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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________________
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`FACEBOOK, INC. and INSTAGRAM LLC,
`PETITIONERS
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`V.
`
`SKKY, LLC,
`PATENT OWNER
`_____________________
`
`CASE IPR2017-00550
`PATENT 9,037,502
`_____________________
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S
`MOTION TO EXCLUDE EVIDENCE
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`
`
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`IPR2017-00550
`Patent: 9,037,502
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` Despite relying on Patent Owner’s Exhibits 2003 and 2004 in their Reply in
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`support of the Petition, Facebook, Inc. and Instagram LLC (“Petitioners”) moved
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`to exclude Exhibits 2003 and 2004 from the record. Petitioners solely object to
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`Exhibits 2003 and 2004 on authenticity grounds. For the following reasons,
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`Petitioners’ Motion should be denied.
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`I.
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`Exhibits 2003 and 2004 are Authentic.
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`First, Exhibits 2003 and 2004 should not be excluded from the record
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`because they are authentic. Generally, the Federal Rules of Evidence apply to IPR
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`proceedings. 37 CFR § 42.62. Federal Rule of Evidence 901 provides that the
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`“appearance, contents, substance, internal patterns, or other distinctive
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`characteristics of the item, taken together with all the circumstances” can provide
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`evidence of authenticity. Fed. R. Evid. 901(4). Such contents and other distinctive
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`characteristics are found throughout each exhibit, serving to authenticate both
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`Exhibits 2003 and 2004.
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`For example, Exhibit 2003’s cover provides the details of the specific
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`European Telecommunications Standards Institute’s (“ETSI”) Special Mobile
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`Group (“SMG”) meeting described in the document. This information includes the
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`particular meeting number (Meeting n°24bis), the location of the meeting (Paris),
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`and the date of the meeting (January 28-29, 1998). Exhibit 2003 at 1. The contents
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`page further notes that the meeting agenda was “approved.” Id. at 2. This approval
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`1
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`IPR2017-00550
`Patent: 9,037,502
`
`is again noted on page 3 of Exhibit 2003, along with a reference to the Chairman of
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`the SMG by name. Id. at 3. The document also includes two press releases on ETSI
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`letterhead, including the same specific identifying characteristics noted above. Id.
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`at 22 and 23. Based on these distinctive characteristics and the contents of the
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`document, Patent Owner proved the authenticity of Exhibit 2003.
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`Similarly, Exhibit 2004’s contents and distinctive characteristics are
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`evidence of its authenticity. Exhibit 2004’s cover contains the same type of
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`specific identifying characteristics as Exhibit 2003, including the meeting number
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`(ETSI SMG#24), the location of the meeting (Madrid, Spain), and the date of the
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`meeting (December 15-19, 1997). Exhibit 2004 at 1. In addition, Exhibit 2004’s
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`cover includes a specific identifying document number (Tdoc 1019/97). As with
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`Exhibit 2003, these distinctive characteristics prove the authenticity of Exhibit
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`2004.
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`Further, Exhibits 2003 and 2004 reflect the same characteristics used to
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`justify the rule of self-authenticating evidence, Federal Rule of Evidence 902.
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`Federal Rule 902 codifies “a substantial body of instances in which authenticity is
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`taken as sufficiently established for purposes of admissibility without extrinsic
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`evidence to that effect, . . . often because practical considerations reduce the
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`possibility of unauthenticity to a very small dimension.” Notes of the Advisory
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`Committee for Federal Rule of Evidence 902.
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`
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`2
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`IPR2017-00550
`Patent: 9,037,502
`
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`ETSI is an international standard setting organization that is highly respected
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`and relied on by individuals and businesses throughout the world and is recognized
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`by the European Union as the standards body in the fields of telecommunications,
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`broadcasting, and other electronic communications networks and services.
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`Practically speaking, the possibility that its work, including the records submitted
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`as Exhibits 2003 and 2004, is unauthentic is exactly the “very small dimension”
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`contemplated by the Advisory Committee. Id. Thus, should the Board determine
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`that Patent Owner’s evidence does not establish the authenticity of Exhibits 2003
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`and 2004, Patent Owner requests that the Board treat the documents as self-
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`authenticating.
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`For all these reasons, Exhibits 2003 and 2004 are authentic and Petitioners’
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`motion to exclude should be denied.
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`II.
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`Petitioners’ Themselves Rely of Exhibits 2003 and 2004.
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`Additionally, Petitioners’ Motion should be considered moot in light of
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`Petitioners’ Reply. Although Petitioners’ now object to the authenticity of Exhibits
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`2003 and 2004, Petitioners relied on Exhibits 2003 and 2004 in support of their
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`reply arguments, arguing that the exhibits, in fact, support “Petitioners’ rationale.”
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`Paper 18 at 11. By relying on Exhibits 2003 and 2004, Petitioners have tacitly
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`agreed to their authenticity. Petitioners cannot have their cake and eat it, too. For
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`this additional reason, Petitioners’ motion to exclude should be denied.
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`3
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`IPR2017-00550
`Patent: 9,037,502
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`III.
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`
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`In the Alternative, the Board Should Take Official Notice of the
`Information in Exhibits 2003 and 2004.
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`Finally, in the alternative, Patent Owner requests that the Board take official
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`notice of the information contained in Exhibits 2003 and 2004. Federal Rule of
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`Evidence 201 provides that the Board may officially “notice a fact that is not
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`subject to reasonable dispute because it can be accurately and readily determined
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`from sources whose accuracy cannot reasonably be questioned.” Here, the
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`accuracy of ETSI, the source of the information in Exhibits 2003 and 2004, is
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`beyond question.
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`As discussed above, ETSI is an internationally recognized standards setting
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`organization in the fields of telecommunications, broadcasting, and other electronic
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`communications networks and services. Officially recognized as the regional
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`standard body by the European Union, ETSI is responsible for setting standards for
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`telecommunications and other industries that are relied on by individuals and
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`businesses throughout the world, including the GSM standard for cellular
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`communications. Accordingly, it is not reasonable to question the accuracy of
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`ETSI’s work, including the documents submitted as Exhibits 2003 and 2004.
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`ETSI’s stellar reputation is reflected in prior briefing by the Petitioners.
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`Petitioners have not objected to or questioned the accuracy of any part of Exhibit
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`2003 or Exhibit 2004. Indeed, as discussed in Section II, Petitioners relied on
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`4
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`IPR2017-00550
`Patent: 9,037,502
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`Exhibits 2003 and 2004 to support their arguments in their Reply Brief. Thus, as
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`no party is questioning the accuracy of the information contained in the Exhibits,
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`the Board should take official notice of that information.
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`Additionally, the Board recognized and cited to at least Exhibit 2004 in its
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`decision instituting inter partes review. Paper 11 at 9. Accordingly, should the
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`Board determine that Patent Owner failed to establish that Exhibits 2003 and 2004
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`are authentic, Patent Owner requests that the Board take official notice of the
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`information contained within the exhibits.
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`Respectfully submitted,
`
`/Ryan M. Schultz/
`Ryan M. Schultz
`Registration No. 65,143
`Andrew J. Kabat
`Registration No. 71,252
`Robins Kaplan LLP
`2800 LaSalle Plaza
`800 LaSalle Ave
`Minneapolis, MN 55401
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`Attorneys for Patent Owner
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`
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`Dated: March 20, 2018
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`5
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`IPR2017-00550
`Patent: 9,037,502
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`
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on March 20, 2018 a copy of Patent Owner’s
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`Opposition to Petitioner’s Motion to Exclude Evidence has been served in their
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`entirety by electronic mail to the Petitioners:
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`hkeefe@cooley.com
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`amace@cooley.com
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`zpatdcdocketing@cooley.com
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`
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`Dated: March 20, 2018
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`
`
`
`
`/Ryan M. Schultz/
`
`Ryan M. Schultz
`Registration No. 65,143
`Andrew J. Kabat
`Registration No. 71,252
`
`6
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