trials@uspto.gov
`571-272-7822
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`IPR2015-01039, Paper No. 36
`July 28, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`LINDSAY CORPORATION,
`Petitioner,
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`v.
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`VALMONT INDUSTRIES, INC.,
`Patent Owner.
`____________
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`Cases IPR2015-01039
`Patent 7,003,357 B1
`____________
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`Held: June 16, 2016
`____________
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`BEFORE: SALLY C. MEDLEY, ROBERT J. WEINSCHENK,
`and WILLIAM M. FINK, Administrative Patent Judges.
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`
`The
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`above-entitled matter came on for hearing on Thursday, June 16,
`2016, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`APPEARANCES:
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`571-272-7822
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`IPR2015-01039, Paper No. 36
`July 28, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LINDSAY CORPORATION,
`Petitioner,
`
`v.
`
`VALMONT INDUSTRIES, INC.,
`Patent Owner.
`____________
`
`Cases IPR2015-01039
`Patent 7,003,357 B1
`____________
`
`Held: June 16, 2016
`____________
`
`
`
`BEFORE: SALLY C. MEDLEY, ROBERT J. WEINSCHENK,
`and WILLIAM M. FINK, Administrative Patent Judges.
`
`
`The
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`
`above-entitled matter came on for hearing on Thursday, June 16,
`2016, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`APPEARANCES:
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`SCOTT R. BROWN, ESQUIRE
`Hovey Williams, LLP
`10801 Mastin Boulevard
`Suite 1000
`84 Corporate Woods
`Overland Park, Kansas 66210
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`RICARDO BONILLA, ESQUIRE
`Fish & Richardson
`1717 Main Street
`Suite 5000
`Dallas, Texas 75201
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`Cases IPR2015-01039
`Patent 7,003,357 B1
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`P R O C E E D I N G S
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`JUDGE WEINSCHENK: Good afternoon. This is a
`hearing for IPR2015-01039, Lindsay Corporation versus Valmont
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`Industries, Inc. Let's start with appearances. Who do we have for
`petitioner?
`MR. BROWN: Good afternoon. Scott Brown
`appearing on behalf of Lindsay Corporation.
`JUDGE WEINSCHENK: And who do we have for
`patent owner?
`MR. BONILLA: Good afternoon. Ricardo Bonilla
`appearing for Valmont Industries, Inc.
`JUDGE WEINSCHENK: All right. As you know from
`our order, each side will have 30 minutes to present their case.
`We'll start with petitioner and then followed by patent owner.
`Petitioner, you may begin when you are ready. Just let us know
`before you begin how much time you would like to reserve for
`rebuttal.
`MR. BROWN: I do have hard copies if any of the
`panel members would like a hard copy of my presentation
`materials.
`JUDGE MEDLEY: I would, please. Thank you.
`MR. BROWN: May it please the Board, Your Honors,
`I think I would like to reserve five minutes for rebuttal.
`I'm going to start with a brief overview of a common
`theme for the obviousness argument that's made with respect to
`all of the grounds. And then I'm going to address the particular
`disclosures of the '357 patent and the prior art, Scott, Pyotsia and
`AIMS references, and how those show all of the elements of the
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`independent claims. I intend to address the rationale for the
`combination at that point in time. And then I'll turn to
`Dr. Mercer's analysis and why that's legally irrelevant. If there's
`any time left, I'll address the dependent claims that are alleged to
`have missing limitations from the prior art.
`The '357 patent discloses and claims a remote irrigation
`control unit that has a display, that has a processor that can be
`handheld, that uses GUIs to monitor and control the irrigation
`equipment. It really doesn't disclose anything beyond that except
`also that the remote user interface has wireless communication
`with the irrigation equipment. Those are the basic tenets of what
`is disclosed.
`Now, in looking at the figures and the disclosure of the
`patent and what was admitted by Valmont's expert, Dr. Mercer,
`on cross-examination, there can be no doubt that with respect to
`the hardware and software that is implemented and disclosed in
`the '357 patent, Valmont did not invent any of the hardware.
`They were using commercially-available handheld units like
`PDAs. They did not invent any of the software that's used to run
`the GUIs or make the GUIs react to user interaction or make the
`GUIs send control signals to the irrigation equipment. All of that
`was common background information, as admitted by Valmont's
`expert.
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`So the question for all of the obviousness attack can
`really be reduced to a fairly simple one, which is this, given that
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`the prior art, Scott and Pyotsia references, disclosed a laptop that
`had GUI control, wireless communication directly to irrigation
`components, a display that the user could interact with the GUIs
`to monitor status information from the irrigation equipment and
`send control signals to the irrigation equipment, all of that on a
`laptop, that could be handheld, as we have argued.
`JUDGE WEINSCHENK: Do we need to construe the
`term "handheld"?
`MR. BROWN: I don't believe you have to construe the
`term "handheld," no, because there's an admission by Valmont
`that certainly the Pyotsia reference has a handheld in it even as
`they would interpret the term. So it's not absolutely necessary
`that it be construed. But if you do construe it, as we have urged,
`it certainly undercuts the entirety of Dr. Mercer's opinion about
`why wouldn't combine Scott with Pyotsia, because if Scott has a
`handheld, you are not needing to find a handheld in Pyotsia.
`JUDGE WEINSCHENK: What evidence do you have
`that handheld includes a laptop?
`MR. BROWN: Our evidence first starts with the basic
`analysis from the specification. So what's disclosed in the
`specification is that it could be, the examples are it could be a
`PDA or PDA connected to a cell phone or a combined PDA/cell
`phone or similar type products. That's the full extent of the
`disclosure from the '357 patent. There is no -- and the reason you
`want to have that, according to the '357 patent, is you want to be
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`mobile. You want to have a portable way to remotely control the
`irrigation pivot.
`JUDGE WEINSCHENK: Doesn't the patent talk about
`how someone who is out in the field can be next to an irrigation
`component and then be able to make sort of changes on the fly
`while they are out there? Isn't that sort of the purpose?
`MR. BROWN: That's an example given, certainly.
`JUDGE WEINSCHENK: Do you envision someone
`walking around a field with their laptop the whole time and
`making adjustments like that? Is that what you think the patent
`was getting at?
`MR. BROWN: I think that certainly can happen. And
`if you are going to apply the broadest reasonable interpretation,
`there is no reason to limit it to something that's the form factor of
`a cell phone from 2001 or 2002. A laptop can be held in one
`hand and operated with the other hand. And we have testimony
`from Dr. Rosenberg to that effect. We have no limiting statement
`in the specification of the '357 patent that says it can only be a
`PDA or a PDA-sized remote user interface. And under the
`Luminaire case we cited in the Federal Circuit, absent some very
`explicit definition or reduction in the scope of the broadest
`reasonable interpretation, you can't redefine it just because the
`only example given is a PDA or a PDA cell phone. The reason
`for it is mobility. And you get mobility out of a laptop. So
`there's no reason to limit it to a cell phone or a PDA.
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`The disclosure in the '357 patent we set forth at
`Petitioner's 3 and 4, some of the figures from the '357 patent.
`And the point we are trying to make here, first, is what is actually
`disclosed by this patent. So at Petitioner's 3 we have Figures 1, 2
`and 5. And at Petitioner's 4 we have 6, 7 and 8.
`Figure 1 is the one that stands out because it's the only
`one that doesn't show merely screen shots. So Figure 1 shows an
`overview of the system. It's got a user holding some sort of RUI.
`The notional concept that wireless signals will go to the pivot
`controllers or to a valve controller. The rest of the figures of this
`patent are just examples of the kind of GUI that the inventors
`were contemplating. This is what it would look like so that a user
`could detect status of the system; this is what it would look like
`so the user can set different screens, set up different parameters
`for the operation of the system.
`And the reason we think this is instructive is because
`these figures are very commensurate in scope with the actual
`disclosure of the '357 patent. It's very instructive to look at what
`the '357 patent does not disclose. The '357 patent does not
`disclose any particular kind of hardware that's going to be RUI
`other than to say it could be a PDA, it could be a cell phone and
`then to give three examples of combination PDA cell phones.
`The claims, some of them call for a processor. There's
`no discussion of what that processor might be. There's no
`electrical diagrams. There's no schematics. On the wireless
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`telemetry means, the only disclosure of that is set forth at
`Petitioner's 5 where they say to enable the RUI to exchange
`information with the irrigation components in ancillary
`equipment, the PDA is preferably coupled with wireless telemetry
`technology such as RF telemetry or cell phone telemetry. Then
`they make a reference to three specific commercially available
`PDA cell phones that existed.
`Then they say it's further contemplated that the RUI
`could be comprised of a PDA that is interfaced with a cellular or
`digital telephone using an interfaced cable. Additionally, it's
`contemplated that the RUI could be comprised of a PDA that is
`interfaced with a VHF, UHF or spread-spectrum radio using an
`interface cable. That is the entirety of the disclosure of hardware
`in this patent. So it's very scant. There's no schematics or
`description about how you'd make a radio transceiver to work
`with this thing. There's no discussion of the protocols that will be
`used to communicate between the RUI and the irrigation system.
`With regard to the software, there is no disclosure of
`software in this patent. They don't tell you how to make these
`different screen shots. There's no source code, no flow diagrams,
`no pseudocode provided. And when we asked Dr. Mercer about
`that, he said, because it wasn't needed.
`The point is that none of those things are part of what
`the inventors came up with. All of those things existed
`commercially, were readily available to one of ordinary skill as of
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`the time of the application of the patent. So all of that, PDA, cell
`phone, wireless telemetry, how you use PDAs to create the
`graphics, how you use PDAs to communicate with other things,
`all of that is in the background information that's available to one
`of skill in the art.
`And that's what Dr. Mercer admitted to during his
`deposition. Now, we've set forth some of the examples of
`Dr. Mercer's admissions in our demonstratives. At Petitioner's 6
`we've set forth two blocks of testimony. The top one is Mercer's
`encapsulation of what the patent is about. The '357 patent is
`about using GUIs along with other resources to allow
`communications between a human being and a piece of
`equipment that's going to be causing certain patterns to be
`irrigated. That's what this is really about. He's right. That's all
`this is about. That's all that this patent really discloses.
`JUDGE WEINSCHENK: Why is all this important?
`Don't we still need to find that all of these things are in the prior
`art somewhere?
`MR. BROWN: Absolutely. You do need to find that
`they are in Scott and Pyotsia. But the reason it's important is
`because it shows that the background information available to one
`of skill in the art that is admitted by Mercer, when you then look
`at Scott and Pyotsia, anything you could possibly need to know is
`filled in by Scott and Pyotsia with the background information
`that's available. One of ordinary skill in 2001 as of the time of
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`the application knows how to use PDAs and cell phones and
`GUIs and wireless transceivers to do everything that's claimed
`here. They just need the idea, should I do it for this application
`and irrigation system? And because Scott and Pyotsia and AIMS
`expressly disclose those things, then the obviousness case is made
`out.
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`So let's talk about at Petitioner's 7, just briefly, I asked
`Dr. Mercer, you know, would one of ordinary skill, given what's
`not disclosed in the '357 patent, be able to reduce it to practice?
`And he says, yes. You don't need to have any further description
`than, hey, you could use a PDA; you could use this wireless
`transceiver to get to the final thing. That's all that's necessary as
`of the time of the application to reduce to practice.
`Question: And as of the filing in June or July of 2002,
`the resources would have been adequate to reduce what is shown
`in the patent to practice?
`Answer: I think that's true, yes. I would agree with that.
`JUDGE WEINSCHENK: Is there any dispute about
`what the priority date of the '357 patent is?
`MR. BROWN: I don't believe so. There's no the
`dispute that both Pyotsia, Scott, AIMS, that any of the prior art
`that's been asserted is prior art. So, no, I don't believe so.
`JUDGE WEINSCHENK: Has either party argued that
`this patent should be entitled to the priority of the CIP that's dated
`February 2001?
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`MR. BROWN: We have argued that it's only entitled to
`the CIP, yes, in the petition. The reason for that is because in the
`parent case there was no disclosure of GUIs. So all of the claims
`require GUIs and therefore, it's only entitled to the CIP date and
`not to the parent date.
`So I want to walk through what Scott and Pyotsia and
`AIMS disclose. I'm just going to do it within the context, for
`instance, of claim 1. So at Petitioner's slide 2 we set forth as
`illustrative claims 1 and 17. It should be noted there is no dispute
`that with respect to claims 1, 17, 18, all the independent claims,
`that all of the elements are found in the prior art. Only question
`with respect to those claims is whether the combination is
`obvious or not.
`So looking at claim 1, it calls for a remote user
`interface. I'm just going to paraphrase here. We need to find a
`remote user interface for reading the status and controlling
`irrigation equipment, a handheld display, a processor, wireless
`telemetry means and then software on the processor for
`displaying data received from the irrigation equipment as GUIs,
`and that would include status information, receiving a user's
`command to control the irrigation equipment through
`manipulation of the GUIs and transmitting signals to the
`irrigation equipment to control the irrigation equipment in
`accordance with the user's commands.
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`So with that in mind, we've set forth some of the
`disclosure of Scott at Petitioner's 9.
`JUDGE WEINSCHENK: Since it doesn't seem that
`patent owner is really disputing that Scott and Pyotsia teach all
`the elements, why don't you focus on what the real dispute is, and
`that's whether there's a sufficient rationale to combine the two and
`whether there would have been a reasonable likelihood of success
`in doing so.
`MR. BROWN: Okay. So with respect to the rationale
`to combine, first off, we think that they are just mischaracterizing
`the extent of the opinions that were supplied by Dr. Rosenberg.
`Dr. Rosenberg sets forth his opinion about why you would make
`the combination between Scott and Pyotsia basically from about
`paragraph 57 to 61 in his opening declaration.
`In those paragraphs he sets forth technological facts
`such as that Pyotsia has a mobile terminal that would be a mobile
`phone or a PDA, that Pyotsia creates commands to control in
`response to selections made by a user at the mobile terminal, that
`Pyotsia displays valve status information that can be displayed
`graphically on the mobile terminal.
`He then in paragraph 61, having much previous to that
`talked about the disclosures of Scott, turns to the common
`features between these two references. And the common features
`include in both instances you are talking about hardware -- a
`device that has hardware, software, keyboard, a display. You are
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`talking about a mobile device. Pyotsia is a mobile phone or a
`PDA that has those same features.
`JUDGE WEINSCHENK: I think what patent owner's
`issue is, though, is that, yeah, you have got these two references
`and you are saying you would combine them. But patent owner
`says Scott has this very complex system that wouldn't work on a
`mobile phone for a number of reasons. What is the issue there?
`How would a person of ordinary skill in the art at that time have
`known that he would have been reasonably likely to succeed in
`doing so?
`MR. BROWN: Okay. So I have got several responses
`to that. First off, the attack by patent owner and its expert is
`based on a legally irrelevant analysis. We cited the case from the
`Federal Circuit, cases from the Federal Circuit, In Re: Mouttet
`and In Re: Sneed and another that I'm not recalling off the top of
`my head, that stand for the proposition that bodily incorporation,
`that if you couldn't bodily incorporate one reference onto another
`is irrelevant to the analysis of whether it's obvious to make the
`combination or not. So In Re: Mouttet, which is at 686 F.3d 1332
`says it is well established that a determination of obviousness
`based on teachings from multiple references does not require an
`actual physical substitution of elements. Rather, the test for
`obviousness is what the combined teaching of the references
`would have suggested to those having ordinary skill in the art.
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`In Re: Sneed is similar. It's not necessary that the
`inventions of the references be physically combinable to render
`obvious the invention under review.
`JUDGE WEINSCHENK: I understand that precedent,
`but isn't bodily incorporation or a physical incorporation exactly
`what you have proposed here? I'm looking at your petition on
`page 31, and the argument you make is operating the system of
`Scott using the mobile phone or mobile terminal of Pyotsia would
`have been obvious to a person skilled in the art at the time.
`MR. BROWN: So the testimony from Dr. Rosenberg is
`that what you would be doing is using the monitoring and control
`functions from Scott on a phone like Pyotsia. It's not an
`allegation that you are going to bodily take the software that's
`residing on Scott and port it over to Pyotsia. One of ordinary
`skill is allowed to look at the teachings from Scott and use them
`on Pyotsia. We are not arguing that there would be a bodily
`incorporation from one to the other.
`Secondly --
`JUDGE WEINSCHENK: So essentially you are telling
`me that someone of skill in the art would know at the time that
`there's certain features from Scott that could be operated on a
`mobile phone, and therefore, that would have been obvious.
`MR. BROWN: That's right. And in fact, that goes back
`to this concept that I started with which is that everything about
`how to use these PDAs and wireless transceivers with PDAs and
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`GUIs with the PDAs, all of that is background information
`admitted by Valmont's expert that is known to one of ordinary
`skill in the art. So now they have Scott which says use this laptop
`to scroll over, use GUI interaction with the irrigation system.
`You can see status. You can change status by clicking on things.
`And one of ordinary skill has Pyotsia. And Pyotsia
`says, hey, use a PDA or a cell phone in this industrial application
`where you want to turn off and turn on valves, which is very
`similar to turning on and turning off valves in an irrigation
`system. And Pyotsia says you can do that on a PDA or cell
`phone.
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`So Pyotsia says you can do it and in fact, discloses how
`to do it. You have got Scott saying you can do it in an irrigation
`system. And so where is the invention? Dr. Rosenberg describes
`the motivation to make the combination is because you want to
`become more mobile, and he points to the express disclosures in
`AIMS. And in his paragraph 61 he also points to Abts where the
`desire to become mobile is expressed in the prior art. We set that
`forth at Petitioner's 13. So on the left-hand side of this is the
`quote from AIMS. And recall, AIMS is a computer PC that
`otherwise has every element of these claims. It's got a radio link,
`direct telemetry to an irrigation system using GUIs, tracking
`center pivot irrigation systems where the GUIs are shaped to look
`like the pivots and the travel that the pivots follow where the
`GUIs change color and change shape to reflect status.
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`So AIMS has all of that. And AIMS says Bennett, and
`this is referring to an individual in the article, Bennett is working
`on improving his own mobility with AIMS telemetry. I'm also
`adapting my laptop computer so that I can log into the system via
`cellular phone and monitor the network from almost anywhere.
`This way I won't be tied to the computer in my office. So the
`desire for mobility is clearly in the prior art.
`Then we have the statement from Abts which is set
`forth on the right-hand side. And the first sentence under the
`statement of the problems, A need exists to provide two-way
`remote communication between agriculture field equipment such
`as pivot irrigation systems and a mobile operator such as a farmer
`and a truck to report the status of the equipment and to provide
`command control over it.
`So we have expressed suggestions about the desire to
`become more mobile. It's in the prior art. And we've got as
`background information in the prior art how to use a PDA to do
`all these things. And we've got an example of a PDA which the
`only fault it has is it's not an irrigation system. It's an industrial
`application and yet it's still turning off and turning on valves and
`monitoring the status of those valves.
`And we've got the Scott laptop which is everything on a
`laptop. The only thing missing from Scott in the Board's
`institution decision was a wireless transmission means which is
`supplied by Pyotsia.
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`JUDGE WEINSCHENK: Let's assume that we agree
`with you on claim 1, that you provided a sufficient reason to
`combine Scott and Pyotsia. Patent owner makes an argument that
`you haven't provided a specific reason to combine those
`references with respect to dependent claims 2 and 3, for example.
`I didn't see a response to that in your reply. Do you have a
`separate reason for combination for those claims, because they
`are different features?
`MR. BROWN: Well, they are features but they are
`features that are in Scott and Pyotsia. So we have the base reason
`why one of ordinary skill is combining Scott with Pyotsia, which
`is supplied with respect to all of the independent claims. And we
`have the disclosure which I went through just a little earlier from
`the '357 patent which is truly agnostic about what kind of wireless
`transmission you are using. It says, hey, it could be a cell phone.
`It could also be a UHF, VHF or a spread-spectrum radio. It could
`be a digital phone. Entire disclosure in the space of two
`sentences with no statement as to any difficulty to do those, no
`expression as to why that's invention in the body of the
`specification.
`So you are talking about features that are expressly in
`both Scott and Pyotsia, a reason to combine Scott and Pyotsia,
`and no reason to view those additional features as anything but a
`routine, ordinary modification depending on what you want. And
`Dr. Rosenberg testified to that effect in his opening declaration.
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`So we don't agree that there's no reason to make the combination
`with the dependent claims supplied.
`JUDGE WEINSCHENK: Outside of relying on Pyotsia
`for mobile digital telephone, do you rely on Pyotsia for anything
`else for any of the other independent claims or is it solely just the
`idea of putting it on a digital cellular phone?
`MR. BROWN: Well, Pyotsia has more than that in it.
`Pyotsia has GUIs and it has interactive control and monitoring
`with the GUIs as well. And the Board pointed out in the
`institution decision that Scott did not have a wireless transmission
`means. Pyotsia does have -- clearly discloses using a cellular
`phone and the cell network. So that's admittedly a wireless
`transmission means or it certainly wasn't argued it wasn't by
`Valmont in their response. So we rely on it for that feature
`certainly.
`JUDGE WEINSCHENK: Just so you know, you have
`about a minute and a half before you start cutting into rebuttal
`time.
`
`MR. BROWN: I guess then unless the panel has any
`other questions, I will reserve the remainder of my time for
`rebuttal.
`JUDGE WEINSCHENK: Okay.
`MR. BONILLA: May it please the Board, Ricardo
`Bonilla for the patent owner. I apologize for the technical
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`difficulties this afternoon. But now we'll go ahead and get
`started.
`
`Just to give you an overview of the things I'll be
`discussing, we want to touch on our motion to exclude, talk about
`the claims that are at issue, it's all but one that was instituted by
`the Board, the claim construction issue, which is the handheld
`term, and then discuss the fact that there is not a motivation to
`combine or it has not been established by the petitioner.
`Petitioner also does not establish obviousness for all of the
`claims, especially the dependent claims.
`The reason I want to touch on the motion to exclude
`briefly is because there is a wealth of information and argument
`that petitioner makes that comes for the first time in reply. Not
`just a reply brief, but especially Dr. Rosenberg's reply declaration
`that was submitted with that paper. And this Board's precedent
`and the Federal Circuit precedent holds that any argument that's
`new or new materials submitted for the first time in reply should
`not be considered by the Board. Indeed, if there's any new
`material, the Board is not required to parse through the entire
`reply to figure out what is new and what's not, what's actually a
`response and what's actually a new argument. So by identifying
`various examples of how the reply declaration and the reply brief
`actually do make new argument, we can show the Board that
`these materials should not be considered at all.
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`Now, in our motion to exclude, the materials that we are
`seeking of to have excluded are Dr. Rosenberg's declarations and
`also Exhibit 1019 which is referred to as the design patterns book.
`The design patterns book was new material submitted with his
`declaration, with the reply brief. Petitioner did not seek leave to
`file the supplemental material. And it also supports or purports to
`support his new arguments such as discussing this idea of model
`view controllers and how that interplays with what a person of
`ordinary skill in the art would have known about the use of GUIs
`on various devices.
`JUDGE WEINSCHENK: Are you arguing that any
`evidence submitted with a reply is new evidence?
`MR. BONILLA: Not exactly, Your Honor, no. But in
`this case it is because it supports a new argument that was not in
`the petition and it was not something that was raised in the
`response. Instead, they have sought to improve or to fill in the
`gaps that Dr. Rosenberg and -- in Dr. Rosenberg's initial
`declaration and in the petition with their reply materials.
`And if I can speak for a moment on that, there's one
`example is after Exhibit 1009, which is Dr. Rosenberg's initial
`declaration was submitted, patent owner served and filed
`objections to that material. Well, the petitioner then served a new
`declaration, 1009A, with more material specifically addressing
`the objections that Dr. Rosenberg's conclusions or his opinions
`were conclusory. They did not seek leave to file that material.
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`They did not seek leave to bring this new material in. And it also
`shows that they concede that there were issues in Dr. Rosenberg's
`initial declaration, gaps that he did not fill specifically with
`respect to motivation to combine and with certain claim elements.
`Now, that declaration, Exhibit 1009, was never filed
`with the Board until petitioner responded to our motion to
`exclude and then pointed to that declaration in support of its
`arguments.
`JUDGE MEDLEY: But that's the way it's supposed to
`go. If you object to something and they have the opportunity to
`cure by submitting a substitute, if you will, and then if you
`maintain that that didn't cure the original objection, then you can
`file a motion to exclude. And then they would file their
`opposition with the substitute information, if you will, or
`evidence.
`MR. BONILLA: And Your Honor, we can understand
`that when there is an issue such as authenticity or something like
`that when that's our objection. But the objection here was that his
`opinions were conclusory and that all they did was go back in and
`add more material to try to make it so that it wasn't conclusory.
`JUDGE MEDLEY: But that's an improper objection.
`That's not even under the federal rules of evidence.
`MR. BONILLA: That his opinions were conclusory?
`JUDGE MEDLEY: No, it's like a chess game. So your
`first move was, hey, we are objecting to this because it's
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`conclusory. But it has to be under the federal rules of evidence
`that you are objecting to the evidence. Conclusory goes to
`weight.
`
`MR. BONILLA: Sure it goes to weight. And their
`response to that chess move was to then add more material to his
`declaration to bolster it, to make it stronger, to make it so that it
`wasn't conclusory to give it that weight that it was missing before.
`JUDGE MEDLEY: Procedurally, you made this a side
`show. You should have put that in your response to say, hey, his
`declaration is conclusory; it's not supported by a factual basis
`sufficient to support the conclusions he makes. And then we look
`at that and determine based on arguments that you make whether
`or not we give it sufficient weight.
`MR. BONILLA: And that's certainly a point that we
`make
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