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
`_____________
`
`ARRIS GROUP, INC.,
`Petitioner,
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`
`Case IPR2016-01160
`Patent No. 8,611,404
`_____________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE
`
`
`
`
`
`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
`_____________
`
`ARRIS GROUP, INC.,
`Petitioner,
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`
`Case IPR2016-01160
`Patent No. 8,611,404
`_____________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS
`MOTION TO EXCLUDE
`
`
`
`
`
`
`Patent Owner’s Reply in Support of its Motion to Exclude
`IPR2016-01160
`U.S. Patent No. 8,611,404
`
`
`Exhibits 1007, 1008, 1010, 1011, 1012, 1014, 1015, 1016, and 1019 and
`
`Paragraphs 21-23, 25-28, and 147-249 of Exhibit 1003 should be excluded.
`
`Petitioner does not dispute that Exhibits 1007, 1008, 1010, 1011, 1012,
`
`1014, 1015, and 1016 are inadmissible hearsay and have not been authenticated.
`
`For this reason alone, the Board should grant Patent Owner’s Motion to Exclude
`
`with respect to those exhibits.
`
`The only basis for exclusion that Petitioner does dispute is relevance. In its
`
`Motion, Patent Owner submitted that Exhibits 1007, 1008, 1010, 1011, 1012,
`
`1014, 1015, and 1016 and Paragraphs 21-23, 25-28, and 147-249 of Exhibit 1003
`
`should be excluded as irrelevant because they were submitted in support of a
`
`ground upon which trial was not instituted.1 In its Opposition, Petitioner argues
`
`that the challenged exhibits are relevant and should not be excluded because
`
`“public policy dictates preserving the record.” Paper No. 30 at 1. In particular,
`
`Petitioner argues that there is a “strong public interest” in making the challenged
`
`exhibits available to the public because the exhibits are “relied on not only in
`
`support of the non-instituted grounds,” but are “relied upon throughout the
`
`1 Patent Owner also argued that Ex. 1019 should be excluded as irrelevant because
`
`it was submitted in response to Patent Owner’s objections to Ex. 1009 and Patent
`
`Owner does not seek to exclude Ex. 1009.
`
`2
`
`
`
`Patent Owner’s Reply in Support of its Motion to Exclude
`IPR2016-01160
`U.S. Patent No. 8,611,404
`
`Petition” to “illustrate the state of the art” and “explain the relevant technology.”
`
`Id. Petitioner further argues that excluding the exhibits would render the record
`
`incomplete and “disservice to the public” by denying it access to the exhibits. Id.
`
`at 2.
`
`Petitioner’s arguments have no merit. First, the challenged exhibits are not
`
`“relied upon throughout the Petition” to “illustrate the state of the art” and “explain
`
`the relevant technology.” Rather, they are relied upon solely to support
`
`Petitioner’s arguments relating to the ground upon which the Board did not
`
`institute, i.e., Ground 2 – alleged invalidity over T1E1.4/97-161R1, T1E1.4/97-
`
`319, and the 1995 ADSL Standard. See Pet. at 14-20, 28-29, and 46-58.2 Indeed,
`
`the Petition does not point to any of the challenged exhibits in its arguments in
`
`support of Ground 1 – the ground on which the Board did institute. Moreover,
`
`Exhibits 1007 and 1008 are two of the references relied upon in Ground 2, and
`
`Exhibits 1010, 1012, 1014, 1015, and 1016 were relied upon solely to support
`
`2 The one exception is Exhibit 1019, which was submitted as supplemental
`
`evidence and, thus, is not cited in the Petition. Petitioner’s Opposition does not
`
`address Patent Owner’s arguments as to why Exhibit 1019 should be excluded.
`
`See Paper No. 25 at 8; Paper No. 30. Therefore, for at least that reason, the Board
`
`should exclude Exhibit 1019.
`
`3
`
`
`
`Patent Owner’s Reply in Support of its Motion to Exclude
`IPR2016-01160
`U.S. Patent No. 8,611,404
`
`Petitioner’s unsuccessful attempt to establish that Exhibits 1007 and 1008 are
`
`printed publications under 35 U.S.C. § 102. See Pet. at 14-20. As such, the
`
`challenged exhibits simply are not relevant to this proceeding, and, thus, should be
`
`excluded under Fed. R. Evid. 402.
`
`Second, excluding the challenged exhibits as inadmissible would not
`
`“disservice the public” or prevent the public from accessing the exhibits.
`
`Petitioner seems to confuse “excluding” an exhibit with “expunging” or “sealing”
`
`an exhibit. Excluded exhibits are still part of the publicly accessible record – they
`
`just are not considered by the Board in rendering a final decision. As just one
`
`example, in Toshiba Corp. v. Optical Devices, LLC, IPR2014-01447, Paper No.
`
`34, at 43-47 (P.T.A.B. Mar. 9, 2016) the Board excluded Exhibits 1015 and 1016
`
`and stated that it would not consider those exhibits, yet those exhibits can still be
`
`accessed on Docket Navigator for that proceeding. Moreover, even if Board did
`
`“expunge” challenged exhibits from the publicly available record in granting a
`
`motion to exclude, the public still would be able to determine what those exhibits
`
`were from the objections to evidence, briefing on the motion to exclude, and final
`
`written decision, which are all filed, and maintained, as part of the public record.
`
`Accordingly, Petitioner’s argument that a decision to exclude the challenged
`
`exhibits would deny the public access to the exhibits – and thus would conflict
`
`4
`
`
`
`Patent Owner’s Reply in Support of its Motion to Exclude
`IPR2016-01160
`U.S. Patent No. 8,611,404
`
`with public policy – is baseless. For similar reasons, the case law Petitioner cites
`
`in support of its argument does not support denial of Patent Owner’s Motion to
`
`Exclude.
`
` For at least the foregoing reasons and those provided in Patent Owner’s
`
`Motion to Exclude (Paper No. 25), Patent Owner respectfully requests that the
`
`Board exclude from the record the evidence discussed above.
`
`
`Dated: August 25, 2017
`
`
`Respectfully submitted,
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`McAndrews, Held & Malloy, Ltd.
`500 West Madison Street, 34th Floor
`Chicago, Illinois 60661
`Office: (312) 775-8000
`Fax: (312) 775-8100
`Email: pmcandrews@mcandrews-ip.com
`
`Lead Counsel for Patent Owner
`
`
`
`5
`
`
`
`Patent Owner’s Reply in Support of its Motion to Exclude
`IPR2016-01160
`U.S. Patent No. 8,611,404
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing Patent
`
`Owner’s Reply in Support of its Motion to Exclude was served on August 25,
`
`2017, via email to counsel for Petitioner at the following:
`
`Lead Counsel
`
`Back-up Counsel
`
`Bob Starr
`ARRIS Group, Inc.
`3871 Lakefield Dr.
`Suwanee, GA 30024
`Tel. 678-473-8416
`Fax 678-473-8095
`bob.starr@arris.com
`
`Dan Gresham
`Thomas Horstemeyer, LLP
`3200 Windy Hill Road SE
`Suite 1600E
`Atlanta, GA 30039
`Tel. 770-933-9500
`Fax 770-951-0933
`dan.gresham@thomashorstemeyer.com
`
`
`
`
`
`
`
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`
`
`
`
`Charles Griggers
`Thomas Horstemeyer, LLP
`3200 Windy Hill Road SE
`Suite 1600E
`Atlanta, GA 30039
`Tel. 770-933-9500
`Fax 770-951-0933
`charles.griggers@thomashorstemeyer.com
`
`
`
`
`
`
`MCANDREWS, HELD & MALLOY
`
`
`
`
`
`
`
`Telephone: 312-775-8000
`
`
`Facsimile: 312-775-8100
`
`
`
`CUSTOMER NUMBER: 23446
`
`
`
`
`
`
`
`
`
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