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
`_____________
`
`DISH NETWORK, L.L.C.,
`Petitioner,
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`_____________
`
`Case IPR2016-01470
`Patent No. 8,611,404
`_____________
`
`PATENT OWNER’S MOTION TO EXCLUDE
`INADMISSIBLE EVIDENCE
`
`
`
`
`
`
`
`
`
`
`
`
`
`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
`_____________
`
`DISH NETWORK, L.L.C.,
`Petitioner,
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`_____________
`
`Case IPR2016-01470
`Patent No. 8,611,404
`_____________
`
`PATENT OWNER’S MOTION TO EXCLUDE
`INADMISSIBLE EVIDENCE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`U.S. Patent No. 8,611,404
`
`
`Pursuant to 37 C.F.R. § 42.64, Patent Owner TQ Delta, LLC (“Patent
`
`Owner” or “TQ Delta”) hereby moves to exclude certain of Petitioner’s evidence
`
`for lack of admissibility under the Federal Rules of Evidence (“FRE”). Patent
`
`Owner objected on the record to each of these exhibits on the evidentiary bases
`
`described below in its 2/24/17 Objections to Evidence (Paper 17).
`
`(1) Exhibits 1019 (internet article purporting to be from Electronic
`
`Products Magazine Digital Edition) and Exs.1035-36, 1052 (internet articles
`
`purporting to be from EE Times): Petitioner has not provided any evidence that
`
`these exhibits are authentic under FRE 901. The exhibits do not fall within any of
`
`the self-authenticating exceptions of FRE 902; they are not newspapers or
`
`periodicals, but rather are print-outs from the Internet. 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
`
`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.”) Here,
`
`1
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`U.S. Patent No. 8,611,404
`
`Petitioner offered no evidence—only bare, conclusory attorney argument—that
`
`these documents are from “reputable publications” or even real printouts from the
`
`Electronic Products Magazine or EE Times. See Paper 18, 3/10/17 Petitioner’s
`
`Response to Patent Owner’s Objections to Evidence at 2.
`
`Moreover, these documents are not admissible as exhibits on the record
`
`merely because they were cited by or relied upon by Petitioners’ expert. See FRE
`
`703. Citing an exhibit in an expert declaration is not a loop-hole for avoiding the
`
`rules of evidence and getting in an exhibit that is otherwise inadmissible. See, e.g.,
`
`Finchum v. Ford Motor Co., 57 F.3d 526, 532 (7th Cir. 1995) (fact that expert
`
`relied on exhibit “does not automatically mean that the information itself is
`
`independently admissible in evidence . . . the [Plaintiff] could not have introduced
`
`the exhibit into evidence because of the hearsay rule”); Boim v. Holy Land Found.
`
`for Relief & Dev., 549 F.3d 685, 703 (7th Cir. 2008) (“a judge must take care that
`
`the expert is not being used as a vehicle for circumventing the rule against
`
`hearsay”); United States v. Rodriguez, 125 F. Supp. 3d 1216, 1252 (D.N.M. 2015)
`
`(“The expert may not, however, simply transmit . . . hearsay [or other inadmissible
`
`evidence] to the jury.”).
`
`Here, just because Petitioner’s expert may have relied upon an exhibit does
`
`not mean that the Board should consider such hearsay or unauthenticated exhibits
`
`2
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`U.S. Patent No. 8,611,404
`
`in makings its determination. Any contrary approach would render motions to
`
`exclude—and the requirement for admissible evidence in the first place—
`
`meaningless if a party can so easily circumvent inadmissibility. And in any event,
`
`Petitioner’s expert never alleged (much less showed) that these documents are of
`
`the type that “experts in the particular field would reasonably rely on,” necessarily
`
`for him to even be permitted to rely upon them. FRE 703.
`
`(2) Exs. 1021-1030 (ADSL Forum technical reports), Exs. 1031, 1039
`
`(PowerPoint presentations), Ex. 1038 (document titled “Mixed Signal Circuits
`
`and Systems”), Ex. 1043 (document purporting to be ETSI TS 102 250-2
`
`V2.5.1 Technical Specification), Ex. 1047 (document purporting to be a white
`
`paper): Petitioner has not provided evidence that any of these exhibits are
`
`authentic under FRE 901, and the exhibits do not fall within any of the self-
`
`authenticating exceptions of FRE 902. Indeed, Petitioner made no effort to prove
`
`that these exhibits are real, accurate, or come from reputable sources. In addition,
`
`the exhibits are hearsay under FRE 801-802 and do not fall within any of the
`
`exceptions of FRE 803—they are not periodicals or treatises.
`
`Importantly, Petitioner does not dispute that these documents lack
`
`authenticity and constitute hearsay. See Paper 18, 3/10/17 Petitioner’s Response to
`
`Patent Owner’s Objections to Evidence at p. 3. Rather, Petitioner (incorrectly)
`
`3
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`U.S. Patent No. 8,611,404
`
`asserts only that its expert is “permitted to rely upon the above-mentioned exhibits
`
`regardless of their admissibility,” which allegedly defeats Patent Owner’s
`
`objections. See id. As discussed above, however, Petitioner’s expert reliance on
`
`the documents does not make them admissible as exhibits on the record and
`
`therefore proper for the Board to consider. See supra, citing cases.
`
`(3) Ex. 1033 (website printout from kitz.co.uk), Exs. 1041-42, 1046,
`
`1051 (miscellaneous website printouts): Each of these documents is merely a
`
`website printout from a miscellaneous website, without any evidence that the
`
`information contained is accurate or that the websites are reputable. As such, these
`
`documents are not authentic under FRE 901. The exhibits do not fall within any of
`
`the self-authenticating exceptions of FRE 902. See, e.g., Adobe, 2011 U.S. Dist.
`
`LEXIS 16977, *26; In re Homestore.com., Inc., 347 F.Supp.2d at 782-783.
`
`Additionally, the exhibits are hearsay under FRE 801-802. These miscellaneous
`
`Internet print-outs do not fall within any of the exceptions of FRE 803. See
`
`Jackson, 208 F.3d at 637; St. Clair, 76 F. Supp. 2d at 775. Petitioner does not
`
`dispute that these documents are unauthenticated and hearsay. See Paper 18 at 3.
`
`And the fact that these documents were relied upon by Petitioner’s expert again
`
`does not make them admissible. See supra.
`
`
`
`4
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`U.S. Patent No. 8,611,404
`
`
`(4) Each of Exhibits 1023-1028, 1035, 1039-1041, 1045, 1047-1048,
`
`1051: In addition to the foregoing, none of these exhibits were specifically cited or
`
`referenced in the Petition or Hoarty declaration (which Petitioner conceded in its
`
`3/10/17 Response to Patent Owner’s Objections to Evidence). They were only
`
`included in a list, with no description as to why the exhibits are relevant. Petitioner
`
`as the proponent of the evidence has, therefore, not carried its burden of showing
`
`admissibility. See, e.g., Banks v. Vilsack, 958 F. Supp. 2d 78, 82 (D.D.C. 2013)
`
`(“The proponent of the evidence bears the burden of establishing that the evidence
`
`is relevant.”); United States v. 275.81 Acres of Land, 2013 U.S. Dist. LEXIS
`
`34416, at *22 (W.D. Pa. Mar. 13, 2013) (“The burden of establishing the
`
`admissibility and relevance of evidence rests on the proponent.”); AAMCO
`
`Transmissions, Inc. v. Baker, 591 F. Supp. 2d 788, 793 (E.D. Pa. 2008) (“the
`
`proponent of the evidence [] has the burden of establishing its admissibility”). And
`
`again, merely citing to documents in Petitioner’s expert report does not make them
`
`separately admissible as evidence in the record. See supra.
`
`
`
`Dated: October 2, 2017
`
`
`
`5
`
`
`
`
`
`
`/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
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01470
`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 Motion To Exclude was served on October 2, 2017, via email to counsel
`
`for Petitioners at the following:
`
`
`
`Lead Counsel
`Heidi L. Keefe
`Cooley LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW,
`Suite 700
`Washington, DC 20004
`Tel: 650-843-5001
`Fax: 650-849-7400
`USPTO Reg. No. 40,673
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`
`
`
`
`MCANDREWS, HELD & MALLOY
`
`
`
`
`
`
`
`Telephone: 312-775-8000
`
`
`Facsimile: 312-775-8100
`
`
`
`CUSTOMER NUMBER: 23446
`Date: October 2, 2017
`
`
`
`Back-up Counsel
`Stephen McBride
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW,
`Suite 700
`Washington, DC 20004
`Tel: 703-456-8000
`Fax: 703-456-8100
`smcbride@cooley.com
`Dish-TQDelta@cooley.com
`zpatdcdocketing@cooley.com
`
`Jennifer Volk
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW,
`Suite 700
`Washington, DC 20004
`Tel: 703-456-8000
`Fax: 703-456-8100
`USPTO Reg. No. 62,305
`jvolkfortier@cooley.com
`
`
`
`
`
`
`
`
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`
`
`
`
`
`
`
`
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