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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`OTICON MEDICAL AB; OTICON MEDICAL LLC;
`WILLIAM DEMANT HOLDING A/S,
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`Petitioners,
`v.
`COCHLEAR BONE ANCHORED SOLUTIONS AB,
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`Patent Owner.
`
`Case No. IPR2017-010181
`Patent 7,043,040 B2
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED
`WITH PETITIONER’S SUPPLEMENTAL BRIEFING PURSUANT TO
`37 C.F.R. § 42.64(b)(1)
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`1 Case IPR2017-01019 has been consolidated with the instant proceeding.
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`-i-
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`Patent Owner objects to the admissibility of the following evidence cited
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`regarding the newly-added challenges to claims 7-10 and submitted by Petitioner
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`with Petitioner’s Reply to Patent Owner’s Supplemental Response Addressing
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`Claims 7-10 (Paper 40). 37 C.F.R. § 42.64. These objections are made within five
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`(5) business days of service of the evidence (June 26, 2018) to which the
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`objections are directed. 37 C.F.R. § 42.64(b)(1). Patent Owner asks the Patent
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`Trial and Appeal Board to deny the admission and consideration of the following
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`testimony and document on the bases asserted below. Patent Owner also reserves
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`its right to submit a motion to exclude the documents referenced in accordance
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`with the Board’s Order of May 8, 2018 (Paper 33).
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`I. Exhibit 1127 – Transcript of the Deposition of Dr. Jay T. Rubinstein on
`June 20, 2018
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`Patent Owner objects to the admissibility of specific opinions included in the
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`transcript of the deposition of Dr. Jay T. Rubinstein on June 20, 2018 (Exhibit
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`1127) under Fed. R. Evid. 702 and for lack of foundation. Dr. Rubinstein’s
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`specific opinions related to the design of transducers for bone-anchored hearing
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`aids are inadmissible because they are speculative and lack proper foundation.
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`(Ex. 1127, 19:16-20:17, 26:13-28:1.) Dr. Rubinstein has not held himself out to be
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`an expert on designing transducers for bone-anchored hearing aids and explicitly
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`indicated that his testimony regarding the design of transducers for bone-anchored
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`hearing aids was speculative—“[N]ot being someone who designs transducers for
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`bone-anchored hearing aids, I could only speculate about some of them.” (Ex.
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`1127, 20:9-11.) As such, those specific opinions (Ex. 1127, 19:16-20:17, 26:13-
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`28:1) are inadmissible under Fed. R. Evid. 702 and for lack of foundation.
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`II. Exhibit 1131 – Stenfelt, Stefan et al., “A bone-anchored hearing aid for
`patients with pure sensorineural hearing impairment,” Scandinavian
`Audiology, Vol. 29, pp. 175-185 (2000)
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`Patent Owner objects to the admissibility of Exhibit 1131 as being
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`introduced for the first time in Petitioner’s Reply to Patent Owner’s Supplemental
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`Response Addressing Claims 7-10 (Paper 40), and not in the first instance in the
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`Petition, in violation of 37 C.F.R. § 42.23(b). “[A] reply that raises new issues or
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`belatedly presents evidence will not be considered and may be returned.” Office
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`Patent Trial Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012).
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`In the Petition, Petitioner asserted that claim 10 of the ‘040 patent is
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`unpatentable under pre-AIA 35 U.S.C. § 103(a) as being obvious over Vaneecloo
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`(Ex. 1003) in view of Carlsson (Ex. 1007), Leysieffer (Ex. 1009) and Lesinski (Ex.
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`1018). (Paper 1 of IPR2017-01018 at 55.) For the first time in the Petitioner’s
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`Reply to Patent Owner’s Supplemental Response Addressing Claims 7-10 (Paper
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`40), Petitioner now cites to “earlier disclosure of incorporating a directional
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`microphone in a bone-anchored hearing device. See, e.g., Ex. 1131, including
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`1131-004.” (Paper 40 at 7.) Exhibit 1131 was not cited or discussed in the petition
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`addressing claim 10. This exhibit was required to be included in the petition so
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`that Patent Owner would have a full and fair opportunity to respond to it. 37
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`C.F.R. § 42.104(b)(4) (“The petition must specify where each element of the claim
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`is found in the prior art patents or printed publications relied upon[.]”); 37 C.F.R. §
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`42.104(b)(5) (“[The petition must] identify[] specific portions of the evidence that
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`support the challenge. The Board may exclude or give no weight to the evidence
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`where a party has failed to state its relevance or to identify specific portions of the
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`evidence that support the challenge.”)
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`Dated: July 3, 2018
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`Respectfully submitted,
`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
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`By: /s/Laura M. Burson
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`Bruce G. Chapman (Registration No. 33,846)
`Laura M. Burson (Registration No. 40,929)
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`Attorneys for Patent Owner
`COCHLEAR BONE ANCHORED SOLUTIONS AB
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`-4-
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`CERTIFICATION OF SERVICE
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`(37 C.F.R. §§ 42.6(e)(1, 3), 42.105(a))
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`The undersigned hereby certifies that the above-captioned “PATENT
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`OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED WITH PETITIONER’S
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`SUPPLEMENTAL BRIEFING PURSUANT TO 37 C.F.R. § 42.64(b)(1),” was
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`served in its entirety on July 3, 2018, upon the below-identified counsel for
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`Petitioners Oticon Medical AB, Oticon Medical LLC, William Demant Holding
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`A/S via electronic service:
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`D. Richard Anderson
`BIRCH, STEWART, KOLASCH & BIRCH, LLP
`8110 Gatehouse Road, Suite 100E
`Falls Church, VA 22042
`dra@bskb.com
`Mailroom@bskb.com
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`Date: July 3, 2018
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`
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`SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
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`
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`By: /s/Laura M. Burson
`
`Bruce G. Chapman (Registration No. 33,846)
`Laura M. Burson (Registration No. 40,929)
`
`Attorneys for Patent Owner
`COCHLEAR BONE ANCHORED SOLUTIONS AB
`
`
`333 South Hope Street, 43rd Floor
`Los Angeles, California, 90071-1422
`(213) 620-1780
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`SMRH:486937811.1
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`-5-
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