Paper No. 19
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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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`SONOS, INC.
`Petitioner
`v.
`D&M HOLDINGS INC.
`Patent Owner
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`PATENT OWNER D&M HOLDINGS INC.’S RESPONSE
`TO PETITIONER’S OBJECTIONS TO EVIDENCE
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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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`SONOS, INC.
`Petitioner
`v.
`D&M HOLDINGS INC.
`Patent Owner
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`PATENT OWNER D&M HOLDINGS INC.’S RESPONSE
`TO PETITIONER’S OBJECTIONS TO EVIDENCE
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`Paper No. 19
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`Patent Owner responds to Petitioner’s Objections to Evidence served on
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`February 2, 2018 (Paper No. 18). As a preliminary matter, Patent Owner notes that
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`Petitioner has objected to every item of evidence, and has not provided any
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`specificity for most objections and has instead made conclusory and general
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`objections based on a numerous rules of evidence without any explanation as to
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`any specific issues with the evidence. For example, Petitioner uses the same form
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`language for most objections that lacks any particularity, such as “Petitioner
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`objects to Exhibit ___ to the extent that it presents evidence not in conformance
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`with 37 C.F.R. § 42.62, or not taken, sought, or filed in accordance with 37 C.F.R.
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`Part 42, Subpart A. 37 C.F.R. § 42.61.” Accordingly, Petitioner has generally
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`failed to “identify the grounds for the objection with sufficient particularity to
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`allow correction in the form of supplemental evidence” as required by 37 C.F.R.
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`42.64(b)(1). Further, as discussed below, Petitioner’s other objections that arguably
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`go slightly beyond such form language are not sustainable.
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`I.
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`Patent Owner’s Response to Objections to Exhibit 2001
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`Patent Owner responds that Exhibit 2001 is admissible at least under FRE
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`1005, and therefore Petitioner’s objection fails to “identify the grounds for the
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`objection with sufficient particularity to allow correction in the form of
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`supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1).
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`II.
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`Patent Owner’s Response to Objections to Exhibits 2002-2008
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`Paper No. 19
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`Patent Owner responds that Exhibits 2002-2008 are admissible at least under
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`FRE 1005, and therefore Petitioner’s objections fail to “identify the grounds for the
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`objection with sufficient particularity to allow correction in the form of
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`supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1).
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`III. Patent Owner’s Response to Objections to Exhibit 2009
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`Patent Owner responds that Exhibit 2009 is admissible at least under FRE
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`1005, and therefore Petioner’s objection fails to “identify the grounds for the
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`objection with sufficient particularity to allow correction in the form of
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`supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1).
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`IV. Patent Owner’s Response to Objections to Exhibits 2010, 2035
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`To the extent Petitioner’s general objections can be understood, they appear
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`to be based on the allegation that Patent Owner’s expert Dr. Kesan is not qualified
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`as a technical expert. Patent Owner disagrees and notes that Petitioner has failed to
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`“identify the grounds for the objection with sufficient particularity to allow
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`correction in the form of supplemental evidence,” as required by 37 C.F.R.
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`42.64(b)(1). In particular, Petitioner has identified no evidence or arguments in
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`support of its contention that Dr. Kesan is unqualified as a witness, and Patent
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`Owner is therefore unable to provide correction in the form of supplemental
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`U.S. Patent No. 7,987,294
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`evidence. However, out of an abundance of caution, however, Patent Owner serves
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`Paper No. 19
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`Exhibits 2043 and Ex. 2044 as supplemental evidence in response to Petitioner’s
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`objections. In particular, this evidence is admissible at least under FRE 1003 and
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`establishes that Petitioner’s attempt to strike the qualifications of Dr. Kesan in the
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`related litigation were held by Judge Bryson of the Federal Circuit (sitting by
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`designation in the related litigation) to be baseless, and were denied. See generally
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`Ex. 2043, pp. 6-9; Ex. 2044, pp. 1-2. Specifically, in regard to the case law that
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`Petitioner cited in support of its much more detailed contentions in the related
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`litigation, Judge Bryson stated that “Dr. Kesan, with nearly a decade of education
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`in electrical engineering and subsequent work on circuitry and communication
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`technology, is far removed from” the experts that were struck in those cases. Ex.
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`2043, pp. 8-9. As such, Patent Owner believes that Petitioner’s objections are
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`baseless and improper in light of Judge Bryson’s ruling and Petitioner’s subsequent
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`voluntary withdrawal of its improper challenge to Dr. Kesan’s qualifications, and
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`should be withdrawn and/or overruled.
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`V.
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`Patent Owner’s Response to Objections to Exhibit 2011
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`Petitioner first objects to “Exhibit 2011 as lacking any tendency to make any
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`fact at issue in this proceeding more or less probable. For instance, Patent Owner is
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`alleging a priority date of July 6, 2006, which is after the alleged date of Exhibit
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`2011. Exhibit 2011 is therefore inadmissible under FRE 401 and 402, and its
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`Paper No. 19
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`consideration would be prejudicial, confusing the issues, and a waste of time under
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`FRE 403.” Patent Owner disagrees and notes that Petitioner has failed to “identify
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`the grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). As a
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`preliminary matter, Patent Owner has submitted that the priority date of the ’294
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`patent is “at least April 2006.” See Patent Owner Response (Paper No. 15), page 1.
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`As such, Petitioner misrepresents the contentions of Patent Owner as the entire
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`basis for this objection, and provides no other basis for its objection. Because the
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`Board may find that the date of conception is earlier than April 2006, Exhibit 2011
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`is admissible at least under FRE 401 and 402.
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`Petitioner next objects to Exhibit 2011: (i) “to the extent that Patent Owner
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`relies on its contents for the truth of the matters asserted therein. Exhibit 2011 is
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`therefore inadmissible hearsay under FRE 801, 802, 805 and no exception
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`applies”; (ii) “under FRE 901 to the extent that it includes evidence that does not
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`satisfy the requirement of authentication. Notably, Exhibit 2011 fails to indicate
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`who created or drafted the document and when the document was created or
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`drafted”; (iii) “under FRE 106 to the extent that Patent Owner relies on content
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`taken out of context”; and (iv) “under FRE 1006 to the extent that includes
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`improper summary evidence.” However, these conclusory statements fail to
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`Paper No. 19
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`“identify the grounds for the objection with sufficient particularity to allow
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`correction in the form of supplemental evidence,” as required by 37 C.F.R.
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`42.64(b)(1). For example, Patent Owner has provided the declarations of Dr. Peter
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`Celinski (Exhibit 2033) and Mr. Adam Kent (Exhibit 2034), which have
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`authenticated Exhibit 2011 as a document either prepared by employees of Avega
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`with knowledge of the facts therein at or near the time of the events described
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`therein or adopted by Avega for inclusion in its business records, that it was
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`prepared or maintained in the course of Avega’s regularly conducted business
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`activities, and that it was the regular practice of Avega to prepare or maintain such
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`records. Petitioner has failed to address these facts in its objection. As such,
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`Petitioner has failed to articulate a proper and sustainable objection to Exhibit 2011.
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`VI. Patent Owner’s Response to Objections to Exhibit 2012
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`Petitioner’s conclusory and boilerplate objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). For
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`example, Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit
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`2033) and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2012
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`as a document either prepared by employees of Avega with knowledge of the facts
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`therein at or near the time of the events described therein or adopted by Avega for
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`Paper No. 19
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`inclusion in its business records, that it was prepared or maintained in the course of
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`Avega’s regularly conducted business activities, and that it was the regular practice
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`of Avega to prepare or maintain such records, and Petitioner has failed to address
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`those contradictory facts in its objection. As such, Petitioner has failed to articulate
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`a proper and sustainable objection to Exhibit 2012.
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`VII. Patent Owner’s Response to Objections to Exhibit 2013
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`As discussed above, Patent Owner has submitted that the priority date of
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`the ’294 Patent is “at least April 2006,” such that Petitioner is incorrect in regard to
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`its grounds for objection. In addition, Patent Owner has provided the declarations
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`of Dr. Peter Celinski (Exhibit 2033) and Mr. Adam Kent (Exhibit 2034), which
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`have authenticated Exhibit 2013 as a document either prepared by employees of
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`Avega with knowledge of the facts therein at or near the time of the events
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`described therein or adopted by Avega for inclusion in its business records, that it
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`was prepared or maintained in the course of Avega’s regularly conducted business
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`activities, and that it was the regular practice of Avega to prepare or maintain such
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`records, and Petitioner has failed to address those contradictory facts in its
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`objection. As such, Petitioner has failed to articulate a proper and sustainable
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`objection to Exhibit 2013.
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`Paper No. 19
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`Petitioner further objects to Exhibit 2013: (i) “to the extent that Patent
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`Owner relies on its contents for the truth of the matters asserted therein. Exhibit
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`2013 is therefore inadmissible hearsay under FRE 801, 802, 805 and no exception
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`applies”; (ii) “under FRE 901 to the extent that it includes evidence that does not
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`satisfy the requirement of authentication”; (iii) “under FRE 106 to the extent that
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`Patent Owner relies on content taken out of context”; and (iv) “under FRE 1006 to
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`the extent that includes improper summary evidence.” However, these conclusory
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`statements fail to “identify the grounds for the objection with sufficient
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`particularity to allow correction in the form of supplemental evidence,” as required
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`by 37 C.F.R. 42.64(b)(1). As such, Petitioner has again failed to articulate a proper
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`and sustainable objection to Exhibit 2013.
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`VIII. Patent Owner’s Response to Objections to Exhibit 2014
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2014 as a
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`document either prepared by employees of Avega with knowledge of the facts
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`therein at or near the time of the events described therein or adopted by Avega for
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`inclusion in its business records, that it was prepared or maintained in the course of
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`Paper No. 19
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`Avega’s regularly conducted business activities, and that it was the regular practice
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`of Avega to prepare or maintain such records, and Petitioner has failed to address
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`those contradictory facts in its objection. As such, Petitioner has failed to articulate
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`any proper and sustainable objection to Exhibit 2014.
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`IX. Patent Owner’s Response to Objections to Exhibit 2015
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2015 as a
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`document either prepared by employees of Avega with knowledge of the facts
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`therein at or near the time of the events described therein or adopted by Avega for
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`inclusion in its business records, that it was prepared or maintained in the course of
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`Avega’s regularly conducted business activities, and that it was the regular practice
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`of Avega to prepare or maintain such records, and Petitioner has failed to address
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`those contradictory facts in its objection. As such, Petitioner has failed to articulate
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`any proper and sustainable objection to Exhibit 2015.
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`X.
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`Patent Owner’s Response to Objections to Exhibit 2016
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`Paper No. 19
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2016 as a
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`document either prepared by employees of Avega with knowledge of the facts
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`therein at or near the time of the events described therein or adopted by Avega for
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`inclusion in its business records, that it was prepared or maintained in the course of
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`Avega’s regularly conducted business activities, and that it was the regular practice
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`of Avega to prepare or maintain such records, and Petitioner has failed to address
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`those contradictory facts in its objection. As such, Petitioner has failed to articulate
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`any proper and sustainable objection to Exhibit 2016.
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`XI. Patent Owner’s Response to Objections to Exhibit 2017
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2017 as a
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`document either prepared by employees of Avega with knowledge of the facts
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`therein at or near the time of the events described therein or adopted by Avega for
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`Paper No. 19
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`inclusion in its business records, that it was prepared or maintained in the course of
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`Avega’s regularly conducted business activities, and that it was the regular practice
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`of Avega to prepare or maintain such records, and Petitioner has failed to address
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`those contradictory facts in its objection. As such, Petitioner has failed to articulate
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`any proper and sustainable objection to Exhibit 2017.
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`XII. Patent Owner’s Response to Objections to Exhibits 2018, 2022
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibits 2018 and
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`2022 as documents that were either prepared by employees of Avega with
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`knowledge of the facts therein at or near the time of the events described therein or
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`adopted by Avega for inclusion in its business records, that they were prepared or
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`maintained in the course of Avega’s regularly conducted business activities, and
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`that it was the regular practice of Avega to prepare or maintain such records, and
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`Petitioner has failed to address those contradictory facts in its objection. Patent
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`Owner further notes that the meeting notices are not being submitted to prove that
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`they are from an individual that is an named inventor of the ’294 Patent, or to
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`Paper No. 19
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`describe what was discussed or what would have been discussed at the time of the
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`meetings, but rather only to demonstrate that the inventors of the ’294 Patent were
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`engaged in numerous activities related to the diligent reduction of the claimed
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`inventions of the ’294 Patent to practice, and Petitioner does not dispute that the
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`meeting notices demonstrate that the named inventors of the ’294 Patent were
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`invited to the meetings, or that the meetings pertained to a related invention that
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`was to be included in the same commercial embodiment as the inventions of
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`the ’294 Patent. As such, Petitioner has failed to articulate any proper and
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`sustainable objection to Exhibits 2018 and 2022.
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`XIII. Patent Owner’s Response to Objections to Exhibits 2019, 2020, 2023,
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033),
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`Mr. Adam Kent (Exhibit 2034) and Mr. Dov Rosenfeld (Exhibit 2031), which have
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`authenticated Exhibits 2019, 2020, 2023, and 2028 as documents that were either
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`prepared by employees of Avega or Mr. Rosenfeld with knowledge of the facts
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`IPR2017-01045
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`therein at or near the time of the events described therein or adopted by Avega or
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`Paper No. 19
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`Mr. Rosenfeld for inclusion in business records, that they were prepared or
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`maintained in the course of Avega’s or Mr. Rosenfeld’s regularly conducted
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`business activities, and that it was the regular practice of Avega or Mr. Rosenfeld
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`to prepare or maintain such records, and Petitioner has failed to address those
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`contradictory facts in its objection. As such, Petitioner has failed to articulate any
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`proper and sustainable objection to Exhibits 2019, 2020, 2023, and 2028.
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`Petitioner also objects to Exhibits 2019-2020, 2023 and 2028: (i) “as lacking
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`any tendency to make any fact at issue in this proceeding more or less probable.
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`For instance, Exhibits 2019-2020, 2023, 2028 include redactions and fail to
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`sufficiently describe the contents of the emails. In particular, Patent Owner
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`produced a declaration that included admissions from a patent agent who testified
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`that Exhibit 2019 is not related to the ‘294 Patent. See Exhibit 2031 at ¶6. Exhibits
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`2019-2020, 2023, 2028 are therefore inadmissible under FRE 401 and 402, and its
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`consideration would be prejudicial, confusing the issues, and a waste of time under
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`FRE 403”; and (ii) “under FRE 106 as being optionally complete. Patent Owner
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`has not established any basis for producing Exhibits 2019-2020, 2023, 2028 in
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`redacted form. To the extent that Patent Owner asserts a privilege, Petitioner
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`objects to any such assertion as being waived due to Patent Owner’s selective
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`reliance on unredacted portions.” However, Exhibits 2019, 2020, 2023, and 2028
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`Paper No. 19
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`were submitted as evidence that the inventors of the ’294 Patent were engaged in
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`the diligent reduction to practice of the claimed inventions of the ’294 Patent, and
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`Petitioner does not dispute that Exhibits 2019, 2020, 2023, and 2028 demonstrate
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`that the inventors of the ’294 Patent were involved with the review of patent
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`applications for a related invention that was to be included in the same commercial
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`embodiment as the inventions of the ’294 Patent. Petitioner has also failed to
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`articulate how any of the unredacted information contains any privileged
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`information, and documents that only pertain to the existence of privileged
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`communications on a certain date and which only contain non-privileged
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`information are not privileged. As such, Petitioner has failed to articulate any
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`proper and sustainable objection to Exhibits 2019, 2020, 2023, and 2028.
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`XIV. Patent Owner’s Response to Objections to Exhibit 2021
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
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`grounds for the objection with sufficient particularity to allow correction in the
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`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
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`Patent Owner has provided the declarations of Dr. Peter Celinski (Exhibit 2033)
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`and Mr. Adam Kent (Exhibit 2034), which have authenticated Exhibit 2021 as a
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`document that was either prepared by employees of Avega with knowledge of the
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`facts therein at or near the time of the events described therein or adopted by
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`Paper No. 19
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`Avega for inclusion in business records, that it was prepared or maintained in the
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`course of Avega’s regularly conducted business activities, and that it was the
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`regular practice of Avega to prepare or maintain such records, and Petitioner has
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`failed to address those contradictory facts in its objection.
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`Petitioner further objects to Exhibit 2021 “under FRE 106 as being
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`optionally complete. Patent Owner has not established any basis for producing
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`Exhibit 2021 without the underlying file that was attached to the original email.”
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`However, that objection fails to establish that the underlying file that was attached
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`to the original email would be relevant in any manner to the pending inter partes
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`review, or that in fairness that it ought to be considered at the same time as Exhibit
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`2021. Indeed, as Exhibit 2021 is only being offered to demonstrate corroborating
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`evidence that there were numerous related inventions to the inventions of the ’294
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`Patent that were being reduced to practice in conjunction with the commercial
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`embodiment of the claimed inventions of ’294 Patent, it would be irrelevant and
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`highly prejudicial to require Patent Owner to produce that highly confidential
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`information. It is also noted that Petitioner and Patent Owners are competitors in
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`the field of the ’294 Patent, and that Petitioner should not be allowed to obtain
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`discovery of such highly confidential material of a competitive nature at least
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`without a showing of the importance of that information or any controls to prevent
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`Paper No. 19
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`Petitioner’s in-house personnel from receiving such highly confidential material,
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`and certainly not in response to boilerplate objections. As such, Petitioner has
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`failed to articulate any proper and sustainable objection to Exhibit 2021.
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`XV. Patent Owner’s Response to Objections to Exhibit 2024
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`As noted above, Patent Owner has submitted that the priority date of
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`the ’294 patent is “at least April 2006.” See Patent Owner Response (Paper No. 15),
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`page 1. As such, Petitioner misrepresents the contentions of Patent Owner as the
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`entire basis for this objection, and provides no other basis for its objection.
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`Because the Board may find that the date of conception is earlier than April 2006,
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`Exhibit 2024 is admissible at least under FRE 401 and 402.
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`Petitioner also objects to Exhibit 2024: (i) “to the extent that Patent Owner
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`relies on its contents for the truth of the matters asserted therein. Exhibit 2024 is
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`therefore inadmissible hearsay under FRE 801, 802, 805 and no exception
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`applies”; and (ii) “under FRE 901 to the extent that it includes evidence that does
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`not satisfy the requirement of authentication.” However, Petitioner’s boilerplate
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`and conclusory objections fail to “identify the grounds for the objection with
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`sufficient particularity to allow correction in the form of supplemental evidence,”
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`as required by 37 C.F.R. 42.64(b)(1). In addition, Patent Owner has provided the
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`declaration of Mr. Dov Rosenfeld (Exhibit 2031), which has authenticated Exhibit
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`Paper No. 19
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`2024 as a document that was either prepared by Mr. Rosenfeld with knowledge of
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`the facts therein at or near the time of the events described therein or adopted by
`
`Mr. Rosenfeld for inclusion in business records, that it was prepared or maintained
`
`in the course of Mr. Rosenfeld’s regularly conducted business activities, and that it
`
`was the regular practice of Mr. Rosenfeld to prepare or maintain such records, and
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`Petitioner has failed to address those contradictory facts in its objection.
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`Petitioner further objects to Exhibit 2024 “under FRE 106 as being
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`optionally complete. Patent Owner has not established any basis for producing
`
`Exhibit 2024 in redacted form. To the extent that Patent Owner asserts a privilege,
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`Petitioner objects to any such assertion as being waived due to Patent Owner’s
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`selective reliance on unredacted portions.” However, that objection fails to
`
`establish that the redacted material would be relevant in any manner to the pending
`
`inter partes review, or that in fairness that it ought to be considered at the same
`
`time as Exhibit 2024. Indeed, as Exhibit 2024 is only being offered to demonstrate
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`corroborating evidence that the associated draft applications that were eventually
`
`filed as the ’711 provisional were being worked on as of the date of Exhibit 2024,
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`it would be irrelevant and highly prejudicial to require Patent Owner to produce
`
`that redacted information. It is also noted that Petitioner and Patent Owners are
`
`16
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`competitors in the field of the ’294 Patent, and that Petitioner should not be
`
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`Paper No. 19
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`
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`allowed to able discovery of such highly confidential material of a competitive
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`nature without a substantial showing of the importance of that information, and
`
`certainly not in response to boilerplate objections. As such, Petitioner has failed to
`
`articulate any proper and sustainable objection to Exhibit 2024.
`
`XVI. Patent Owner’s Response to Objections to Exhibit 2025-2026
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`Petitioner objects to Exhibits 2025-2026 “as lacking any tendency to make
`
`any fact at issue in this proceeding more or less probable. For instance, Patent
`
`Owner is alleging a priority date of July 6, 2006, which is after the alleged dates of
`
`Exhibits 2025-2026. Exhibits 2025-2026 are therefore inadmissible under FRE 401
`
`and 402, and its consideration would be prejudicial, confusing the issues, and a
`
`waste of time under FRE 403.” As noted above, Patent Owner has submitted that
`
`the priority date of the ’294 patent is “at least April 2006.” See Patent Owner
`
`Response (Paper No. 15), page 1. As such, Petitioner misrepresents the contentions
`
`of Patent Owner as the entire basis for this objection, and provides no other basis
`
`for its objection. Because the Board may find that the date of conception is earlier
`
`than April 2006, Exhibits 2025-2026 are admissible at least under FRE 401 and
`
`402.
`
`
`
`
`
`Petitioner also objects to Exhibits 2025-2026: (i) “to the extent that Patent
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`17
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`Owner relies on its contents for the truth of the matters asserted therein. Exhibits
`
`Paper No. 19
`
`
`
`
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`2025-2026 are therefore inadmissible hearsay under FRE 801, 802, 805 and no
`
`exception applies”; and (ii) “under FRE 901 to the extent that it includes evidence
`
`that does not satisfy the requirement of authentication. Notably, Exhibits 2025-
`
`2026 fail to indicate when the documents were actually drafted.” However, these
`
`conclusory objections fail to “identify the grounds for the objection with sufficient
`
`particularity to allow correction in the form of supplemental evidence,” as required
`
`by 37 C.F.R. 42.64(b)(1). In addition, Patent Owner has provided the declarations
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`of Mr. Adam Kent (Exhibit 2034) and Mr. Dov Rosenfeld (Exhibit 2031), which
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`have authenticated Exhibits 2025-2026 as documents that were either prepared by
`
`Avega or Mr. Rosenfeld with knowledge of the facts therein at or near the time of
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`the events described therein or adopted by Avega or Mr. Rosenfeld for inclusion in
`
`business records, that it was prepared or maintained in the course of Avega’s or Mr.
`
`Rosenfeld’s regularly conducted business activities, and that it was the regular
`
`practice of Avega or Mr. Rosenfeld to prepare or maintain such records, and
`
`Petitioner has failed to address those contradictory facts in its objection. As such,
`
`Petitioner has failed to articulate any proper and sustainable objection to Exhibit
`
`2025-2026.
`
`XVII. Patent Owner’s Response to Objections to Exhibit 2027
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`18
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`Paper No. 19
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`
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`Petitioner objects to Exhibit 2027 “as lacking any tendency to make any fact
`
`at issue in this proceeding more or less probable. For instance, Patent Owner is
`
`alleging a priority date of July 6, 2006, which is after the alleged date of Exhibit
`
`2027. Exhibit 2027 is therefore inadmissible under FRE 401 and 402, and its
`
`consideration would be prejudicial, confusing the issues, and a waste of time under
`
`FRE 403.” As noted above, Patent Owner has submitted that the priority date of
`
`the ’294 patent is “at least April 2006.” See Patent Owner Response (Paper No. 15),
`
`page 1. As such, Petitioner misrepresents the contentions of Patent Owner as the
`
`entire basis for this objection, and provides no other basis for its objection.
`
`Because the Board may find that the date of conception is earlier than April 2006,
`
`Exhibit 2027 is admissible at least under FRE 401 and 402.
`
`Petitioner also objects to Exhibit 2027: (i) “to the extent that Patent Owner
`
`relies on its contents for the truth of the matters asserted therein. Exhibit 2027 is
`
`therefore inadmissible hearsay under FRE 801, 802, 805 and no exception
`
`applies”; (ii) “under FRE 901 to the extent that it includes evidence that does not
`
`satisfy the requirement of authentication. Notably, [Exhibit 2027 fails] to indicate
`
`who drafted the document and when the document was drafted”; (iii) “under FRE
`
`106 to the extent that Patent Owner relies on content taken out of context”; and (iv)
`
`“under FRE 1006 to the extent that includes improper summary evidence.”
`
`19
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`However, Petitioner’s boilerplate and conclusory objections fail to “identify the
`
`
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`Paper No. 19
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`
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`grounds for the objection with sufficient particularity to allow correction in the
`
`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
`
`Patent Owner has provided the declaration of Mr. Dov Rosenfeld (Exhibit 2031),
`
`which has authenticated Exhibit 2027 as a document that was either prepared by
`
`Mr. Rosenfeld with knowledge of the facts therein at or near the time of the events
`
`described therein or adopted by Mr. Rosenfeld for inclusion in business records,
`
`that it was prepared or maintained in the course of Mr. Rosenfeld’s regularly
`
`conducted business activities, and that it was the regular practice of Mr. Rosenfeld
`
`to prepare or maintain such records, and Petitioner has failed to address those
`
`contradictory facts in its objection. Patent Owner further notes that Exhibit 2027 is
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`a redacted copy of time billing records kept by Mr. Rosenfeld, who is available to
`
`be cross-examined regarding that document. As such, Petitioner has failed to
`
`articulate any proper and sustainable objection to Exhibit 2027.
`
`XVIII.
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`Patent Owner’s Response to Objections to Exhibit 2029-2030
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`Petitioner’s boilerplate and conclusory objections fail to “identify the
`
`grounds for the objection with sufficient particularity to allow correction in the
`
`form of supplemental evidence,” as required by 37 C.F.R. 42.64(b)(1). In addition,
`
`Patent Owner has provided the declarations of Mr. Adam Kent (Exhibit 2034) and
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`20
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`IPR2017-01045
`U.S. Patent No. 7,987,294
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`Mr. Dov Rosenfeld (Exhibit 2031), which have authenticated Exhibits 2029-203 as
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`Paper No. 19
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`
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`documents that were either prepared by Avega or Mr. Rosenfeld with knowledge
`
`of the facts therein at or near the time of the events described therein or adopted by
`
`Avega or Mr. Rosenfeld for inclusion in business records, that it was prepared or
`
`maintained in the course
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