran Decl., ¶¶ 36-38). Petitioners have no control over what employees
`
`post on LinkedIn, and therefore the Board should exclude these exhibits because
`
`one cannot adequately substantiate the reliability of these out-of-court statements
`
`introduced to prove the truth of the matter asserted.
`
`B.
`
`Portions of he Motion to Terminate Should Be Excluded
`as They Refer to Inadmissible Hearsay.
`
`As discussed above, Exhibits 2042, 2050, 2052, 2054, and 2062 contain
`
`inadmissible hearsay.
`
`It therefore follows that testimony relying on that hearsay
`
`should also be excluded. Specifically, Patent Owner’s Motion to Terminate, Paper
`
`37 at pp. 8-9 should be excluded.
`
`3
`
`
`
`III. Portions of Exhibits 2022 and 2023, First Deposition Testimony of
`Peter Shackle, Should Be Excluded Irrelevant under FRE 402 and
`403.
`
`During the April 22-23, 2015 deposition testimony of Petitioner’s expert, Dr.
`
`Peter Shackle, Petitioner preserved objections by making timely objections on the
`
`record. Now, Petitioner moves to exclude portions of Dr. Shackle’s testimony
`
`under FRE 402 and 403.
`
`A.
`
`The Testimony Regarding the Ambiguous Claim Term
`“Varying” Should Be Excluded.
`
`Petitioner moves to exclude deposition testimony related to the claim term
`
`“varying.” See Ex. 2022, Shackle Depo. at 59:5-8, 68:25-69:2, 70:9-17, 71:7-10,
`
`and 180:19–25. Patent Owner relied on select portions of testimony to draw an
`
`inaccurate and misleading conclusion that Dr. Shackle agreed with Patent Owner’s
`
`claim construction for “varying color.” See Patent Owner Response, Paper 34 at
`
`pp. 15-18. Patent Owner misstated Dr. Shackle’s testimony in piecing together the
`
`select portions of testimony. Petitioner moves to exclude this testimony under
`
`FRE 402 and 403 as confusing the issues and misleading, and moves to exclude the
`
`testimony as simply irrelevant.
`
`“Varying” is part of an already construed term, “varying color.” Petitioner
`
`and Patent Owner both presented constructions. The Board chose its own
`
`construction rejecting both parties’ constructions. During the deposition, counsel
`
`for Patent Owner presented questioning without identifying whose construction the
`
`4
`
`
`
`questions were being posed under. Patent Owner failed to provide guidance to Dr.
`
`Shackle in the line of questioning regarding the construction; thus, this testimony is
`
`confusing and misleading. Petitioner moves to exclude the testimony cited above
`
`in Shackle Depo., Ex. 2023 at 57:23- 65:5, 68:4--79:24, and 167:16-183:19.and
`
`Paper 34 at 15-17. under FRE 402 and 403 and moves to exclude as irrelevant
`
`because of the ambiguity.
`
`B.
`
`The Testimony Regarding the Improper and Abstract
`Hypothetical Regarding “Exposed Switch” Should Be
`Excluded.
`
`Counsel for Patent Owner presented confusing and incomplete hypotheticals
`
`regarding “exposed” and “hidden” switches. See Ex. 2022, Shackle Depo. at
`
`99:23–25, 100:22–101:1, 103:2–4, 106: 1- 8, 111:9-13, 113:4–8, and 114:3–11.
`
`(Patent Owner deposition citations are not even complete questions and answers;
`
`they are chopped mid-question and answer.) Again, Patent Owner relies on only
`
`select portions of Dr. Shackle’s testimony presenting an incomplete and misleading
`
`conclusion that misstates his testimony.
`
`Counsel for Petitioner objected to this line of questioning multiple times.
`
`See id. at 99:1-100:20, 106:16, 108:22, 109:9, 110:1, 110:12, 110:17, 111:20, and
`
`114:19. When asked by counsel for Patent Owner the nature of the objection,
`
`Counsel for Petitioner stated “You’re giving an example of an abstract consumer
`
`product with no definition, so it might or might not be a design consideration,
`
`5
`
`
`
`depending on what the particular product you were envisioning was.
`
`It’s an
`
`abstract hypothetical that [is] completely improper.” Id. at 100:15-20.
`
`Also, Petitioner moves to exclude this testimony as irrelevant. The Patent
`
`Owner did not offer “expose” or “exposed” as a claim construction term in its
`
`Preliminary Response. The Board did not construe this term and it is not at issue.
`
`Petitioner moves to exclude this line of testimony under FRE 402 and 403 as
`
`confusing the issues and misleading, and moves to exclude the testimony as simply
`
`irrelevant. Therefore, Petitioner moves to exclude testimony in Shackle Depo. at
`
`99:1-115:12, Patent Owner’s Response, Paper 34 at 40-42, and Ex. 2021,
`
`Ducharme Decl. at ¶¶ 110-118.
`
`C.
`
`The Testimony Regarding “Retrospective Review”
`Should Be Excluded.
`
`Patent Owner misstates Dr. Shackle’s testimony in Ex. 2023, Shackle Depo.
`
`at 278:23–279:2. See Patent Owner Response, Paper 34 at 13 and Ex. 2021,
`
`Ducharme Decl. at ¶ 35. Patent Owner again relies on only snippets of the
`
`testimony on the subject
`
`that would provide context
`
`to the meaning of Dr.
`
`Shackle’s understanding of “retrospective review.” Dr. Shackle responded “yes”
`
`to counsel’s question regarding the undefined (and objected to) term “retrospective
`
`review” of the prior art, however, his response did not mean he employed hindsight
`
`bias. Dr. Shackle thought he answered that he obtained the prior art, studied it, and
`
`provided an opinion. A retrospective study is to look back at events that already
`
`6
`
`
`
`have taken place, hence a retrospective review. Patent Owner characterizes this
`
`behavior as applying hindsight, and this characterization is untrue, misleading, and
`
`confusing. Petitioner moves to exclude testimony in Ex. 2023, Shackle Depo. at
`
`277:19-279:10, Patent Owner Response, Paper 34 at 14-15 and Ex. 2021,
`
`Ducharme Decl. at ¶ 35 under FRE 402 and 403 as confusing the issues and
`
`misleading, and moves to exclude the testimony as simply irrelevant.
`
`IV. Conclusion.
`
`The evidence proffered by the Patent Owner in Exhibits 2021, 2022, 2023,
`
`2042, 2050, 2052, 2054, and 2062 and Papers 34 and 37 fails to comply with the
`
`Federal Rules of Evidence for at least the reasons noted above, and thus should be
`
`excluded from evidence.
`
`Respectfully submitted,
`
`Dated: August 19, 2015
`
`233 South Wacker Drive
`Suite 7800
`Chicago, IL 60606-6306
`
`DENTONS US LLP
`
`/Kevin Greenleaf/
`
`Mark C. Nelson
`Reg. No. 43,830
`Lissi Mojica
`Reg. No. 63,421
`Kevin Greenleaf
`Reg. No. 64,062
`Daniel Valenzuela
`Reg. No. 69,027
`
`7
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the PETITIONER’S MOTION TO
`
`EXCLUDE EVIDENCE for Inter Partes Review of U.S. Patent No. 7,429,827 was
`
`served on the Counsel for the Patent owner via email to these email addresses:
`
`tfshiells@shiellslaw.com
`
`admin@shiellslaw.com
`
`marcusb@tlpmb.com
`
`Respectfully submitted,
`
`Dated: __August 19, 2015_____
`
`___/Nona Durham/_________
`
`Nona Durham
`
`8
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