UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`UNDER ARMOUR, INC.
`Petitioner,
`
`
`
`v.
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`
`
`ADIDAS AG,
`Patent Owner.
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`
`
`
`
`
`
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`
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`
`
`Case No. IPR2015-00698
`U.S. Patent No. 8,092,345
`
`PETITIONER’S OBJECTIONS TO ADMISSIBILITY OF EVIDENCE
`SERVED WITH PATENT OWNER ADIDAS AG’S RESPONSE TO
`PETITION FOR INTER PARTES REVIEW
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`UNDER ARMOUR, INC.
`Petitioner,
`
`
`
`v.
`
`
`
`ADIDAS AG,
`Patent Owner.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case No. IPR2015-00698
`U.S. Patent No. 8,092,345
`
`PETITIONER’S OBJECTIONS TO ADMISSIBILITY OF EVIDENCE
`SERVED WITH PATENT OWNER ADIDAS AG’S RESPONSE TO
`PETITION FOR INTER PARTES REVIEW
`
`
`
`
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b), Petitioner Under Armour, Inc., hereby
`
`objects as follows to the admissibility of evidence with Patent Owner adidas AG’s
`
`Response to Petition for Inter Partes review of U.S. Patent No. 8,092,345.
`
`Evidence
`
`Objections
`
`Exhibit 2001
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`Exhibit 2002
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 602: Paragraphs 20, 21-27, 28, 29-32, 38-86, and 87 of
`
`the exhibit include assertions for which evidence has not been
`
`introduced sufficient to show that the witness has personal
`
`knowledge of the matters asserted.
`
`
`
`
`2
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 701/702/703: Paragraphs 20, 21-27, 28, 29-32, 33-37, 38-
`
`86, and 87 of the exhibit include opinions that are not
`
`admissible under FRE 701, 702, or 703, or Daubert v. Merrell
`
`Dow Pharms., Inc., 509 U.S. 579 (1993).
`
`FRE 801/802: Paragraphs 20, 21-27, 28, 29-32, 33-37, and 38-
`
`86, and 87 of the exhibit include statements that are
`
`inadmissible hearsay if offered to prove the truth of any matter
`
`allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 1006: the exhibit provides an improper summary of the
`
`evidence.
`
`FRE 705 / 37 C.F.R. § 42.65: the exhibit includes expert
`
`testimony that does not disclose the underlying facts or data
`
`and improper discussion of patent law.
`
`Exhibit 2003
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 602: Paragraphs 14-17, 18, 19, 23-28, and 29 of the
`
`exhibit include assertions for which evidence has not been
`
`
`
`
`3
`
`
`
`
`
`Evidence
`
`Objections
`
`introduced sufficient to show that the witness has personal
`
`knowledge of the matters asserted.
`
`FRE 701/702/703: Paragraphs 14-17, 18, 19, 20-28, and 29 of
`
`the exhibit include opinions that are not admissible under FRE
`
`701, 702, or 703, or Daubert v. Merrell Dow Pharms., Inc., 509
`
`U.S. 579 (1993).
`
`FRE 801/802: Paragraphs 14-17, 18, 19, 20-28, and 29 of the
`
`exhibit include statements that are inadmissible hearsay if
`
`offered to prove the truth of any matter allegedly asserted
`
`therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 1006: the exhibit provides an improper summary of the
`
`evidence.
`
`FRE 705 / 37 C.F.R. § 42.65: the exhibit includes expert
`
`testimony that does not disclose the underlying facts or data
`
`and improper discussion of patent law.
`
`Exhibit 2004
`
`Petitioner maintains its objections made during the deposition
`
`of Joseph Paradiso.
`
`
`
`
`4
`
`
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`
`
`Evidence
`
`Objections
`
`FRE 1006: the exhibit provides an improper summary of the
`
`evidence.
`
`Exhibit 2005
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2006
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`
`
`
`5
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2007
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`
`
`
`6
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2008
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`Exhibit 2009
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`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`
`
`
`7
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2010
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`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`
`
`
`8
`
`
`
`
`
`Evidence
`
`Objections
`
`claims it is.
`
`Exhibit 2011
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2012
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`
`
`
`9
`
`
`
`
`
`Evidence
`
`Objections
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2013
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`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`
`
`
`10
`
`
`
`
`
`Evidence
`
`Objections
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2014
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2015
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`
`
`
`11
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2016
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`
`
`
`12
`
`
`
`
`
`Evidence
`
`Objections
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2017
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2018
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`
`
`
`13
`
`
`
`
`
`Evidence
`
`Objections
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2019
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`
`
`
`14
`
`
`
`
`
`Evidence
`
`Objections
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2020
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`
`
`
`15
`
`
`
`
`
`Evidence
`
`Objections
`
`the truth of any matter allegedly asserted therein.
`
`FRE 805: the exhibit contains improper hearsay within
`
`hearsay.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`Exhibit 2021
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly cumulative evidence.
`
`Exhibit 2022
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit is or what it allegedly shows.
`
`FRE 402: the exhibit is not relevant to any ground upon which
`
`trial was instituted.
`
`FRE 403: the exhibit’s probative value to any ground upon
`
`which trial was instituted is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay,
`
`
`
`
`16
`
`
`
`Evidence
`
`Objections
`
`wasting time, or needlessly cumulative evidence.
`
`FRE 802: the exhibit is inadmissible hearsay if offered to prove
`
`the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient
`
`to support a finding that the exhibit is what Patent Owner
`
`claims it is.
`
`
`
`
`
`
`
`
`
`Dated: November 24, 2015
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/Brian E. Ferguson/
`Brian E. Ferguson (Reg No. 36,801)
`Anish R. Desai (Reg. No. 73,760)
`Christopher T. Marando (Reg. No.67,898)
`W. Sutton Ansley (Reg. No. 67,828)
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`brian.ferguson@weil.com
`anish.desai@weil.com
`christopher.marando@weil.com
`sutton.ansley@weil.com
`
`
`
`
`17
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on November 24, 2015, the foregoing
`
`PETITIONER’S OBJECTIONS TO ADMISSIBILITY OF EVIDENCE
`
`SERVED WITH PATENT OWNER ADIDAS AG’S RESPONSE TO
`
`PETITION FOR INTER PARTES REVIEW was served via electronic mail,
`
`upon the following:
`
`Mitchell G. Stockwell
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`mstockwell@kilpatricktownsend.com
`
`Wab P. Kadaba
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`wkadaba@kilpatricktownsend.com
`
`Jonathan D. Olinger
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309-4528
`jolinger@kilpatricktownsend.com
`
`/Timothy J. Andersen/ c
`Timothy J. Andersen
`Case Manager
`Weil, Gotshal & Manges LLP
`1300 Eye Street NW, Suite 900
`Washington, DC 20005
`T: 202-682-7000
`timothy.andersen@weil.com
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