IPR2017-00060
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EDWARDS LIFESCIENCES CORPORATION, EDWARDS LIFESCIENCES
`LLC, AND EDWARDS LIFESCIENCES AG
`Petitioners
`
`v .
`
`BOSTON SCIENTIFIC SCIMED, INC.
`Patent Owner
`_______________
`
`Case IPR2017-00060
`Patent 8,992,608
`_______________
`
`
`PETITIONERS’ OBJECTIONS UNDER 37 C.F.R. § 42.64(b)(1)
`TO EVIDENCE SUBMITTED WITH PATENT OWNER RESPONSE
`
`
`
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`EDWARDS LIFESCIENCES CORPORATION, EDWARDS LIFESCIENCES
`LLC, AND EDWARDS LIFESCIENCES AG
`Petitioners
`
`v .
`
`BOSTON SCIENTIFIC SCIMED, INC.
`Patent Owner
`_______________
`
`Case IPR2017-00060
`Patent 8,992,608
`_______________
`
`
`PETITIONERS’ OBJECTIONS UNDER 37 C.F.R. § 42.64(b)(1)
`TO EVIDENCE SUBMITTED WITH PATENT OWNER RESPONSE
`
`
`
`
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`IPR2017-00060
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioners Edwards Lifesciences
`
`Corporation, et al. (Petitioners) hereby serve these objections to evidence
`
`submitted by Patent Owner Boston Scientific Scimed, Inc. (“Patent Owner”) with
`
`Patent Owner’s Response in the above noted case. This notice is being timely filed
`
`within 5 business days of the filing of Patent Owner’s Response, which occurred
`
`on June 23, 2017.
`
`Petitioners incorporate by reference their objections to Exhibits 2001
`
`through 2008, filed April 12, 2017 (Paper No. 10).
`
`1.
`
`Exhibit 2014
`
`Petitioners object to the admissibility of Exhibit 2014 under FRE 401/402,
`
`403, 801/802, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly archived on
`
`October 23, 2016, after the priority date of the patent-at-issue. Exhibit 2014
`
`purports to be a webpage giving an overview of the FDA’s approval of
`
`Petitioners’ older generation product, which is not at issue in or relevant to
`
`this IPR. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2014 purports to be a webpage giving an overview of the FDA’s approval of
`
`Petitioners’ older generation product. Therefore, it is likely to cause
`
`1
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`
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`IPR2017-00060
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`confusion regarding the state of the art at the time of the alleged invention
`
`and also is misleading and potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit is inadmissible hearsay because Patent
`
`Owner offers it to prove the truth of the matter asserted, and this exhibit does
`
`not fall within any hearsay exception.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`2.
`
`Exhibit 2015
`
`Petitioners object to the admissibility of Exhibit 2015 under FRE 401/402,
`
`403, 801/802, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`September 5, 2007, after the priority date of the patent-at-issue. Exhibit 2015
`
`purports to be a press release regarding the European approval of
`
`2
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`
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`IPR2017-00060
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`Petitioners’ older generation product, which is not at issue in or relevant to
`
`this IPR. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2015 purports to be a press release regarding the European approval of
`
`Petitioners’ older generation product. Therefore, it is likely to cause
`
`confusion regarding the state of the art at the time of the alleged invention
`
`and also is misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`3.
`
`Exhibit 2016
`
`Petitioners object to the admissibility of Exhibit 2016 under FRE 401/402,
`
`403, and 901. Specifically:
`
`3
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`
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`IPR2017-00060
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` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`May 14, 2009, after the priority date of the patent-at-issue. Exhibit 2016
`
`purports to be a press release regarding Petitioners’ older generation product,
`
`which is not at issue in or relevant to this IPR. For these reasons, it is not
`
`relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2016 purports to be a press release regarding Petitioners’ older generation
`
`product. Therefore, it is likely to cause confusion regarding the state of the
`
`art at the time of the alleged invention and also is misleading and potentially
`
`prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`4
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`IPR2017-00060
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`4.
`
`Exhibit 2017
`
`Petitioners object to the admissibility of Exhibit 2017 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The copyright date on this exhibit is
`
`2017, after the priority date of the patent-at-issue. Exhibit 2017 purports to
`
`be a product overview for Petitioners’ older generation product, which is not
`
`at issue in or relevant to this IPR. For these reasons, it is not relevant to the
`
`issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The copyright date on this
`
`exhibit is 2017, after the priority date of the patent-at-issue. Exhibit 2017
`
`purports to be a product overview for Petitioners’ older generation product,
`
`which is not at issue in or relevant to this IPR. Therefore, it is likely to cause
`
`confusion regarding the state of the art at the time of the alleged invention
`
`and also is misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`5
`
`
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`IPR2017-00060
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`901.
`
`5.
`
`Exhibit 2018
`
`Petitioners object to the admissibility of Exhibit 2018 under FRE 401/402,
`
`403, and 801/802. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`March/April 2016, after the priority date of the patent-at-issue. Exhibit 2018
`
`purports to be an article on Petitioners’ product, which is not at issue in or
`
`relevant to any issues in this IPR, including secondary considerations. The
`
`exhibit is also not relevant because Patent Owner does not establish that
`
`Petitioners’ commercial products described in the many publications
`
`proffered as exhibits are covered by the claims at issue. Accordingly, Patent
`
`Owner fails to establish a nexus between the claims and the evidence that it
`
`proffers. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2018 purports to be an article on Petitioners’ product, which is not at issue in
`
`or relevant to this IPR, including secondary considerations. Therefore, it is
`
`likely to cause confusion regarding the state of the art at the time of the
`
`6
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`IPR2017-00060
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`alleged invention and also is misleading and potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit and publications cited therein are
`
`inadmissible hearsay because Patent Owner offers it to prove the truth of the
`
`matter asserted, and this exhibit does not fall within any hearsay exception.
`
`6.
`
`Exhibit 2019
`
`Petitioners object to the admissibility of Exhibit 2019 under FRE 401/402,
`
`403, and 801/802. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`October 1, 2014, after the priority date of the patent-at-issue. Exhibit 2019
`
`purports to be an article on Petitioners’ older generation product, which is
`
`not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2019 purports to be an article on Petitioners’ older generation product,
`
`which is not at issue in or relevant to any issues in this IPR, including
`
`secondary considerations. Therefore, it is likely to cause confusion regarding
`
`the state of the art at the time of the alleged invention and also is misleading
`
`and potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit and publications cited therein are
`
`7
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`IPR2017-00060
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`inadmissible hearsay because Patent Owner offers it to prove the truth of the
`
`matter asserted, and this exhibit does not fall within any hearsay exception.
`
`7.
`
`Exhibit 2020
`
`Petitioners object to the admissibility of Exhibit 2020 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`November 2, 2011, after the priority date of the patent-at-issue. Exhibit 2020
`
`purports to be a press release regarding Petitioners’ older generation product,
`
`which is not at issue in or relevant to this IPR. For these reasons, it is not
`
`relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2020 purports to be a press release regarding Petitioners’ older generation
`
`product. Therefore, it is likely to cause confusion regarding the state of the
`
`art at the time of the alleged invention and also is misleading and potentially
`
`prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`8
`
`
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`IPR2017-00060
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`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`8.
`
`Exhibit 2021
`
`Petitioners object to the admissibility of Exhibit 2021 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`June 16, 2014, after the priority date of the patent-at-issue. Exhibit 2021
`
`purports to be a press release regarding Petitioners’ older generation product,
`
`which is not at issue in or relevant to any issues in this IPR, including
`
`secondary considerations. For these reasons, it is not relevant to the issues in
`
`the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2021 purports to be a press release regarding Petitioners’ older generation
`
`product, which is not at issue in or relevant to any issues in this IPR,
`
`including secondary considerations. Therefore, it is likely to cause confusion
`
`regarding the state of the art at the time of the alleged invention and also is
`
`9
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`IPR2017-00060
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`misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`9.
`
`Exhibit 2022
`
`Petitioners object to the admissibility of Exhibit 2022 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit is undated but has a last
`
`accessed date of April 4, 2017, after the priority date of the patent-at-issue.
`
`Exhibit 2022 appears to be a website regarding Petitioners’ product, which is
`
`not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant because Patent Owner does
`
`not establish that Petitioners’ commercial products described in the many
`
`publications proffered as exhibits are covered by the claims at issue.
`
`10
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`IPR2017-00060
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`Accordingly, Patent Owner fails to establish a nexus between the claims and
`
`the evidence that it proffers. For these reasons, it is not relevant to the issues
`
`in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: Exhibit 2022 appears to
`
`originate much later than the priority date of the patent-at-issue and to be a
`
`website regarding Petitioners’ product, which is not at issue in or relevant to
`
`any issues in this IPR, including secondary considerations. Therefore, it is
`
`likely to cause confusion regarding the state of the art at the time of the
`
`alleged invention and also is misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`10. Exhibit 2023
`
`Petitioners object to the admissibility of Exhibit 2023 under FRE 401/402,
`
`11
`
`
`
`403, and 901. Specifically:
`
`IPR2017-00060
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`on January 27, 2014, after the priority date of the patent-at-issue. Exhibit
`
`2023 purports to be a press release regarding Petitioners’ product, which is
`
`not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant because Patent Owner does
`
`not establish that Petitioners’ commercial products described in the many
`
`publications proffered as exhibits are covered by the claims at issue.
`
`Accordingly, Patent Owner fails to establish a nexus between the claims and
`
`the evidence that it proffers. For these reasons, it is not relevant to the issues
`
`in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2023 purports to be a press release regarding Petitioners’ product, which is
`
`not at issue in or relevant to any issue in this IPR, including secondary
`
`considerations. Therefore, it is likely to cause confusion regarding the state
`
`of the art at the time of the alleged invention and also is misleading and
`
`potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`12
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`IPR2017-00060
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`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`11. Exhibit 2024
`
`Petitioners object to the admissibility of Exhibit 2024 under FRE 401/402,
`
`403, and 801/802. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`in 2016, after the priority date of the patent-at-issue. Exhibit 2024 purports
`
`to be an article comparing two of Petitioners’ products, which are not at
`
`issue in or relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant because Patent Owner does
`
`not establish that Petitioners’ commercial products described in the many
`
`publications proffered as exhibits are covered by the claims at issue.
`
`Accordingly, Patent Owner fails to establish a nexus between the claims and
`
`the evidence that it proffers. For these reasons, it is not relevant to the issues
`
`in the Trial.
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`13
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`IPR2017-00060
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` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2024 purports to be an article comparing two of Petitioners’ products, which
`
`are not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. Therefore, it is likely to cause confusion regarding the state
`
`of the art at the time of the alleged invention and also is misleading and
`
`potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit and publications cited therein are
`
`inadmissible hearsay because Patent Owner offers it to prove the truth of the
`
`matter asserted, and this exhibit does not fall within any hearsay exception.
`
`12. Exhibit 2025
`
`Petitioners object to the admissibility of Exhibit 2025 under FRE 401/402,
`
`403, 801/802, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit is a transcript of a call dated
`
`April 23, 2015, after the priority date of the patent-at-issue. Exhibit 2025
`
`purports to be a transcript of an earnings conference call for Petitioner,
`
`which is not relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant to the extent it discusses
`
`Petitioners’ products because Patent Owner does not establish that
`
`Petitioners’ commercial products described in the many publications
`
`14
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`IPR2017-00060
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`proffered as exhibits are covered by the claims at issue. Accordingly, Patent
`
`Owner fails to establish a nexus between the claims and the evidence that it
`
`proffers. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2025 purports to be a transcript of an earnings conference call for Petitioner,
`
`which is not relevant to any issues in this IPR, including secondary
`
`considerations. Therefore, it is likely to be confusing, misleading, and
`
`potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit is inadmissible hearsay because Patent
`
`Owner offers it to prove the truth of the matter asserted, and this exhibit does
`
`not fall within any hearsay exception.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`15
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`
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`IPR2017-00060
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`901.
`
`13. Exhibit 2026
`
`Petitioners object to the admissibility of Exhibit 2026 under FRE 401/402,
`
`403, 801/802, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit is a transcript of a call dated
`
`February 2, 2016, after the priority date of the patent-at-issue. Exhibit 2026
`
`purports to be a transcript of an earnings conference call for Petitioner,
`
`which is not relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant to the extent it discusses
`
`Petitioners’ products because Patent Owner does not establish that
`
`Petitioners’ commercial products described in the many publications
`
`proffered as exhibits are covered by the claims at issue. Accordingly, Patent
`
`Owner fails to establish a nexus between the claims and the evidence that it
`
`proffers. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2026 purports to be a transcript of an earnings conference call for Petitioner,
`
`which is not relevant to any issues in this IPR, including secondary
`
`considerations. Therefore, it is likely to be misleading and potentially
`
`prejudicial.
`
`16
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`IPR2017-00060
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` FRE 801/802, Hearsay: The exhibit is inadmissible hearsay because Patent
`
`Owner offers it to prove the truth of the matter asserted, and this exhibit does
`
`not fall within any hearsay exception.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`901.
`
`14. Exhibit 2027
`
`Petitioners object to the admissibility of Exhibit 2027 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit was purportedly published
`
`on August 18, 2016, after the priority date of the patent-at-issue. Exhibit
`
`2027 purports to be a press release regarding Petitioners’ product, which is
`
`not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. The exhibit is also not relevant because Patent Owner does
`
`17
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`IPR2017-00060
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`not establish that Petitioners’ commercial products described in the many
`
`publications proffered as exhibits are covered by the claims at issue.
`
`Accordingly, Patent Owner fails to establish a nexus between the claims and
`
`the evidence that it proffers. For these reasons, it is not relevant to the issues
`
`in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was
`
`purportedly published after the priority date of the patent-at-issue. Exhibit
`
`2027 purports to be a press release regarding Petitioners’ product, which is
`
`not at issue in or relevant to any issues in this IPR, including secondary
`
`considerations. Therefore, it is likely to cause confusion regarding the state
`
`of the art at the time of the alleged invention and also is misleading and
`
`potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`18
`
`
`
`IPR2017-00060
`
`901.
`
`15. Exhibit 2028
`
`Petitioners maintain their objections stated on the record during Dr. Buller’s
`
`deposition.
`
`16. Exhibit 2029
`
`Petitioners object to the admissibility of Exhibit 2029 under FRE 401/402
`
`and 403. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit is a transcript from Cordis
`
`Corp. v. Boston Scientific, C.A. No. 10-39-SLR (D. Del. May 11, 2012), an
`
`unrelated litigation that dealt with a different patent with a different priority
`
`date. For this reason, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit is a transcript
`
`from an unrelated litigation resolving, among other issues, a motion to
`
`exclude an opinion offered by Dr. Buller on a particular mechanical
`
`engineering technique called “finite element analysis” (Ex. 2029 at 100:20-
`
`101:2) which is not at issue in this Trial. Thus, this is exhibit is likely to be
`
`misleading and prejudicial.
`
`17. Exhibit 2030
`
`Petitioners object to the admissibility of Exhibit 2030 under FRE 401/402,
`
`403, and 801/802. Specifically:
`
`19
`
`
`
`IPR2017-00060
`
` FRE 401/402, Lack of Relevance: The filing date of this exhibit, U.S.
`
`Patent No. 7,276,078, is June 30, 2004, after the priority date of the patent-
`
`at-issue, and it is not relevant to secondary considerations. For these
`
`reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit was filed after
`
`the priority date of the patent-at-issue, and it is not relevant to secondary
`
`considerations. Therefore, it is likely to cause confusion, and may be
`
`misleading and potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit and publications cited therein are
`
`inadmissible hearsay because Patent Owner offers it to prove the truth of the
`
`matter asserted, and this exhibit does not fall within any hearsay exception.
`
`18. Exhibit 2031
`
`Petitioners object to the admissibility of Exhibit 2031 under FRE 401/402,
`
`403, 801/802, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit discusses Petitioners’
`
`products, which are not at issue in or relevant to any issues in this IPR,
`
`including secondary considerations. The exhibit is also not relevant because
`
`Patent Owner does not establish that Petitioners’ commercial products
`
`described in the many publications proffered as exhibits are covered by the
`
`claims at issue. Accordingly, Patent Owner fails to establish a nexus
`
`20
`
`
`
`IPR2017-00060
`
`between the claims and the evidence that it proffers. For these reasons, it is
`
`not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit discusses
`
`Petitioners’ products, which are not at issue in or relevant to any issues in
`
`this IPR, including secondary considerations. Therefore, it is likely to cause
`
`confusion, and likely to be misleading and potentially prejudicial.
`
` FRE 801/802, Hearsay: The exhibit and publications cited therein are
`
`inadmissible hearsay because Patent Owner offers it to prove the truth of the
`
`matter asserted, and this exhibit does not fall within any hearsay exception.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided any
`
`evidence sufficient to authenticate this exhibit. Therefore, the exhibit is
`
`inadmissible under FRE 901.
`
`19. Exhibit 2033
`
`Petitioners object to the admissibility of Exhibit 2033 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The last accessed date on this exhibit is
`
`June 21, 2017 and the exhibit copyright date purports to be 2017, after the
`
`priority date of the patent-at-issue. Exhibit 2033 purports to be screenshots
`
`from Edwards’ website regarding Petitioners’ product, which is not at issue
`
`in or relevant to any issues in this IPR, including secondary considerations.
`
`21
`
`
`
`IPR2017-00060
`
`The exhibit is also not relevant because Patent Owner does not establish that
`
`Petitioners’ commercial products described in the many publications
`
`proffered as exhibits are covered by the claims at issue. Accordingly, Patent
`
`Owner fails to establish a nexus between the claims and the evidence that it
`
`proffers. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The dates on the exhibit are
`
`significantly later than the priority date of the patent-at-issue. Exhibit 2033
`
`purports to be screenshots from Edwards’ website regarding Petitioners’
`
`product, which is not at issue in and not relevant to any issue in this IPR,
`
`including secondary considerations. Therefore, it is likely to cause confusion
`
`regarding the state of the art at the time of the alleged invention and also is
`
`misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided evidence
`
`sufficient to authenticate this exhibit. “When offering a printout of a
`
`webpage into evidence to prove the website’s contents, the proponent of the
`
`evidence must authenticate the information from the website itself, not
`
`merely the printout.” Neste Oil Oyj v. REG Synthetic Fuels, LLC, IPR2013-
`
`00578, Paper 53 at 4 (P.T.A.B. March 12, 2015). Patent Owner has not
`
`proffered testimony of a witness with personal knowledge of the website to
`
`authenticate the exhibit. Therefore, the exhibit is inadmissible under FRE
`
`22
`
`
`
`IPR2017-00060
`
`901.
`
`20. Exhibit 2034
`
`Petitioners object to the admissibility of Exhibit 2034 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit bears an “issued” date of
`
`July 2015, after the priority date of the patent-at-issue. Exhibit 2034 is a
`
`“procedural training manual” for Petitioners’ product, which is not at issue
`
`in or relevant to any issues in this IPR, including secondary considerations.
`
`The exhibit is also not relevant because Patent Owner does not establish that
`
`Petitioners’ commercial products described in the many publications
`
`proffered as exhibits are covered by the claims at issue. Accordingly, Patent
`
`Owner fails to establish a nexus between the claims and the evidence that it
`
`proffers. For these reasons, it is not relevant to the issues in the Trial.
`
` FRE 403, Prejudicial, Confusing, Misleading: The exhibit is dated after
`
`the priority date of the patent-at-issue. Exhibit 2034 is a “procedural training
`
`manual” for Petitioners’ product, which is not at issue in or relevant to any
`
`issues in this IPR, including secondary considerations. Therefore, it is likely
`
`to cause confusion regarding the state of the art at the time of the alleged
`
`invention and also is misleading and potentially prejudicial.
`
` FRE 901, Lack of Authenticity: Patent Owner has not provided any
`
`23
`
`
`
`evidence sufficient to authenticate this exhibit. Therefore, the exhibit is
`
`IPR2017-00060
`
`inadmissible under FRE 901.
`
`21. Exhibit 2035
`
`Petitioners object to the admissibility of Exhibit 2035 under FRE 401/402,
`
`403, and 901. Specifically:
`
` FRE 401/402, Lack of Relevance: The exhibit appears to be a photograph
`
`of Petitioners’ product, which is not at issue in or relevant to any issues in
`
`this IPR, including secondary considerations. The exhibit is also not relevant
`
`because Patent Owner does not establi
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