Filed on behalf of TQ Delta LLC
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`Case IPR2016-010061
`Patent No. 7,835,430 B2
`_____________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and Comcast
`Cable Communications, L.L.C., Cox Communications, Inc., Time Warner Cable
`Enterprises L.L.C., Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`1
`
`
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`Case IPR2016-010061
`Patent No. 7,835,430 B2
`_____________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and Comcast
`Cable Communications, L.L.C., Cox Communications, Inc., Time Warner Cable
`Enterprises L.L.C., Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`1
`
`
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner TQ Delta, LLC (“Patent
`
`Owner”) hereby files and serves the following objections to evidence that
`
`Petitioner Dish Network, LLC (“Dish”) served on Patent Owner with its Reply on
`
`June 8, 2017. A chart listing Patent Owner’s objections and its bases for the
`
`objections is provided below.
`
`Exhibit(s)
`
`Objection
`
`Ex. 1102 (internet article)
`
`
`Hearsay: The exhibit is hearsay under FRE
`801-802, as it is being relied upon for the
`truth of the matter asserted. It does not fall
`within any of the exceptions of FRE 803; it
`is not a statement in a learned treatise or
`periodical. See, e.g., Combs v. Washington,
`2014 U.S. Dist. LEXIS 121320 (W.D.
`Wash. June 11, 2014) (“Internet articles are
`independently inadmissible hearsay under
`Rule 801(c).”); Stewart v. Wachowski, 574
`F. Supp. 2d 1074, 1105 (C.D. Cal. 2005)
`(same).
`
`Authenticity: Petitioner has not provided
`any evidence that this exhibit is authentic
`under FRE 901. The exhibit does not fall
`within any of the self-authenticating
`exceptions of FRE 902; it is not a
`newspaper or periodical. See, e.g., Adobe
`Sys. v. Christenson, 2011 U.S. Dist. LEXIS
`16977, *26 (D. Nev. Feb. 7, 2011) (“Courts
`do not treat printouts from internet websites
`as self-authenticating or admit them without
`foundation or authentication.”); In re
`Homestore.com., Inc. v. Securities
`
`
`
`2
`
`
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Ex. 1103 (Short Declaration)
`
`
`Ex. 1109 (FCC filing by Alcatel)
`
`
`Litigation, 347 F.Supp.2d 769, 782-783
`(C.D. Cal. 2004 (“Printouts from a web site
`do not bear the indicia of reliability
`demanded for other self-authenticating
`documents under Fed.R.Evid. 902. To be
`authenticated, some statement or affidavit
`from someone with knowledge is required;
`for example, Homestore's web master or
`someone else with personal knowledge
`would be sufficient.”)
`
`Hearsay: The exhibit is hearsay under FRE
`801-802. It does not fall within any of the
`exceptions of FRE 803. The declaration is
`not from an expert to this proceeding, and
`Petitioners have not shown that Mr. Short
`was unavailable for deposition in connection
`with this proceeding. If Petitioners had
`wished to introduce testimony from Mr.
`Short in this proceeding, they were required
`to seek his deposition in this proceeding.
`Expert reports, affidavits, declarations, and
`deposition transcripts from other
`proceedings are not admissible. See, e.g.,
`Kirk v. Raymark Indus., Inc., 61 F.3d 147
`(3d Cir. 1995) (an expert’s deposition in a
`prior, unrelated case could not be used
`against party in pending case); Estate of
`Miller v. Ford Motor Co., No. 2:01-cv-545-
`FtM-29DNF, 2004 U.S. Dist. LEXIS 29846,
`at *28 (M.D. Fla. July 22, 2004) (deposition
`testimony from employees of a party in a
`separate lawsuit is not admissible absent a
`showing of unavailability).
`
`Hearsay: The exhibit is hearsay under FRE
`801-802. It does not fall within any of the
`exceptions of FRE 803; for example, it is
`
`
`
`3
`
`
`
`not a public record or report of a public
`office or agency, but rather a statement by
`an unrelated non-party. See, e.g.,
`Transunion Risk & Al. Data Sols., Inc. v.
`MacLachlan, 2016 U.S. Dist. LEXIS 24569
`at *16 n. 6 (S.D. Fla. Feb. 29, 2016) (with
`respect to “statements in a nonparty’s proxy
`statement filed with the SEC,” defendant
`“correctly notes that the proxy statement is
`hearsay and [Plaintiff] fails to cite any
`hearsay exception rendering it admissible.”);
`Rivera v. Metro Transit Auth., 750 F. Supp.
`2d 456, 2010 U.S. Dist. LEXIS 120289, *6-
`7 (S.D.N.Y. 2010) (“An unsworn statement
`by a non-party in a complaint in another
`lawsuit is hearsay when offered to prove the
`truth of that statement. It is not
`admissible”).
`
`Authenticity: Petitioner has not provided
`any evidence that this exhibit is authentic
`under FRE 901. The exhibit does not fall
`within any of the self-authenticating
`exceptions of FRE 902. Under FRE 901(7),
`if a document is alleged to be a writing filed
`in a public office, evidence must be
`presented to that effect.
`
`Lack of Relevance and Prejudice: Portions
`of the declaration constitute improper new
`evidence that exceeds the permissible scope
`of Reply evidence. As such, the testimony
`is not relevant under FRE 401-402 and/or
`prejudicial under FRE 403. Improper new
`testimony includes: ¶¶ 73-74, 82-83, 87-90,
`91-93, 94-96.
`
`
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Ex. 1100 (Second Kiaei
`Declaration)
`
`
`
`4
`
`
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`Each of Exhibits 1101-1109
`
`
`Portions of 6/8/17 Reply relying on
`objectionable evidence or arguments
`
`
`
`Lack of Relevance and Prejudice: The
`exhibits constitute improper new evidence
`that exceeds the permissible scope of Reply
`evidence. As such, the testimony is not
`relevant under FRE 401-402 and/or
`prejudicial under FRE 403.
`
`Pages: 9-10, 13-16, 16-18, 20, 23.
`
`Dated: June 15, 2017
`
`
`
`/Peter J. McAndrews/
`
`
`
`
`
`
`
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison St., Suite 3400
`Chicago, IL 60661
`Telephone: (312) 775-8000
`
`
`
`5
`
`
`
`
`
`
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify, pursuant to 37 C.F.R. Section 42.6, that a complete copy of
`
`the attached PATENT OWNER’S OBJECTIONS TO EVIDENCE are being
`
`served via electronic mail on this 13th day of June, 2017 to the following:
`
`Lead Counsel
`David L. McCombs
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Tel. 214-651-5533
`Fax 214-200-0853
`david.mccombs.ipr@haynesboone.com
`
`Heidi L. Keefe
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`Cooley LLP
`Patent Group
`1299 Pennsylvania Ave., NW, Ste 700
`Washington, DC 20004
`
`John M. Baird
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`Fax 202-776-7801
`JMBaird@duanemorris.com
`
`
`
`
`
`Back-up Counsel
`Theodore M. Foster
`Tel. 972-739-8649
`Gregory P. Huh
`Tel. 972-739-6939
`Russell Emerson
`Tel. 214-651-5328
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Fax 972-692-9156
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`russell.emerson.ipr@haynesboone.com
`Stephen McBride
`smcbride@cooley.com
`Cooley LLP
`Patent Group
`1299 Pennsylvania Ave., NW, Ste 700
`Washington, DC 20004
`
`
`Christopher Tyson
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`Fax 202-776-7801
`CJTyson@duanemorris.com
`
`6
`
`
`
`
`
`/Peter J. McAndrews/
`
`
`
`
`
`
`
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison Street, 34th Floor
`Chicago, Illinois 60661
`Telephone: (312) 775-8000
`
`7
`
`Patent Owner Objections to Evidence
`IPR2016-01006
`Patent No. 7,835,430
`
`
`
`
`Dated: June 15, 2017
`
`
`
`
`
`
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