U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`
`
`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
`REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`
`
`
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`
`
`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
`REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`Table of Contents
`
`I.
`
`II.
`
`MS. DAVIS’S DECLARATION IS NOT ADMISSIBLE ............................. 1
`
`EXHIBITS 1012, 1017, AND 1018 SHOULD BE EXCLUDED .................. 4
`
`III. EXHIBIT 1008 SHOULD BE EXCLUDED .................................................. 5
`
`IV. CONCLUSION ................................................................................................ 5
`
`
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`Patent Owner’s Exhibit List
`
`Exhibit
`Number
`2001
`2002
`2003
`2004
`2005
`
`2006
`
`2007
`
`2008
`
`2009
`2010
`
`2011
`
`2012
`
`2013
`
`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?pri
`vcapId=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
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`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
`
`2014
`
`2015
`
`2016
`
`2017
`
`2018
`
`2019
`2020
`
`2021
`
`2022
`
`2023
`2024
`2025
`
`2026
`
`2027
`
`2028
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`Material)
`Davis Deposition Exhibit 4 – Excerpts from Deposition Transcript of
`Robin Thurston, June 30, 2015 (Protective Order Material)
`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
`Patent Owner’s Notice of Supplemental Evidence dated December 9,
`2015
`Declaration of Lynne J. Weber, Ph.D.
`Declaration of Jonathan D. Olinger
`
`2029
`
`2030
`
`2031
`
`2032
`
`2033
`
`2034
`
`2035
`
`2036
`
`2037
`
`2038
`2039
`
`2040
`
`2041
`2042
`2043
`
`2044
`2045
`
`
`
`
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`I. MS. DAVIS’S DECLARATION IS NOT ADMISSIBLE
`Ms. Davis’s opinions fail to apply any reliable principle or method to
`
`evaluate commercial success.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` See
`
`General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).
`
`Petitioner suggests that reliability of Ms. Davis’s opinions is confirmed by
`
`LG Chem., Ltd. v. Celgard, LLC, IPR2014-00692, Paper 76 (Oct. 5, 2015).
`
`However, Petitioner makes no efforts to compare Ms. Davis’s opinions,
`
`methodology, or the facts considered, with the opinion admitted in LG Chem.
`
`Petitioner also suggests that Ms. Davis has used the same methodology in the past
`
`and courts have admitted her testimony over Daubert challenges. Paper 54 at 5
`
`1
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`(citation omitted). However, the admissibility of Ms. Davis’s opinions in the cited
`
`case again says nothing about the admissibility of her opinions in this matter.
`
`Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 150 (1999) (“[T]he
`
`gatekeeping inquiry must be tied to the facts of a particular case.”) Importantly,
`
`nothing in the excerpted materials in Exhibit 1020 suggests that there was any
`
`objection tendered based on her methodology.
`
`Ms. Davis’s opinion
`
`
`
`
`
`
`
`
`
`
`
`Courts consistently exclude as unreliable expert testimony that considers
`
`only one side of the story and fails to account for alternative explanations. For
`
`example, in United Phosphorus v. Midland Fumigant, Inc., 173 F.R.D. 675, 680
`
`
`1
`
`
`
`
`
`
`
`
`
`2
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`(D. Kan. 1997) an expert’s testimony was offered as proof that plaintiff’s
`
`trademark had no economic value. But the expert ignored certain facts that would
`
`have been useful in valuing the trademark. Id. at 683. That failure to account for
`
`such facts “violated a fundamental principle of economics” and the court excluded
`
`the testimony as unreliable under Daubert. Id.; see also, Crystal Semiconductor
`
`Corp. v. Tritech Microelectronics Int’l Inc., 246 F.3d 1336 (Fed. Cir. 2001)
`
`(affirming decision to remit plaintiff’s damages because the jury’s damage award
`
`was based upon expert testimony that did not account for effects of price erosion
`
`on lost profits); In re Executive Teleecard, Limited Securities Litigation, 99 F.
`
`Supp. 1021 (S.D.N.Y. 1997).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`
`
`
`
`
`
`
`
` These multiple failures to assess
`
`and address facts adverse to her simplistic focus on profits confirm that Ms. Davis’
`
`opinions are too unreliable to be admitted.
`
`II. EXHIBITS 1012, 1017, AND 1018 SHOULD BE EXCLUDED
`Petitioner now seeks to introduce Exhibits 1017 and Exhibit 1018 to replace
`
`Exhibit 1012, with Exhibit 1017 containing the only cited testimony from Dr.
`
`Michalson. However, the introduction of Exhibit 1017 violates the principles
`
`governing 37 C.F.R. § 42.53. The scope of Dr. Michalson’s cross-examination is
`
`limited to his direct testimony in Exhibit 2002. Petitioner cites to nothing in
`
`Exhibit 2002 that discusses selective availability or its relation to DeLorme (Ex.
`
`1005). Accordingly, Exhibit 1017 exceeds the scope of Dr. Michalson’s cross-
`
`examination and prejudiced Patent Owner because Patent Owner could not
`
`properly lodge this objection at the time the testimony was taken as required by the
`
`Board’s rules. See 37 C.F.R. § 42.53(f)(8). Further, Petitioner’s suggestion that
`
`Patent Owner could have asked questions on redirect ignores that the scope of re-
`
`4
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`direct is limited by the scope of the cross-examination, and during both the
`
`October deposition and the February deposition in this matter, Petitioner asked no
`
`questions of Dr. Michalson about the applicability of selective availability to
`
`DeLorme or the combination of Mault and DeLorme. The failure to ask questions
`
`of Dr. Michalson regarding the references for which Petitioner uses this testimony
`
`demonstrates the unfairness of Petitioner’s failure to comply with § 42.53.2
`
`III. EXHIBIT 1008 SHOULD BE EXCLUDED
`Exhibit 1008 should be excluded under FRE 402 because Petitioner has not
`
`shown that the January 2000 date reflects the date upon which the document
`
`became sufficiently publicly accessible. Moreover, if Petitioner relies on that date
`
`to establish that GPS-enabled route guidance was well-known before February 20,
`
`2001, this information qualifies as hearsay under FRE 802 and should be excluded.
`
`IV. CONCLUSION
`Patent Owner respectfully requests that the Board grant this motion to
`
`Exclude Evidence.
`
`
`2 None of the IPR proceedings identified by Petitioner (Paper 54 at 13-14) discuss
`
`the propriety of using deposition transcripts from other proceedings as it relates to
`
`the requirements of 37 C.F.R. § 42.53.
`
`5
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`Dated: April 26, 2016
`
`
`
`
`/s/ Mitchell G. Stockwell
`Mitchell G. Stockwell
`
`Reg. No. 39,389
`Lead Counsel for Patent Owner
`adidas AG
`
`
`
`6
`
`
`
`U.S. Pat. No. 8,092,345
`IPR2015-00698
`Patent Owner’s Reply in Support of Its Motion to Exclude Evidence
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of PATENT OWNER
`
`ADIDAS AG’S REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE
`
`EVIDENCE was served via email on the date 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 26, 2016
`
`
`
`
`
`
`
`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
`
`
`
`7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
