`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––
`
`WARGAMING GROUP LIMITED,
`Petitioner,
`v.
`
`GAME AND TECHNOLOGY CO., LTD.,
`Patent Owner.
`
`––––––––––
`
`Case IPR 2017-01082
`Patent 7,682,243
`
`––––––––––
`
`
`
`PETITIONER’S MOTION TO EXCLUDE EXHIBIT 2027
`
`
`
`
`
`
`I.
`
`Statement of Precise Relief Requested
`
`In its Preliminary Response, Patent Owner alleged that service occurred
`
`more than one year prior to the filing of the petition, based upon a claim that a UK
`
`process server physically handed documents to a Wargaming.net LLP agent in
`
`London. See Paper 8 at 4. In order to decide the service dispute early and
`
`efficiently, the Board ordered that limited discovery be taken before the parties
`
`briefed the service issue. In view of the evidence uncovered during discovery that
`
`there was no proper service in the United Kingdom, Patent Owner produced a new
`
`declaration by its lawyer Mr. Zito (Ex. 2027), who now alleges he served
`
`Wargaming entities in Cyprus by mail. Because Patent Owner did not disclose its
`
`intention to call Mr. Zito as a witness, disclose the declaration itself, or even
`
`disclose its service by mail theory before the close of the limited discovery period,
`
`Petitioner was ambushed by the Patent Owner’s new theory and declaration a week
`
`before its reply brief was due. Petitioner respectfully requests that Mr. Zito’s
`
`untimely declaration (Ex. 2027) be excluded as inadmissible hearsay because
`
`Patent Owner prevented Petitioner from challenging the newly alleged facts
`
`through cross-examination.
`
`II.
`
`Statement of Reasons for Relief Requested
`
`The Board instituted this inter partes review but reserved making a
`
`determination of whether the petition is barred under §315(b) owing to a factual
`
`
`
`1
`
`
`
`
`
`dispute over whether “Wargaming.net LLP, a real party-in-interest to Petitioner,
`
`‘was served with a complaint alleging infringement of the ‘243 patent on
`
`December 14, 2015, in accordance with the laws of England and Wales’ pursuant
`
`to the Hague Convention.” See Paper 16 at (Order on Conduct and Schedule of the
`
`Proceeding) (quoting Patent Owner’s preliminary response). The Board decided
`
`that it “want[ed] discovery and briefing on the service issue to take place early in
`
`the trial as it could be case-dispositive.” Id. The Board ordered limited discovery
`
`and directed the parties “to contact their respective witnesses to inquire as to
`
`potential dates for depositions . . . .” Id. at 3.
`
`At that time, Patent Owner had not disclosed any declaration by Mr. Zito or
`
`indicated that it would rely on a declaration by Mr. Zito.1 On a conference call with
`
`the Board, Petitioner’s counsel raised his concern that Patent Owner may try to
`
`surprise Petitioner with an additional declaration from Mr. Talbot (Patent Owner’s
`
`
`
`1 Patent Owner filed one other declaration by Mr. Zito (Ex. 2021) on November
`
`15, 2017, which was also after the November 2 deposition deadline. That
`
`declaration is not the subject of this motion because of the parties’ agreement that
`
`authentication declarations do not require a deposition. See Paper 16 at 3 (“[T]he
`
`parties agreed that, if either party relies on documents, the party may rely on an
`
`affidavit to authenticate any such documents.”).
`
`
`
`2
`
`
`
`
`
`only declarant for the service issue at that time) after his deposition was taken in
`
`London. Id. The Board “advised Patent Owner than any declaration testimony must
`
`be produced before the deposition.” Id. The parties agreed to complete the
`
`depositions on November 2, 2017, and the Board ordered Petitioner to file its
`
`opening brief by November 17, 2017. Id. at 4.
`
`Realizing that its UK service theory was untenable in view of the damaging
`
`admissions in Mr. Talbot’s deposition and in view of Petitioner’s opening brief,
`
`Patent Owner switched tactics and disclosed its new service by mail theory for the
`
`first time on December 1, 2017, when it filed its response to Petitioner’s brief
`
`(Paper 25), and the new declaration by Mr. Zito (Ex. 2027). Petitioner was not
`
`previously aware that Patent Owner would raise any service by mail in Cyprus
`
`theory or that Mr. Zito would claim to have effected service by mail himself. As a
`
`result of the expedited briefing schedule that afforded Petitioner one-week to
`
`prepare and file a response, it was impractical to seek a deposition of Mr. Zito.
`
`Patent Owner’s excuse for its untimely declaration and new service by mail
`
`theory is that the Board’s order regarding discovery only required any new
`
`declaration by Mr. Talbot (the UK process server) to be disclosed before the
`
`deposition. Ex. 1029. Such a position is nonsensical in that Patent Owner would be
`
`free to rely upon new declarations and evidence in its response brief, so long as
`
`that evidence was for a previously undisclosed theory.
`
`
`
`3
`
`
`
`
`
`Given the Patent Owner’s lack of diligence or candor in failing to disclose
`
`its service by mail theory or that it would rely on Mr. Zito as a fact witness,
`
`Petitioner respectfully requests that the Board exclude Mr. Zito’s declaration as
`
`inadmissible hearsay given that his “out of court” statement was not made during
`
`the period for taking testimony on the service issue and was not subject to cross-
`
`examination.
`
`III. Petitioner’s motion is timely and authorized.
`Petitioner submits that this motion is timely and authorized by 37 C.F.R.
`
`§ 42.64(c). Petitioner filed its objection to Ex. 2027 on December 8, 2017, which
`
`was within five business days of the exhibit’s filing.
`
`
`
`December 8, 2017
`
`
`
`
`
`
`Respectfully submitted,
`
`/Harper Batts/
`
`Harper Batts, Reg. No. 56,160
`BAKER BOTTS L.L.P.
`
`
`
`
`
`
`
`4
`
`
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`
`
`Pursuant to 37 C.F.R. § 42.24(d), the undersigned certifies that the foregoing
`
`Petitioner’s Motion to Exclude Exhibit 2027 contains no more than 4 pages and
`
`therefore complies with
`
`the page
`
`limitation specified by 37 C.F.R.
`
`§ 42.24(a)(1)(v).
`
`December 8, 2017
`
`/Harper Batts/
`Harper Batts
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that on December 8, 2017, a complete copy of the
`
`foregoing Petitioner’s Motion to Exclude Exhibit 2027 was served via electronic
`
`mail to counsel for the Patent Owner at the email address designated in the Patent
`
`Owner’s Mandatory Disclosures:
`
`SUGHRUE MION PLLC
`c/o John M. Bird
`2100 Pennsylvania Ave NW
`Suite 800
`Washington, DC 20037
`gat@sughrue.com
`jbird@sughrue.com
`
`December 8, 2017
`
`
`
`/Harper Batts/
`Harper Batts
`
`
`
`5
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
