Case IPR2015-01341
`U.S. Patent No. RE39,618
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`Filed on behalf of Seymour Levine
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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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`THE BOEING COMPANY.
`Petitioner,
`
`v.
`
`SEYMOUR LEVINE
`Patent Owner
`________________
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`Case IPR2015-01341
`U.S. Patent No. RE39,618
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION TO
`EXCLUDE EVIDENCE
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`06012-00001/8289702.3
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`TABLE OF CONTENTS
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`Case IPR2015-01341
`U.S. Patent No. RE39,618
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`Page
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`I.
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`II.
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`Introduction ...................................................................................................... 1
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`Levine has Adequately Authenticated Exhibits 2002-2004 ............................ 2
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`A.
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`B.
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`C.
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`Levine’s Date of Conception is Established Through Physical
`Exhibits, Not Testimony ....................................................................... 2
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`Exhibits 2002-2004 Do Not Need to Be Independently
`Corroborated .......................................................................................... 5
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`Levine’s Testimony is Adequate to Authenticate the Physical
`Exhibits .................................................................................................. 7
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`D.
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`The Rule of Reason Supports Authentication and Corroboration ........ 8
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`III. Conclusion ..................................................................................................... 14
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`Case IPR2015-01341
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`Page
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`TABLE OF AUTHORITIES
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`CASES
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`Brown v. Barbacid,
`276 F.3d 1327 (Fed. Cir. 2002) ...................................................................1, 6
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`Knorr v. Pearson,
`671 F.2d 1368 (CCPA 1982) ........................................................................... 9
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`Kridl v. McCormick,
`105 F.3d 1446(Fed. Cir. 1997) ....................................................................8, 9
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`Mahurkar v. C.R. Bard, Inc.,
`79 F.3d 1572 (Fed. Cir. 1996) ................................................................ 3, 5, 9
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`Medichem, S.A. v. Rolabo, S.L.,
`437 F.3d 1157 (Fed. Cir. 2006) ...................................................................6, 8
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`Microsoft Corp. v. Surfcast, Inc.,
`IPR2013-00292 ............................................................................................1, 6
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`Neste Oil Oyj v. Reg Synthetic Fuels, LLC,
`IPR2013-00578 ............................................................................................4, 5
`
`Price v. Symsek,
`988 F.2d 1187 (Fed. Cir. 1993) .......................................................... 1, 3, 5, 8
`
`Sandt Technology v. Resco Metal and Plast,
`264 F.3d 1344(Fed. Cir. 2001) ........................................................................ 9
`
`U.S. v. Tin Yat Chin,
`371 F.3d 31 (2d. Cir. 2004) ............................................................................ 7
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`STATUTES
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`37 C.F.R. §42.64 ........................................................................................................ 2
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`Fed. R. Evid. 901 ...................................................................................................2, 7
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`Case IPR2015-01341
`U.S. Patent No. RE39,618
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`Pursuant to the Scheduling Order (Paper 9), Patent Owner Seymour Levine
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`(“Levine” or “Patent Owner”) hereby opposes The Boeing Company’s (“Boeing”
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`or “Petitioner”) Motion to Exclude Evidence (Paper 39).
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`I.
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`Introduction
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`Boeing’s Motion to Exclude is based on the false premise that Levine is
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`relying on his own testimony to establish his date of conception and that the
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`objected-to exhibits are necessary to corroborate that testimony. When all the
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`pertinent evidence is considered, however, it is clear that Levine’s date of
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`conception is established by the documents themselves, which require no
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`independent corroboration. Price v. Symsek, 988 F.2d 1187, 1195 (Fed. Cir. 1993)
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`(“corroboration is not necessary to establish what a physical exhibit before the
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`board includes. Only the inventor’s testimony requires corroboration before it can
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`be considered.”) (internal quotations omitted).
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`This is also true for the dates recorded in the documents. In the case on
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`which Boeing relies, Microsoft Corp. v. Surfcast, Inc., IPR2013-00292, Paper 93,
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`the exhibit being addressed, the inventor’s notebook, Exhibit 2023, contained no
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`dates, forcing the Patent Owner to rely only on inventor testimony. By contrast, in
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`Brown v. Barbacid, 276 F.3d 1327, 1334-35 (Fed. Cir. 2002), the Federal Circuit
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`found that “Brown’s physical evidence . . . do[es] not require corroboration to
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`demonstrate . . . that FT assay experiments took place on September 20 and 25,
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`1989.” (emphasis added). Levine’s documents, Exhibits 2002 and 2003, are signed
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`and dated, and those dates are available for the Board to assess. Levine’s
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`testimony does little more than authenticate those documents.
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`Federal Rule of Evidence 901, the only basis on which Boeing seeks to
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`exclude Exhibits 2002-2004, requires only that “the proponent must produce
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`evidence sufficient to support a finding that the item is what the proponent claims
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`it is,” where such evidence can include “[t]estimony of a [w]itness with
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`[k]nowledge . . . that an item is what it is claimed to be.” Fed.R.Evid 901. Here,
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`contrary to Boeing’s assertion at Note 1 of its motion, Levine timely served
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`supplemental evidence as required by 37 C.F.R. §42.64(b)(2) in response to
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`Boeing’s objection to this evidence (Paper 12). See Exhibit 2014, submitted
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`herewith, which included a preliminary Declaration of Seymour Levine, provided
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`here as Exhibit 2015. This evidence adequately authenticates the objected-to
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`exhibits.
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`II. Levine has Adequately Authenticated Exhibits 2002-2004
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`A. Levine’s Date of Conception is Established Through Physical
`Exhibits, Not Testimony
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`Neither Boeing’s Motion to Exclude nor any of the cases it cites address the
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`situation where, as here, the documents themselves provide all the evidence
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`necessary to establish the date of conception. The Federal Circuit “does not
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`require corroboration where a party seeks to prove conception through the use of
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`physical exhibits. The trier of fact can conclude for itself what documents show . .
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`. .” Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577-78 (Fed. Cir. 1996).
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`Rather, Boeing addresses the different situation that arises when an inventor
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`seeks to establish a date of conception and/or a date of reduction to practice
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`through oral/written testimony and then seeks to corroborate that testimony
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`through documents. Boeing argues that in such a situation, authentication of those
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`documents relies, in part, on the “corroborative value” of those documents, i.e., to
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`what degree those documents can be used to corroborate the inventor’s testimony.
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`Mot. at 2-3. Here, the documents are not used to corroborate any testimony.
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`Unlike a situation where an inventor is proffering oral
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`testimony attempting to remember specifically what was
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`conceived and when it was conceived, a situation where,
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`over time, honest witnesses can convince themselves that
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`they conceived the invention of a valuable patent,
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`corroboration is not necessary to establish what a
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`physical exhibit before the board includes. Only the
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`inventor’s testimony requires corroboration before it can
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`be considered.
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`Price, 988 F.2d at 1195 (internal citations omitted).
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`In each of the cases relied on by Boeing, the ultimate evidence at issues was
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`inventor testimony and the challenged documents were cited to corroborate that
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`testimony. In Neste Oil Oyj v. Reg Synthetic Fuels, LLC, IPR2013-00578, Paper
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`52, for example, the Patent Owner relied on the declaration of the inventor,
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`Mr. Abhari, to establish the date of conception and reduction to practice, and also
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`relied on Mr. Abhari to authenticate the documents that would be used to
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`corroborate that testimony.
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`Here, by contrast, Mr. Levine’s testimony provides none of the facts upon
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`which he relies to establish conception, including the date of conception. Instead,
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`except for his initial conclusory statement about conception, Mr. Levine focuses
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`his entire testimony on establishing the provenance of the documents so that he can
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`use those documents to establish conception. In other words, Levine offers no
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`testimony to be corroborated.1 Levine’s Response follows suit by relying only on
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`the documents to establish the date of conception, citing to Levine’s Declaration
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`(Exhibit 2009) only once, but not to establish what he did or when he did it, and
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`citing to Exhibits 2002 and 2003 many times. PO’s Resp. (Paper 28) at 14-17.2
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`1 Levine’s brief characterization in his Response that “Levine’s testimony
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`is corroborated by” the documents does not control because the facts show that that
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`statement is, at best, imprecise. PO’s Response (Paper 28) at 14.
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`2 Exhibit 2004 does not fit into this category of documents because it is not
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`used to establish conception, rather, it is simply used as evidence to support due
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`For example, Levine’s Response includes a table comparing each element of
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`challenged claims 4, 8, 9 and 10 with the disclosure of Exhibit 2003, id. at 16-17,
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`establishing where each element of each claim was disclosed in the written
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`document Boeing admits predates the earliest date of Monroe. See, Petitioner’s
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`Reply (Paper 33) at 10. Levine’s table does not rely on any testimony from Levine
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`to establish these facts.3
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`B.
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`Exhibits 2002-2004 Do Not Need to Be Independently
`Corroborated
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`Here, Levine’s conception is established by the content of physical exhibits
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`and “corroboration is not necessary to establish what a physical exhibit before the
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`board includes. Only the inventor’s testimony requires corroboration before it can
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`be considered.” Price, 988 F.2d at 1195 (internal quotations omitted); Mahurkar,
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`79 F.3d at 1577-78; Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1170 (Fed.
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`diligence. Paper 28 at 19. But even if it did, it is properly authenticated for the
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`same reasons as Exhibits 2002 and 2003.
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`3 Compare, for example, Levine’s Declaration (Exhibit 2009) and Levine’s
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`Response (Paper 28) to the inventor declaration and Patent Owner Response in
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`Neste. There, the Patent Owner relied heavily on Mr. Abhari’s declaration (Neste
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`Exhibit 2001), to establish both his date of conception and the facts supporting
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`conception on that date. See Neste, Patent Owner’s Response, Paper 16 at 41-46.
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`Cir. 2006) (“Once properly admitted into evidence, documentary and physical
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`evidence is assigned probative value and collectively weighed to determine
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`whether reduction to practice has been achieved. This is what is meant by the
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`maxim that documentary and physical evidence do not require ‘corroboration.’”).
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`This is true even with respect to the date of the disclosed document. In
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`Brown v. Barbacid, for example, the Federal Circuit found that “Brown’s physical
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`evidence, such as Dr. Reiss’ notebooks and autoradiographs, do not require
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`corroboration to demonstrate the content of the physical evidence itself, namely
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`that FT assay experiments took place on September 20 and 25, 1989.” 276 F.3d at
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`1334-35 (emphasis added). The pages of Levine’s documents, Exhibits 2002 and
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`2003, are individually signed and dated, and those dates are available for the Board
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`to assess.4
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`4 Boeing’s statement at Note 2 of its motion that the dates of a physical
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`exhibit are, for some reason, excluded from the rule that a physical exhibit does not
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`require corroboration is unsupported by any controlling authority. In the case on
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`which Boeing relies, Microsoft Corp. v. Surfcast, Inc., IPR2013-00292, Paper 93,
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`the exhibit being addressed, the inventor’s notebook, Exhibit 2023, contained no
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`dates, forcing the Patent Owner to rely only on inventor testimony to establish the
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`C. Levine’s Testimony is Adequate to Authenticate the Physical
`Exhibits
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`Levine has adequately authenticated each of the challenged exhibits.
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`Rule 901 . . . is satisfied by evidence sufficient to support
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`a finding that the matter in question is what its proponent
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`claims. Rule 901 does not erect a particularly high
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`hurdle, and that hurdle may be cleared by circumstantial
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`evidence. . . . Rule 901’s requirements are satisfied if
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`sufficient proof has been introduced so that a reasonable
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`[fact finder] could find in favor of authenticity or
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`identification. . . . the other party then remains free to
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`challenge the reliability of the evidence, to minimize its
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`importance, or to argue alternative interpretations of its
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`meaning, but these and similar other challenges go to the
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`weight of the evidence — not to its admissibility.
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`U.S. v. Tin Yat Chin, 371 F.3d 31, 37-38 (2d. Cir. 2004) (internal citation and
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`quotations omitted).
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`Mr. Levine’s notebook pages (Exhibit 2002), each of which was signed and
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`dated by Mr. Levine, are adequately authenticated by Mr. Levine’s testimony that
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`these were his “handwritten notes . . . [and that his] signature appears on the first
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`page” along with “the first date on which the notes were recorded . . . . and that
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`date of the notebook. See, Id. at Ex. 2023 and Ex. 2005 at 5. That is not the case
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`here.
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`each page of the “notes is individually initialed by [him] and dated on the date the
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`notes on that page were recorded.” Exhibit 2009 at ¶ 2. See also, Exhibit 2015 at
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`¶ 1.
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`The same is true for Exhibits 2003 and 2004, Mr. Levine’s October 9 and
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`October 23, 1996 typed disclosures, which were also dated and signed by
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`Mr. Levine and about which Mr. Levine testified that these are versions of his
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`“draft invention disclosures” that he created from his “original notes” and that they
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`were recorded by him “at or near the time indicated.” Exhibit 2009, ¶¶ 4, 6; Exhibit
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`2015, ¶¶ 2, 3.
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`D. The Rule of Reason Supports Authentication and Corroboration
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`Even if independent corroboration was required, such a corroboration
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`requirement was established only “to prevent fraud, by providing independent
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`confirmation of the inventor’s testimony.” Medichem, 437 F.3d at 1170 (internal
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`quotations omitted). Kridl v. McCormick, 105 F.3d 1446, 1450 (Fed. Cir. 1997)
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`(“The tribunal must also bear in mind the purpose of corroboration, which is to
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`prevent fraud, by providing independent confirmation of the inventor’s
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`testimony.”) That is why “[a] ‘rule of reason’ analysis is applied to determine
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`whether the inventor’s prior conception testimony has been corroborated.” In such
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`an analysis “[a]n evaluation of all pertinent evidence must be made so that a sound
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`determination of the credibility of the inventor’s story may be reached.” Price,
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`988 F.2d at 1195 (emphasis original); Kridl, 105 F.3d at 1450. Thus, to the extent
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`any corroboration is needed, “sufficient circumstantial evidence of an independent
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`nature can satisfy the corroboration rule” and does here. Knorr v. Pearson, 671
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`F.2d 1368, 1373 (CCPA 1982); Sandt Technology v. Resco Metal and Plast, 264
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`F.3d 1344, 1351 (Fed. Cir. 2001) (“Documentary or physical evidence that is
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`made contemporaneously with the inventive process provides the most reliable
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`proof that the inventor’s testimony has been corroborated.”)
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`The facts here fully support the conception story set forth in Levine’s
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`Response, which, as discussed above, relies on Levine’s documents and not his
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`testimony. They include:
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`• The handwritten, signed and dated notebook pages of Seymour Levine
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`establishing his original conception of the ideas disclosed and claimed
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`in the ’618 patent. Exhibit 2002; Exhibit 2009 at ¶ 2.
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`• The typed, signed and dated disclosure prepared by Mr. Levine based
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`on his earlier handwritten notes, further establishing that Levine had,
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`prior to the earliest date of Monroe, “formed in his . . . mind a definite
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`and permanent idea of the complete and operative invention.
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`Mahurkar, 79 F.3d at 1577 (internal quotations omitted); Exhibit
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`2003; Exhibit 1043 (Levine Deposition Transcript) at 35:15-36:15;
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`Exhibit 2009 at ¶ 4. Levine sent an earlier version of this document to
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`his patent attorney, Norton Townsley. Exhibit 1043 at 38:2-39:3;
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`40:8-11; Exhibit 2009 at ¶ 4.
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`• The independent testimony of Mr. Townsley attesting to his receipt in
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`September 1996 of an invention disclosure similar “in content” to
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`exhibit 2003, his understanding of that disclosure, and his reliance on
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`that understanding to order a prior art search, all before the earliest
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`date of Monroe. Exhibit 2010 at ¶ 2; Exhibit 2005.
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`• As demonstrated below, the disclosure contained in Exhibit 2003 as it
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`relates to the challenged claims is substantially similar to that
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`contained in Levine’s original notes, Ex. 2002; supporting the
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`conclusion that the intervening version of this disclosure provided to
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`Mr. Townsley also contained this basic disclosure:
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`Levine ’618 Patent
`4. An aircraft
`maintenance system for
`use on an aircraft
`having a flight data
`recorder, the
`
`Exhibit 2002
`Discloses a system that
`provides world-wide
`telemetry of the aircraft
`sensors including those that
`go to the flight recorders.”
`
`Exhibit 2003
`Discloses transmission of
`signals “presently sent to the
`existing flight crash
`recorders aboard aircraft” (p.
`6)6 for, among other things,
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`6 Page references to Exhibit 2003 are to the page numbers on the bottom
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`left corner.
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`Levine ’618 Patent
`maintenance system
`comprising:
`
`a transmitter portable
`to be placed on an
`aircraft, said
`transmitter configured
`for transmission of
`digital aircraft
`performance data
`across a
`communication
`network while said
`aircraft is in flight; and
`
`Exhibit 2002
`(4231).5 Because this
`equipment “need not
`survive/function after a
`crash, the equipment can be
`designed to be more
`compact, more reliable and
`more cost effective than the
`present day crash recorders.”
`(4233). Discloses a module
`that uses the transmitted data
`for “emergency advisories
`for man’n.” (4236).
`Discloses the “Sensor
`Multiplexer Receiver &
`Transmitter” (SMRT) and
`the “Remote Flight Recorder
`Transmitter” for receiving
`aircraft sensor data,
`including position data, and
`transmitting that data to the
`ground via “world wide
`continuous transmission.”
`(4230, 4237).
`
`a central station
`connected to said
`communication
`network configured to
`receive and analyze
`said digital aircraft
`performance data to
`generate maintenance
`advice for said aircraft
`
`Discloses a “central data
`processing & analysis center
`where ground processing can
`perform extensive real time
`analysis of the aircraft
`sensors.” (4231). A
`schematic of the “CGBS”
`with its different ground-
`based components is
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`Exhibit 2003
`providing “maintenance
`advisories.” (p. 8). See also,
`p. 5 showing module for
`generating “emergency &
`maintenance advisory.”
`
`Discloses a “Sensor
`Multiplexer Receiver &
`Transmitter (SMRT)
`module),” which is a “line
`replaceable unit,” i.e.,
`portable, and “accepts sensor
`signals” and “transmits these
`signals over the radio
`frequency link” while the
`aircraft is in flight. (pp. 6-
`7).
`
`Discloses a “Central Ground
`based Processing Station
`(CGBS),” where the
`“aircraft data is . . . relayed
`by the communications
`satellite link to the CGBS for
`analysis and recording.”
`The aircraft sensor data is
`“sent to the GCBS
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`5 Page references to Exhibit 2002 are to the last four digits of the Bates
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`stamp.
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`Exhibit 2003
`processing station for data
`analysis, problem simulation
`. . . and maintenance
`advisories . . . .” (pp. 6-8).
`
`Discloses that the data sent
`from the aircraft to the
`ground includes “an aircraft
`identification and
`configuration label” and
`includes data “presently used
`in existing flight recorders.”
`(p. 7).
`
`
`Discloses a “Sensor
`Multiplexer Receiver &
`Transmitter (SMRT)
`module, that accepts sensor
`signals that depict the
`performance of many of the
`flight safety critical
`assemblies.” The system has
`a “telemetry system to radio
`these signals to a world wide
`communication system and
`to a final destination known
`as the Central Ground Based
`Processing Station (CGBS).”
`(p. 6)
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`Levine ’618 Patent
`while said aircraft is in
`flight,
`
`wherein said digital
`aircraft performance
`data includes an
`identifier unique to a
`particular aircraft and a
`configuration label, and
`at least a portion of
`said digital aircraft
`performance data
`comprises data directed
`to the flight data
`recorder
`
`5. The aircraft
`maintenance system
`of claim 4 further
`comprising:
`a sensor multiplexer
`located on said aircraft,
`said sensor multiplexer
`having a plurality of
`inputs for receiving
`aircraft performance
`and control parameters
`from existing aircraft
`sensors, and an output
`in communication with
`said transmitter for
`providing said digital
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`Exhibit 2002
`provided on 4237 and 4236,
`which includes a module for
`providing “emergency
`advisory for man’n” for
`providing maintenance
`advisories based on data
`received from the aircraft.
`(4236).
`Discloses that among the
`data collected for
`transmission from the
`aircraft to the ground is an
`“aircraft unique identifier,”
`(4237), and includes data
`“recorded on the flight
`recorder,” which, in the
`disclosed system “can be
`designed to be more
`compact, more reliable and
`more cost effective than the
`present day crash recorders.”
`(4232, 4233).
`Discloses the “Sensor
`Multiplexer Receiver &
`Transmitter” (SMRT) for
`receiving aircraft sensor
`data, including position data,
`and transmitting that data to
`the ground via “world wide
`continuous transmission.”
`(4230, 4237).
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`Case IPR2015-01341
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`Exhibit 2002
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`Exhibit 2003
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`Discloses “aircraft position”
`as one of the inputs into the
`“remote flight recorder
`transmitter,” which can
`include data from “the GPS-
`Global Positioning satellite
`system.” (4237, 4235).
`
`Discloses that “[i]n addition
`to the standard flight sensor
`data presently used in
`existing flight recorders,
`position and velocity signals
`from the GPS receiver . . .
`are also sent to SMART for
`telemetry to the CGBS.” (p.
`7; see also , p. 2)
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`Levine ’618 Patent
`aircraft performance
`data to said transmitter.
`
`8. The aircraft
`maintenance system
`of claim 4 wherein said
`digital aircraft
`performance data
`includes aircraft
`position data directed
`to said flight data
`recorder.
`9. The aircraft
`maintenance system
`of claim 8 wherein
`information provided
`by a GPS receiver is
`used in the calculation
`of said aircraft position
`data.
`10. The aircraft
`maintenance system
`of claim 9 wherein
`information provided
`by an inertial
`navigation system is
`used in the calculation
`of said aircraft position
`data.
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`
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`Together, these documents and the cited testimony tell a consistent story that
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`supports reliance on at least Exhibits 2002 and 2003 to establish a conception date
`
`prior to the earliest priority date of Monroe, October 11, 1996. Exhibit 2004 has
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`06012-00001/8289702.3
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`13
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`been sufficiently authenticated regardless of this evidence because it is not relied
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`Case IPR2015-01341
`U.S. Patent No. RE39,618
`
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`on to establish conception.
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`III. Conclusion
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`For the foregoing reasons, the Board should deny Boeing’s motion with
`
`respect to Exhibits 2002-2004. Levine does not seek to admit Exhibit 2013.
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`
`
`Date: September 6, 2016
`
` Respectfully submitted,
`
`
`
`By: /Bruce R. Zisser, Reg. No. 40,884/
` Bruce R. Zisser, Reg. No. 40,884
`QUINN EMANUEL URQUHART &
`SULLIVAN LLP
`865 S. Figueroa St., 10th Floor
`Los Angeles, CA 90017
`General Tel: (213) 443-3000
`Direct Tel: (213) 443-3434
`Fax: (213) 443-3100
`Email: brucezisser@quinnemanuel.com
`
`
`Attorneys for Patent Owner –
`Seymour Levine
`
`06012-00001/8289702.3
`
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`14
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`

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`Case IPR2015-01341
`U.S. Patent No. RE39,618
`
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`OPPOSITION TO PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`was served electronically via e-mail on September 6, 2016, in its entirety on the
`
`following:
`
`Ryan J. McBrayer (Reg. No. 54,299)
`Perkins Coie LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101
`RMcBrayer@perkinscoie.com
`
`Edward (Ted) G. Dane, pro hac vice
`Munger Tolles & Olson LLP
`355 South Grand Ave.
`35th Floor
`Los Angeles, CA 90071
`Ted.Dane@mto.com
`
`Date: September 6, 2016
`
`Chun M. Ng
`Perkins Coie LLP
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101
`CNg@perkinscoie.com
`patentprocurement@perkinscoie.com
`Peter E. Gratzinger, pro hac vice
`Munger Tolles & Olson LLP
`355 South Grand Ave.
`35th Floor
`Los Angeles, CA 90071
`Peter.Gratzinger@mto.com
`
` Respectfully submitted,
`
`By: /Bruce R. Zisser, Reg. No. 40,884/
` Bruce R. Zisser, Reg. No. 40,884
`Lead Attorney for Patent Owner
`QUINN EMANUEL URQUHART &
`SULLIVAN LLP
`865 S. Figueroa St., 10th Floor
`Los Angeles, CA 90017
`General Tel: (213) 443-3000
`Direct Tel: (213) 443-3434
`Fax: (213) 443-3100
`Email: brucezisser@quinnemanuel.com
`
`
`
`06012-00001/8289702.3
`
`
`
`Attorney for Patent Owner –
`Seymour Levine
`
`15