U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Motion to Exclude
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Under Armour Inc.,
`Petitioner
`
`v.
`
`adidas AG,
`Patent Owner
`
`
`
`
`Case No. IPR2015-000698
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`Patent No. 8,092,345
`
`PATENT OWNER ADIDAS AG’S
`MOTION TO EXCLUDE
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`IPR2015-00698
`Patent Owner’s Motion to Exclude
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Under Armour Inc.,
`Petitioner
`
`v.
`
`adidas AG,
`Patent Owner
`
`
`
`
`Case No. IPR2015-000698
`
`Patent No. 8,092,345
`
`PATENT OWNER ADIDAS AG’S
`MOTION TO EXCLUDE
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`
`
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`U.S. Pat. No. 8,092,345
`IPR2015-00698
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`Table of Contents
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`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`LEGAL STANDARD ..................................................................................... 2
`
`III. ARGUMENT ................................................................................................... 3
`
`A.
`
`B.
`
`C.
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`The Davis Declaration (Ex. 1014) should be Excluded
`Under FRE 702 , 402, and 403. ............................................................. 4
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`Exhibit 1012 Should Be Excluded ...................................................... 11
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`Exhibit 1008 Should be Excluded ....................................................... 13
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`IV. CONCLUSION .............................................................................................. 15
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`U.S. Pat. No. 8,092,345
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`Patent Owner’s Exhibit List
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`Exhibit
`Number
`2001
`2002
`2003
`2004
`2005
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`2006
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`2007
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`2008
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`2009
`2010
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`2011
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`2012
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`2013
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`Description
`
`Biography of Jonathan D. Olinger
`Declaration of William R. Michalson, Ph.D.
`Declaration of Mark T. Jones, Ph.D.
`Deposition Transcript of Dr. Joseph Paradiso
`MapMyFitness, About Us (last visited November 15, 2015)
`http://about.mapmyfitness.com/about/company-history/
`Running USA, 2014 State of the Sport – Part II: Running Industry
`Report June 15, 2014
`http://www.runningusa.org/2014-running-industry-
`report?returnTo=annual-reports
`Bloomberg, Company Overview of MapMyFitness, Inc. (November
`15, 2015)
`http://www.bloomberg.com/research/stocks/private/snapshot.asp?priv
`capId=60835454
`Under Armour, Inc. SEC Form 10-K, for the fiscal year ended
`December 31, 2013
`Sterne Agee company Report, “Under Armour Inc.: 2Q15 Preview,”
`MapMyFitness Help and Support, Getting Started, (last visited
`November 19, 2015)
`https://support.mapmyfitness.com/hc/en-us/articles/200118014-
`Getting-started-with-the-app
`MapMyFitness Help and Support, Change Profile Photo, (last visited
`November 19, 2015)
`https://support.mapmyfitness.com/hc/en-us/articles/200117694-
`Change-Profile-Photo
`MapMyFitness Help and Support, How to Save and View Photos
`using the In-App Camera (last visited November 19, 2015)
`https://support.mapmyfitness.com/hc/en-us/articles/200118494-How-
`to-save-and-view-photos-using-the-in-app-camera
`MapMyFitness Help and Support, Where are my Workouts and
`Routes, (last visited November 19, 2015)
`https://support.mapmyfitness.com/hc/en-us/articles/200118224-
`Where-are-my-workouts-and-routes
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`
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`U.S. Pat. No. 8,092,345
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`2014
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`Under Armour Connected Fitness, DOCS, (last visited November 19,
`2015)
`https://developer.underarmour.com/docs
`Under Armour Connected Fitness, Activity Type, (last visited
`November 19, 2015)
`https://developer.underarmour.com/docs/read/v71_Activity_Type
`MapMyFitness, Incorrect Calorie Calculations (last visited November
`16, 2015)
` https://support.mapmyfitness.com/hc/en-us/articles/200118084-
`Incorrect-Calorie-Calculations
`MobiHealthNews, “MapMyFitness Activity Feed Enables Social
`Sharing Across Devices” (Jan. 20, 2014)
`Google, “Mobile App Marketing Insights: How Consumers Really
`Find and Use Your Apps” (May 2015)
`Adobe Digital Index, “Social Intelligence Report” (Q1 2014)
`Running Shoes Guru, The 10 Best Running Apps for Android for
`2015 (December 26, 2014)
`www.runningshoesguru.com/2014/12/the-10-best-running-apps-for-
`android-for-2015
`adidas AG v. Under Armour, Inc. and MapMyFitness, Inc., Case No.
`14-cv-130 (D. Del.) D.I. 170 ¶ 227
`MapMyFitness Help and Support, Mobile App Questions, (last visited
`November 19, 2015)
`https://support.mapmyfitness.com/hc/en-us/categories/200003344-
`Mobile-App-Questions
`Intentionally Left Blank
`Intentionally Left Blank
`Deposition Transcript of Julie Davis, dated March 21, 2016
`(Protective Order Material)
`Davis Deposition Exhibit 1 – Excerpts from the Deposition Transcript
`of Chris Glode, dated July 17, 2015 (Protective Order Material)
`Davis Deposition Exhibit 2 – Excerpts from the Deposition Transcript
`of Scott Laing, dated July 20, 2015 (Protective Order Material)
`Davis Deposition Exhibit 3 – Excerpts from the Deposition Transcript
`of Andrew Page, dated June 12, 2015 (Protective Order Material)
`Davis Deposition Exhibit 4 – Excerpts from Deposition Transcript of
`Robin Thurston, June 30, 2015 (Protective Order Material)
`
`2015
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`2016
`
`2017
`
`2018
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`2019
`2020
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`2021
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`2022
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`2023
`2024
`2025
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`2026
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`2027
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`2028
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`2029
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`2030
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`Davis Deposition Exhibit 5 – Under Armour, Inc. Q4 2013 Earnings
`Call, dated January 30, 2014
`Davis Deposition Exhibit 6 – Under Armour, Inc. Q1 2014 Earnings
`Call, dated April 24, 2014
`Davis Deposition Exhibit 7 – Under Armour’s (UA) CEO Kevin
`Plank on Q2 2014 Results Earnings Call Transcript
`Davis Deposition Exhibit 8 – Under Armour’s (UA) CEO Kevin
`Plank on Q3 2014 Results Earning Call Transcript
`Davis Deposition Exhibit 9 – Under Armour’s (UA) CEO Kevin
`Plank on Q4 2014 Results Earnings Call Transcript
`Davis Deposition Exhibit 10 – Under Armour’s (UA) CEO Kevin
`Plank on Q1 2015 Results Earnings Call Transcript
`Davis Deposition Exhibit 11 – Under Armour’s (UA) CEO Kevin
`Plank on Q2 2015 Results Earnings Call Transcript
`Davis Deposition Exhibit 12 – Under Armour, Inc. Q3 2015 Earnings
`Call dated October 22, 2015
`Intentionally Left Blank
`Deposition Transcript of Joseph Paradiso, dated April 1, 2016
`(Protective Order Material)
`Paradiso Deposition Exhibit 1 – Excerpts from the Deposition
`Transcript of William Quast, dated July 1, 2015 (Protective Order
`Material)
`September 25, 2015 Email from Maria Vignone to Mitch Stockwell
`April 6, 2016 Email from Brian Ferguson to Trials
`
`2031
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`2032
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`2033
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`2034
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`2035
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`2036
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`2037
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`2038
`2039
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`2040
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`2041
`2042
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`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Motion to Exclude
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.64(c), Scheduling Order (Paper 10) Notice of
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`Stipulation to Different Dates for Due Dates 4 and 5 Pursuant to the Scheduling
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`Order (Paper 33), Patent Owner adidas AG (“adidas”) hereby respectfully moves
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`the Board for an order excluding certain evidence submitted by Petitioner Under
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`Armour, Inc. (“UA”).
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`First, Patent Owner requests that the Board exclude the Declaration of Julie
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`Davis (Exhibit 1014) under Fed. R. Evid. 702, 402, and 403. Ms. Davis’ testimony
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`regarding commercial success is unreliable, based on insufficient facts and data,
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`and irrelevant to the issue of whether certain commercially successful products are
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`embodied by the Instituted Claims of U.S. Patent No. 8,092,345 (“the ‘345
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`patent”).
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`
`. She
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`does not identify any reliable principles or methods used to form her opinions and
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`did not analyze a wealth of facts that have been repeatedly identified as key
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`indicators of commercial success by UA and MapMyFitness (“MMF”).
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`Additionally, she did not render an opinion on the commercial success of the
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`features of the products embodied by the Instituted Claims. Accordingly, her
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`testimony should be excluded.
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`1
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`U.S. Pat. No. 8,092,345
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`Exhibit 1012 should be excluded as Petitioner has not submitted evidence
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`under Fed. R. Evid. 901 sufficient to demonstrate that the exhibit is the deposition
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`transcript that Petitioner purports it to be. Similarly, had Petitioner correctly
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`provided the cited deposition testimony, such testimony should be excluded for a
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`failure to comply with 37 C.F.R. § 42.53.
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`Finally, Exhibit 1008 should be excluded because Petitioner has not
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`demonstrated that it is a “printed publication” and therefore relevant to these
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`proceedings.
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`II. LEGAL STANDARD
`Expert testimony is admissible only if such testimony will assist the trier of
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`fact and if “(1) the testimony is based upon sufficient facts or data, (2) the
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`testimony is the product of reliable principles and methods, and (3) the witness has
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`applied the principles and methods reliably to the facts of the case.” Fed. R. Evid.
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`702; Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993). This serves
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`“a ‘gatekeeping role,’ the objective of which is to ensure that expert testimony
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`admitted into evidence is both reliable and relevant.” Sundance, Inc. v. DeMonte
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`Fabricating Ltd., 550 F.3d 1356, 1360 (Fed. Cir. 2008). “This entails a
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`preliminary assessment of whether the reasoning or methodology underlying the
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`testimony is scientifically valid and of whether that reasoning or methodology
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`2
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`properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.
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`“[A]ny step that renders the analysis unreliable . . . renders the expert’s testimony
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`inadmissible.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994).
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`The relevance of testimony demands a valid scientific connection to the facts
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`of the case. Daubert, 509 U.S. at 580. Evidence which is irrelevant is not
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`admissible. Fed. R. Evid. 402. Further, Fed. R. Evid. 403 provides for the
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`exclusion of otherwise admissible evidence “if its probative value is substantially
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`outweighed by the danger of unfair prejudice, confusion of the issues, or
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`misleading the jury, or by considerations of undue delay, waste of time, or needless
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`presentation of cumulative evidence.” Fed. R. Evid. 403.
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`III. ARGUMENT
`For the evidence that Patent Owner seeks to exclude, the Office Patent Trial
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`Practice Guide requires Patent Owner to “(a) Identify where in the record the
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`objection originally was made; (b) Identify where in the record the evidence sought
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`to be excluded was relied upon by an opponent; (c) Address objections to Exhibits
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`in numerical order; and (d) Explain each objection.” 77 Fed. Reg. 48,756, 48,767
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`(Aug. 14, 2012). Patent Owner addresses these requirements for each exhibit or
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`group of exhibits in turn.
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`3
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`A. The Davis Declaration (Ex. 1014) should be Excluded Under FRE
`702 , 402, and 403.
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`Exhibit 1016 should be excluded under Fed. R. Evid. 702 because Ms.
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`Davis’ opinions are not based on sufficient facts or data and her testimony is not
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`the product of reliable principles and methods. Additionally, the exhibit should be
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`excluded because it is irrelevant and its probative value to any ground upon which
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`trial was instituted is substantially outweighed by the danger of confusing the
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`issues. Petitioner first submitted Exhibit 1014 with its Reply on February 16,
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`2016. On February 23, 2016, Patent Owner timely filed and served objections to
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`Exhibit 1014, including on the basis that the Exhibit contains opinions that are
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`inadmissible under Fed. R. Evid. 702 and that the Exhibit is inadmissible subject to
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`the relevancy provisions of Fed. R. Evid. 402 and 403. Paper 28 at 4-6. Petitioner
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`did not serve any supplemental evidence in response to Patent Owner’s objections
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`with respect to Exhibit 1014.
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`Petitioner relies on Exhibit 1014 in support of its position that Patent Owner
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`has not demonstrated evidence of commercial success with respect to the MMF
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`suite of products. Paper 27 at 21-22 (citing Ex. 1014 at ¶22). Patent Owner asserts
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`that the MMF applications and associated website embody Instituted Claims 1, 6,
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`7, 8, 9, 10, and 20, and that commercial success enjoyed by the MMF applications
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`is attributable to the features covered by the asserted claims. Paper 20 at 26-51.
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`4
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`owever, Ms. Davis’ declaration is inadmissible under Fed. R. Evid. 702
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`because her opinions are not the product of reliable principles or methods and are
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`not based on sufficient facts or data.
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`Ms. Davis’ testimony confirms that she is not an expert on commercial
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`5
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`success in an obviousness analysis,
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`U.S. Pat. No. 8,092,345
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` This failure to apply any reliable principle or
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`method to evaluate commercial success does not pass muster under Daubert. See
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`General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“nothing in either Daubert
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`or the Federal Rules of Evidence requires a district court to admit opinion evidence
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`that is connected to existing data only by the ipse dixit of the expert.”)
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`In addition to her failure to apply any reliable principle or method to
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`evaluate commercial success of the MMF apps, Ms. Davis also failed to apply any
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`6
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`principled methodology to the relevant facts and data.
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`
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`The absence of reliability in Ms. Davis’ opinion is further established by her
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`7
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`own testimony on cross examination.
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`U.S. Pat. No. 8,092,345
`IPR2015-00698
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` Where
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`Patent Owner has asserted that the claims of the ‘345 Patent embody social media
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`aspects of the MMF application, facts relating to the importance of the MMF
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`network and the ability to grow that network through social media are key facts
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`that must be considered in a commercial success analysis.
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` The failure to analyze
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`any additional information, including information that was important to decision
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`8
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`U.S. Pat. No. 8,092,345
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`makers at MMF and UA, firmly demonstrates the unreliability of Ms. Davis’
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`opinions. MicroStrategy Inc. v. Business Objects, S.A., 429 F.3d 1344, 1355 (Fed.
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`Cir. 2005) (“While an expert need not consider every possible factor to render a
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`‘reliable’ opinion, the expert still must consider enough factors to make his or her
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`opinion sufficiently reliable in the eyes of the court.”). As such, Ms. Davis’
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`opinions should be excluded pursuant to Fed. R. Evid. 702.1
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`Finally,
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`
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`To the extent the Board finds that Ms. Davis’
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`opinion should not be excluded in its entirety, at least Paragraphs 28 and 30 should
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`be excluded under Fed. R. Evid. 702. United States v. Amuso, 21 F.3d 1251, 1263
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`(2d Cir. 1994) (“A district court may commit manifest error by admitting expert
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`testimony where the evidence impermissibly mirrors the testimony offered by fact
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` Accordingly, to the extent the
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`Board finds that Ms. Davis’ opinion should not be excluded in its entirety, this
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`portion of Ms. Davis’ opinion should be excluded under Fed. R. Evid. 702.
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`9
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`witnesses, or the subject matter of the expert’s testimony is not beyond the ken of
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`the average juror.”).
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`Even if Ms. Davis had utilized reliable principles and methods in reaching
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`her conclusions and had applied those principles and methods reliably to the facts
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`and data to form her opinion, her opinion still is not relevant to the inquiry before
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`the Court.
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`However, to be relevant, evidence of non-
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`obviousness must be commensurate in scope with the claimed invention. In re
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`Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (citing In re Tiffin, 448 F.2d 791, 792
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`(CCPA 1971)). Patent Owner has presented evidence that shows that the MMF
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`apps embody “the invention disclosed and claimed in” the ‘345 Patent, thus
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`creating a presumption that commercial success of the products is due to the
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`patented invention. PPC Broadband, Inc. v. Corning Optical Commc’ns, (Fed.
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` Accordingly, Ms. Davis’ opinions are
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`10
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`Cir. Feb. 22, 2016) at 19.
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`not relevant to the inquiry before this tribunal with respect to the question of
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`commercial success and should be excluded pursuant to Fed. R. Evid. 402 and 403.
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`Exhibit 1012 Should Be Excluded
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`B.
`Exhibit 1012 should be excluded for multiple reasons. First, Petitioner has
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`not produced evidence sufficient to demonstrate that the exhibit is what Petitioner
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`purports it to be. Additionally, the exhibit should be excluded because it does not
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`conform with the requirements of 37 C.F.R. § 42.53. Petitioner first submitted
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`Exhibit 1014 with its Reply on February 16, 2016. On February 23, 2016, Patent
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`Owner timely filed and served objections to Exhibit 1012, including on the basis
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`that the Exhibit did not conform with the requirements of 37 C.F.R. § 42.532 and
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`that Petitioner had not produced evidence sufficient to demonstrate that the exhibit
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`is what Petitioner claims. Paper 28 at 3-4. Petitioner did not serve any
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`supplemental evidence in response to Patent Owner’s objections to Exhibit 1012.
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`2 In Paper 28, Patent Owner inadvertently referenced 37 C.F.R. 42.65. However,
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`the text of Patent Owner’s objections make clear that it intended to raise an
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`objection pursuant to 37 C.F.R. § 42.53. “[T]the exhibit does not conform to the
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`requirements for taking testimony in an inter partes review proceeding, including,
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`but not limited to, the limitations placed on the scope of deposition testimony and
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`the manner of taking deposition testimony.” Paper 28 at 3.
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`Petitioner relies upon Exhibit 1012 to rebut Patent Owner’s argument that a
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`person of ordinary skill in the art would not be motivated to combine Mault and
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`DeLorme. Paper 27 at 8-9. Petitioner asserts that in Exhibit 102, Patent Owner’s
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`expert Dr. Michalson provided testimony regarding selective availability that
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`counter Patent Owner’s arguments that product warnings in DeLorme demonstrate
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`that a person of ordinary skill would not combine Mault and DeLorme. Id.
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`As an initial matter, Petitioner contends that Exhibit 1012 is the October 21,
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`2015 deposition transcript of Dr. William Michalson. However, Exhibit 1012 is
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`clearly labeled as the February 5, 2016 deposition transcript of Dr. William
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`Michalson. The testimony identified by Petitioner in its reply does not appear
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`anywhere in Exhibit 1012. Accordingly, Petitioner has failed to demonstrate that
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`Exhibit 1012 is what Petitioner claims and therefore the exhibit should be excluded
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`under Fed. R. Evid. 901.
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`Moreover, even if Petitioner had correctly filed the October 21, 2015
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`deposition transcript of Dr. Michalson, that transcript should be excluded under 37
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`C.F.R. § 42.53. Petitioner’s reliance on deposition testimony of Patent Owner’s
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`Expert Witness from a different proceeding violates the principles governing the
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`taking of testimony in inter partes review proceedings. Namely, 37 C.F.R.
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`§ 42.53(a) requires that uncompelled direct testimony must be submitted in the
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`12
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`U.S. Pat. No. 8,092,345
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`form of an affidavit. 37 C.F.R. § 42.53(d)(5)(ii) provides that “[f]or cross-
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`examination testimony, the scope of the examination is limited to the scope of the
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`direct testimony.” Here, Petitioner has relied upon deposition testimony from Dr.
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`Michalson that exceeds the scope of his declaration in these proceedings. Ex.
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`2002. Petitioner could have asked these questions, and Patent Owner could have
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`asserted its scope objections during Dr. Michalson’s deposition on February 5,
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`2016, but Petitioner did not. By introducing this testimony, Petitioner has
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`exceeded the scope of the cross-examination, has attempted to deprive Patent
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`Owner from its opportunity to timely object to the testimony, and precluded Patent
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`Owner from obtaining redirect testimony from Dr. Michalson on the subject of
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`selective availability. This fundamentally unfair conduct by Petitioner prejudiced
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`Patent Owner and any reference to Dr. Michalson’s October 21, 2015 testimony,
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`including in Paper 27 and Ex. 1011 at ¶¶ 188, and should therefore be excluded
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`from these proceedings.
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`C. Exhibit 1008 Should be Excluded
`Petitioner submitted Exhibit 1008 with its petition on February 5, 2015. On
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`August 28, 2015, Patent Owner timely served objections to Exhibit 1008, including
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`on the basis of lack of foundation (“Petitioner has not shown that the exhibit is
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`prior art”) and that the Exhibit is inadmissible subject to the relevancy provisions
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`13
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`of Fed. R. Evid. 402 and 403. On September 25, 2015, Patent Owner contacted the
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`Board for approval to file the objections. See Ex. 2041. Petitioner did not oppose
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`the request and the Board authorized the filing the same day. Id.; see also Paper 13
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`at 6. Petitioner did not serve any supplemental evidence to address Patent Owner’s
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`objections to Exhibit 1008. Petitioner relies upon Ex. 1008 to support its position
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`that route guidance on a portable electronic device was well known. Paper 1 at 11-
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`12.
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`Whether a document is a “printed publication” under 35 U.S.C. § 102(b)
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`requires an inquiry into the circumstances surrounding its disclosure to members of
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`the public. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). Public
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`accessibility is a key question. Suffolk Techs., LLC v. AOL Inc., 752 F.3d 1358,
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`1364 (Fed. Cir. 2014). To qualify as a printed publication, a document “must have
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`been sufficiently accessible to the public interested in the art.” In re Lister, 583
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`F.3d 1307, 1311 (Fed. Cir. 2009). “A given reference is ‘publicly accessible’ upon
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`a satisfactory showing that such document has been disseminated or otherwise
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`made available to the extent that persons interested and ordinarily skilled in the
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`subject matter or art exercising reasonable diligence, can locate it.” SRI Int’l, Inc.
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`v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008) (quoting
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`Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006)).
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`Petitioner provides absolutely no support for its position that Ex. 1008 is a
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`printed publication under § 102(b) other than the publication date of January 2000
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`on the second page of the Exhibit, but Petitioner has not shown that this date
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`reflects the date upon which the document became sufficiently publicly accessible
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`to qualify as a printed publication. No witness has provided any testimony
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`regarding the public accessibility of the document. Given that Petitioner has not
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`established that Exhibit 1008 was publicly accessible during the relevant time
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`period, it is irrelevant under Fed. R. Evid. 402. Additionally, even if the exhibit
`
`was relevant, any probative value it does have would be far outweighed by the
`
`prejudice and confusion it would generate. Fed. R. Evid. 403. Accordingly, Exhibit
`
`1008 should be excluded.
`
`IV. CONCLUSION
`For the reasons set forth above, Patent Owner respectfully requests that the
`
`Board grant this Motion to Exclude Exhibits 1008, 1012, and 1014
`
`Dated: April 8, 2016
`
`
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`
`
`
`
`
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`
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`Respectfully submitted,
`
`
`
`/s/ Mitchell G. Stockwell
`Mitchell G. Stockwell
`
`Reg. No. 39,389
`Lead Counsel for Patent Owner
`adidas AG
`
`
`
`15
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`
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`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Motion to Exclude
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of PATENT OWNER
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`ADIDAS AG’S MOTION TO EXCLUDE was served via email on the date
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`below, upon the following:
`
`Brian E. Ferguson
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`Phone: 202-682-7000
`brian.ferguson@weil.com
`
`
`Dated: April 8, 2016
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`
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`
`
`Anish R. Desai
`Christopher T. Marando
`W. Sutton Ansley
`Weil Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`Phone: 202-682-7103
`anish.desai@weil.com
`christopher.marando@weil.com
`sutton.ansley@weilc.om
`
`
`
`/s/ Mitchell G. Stockwell
`Mitchell G. Stockwell
`
`Reg. No. 39,389
`Lead Counsel for Patent Owner
`adidas AG
`
`
`
`16
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