`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`FACEBOOK, INC. and INSTAGRAM LLC,
`Petitioners,
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`v.
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`SKKY, LLC,
`Patent Owner.
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`Case IPR2017-00550
`Patent No. 9,037,502
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`PETITIONERS’ REPLY IN SUPPORT OF THEIR MOTION TO
`EXCLUDE EVIDENCE UNDER 37 C.F.R. § 42.64(c)
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`Case IPR2017-00550
`Patent 9,037,502
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`For the first time during the pendency of this case, Patent Owner argues for
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`the authenticity of Exhibits 2003 and 2004. However, that effort is too late and
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`without merit. Petitioners’ motion to exclude evidence should be granted.
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`Patent Owner Has Not Satisfied the Requirements of Federal Rule of
`Evidence 901(b)(4)
`The purported “contents and other distinctive characteristics” of the
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`challenged exhibits are nothing more than attorney argument lacking foundation.
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`Patent Owner asserts (with no supporting evidence) that Exhibits 2003 and 2004 are
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`actual meeting notes of two bodies within the European Telecommunications
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`Standards Institute (ETSI) but does not explain why it believes this to be the case.
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`Patent Owner claims that Exhibit 2003 includes press releases on ETSI letterhead,
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`yet it neither proffers published versions of those releases nor explains how it knows
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`the letterhead is that of ETSI. Patent Owner points to an alleged meeting number,
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`an alleged meeting location, an alleged meeting date in the challenged exhibits, an
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`alleged agenda approval (with no signatures), and an alleged individual’s name, but
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`does not explain how these details taken from the documents provide any evidence
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`of authenticity—just that they exist within the documents.
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`Patent Owner further ignores the last clause in Federal Rule of Evidence
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`901(b)(4), which makes clear that internal characteristics of a document must be
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`“taken together with all the circumstances” in order to determine whether they are
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`Case IPR2017-00550
`Patent 9,037,502
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`probative of authenticity. On the current record, no evidence exists of any
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`surrounding “circumstances” supporting any of Patent Owner’s assertions. Patent
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`Owner has not provided documentary evidence or expert testimony to describe
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`ETSI, its role in setting international telephony standards, its typical meeting
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`practices, or its publications. Also telling, the challenged exhibits do not reference
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`each other and are not referenced by any other authenticated evidence in the record.
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`Federal Rule of Evidence 902 Does Not Apply to Exhibits 2003 and 2004
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`As explained in Petitioners’ motion, self-authentication under Federal Rule of
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`Evidence 902 only applies to a discrete list of evidence categories. (Paper 19 at 3.)
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`Patent Owner cannot show how the challenged exhibits fit within any of those
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`categories, so it instead cites general descriptions from the Notes of the Advisory
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`Committee to Rule 902. (Paper 20 at 3.) But the Advisory Committee Notes do not
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`create a “catch-all” category of self-authenticating evidence, as Patent Owner
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`implies. They instead explain how the Advisory Committee chose the enumerated
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`categories in Rule 902 (“instances in which authenticity is taken as sufficiently
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`established … without extrinsic evidence to that effect”), and as noted, Patent Owner
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`has not shown that Exhibits 2003 or 2004 fall within any of those categories.
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`Petitioners Have Not Waived Their Objections
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`As explained in Petitioners’ motion, the Petitioners timely objected to
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`Exhibits 2003 and 2004 in accordance with Due Date 4 of the Scheduling Order.
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`Patent 9,037,502
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`(Paper 19, at 1 (citing Paper 12).) Patent Owner nevertheless argues Petitioners
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`waived their objections by addressing those exhibits in their Reply. (Paper 20 at 3.)
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`But this does not constitute a waiver of Petitioners’ timely objections.
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`Patent Owner cites no authority holding that an argument addressing proffered
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`evidence is an admission of its authenticity. Petitioners have not relied upon those
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`exhibits to satisfy their overall burden of persuasion in this case – that evidence came
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`in the form of the affirmative evidence they provided in the Petition and Reply, to
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`which no objection was raised. (See Papers 1 and 18, Exs. 1001-1073.) The
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`Petitioners in their Reply simply explained that Exhibits 2003 and 2004, if they were
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`considered, would not support patentability of the challenged claims. (Paper 18 at
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`11-12, 23-24.) Petitioners’ arguments about Exhibits 2003 and 2004 are merely
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`proper counter-arguments to Patent Owner’s substantive arguments.
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`There was no requirement that Petitioners separately challenge the
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`admissibility of Exhibits 2003 and 2004 in their Reply. The Scheduling Order, the
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`Board’s Trial Practice Guide and related rules set forth the procedural framework
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`for addressing evidentiary issues – all of which make clear that timely objections,
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`followed by a timely Motion to Exclude, are the appropriate vehicles for challenging
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`the admissibility of evidence. Petitioners have fully complied with those
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`requirements. Thus, no waiver occurred.
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`Patent 9,037,502
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`Exhibits 2003 and 2004 Are Not Subject to Official Notice
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`Contrary to Patent Owner’s argument, Exhibits 2003 and 2004 cannot benefit
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`from official notice under Federal Rule of Evidence 201. First, there is no evidence
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`in the record as to what source the Board must seek out in order to “accurately and
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`readily determine[]” that all the information in the challenged exhibits is beyond
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`reasonable dispute. Patent Owner still has not indicated where it found the two
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`documents, despite Petitioners’ objections and motion to exclude. The face of the
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`documents fails to provide source URLs either. Patent Owner essentially argues that
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`the Board should “Google it.”
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`Second, Patent Owner has not established through documentary evidence or
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`expert testimony that ETSI is the organization Patent Owner says it is. Nor has
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`Patent Owner shown how the alleged “stellar reputation” of ETSI as a standard body
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`(for which it provides no evidence) is relevant to whether an unidentified ETSI
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`custodian or publication is itself a “source[] whose accuracy cannot reasonably be
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`questioned” for Rule 201 purposes. (See Paper 20 at 4-5.)
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`Third, Patent Owner has provided no authority to support the suggestion that
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`if the Board cites a document in an institution decision, then that document can be
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`officially noticed without otherwise satisfying the requirements of Rule 201. (See id.
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`at 5.) Nor would any such rule make sense, as the Petitioners could not have objected
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`to Exhibits 2003 and 2004 until Due Date 4, which was after the Institution Decision.
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`Case IPR2017-00550
`Patent 9,037,502
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`Dated: March 27, 2018
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`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
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`By:
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`Respectfully submitted,
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` /Heidi L. Keefe/
`Heidi L. Keefe
`Reg. No. 40,673
`Counsel for Petitioner
`Facebook, Inc.
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`5
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`Case IPR2017-00550
`Patent 9,037,502
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` hereby certify, pursuant to 37 C.F.R. Section 42.6, that a complete copy of
`the attached PETITIONERS’ REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE UNDER 37 C.F.R. § 42.64(c) is being served via
`electronic mail on the 27th day of March, 2018, upon counsel of record for the Patent
`Owner as follows:
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`CERTIFICATE OF SERVICE
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` I
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`Ryan M. Schultz
`rschultz@robinskaplan.com
`Andrew J. Kabat
`akabat@robinskaplan.com
`ROBINS KAPLAN LLP
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`DATED: March 27, 2018
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`COOLEY LLP
`ATTN: Patent Docketing
`1299 Pennsylvania Ave. NW, Suite 700
`Washington, D.C. 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
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`/ Heidi L. Keefe /
`Heidi L. Keefe
`Reg. No. 40,673
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`1
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