Trials@uspto.gov
`571-272-7822
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`
`
`
`
`Paper No. 45
`Filed: December 10, 2018
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`HUAWEI TECHNOLOGIES CO., LTD.
`Patent Owner.
`____________
`
`Case IPR2017-01487
`Patent 8,812,848 B2
`____________
`
`
`Before TREVOR M. JEFFERSON, MICHELLE N. WORMMEESTER, and
`JOHN F. HORVATH, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper No. 45
`Filed: December 10, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`HUAWEI TECHNOLOGIES CO., LTD.
`Patent Owner.
`____________
`
`Case IPR2017-01487
`Patent 8,812,848 B2
`____________
`
`
`Before TREVOR M. JEFFERSON, MICHELLE N. WORMMEESTER, and
`JOHN F. HORVATH, Administrative Patent Judges.
`
`HORVATH, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`IPR2017-01487
`Patent 8,812,848 B2
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`
`I. INTRODUCTION
`
`A. Background
`Samsung Electronics Co., Ltd.1 (“Petitioner”) filed a Petition (Paper 2,
`“Pet.”) to institute inter partes review of claims 1, 3–5, 7–9, 11–13, 15, and
`16 (“the challenged claims”) of U.S. Patent No. 8,812,848 B2 (Ex. 1001,
`“the ’848 patent”). Huawei Technologies Co., Ltd. (“Patent Owner”) filed a
`Preliminary Response. Paper 11 (“Prelim. Resp.”). Upon consideration of
`the Petition and Preliminary Response, we instituted review of all challenged
`claims. Paper 17 (“Dec. Inst.”)
`Patent Owner filed a Response to the Petition (Paper 26, “PO Resp.”),
`and Petitioner filed a Reply to the Response (Paper 31, “Reply”). Patent
`Owner filed a Sur-Reply to Petitioner’s Reply. Paper 38 (“PO Sur-Reply”).
`We held an oral hearing on September 26, 2018, and the hearing transcript is
`included in the record. Paper 44 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(b). This is a Final Written
`Decision under 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the reasons
`set forth below, we find Petitioner has shown by a preponderance of the
`evidence that claims 1, 3–5, 7–9, 11–13, 15, and 16 of the ’848 patent are
`unpatentable.
`B. Related Matters
`Petitioner and Patent Owner identify the following as a matter that
`could affect, or be affected by, a decision in this proceeding: Huawei Tech.
`Co., Ltd. v. Samsung Elecs. Co., Ltd., Case No. 3:16-cv-02787 (N.D. Cal.).
`
`
`1 Samsung identifies Samsung Electronics America, Inc. and Samsung
`Research America as real parties-in-interest. Pet. 3.
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`Pet. 3; Paper 6, 1. In addition, Patent Owner identifies the following as
`patents and applications that are related to the ’848 patent: U.S. Patent Nos.
`8,656,169; 9,241,261 (“the ’261 patent”); 9,538,373; 9,497,625; and pending
`U.S. Patent App. No. 15/372,093. Paper 6, 1. Patent Owner further
`identifies the following as matters involving the related ’261 patent that
`could affect, or be affected by, a decision in this proceeding: Huawei Tech.
`Co., Ltd. v. T-Mobile US, Inc., Case No. 16-cv-00057-JRG-RSP (E.D. Tex.);
`Nokia Solutions and Networks US, LLC v. Huawei Technologies Co., Ltd.,
`Case IPR2017-00660 (PTAB). Id.
`
`C. Evidence Relied Upon2
`
`Reference
`Rationale and track of security decisions in
`Long Term Evolved (LTE) RAN / 3GPP
`System Architecture Evolution (SAE) (Release
`8), 3rd Generation Partnership Project, 3GPP
`TR 33.821 V0.4.0 (2007–07) (“TR 33.821”).
`GPRS enhancements for E-UTRAN access
`(Release 8), 3rd Generation Partnership
`Project, 3GPP TS 23.401 V1.1.0 (2007-07)
`(“TS 23.401”)
`Shaheen
`
`US 2007/0248064 A1
`
`
`
`Publication Date Exhibit
`
`July 13, 2007
`
` 1004
`
`Aug. 13, 2007
`
`1005
`
`Oct. 25, 2007
`
`1006
`
`
`2 Petitioner also relies upon the Declarations of Raziq Yaqub, Ph.D.
`(Ex. 1012), and Tim Arthur Williams, Ph.D. (Ex. 1014). Patent Owner
`relies on the Declaration of Narayan Mandayam (Ex. 2003).
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`D. Instituted Grounds of Unpatentability
`Claims Challenged
`References
`Basis
`TR 33.821 and TS 23.401
`§ 103(a) 1, 3–5, 7–9, 11–13, 15, and 16
`TR 33.821, TS 23.401, and
`§ 103(a) 1, 3–5, 7, and 8
`Shaheen
`
`II. ANALYSIS
`
`A. The ’848 Patent
`The ’848 patent “is directed to a method for negotiating a security
`capability when a terminal moves . . . from a 2G/3G network to an LTE
`network.” Ex. 1001, 2:10–14. According to the ’848 patent, an idle state
`UE in a 2G/3G network must negotiate a non-access stratum (NAS) security
`capability with an SGSN, including encryption and integrity algorithms and
`corresponding keys. Id. at 1:30–37. Upon moving to an LTE network, the
`UE sends a tracking area update (TAU) request to an MME, and renegotiates
`the NAS security because the MME’s security capabilities may be different
`from the SGSN’s security capabilities. Id. at 1:40–55. This negotiation is
`depicted in Figure 1 of the ’848 patent, which is reproduced below. Id. at
`3:65–67.
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`Figure 1 is a flow chart of a method for negotiating a security capability
`when an idle state UE moves from a 2G/3G network to an LTE network,
`according to an embodiment of the ’848 patent. Id. at 3:65–67.
`As shown in Figure 1, an idle state UE moving from an SGSN in a
`non-LTE network to an MME in an LTE network sends a TAU request to
`the MME (step 100). Ex. 1001, 4:40. The TAU request includes the
`security capabilities supported by the UE, including an NAS security
`algorithm. Id. at 4:47–54. The MME sends a context request message to the
`SGSN (step 101), and receives in response an authentication vector-related
`key that includes at least an integrity key IK and an encryption key CK (step
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`102). Id. at 4:58–63, 5:10–16. The MME selects an NAS security algorithm
`that is supported by both the UE and MME, derives a root key (Kasme) from
`the authentication vector-related key, and derives an NAS protection key
`from the root key (step 103). Id. at 5:25–31. The NAS protection key can
`be an integrity protection key (Knas-int) or a confidentiality protection key
`(Knas-enc). Id. at 5:31–33. The MME then sends a TAU accept message
`identifying the selected NAS security algorithm to the UE (step 104). Id. at
`5:34–44. The UE receives the TAU accept message, identifies the NAS
`security algorithm selected by the MME, derives the same root key (Kasme)
`from a UE key that is related to the authentication vector-related key (IK,
`CK), and derives an NAS protection key (Knas-int or Knas-enc) from the
`root key and the selected NAS security algorithm (step 105). Id. at 5:47–58.
`Of the challenged claims, claims 1 and 9 of the ’848 patent are
`independent. Other challenged claims depend directly or indirectly from
`claims 1 or 9. Claim 9 is representative of the challenged claims, and is
`reproduced below.
`9. A method for security capability negotiation
`during idle state mobility of a user equipment (UE),
`in a situation where the UE moves from a non-long
`term evolution (non-LTE) network to a long term
`evolution (LTE) network, the method comprising:
`sending, by the UE, UE security capabilities
`supported by the UE to the LTE network for a non-
`access stratum (NAS) security algorithm selection
`use;
`receiving, by the UE, a selected NAS security
`algorithm from the LTE network;
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`generating, by the UE, a root key from an
`authentication vector-related key available at the
`UE; and
`deriving, by the UE, according to the NAS security
`algorithm, a NAS protection key according to the
`generated root key.
`Ex. 1001, 12:30–45. Claim 1 is similar in scope to claim 9, but recites a user
`equipment (UE) comprising a transmitter, receiver, and processor for
`performing the method recited in claim 9. Compare id. at 11:52–65 with id.
`at 12:30–45.
`B. Claim Construction
`The claim construction standard applicable to this inter partes review
`proceeding is the broadest reasonable interpretation in light of the patent
`specification. See 37 C.F.R. § 42.100(b) (2016); Cuozzo Speed Techs., LLC
`v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Consistent with the rule of
`broadest reasonable interpretation, claim terms are generally given their
`plain and ordinary meaning, as would be understood by one of ordinary skill
`in the art in the context of the entire patent disclosure. See In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Only those terms which
`are in controversy need be construed and only to the extent necessary to
`resolve the controversy. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc.,
`200 F.3d 795, 803 (Fed. Cir. 1999).
`Petitioner contends all claim terms have their plain and ordinary
`meaning, and does not expressly construe any claim term. Pet. 26–27.
`Patent Owner does not expressly construe any claim term, or request express
`construction of any claim term. See PO Resp. i–ii. In our Institution
`Decision, we did not expressly construe any claim term because the meaning
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`of the claims was not in dispute. Dec. Inst. 6–7. We maintain that decision
`here.
`C. Level of Ordinary Skill in the Art
`Petitioner, relying on the testimony of Dr. Williams, argues a person
`of ordinary skill in the art would have had a master’s degree in electrical
`engineering, computer science, or a related field, and at least two years of
`experience working with cellular telephony systems. Pet. 26 (citing
`Ex. 1014 ¶¶ 13–20). Patent Owner does not dispute Petitioner’s contention,
`and accepts it as applicable in this proceeding. PO Resp. 10.
`In our Institution Decision, we adopted Petitioner’s definition for the
`level of ordinary skill in the art as reasonable. Dec. Inst. 7. We maintain
`that decision here.
`D. Public Accessibility of TR 33.821 and TS 23.401
`Petitioner argues the 3GPP documents (TR 33.821 and TS 23.401) it
`relies on to challenge the claims of the ’848 patent were stored, indexed, and
`publicly accessible from the 3GPP website. See Pet. 27–35. Petitioner relies
`on the testimony of Dr. Yaqub to demonstrate this public accessibility. Id.
`(citing Ex. 1012 ¶¶ 26–56).
`According to Dr. Yaqub, “3GPP was formed to coordinate and
`facilitate the development of standards” for cellular communications.
`Ex. 1012 ¶ 18. 3GPP’s goal “is to provide its members with an environment
`to produce reports and specifications that define technologies covering
`cellular telecommunications.” Id. ¶ 19. Network operators, handset
`manufacturers, and device manufacturers have all “been involved in the
`development of 3GPP standards.” Id. ¶¶ 18–19. 3GPP members contribute
`technical specifications, technical reports, and feasibility studies at both
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`Working Group and Technical Specification Group levels. Id. ¶¶ 20–21.
`Working Groups “meet regularly and also have quarterly plenary meetings
`where member companies’ contributions, draft specification[s], and other
`discussion documents are presented for approval.” Id. ¶ 20.
`3GPP specification development “is an ongoing, collaborative effort
`involving hundreds of engineers from many companies,” and 3GPP catalogs
`that effort using “a very structured process.” Id. ¶¶ 24, 26. 3GPP names
`member contributed documents using a naming procedure based on a
`structured numbering system, whereby the numbers by which documents are
`named indicate the subject matter of the documents. Id. ¶ 28–29 (citing
`Ex. 1022 §§ 4, 5A). Once named, documents are compressed and uploaded
`to the 3GPP FTP server as zipped files having the same name, and receive a
`date and time stamp indicating when the upload occurred. Id. ¶¶ 30, 33, 37.
`Once uploaded, documents are indexed on the 3GPP FTP server by subject
`matter (e.g., Working Group number), meeting number, and type. Id. ¶ 35.
`Documents are also effectively indexed by date due to the sequential
`naming/numbering system. Id. Documents uploaded to the 3GPP FTP
`server are available indefinitely and without restriction, and any interested
`member of the public can freely access, download, print, reproduce, and
`disseminate them. Id. ¶¶ 32–33. “Making documents publicly available
`encourages discussion and promotes collaboration among Working Group
`members toward the establishment of industry standards for cellular
`telecommunications.” Id. ¶ 31.
`Dr. Yaqub further testifies that the functionality of the 3GPP FTP
`server, as described above, was present in October 1999, as evidenced by a
`printout from the Internet Archive’s “Wayback Machine,” which shows the
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`October 1999 landing page of the 3GPP TSG RAN group. Id. ¶ 41 (citing
`Ex. 1024). Dr. Yaqub testifies that this printout “refreshes and confirms
`[his] recollection as to how 3GPP’s website looked and could be navigated
`in 1999,” and shows how “meeting information, such as Working Group
`documents, could be accessed by the public” at the time. Id. The printout of
`the 3GPP TSG RAN landing page shows links to the landing pages of other
`3GPP groups (e.g., TSG CN, TSG SA, TSG T). Ex. 1024, 1. It also shows
`a link to documents generally available on the 3GPP FTP server, a link to
`documents from the TSG RAN group, and links to documents from various
`TSG RAN Working Groups (e.g., TSG RAN WG1–WG4). Id. For
`example, the printout shows a link to documents from TSG RAN WG1
`directed toward the 3GPP Radio Layer 1 Specification. Id.
`Dr. Yaqub further testifies that because the documents stored on the
`3GPP FTP server were available without restriction and fully searchable,
`they were available “to users via conventional search engines, such as the
`Google search engine.” Ex. 1012 ¶ 48. Regarding the specific 3GPP
`documents Petitioner relies on in this proceeding, Dr. Yaqub testifies that
`TR 33.821 was uploaded to the 3GPP FTP server on July 13, 2007 and
`TS 23.401 was uploaded on August 13, 2007. Ex. 1012 ¶¶ 54, 56.
`Dr. Yaqub further testifies that each of these documents could have been
`located using reasonable diligence by navigating to the 3GPP FTP site and
`clicking on the links corresponding to the desired subject matter, meeting
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`number, or document number, or by performing a Google search using the
`terms “3GPP” and keywords within the document.3 Id. ¶ 49.
`Patent Owner argues Petitioner has failed to establish the public
`accessibility of TR 33.821 and TS 23.401 prior to the priority date of the
`’848 patent. PO Resp. 37–40. In particular, Patent Owner argues Petitioner
`has failed to demonstrate these 3GPP documents were sufficiently indexed
`on the 3GPP FTP server to allow an interested party to locate them prior to
`the priority date of the ’848 patent. Id. at 39. Patent Owner further argues
`Petitioner has failed to provide any evidence that the documents were
`presented at a 3GPP working group meeting, or were physically or
`electronically disseminated in any manner. Id. at 39–40. Patent Owner also
`argues that “Petitioner only provides present day evidence showing that the
`public can download TR 33.821 and TS 23.401 from the [3GPP] FTP server
`that putatively indicates TR 33.821 and TS 23.401 were uploaded on July
`13, 2007 and August 13, 2007, respectively.” Id. at 40.
`Public accessibility is “the touchstone in determining whether a
`reference constitutes a ‘printed publication.’” In re Hall, 781 F.2d 897,
`898–99 (Fed. Cir. 1986). A reference is publicly accessible if it “has been
`disseminated or otherwise made available to the extent that persons
`
`3 Dr. Yaqub further testifies that in addition to having access via the 3GPP
`FTP site, 3GPP members typically received an email whenever documents
`contributed for a Working Group meeting were uploaded to the FTP server.
`Id. ¶ 36. Moreover, each Working Group kept “minutes” of their meetings,
`and uploaded these to the 3GPP FTP server. Id. ¶ 38. These minutes were
`organized by subject matter or topic, as described above, and included a
`table of contents so that all TDocs relating to a particular subject or topic
`presented or discussed at the meeting could be easily located. Id. ¶ 39.
`
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`interested and ordinarily skilled in the subject matter or art, exercising
`reasonable diligence, can locate it.” In re Wyer, 655 F.2d 221, 226 (CCPA
`1981) (citations omitted). Public accessibility “is determined on a case-by-
`case basis, and based on the ‘facts and circumstances surrounding the
`reference's disclosure to members of the public.’” In re Lister, 583 F.3d
`1307, 1311 (Fed. Cir. 2009) (quoting In re Klopfenstein, 380 F.3d 1345,
`1350 (Fed. Cir. 2004)). The determination “is a legal conclusion based on
`underlying factual determinations.” Kyocera Wireless Corp. v. Int’l Trade
`Comm'n, 545 F.3d 1340, 1350 (Fed. Cir. 2008).
`“[A] variety of factors may be useful in determining whether a
`reference was publicly accessible.” Lister, 583 F.3d at 1312. Two such
`factors are cataloging and indexing, although neither of these factors is “a
`necessary condition for [a] reference to be publicly accessible.” Id.
`Cataloging and indexing are most probative and relevant “in the context of
`references stored in libraries.” Medtronic, Inc. v. Barry, 891 F.3d 1368,
`1380 (Fed. Cir. 2018). However, such evidence is not needed to prove the
`public accessibility of documents distributed at a meeting. Id. at 1381. To
`prove the public accessibility of meeting-distributed documents, the most
`relevant factors are “(1) ‘the length of time the [document] was exhibited,’
`(2) ‘the expertise of the target audience’ (to determine how easily those who
`viewed the material could retain the information), (3) ‘the existence (or lack
`thereof) of reasonable expectations that the [document] would not be
`copied,’ and (4) ‘the simplicity or ease with which the [document] could
`have been copied.’” Id. at 1381–82 (quoting Klopfenstein, 380 F.3d at
`1350).
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`Upon consideration of Petitioner’s evidence and Patent Owner’s
`arguments regarding the insufficiency of that evidence, we find Petitioner
`has demonstrated by a preponderance of the evidence that TR 33.821 and
`TS 23.401 were publicly available before the earliest effective priority date
`of the ’848 patent, and are prior art under 35 U.S.C. § 102.
`Dr. Yaqub has provided extensive unrebutted testimony regarding
`3GPP’s routine business practices, including how (1) 3GPP’s technical
`specifications, reports, and TDocs were created and uploaded to 3GPP’s
`FTP server, (2) these documents were downloaded without restriction by
`hundreds of engineers from many different member companies for
`discussion at 3GPP working group and plenary meetings, (3) these engineers
`(and other interested members of the public) had indefinite access to these
`documents long after the meetings had ended, and (4) the 3GPP FTP server
`indexed meeting documents based on meeting date and subject. See Ex.
`1012 ¶¶ 20–21, 24, 30–33, 35.
`Although Dr. Yaqub’s testimony is directed to 3GPP documents in
`general, Dr. Yaqub’s description of 3GPP’s regular business practice
`demonstrates the public accessibility of TR 33.821 and TS 23.401. See
`Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1568–69
`(“Evidence of routine business practice can be sufficient to prove that a
`reference was made accessible.”). TR 33.821 and TS 23.401, like all 3GPP
`documents, were generated with intent to distribute them to interested
`members of the telecommunications industry. They were uploaded to
`3GPP’s FTP server without restriction or expectation of confidentiality, and
`were indefinitely maintained there. They have been available for
`downloading (copying) from the FTP server since being uploaded, and can
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`be shared with others without restriction. Under such circumstances, the
`documents are publicly accessible. See Klopfenstein, 380 F.3d at 1351
`(finding publicly accessible a document that was easily copied and displayed
`for an extended period of time to persons having ordinary skill in the art
`without restrictions on copying). Indeed, Specifications for the related GSM
`(Global System for Mobile) telecommunications standard were publicly
`accessible because:
`GSM specifications, though drafted within smaller technical
`subcommittees, were widely distributed before the critical date
`of the ’983 Patent. Versions of the standard were “publicly
`available and released as consistent sets.” Several U.S.
`companies took part in the ETSI work and had access to the
`GSM specifications through their European subsidiaries. The
`specifications themselves were visible to any member of the
`interested public without requesting them from an ETSI
`member. Further, ETSI did not impose restrictions on ETSI
`members to prevent them from disseminating information about
`the standard to non-members.
`Kyocera, 545 F.3d at 1350–51 (internal citations omitted).
`E. Patent Owner’s Motion to Exclude
`Patent Owner filed a Motion to Exclude portions of TR 33.821
`(Ex. 1004), TS 23.401 (Ex. 1005), and the Declaration of Raziq Yaqub,
`Ph.D. (Ex. 1012), and the entirety of TS 23.401 (version 8.4.0) (Ex. 1028),
`Patent Owner’s District Court Infringement Contentions (Ex. 1011), and the
`Deposition Testimony of Johan Johansson (Ex. 1030). Paper 36, 2–6
`(“Mot.”). Petitioner opposed the Motion (Paper 39, “Opp.”), and Patent
`Owner replied (Paper 41, “Opp. Reply”). As the movant, Patent Owner
`bears the burden of establishing it is entitled to the relief requested. See
`37 C.F.R. § 42.20. The Board decides evidentiary issues based on the
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`Federal Rules of Evidence. Id. § 42.62(a). For the reasons discussed below,
`we deny Patent Owner’s motion to exclude.
`1. Declaration of Raziq Yaqub, Ph.D.(Ex. 1012)
`In paragraphs 54–56 of his declaration, Dr. Yaqub opines on the
`authenticity, public availability, and publication dates of TR 33.821 and
`TS 23.401. See Ex. 1012 (“Yaqub Decl.”) ¶¶ 54–56. Dr. Yaqub bases his
`opinion, in part, on his ability to find these documents on the 3GPP FTP
`server and listserv server, and the time stamps associated with these
`documents on those servers. Id. His testimony includes screen shots of
`portions of the 3GPP FTP server’s webpage listing these documents, and
`URLs (universal resource locators) pointing to where these documents are
`located on the 3GPP FTP server. Id.
`On December 21, 2017, Patent Owner objected to Dr. Yaqub’s
`declaration “to the extent it relies on documents that lack authentication or
`contain hearsay.” Paper 19, 1. In particular, Patent Owner objected to
`certain paragraphs of Dr. Yaqub’s declaration that “quote, discuss, or
`otherwise rely on web pages that were not filed in this proceeding,” and that
`“lack authentication and contain hearsay.” Id. On January 8, 2018,
`Petitioner provided the webpages to Patent Owner in the form of
`supplemental evidence. See Paper 20, 1; see also 37 C.F.R. § 42.64(b)(2).
`On January 11, 2018, Patent Owner objected to the webpages as lacking
`authentication and containing hearsay. Id. at 1.
`Patent Owner moves to exclude paragraphs 54–56 of Dr. Yaqub’s
`declaration “because they rely on unauthenticated webpages for the truth of
`the matter asserted in those webpages.” Mot. 3–4. Patent Owner argues the
`webpages lack authentication, and contain inadmissible hearsay that Dr.
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`Yaqub relied on in determining when TR 33.821 and TS 23.401 (Exs. 1004–
`1005) were publicly accessible on the 3GPP FTP server. Id. at 4–5.
`Petitioner argues the objected to webpages are self-authenticating, and have
`been authenticated by Dr. Yaqub’s testimony regarding their distinctive
`characteristics. Opp. 3–5. Petitioner further argues the webpages “are
`exempt from the rule against hearsay under Federal Rules of Evidence
`803(6) and 807.” Id. at 6. Patent Owner responds that Dr. Yaqub is not
`qualified to certify the authenticity of the webpages because his declaration
`“is silent as to his role in the [3GPP] group’s recordkeeping or maintaining
`the accuracy of the 3GPP webpages.” Opp. Reply 2.
`Under Federal Rule of Evidence 803(6), records of a regularly
`conducted activity are not hearsay provided the opposing party has not
`established that the source of information or the method or circumstances of
`their preparation indicate a lack of trustworthiness, and the party offering the
`records establishes through the testimony of a qualified witness that the
`records are (a) made at or near the time from information transmitted by
`someone with knowledge, (b) kept in the course of a regularly conducted
`business activity, and (c) made as a regular practice of that activity. Fed. R.
`Evid. 803(6). Under Federal Rule of Evidence 902(11), such records are
`self-authenticating provided (a) they are originals or copies that meet the
`requirements of Rule 803(6)(a)–(c) as shown by certification of a qualified
`person, (b) notice of intent to offer the records is given to the opposing party
`before a hearing, and (c) the records and certifications are made available to
`the opposing party so that the opposing party has a fair opportunity to
`challenge them. Id. at 902(11).
`We first note, “[b]ecause of the general trustworthiness of regularly
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`kept records and the need for such evidence in many cases, the business
`records exception [to the hearsay rule] has been construed generously in
`favor of admissibility.” Conoco Inc. v. Dept. of Energy, 99 F.3d 387, 391
`(Fed. Cir. 1996). Moreover, “the ‘custodian or other qualified witness’ who
`must authenticate business records need not be the person who prepared or
`maintained the records, or even an employee of the record-keeping entity, so
`long as the witness understands the system used to prepare the records.” Id.
`Finally, “documents that are standard records of the type regularly
`maintained by firms in a particular industry may require less by way of
`foundation testimony than less conventional documents proffered for
`admission as business records.” Id. at 392; see also Gjokaj v. U.S. Steel
`Corp., 700 F. App’x 494, 502 (6th Cir.) (finding a business record certified
`by a qualified witness is self-authenticating under Federal Rule of Evidence
`902(11)).
`We find persuasive Dr. Yaqub’s testimony that the 3GPP webpages
`he relied upon in his declaration are authentic, and their content, including
`the publication dates of TR 33.821 and TS 23.401, are not hearsay. Dr.
`Yaqub is a qualifying witness for the purposes of Rule 806(b) and 902(11).
`See Conoco, 99 F.3d at 391; see also Gjokaj, 700 F. App’x at 502. From
`1998 until 2010, Dr. Yaqub worked for various entities having an interest in
`developing or understanding 3GPP technologies. Ex. 1012 ¶¶ 7–12. During
`that time, he both participated in and contributed to 3GPP standards setting
`organizations, was an active member in various 3GPP plenary level and
`working group level meetings, and was Rapporteur of Technical Feasibility
`Report TR 33.817. Id. ¶¶ 8, 11.
`Dr. Yaqub testifies that 3GPP “produce[s] reports and specifications
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`that define technologies covering cellular communications networks.” Id.
`¶ 19. The specifications are “contribution-driven by 3GPP member
`companies,” and produced via regularly and quarterly plenary meetings
`“where member companies’ contributions, draft specification[s], and other
`discussion documents are presented for approval.” Id. ¶ 20. Dr. Yaqub
`further testifies that 3GPP follows “[a] well-established process . . . for
`capturing accepted proposals and changes in Technical Specifications (TS)
`and Technical Reports (TR).” Id. ¶ 24. This process includes a file naming
`convention so that all of “the changes that are brought into the standard,
`from the past, present, and in the future, are well documented and
`controlled.” Id. ¶ 28 (quoting Ex. 1022, 5).
`Dr. Yaqub further testifies that 3GPP documents are stored on 3GPP’s
`FTP server in zip-compressed format, where the filename of the zip file is
`the same as the name of the source document. Id. ¶ 29 (citing Ex. 1022
`§ 5A). Member-contributed documents (“TDocs”) are assigned unique
`document numbers, and “members upload these documents to 3GPP’s
`public FTP server before, during, and after Working Group meetings.” Id.
`¶ 30. The documents are uploaded “[s]oon after the end of the meeting—the
`same day, or at worst within a few days.” Id. ¶ 37. The “TDocs are
`publicly-available and unrestricted on the online FTP server,” and are
`“openly published and no password is needed to access any information on
`the 3GPP website.” Id. ¶ 30; see also Ex. 1022 § 7.6. Documents uploaded
`to the 3GPP FTP server “receive a data and time stamp.” Ex. 1012 ¶ 33.
`The documents are “retained on the public 3GPP server indefinitely, and the
`date and time stamp can be relied upon to indicate when the upload
`occurred.” Id. ¶¶ 33, 37.
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`Based on the foregoing testimony, we find Dr. Yaqub “understands
`the system used to prepare [3GPP] records,” and is a “qualified witness” or
`“qualified person” as those terms are used in Federal Rules of Evidence
`803(6) and 902(11). See Conoco, 99 F.3d at 391; see also Gjokaj, 700 F.
`App’x at 502.
` For the documents relevant to this proceeding (TR 33.821 and TS
`23.401), Dr. Yaqub testifies that he “navigated to the relevant file” on the
`3GPP FTP server, and “confirm[ed] that it had been correctly uploaded.”
`Ex. 1012 ¶ 51. Dr. Yaqub provides the URLs he used to navigate to the
`documents, and testifies that he recognizes the documents located by those
`URLs as “true and correct” copies. Id. ¶¶ 54, 56. Dr. Yaqub provides
`screen shots of the 3GPP FTP server’s directories that include the identically
`named zip files containing the objected to documents. Id. As discussed
`above, when Patent Owner objected to these screen shots, Petitioner served
`complete printouts of the 3GPP FTP server’s directories from which Dr.
`Yaqub took the screenshots. Opp. 5; see also Paper 19, 1; Paper 20, 1; Exs.
`1031–1032.
`Patent Owner provides no evidence that the 3GPP FTP server, the
`webpages disclosing the contents of the FTP server’s directories, or the
`methods or circumstances by which those webpages or their content were
`prepared lack trustworthiness. See Mot. 3–5; Opp. Reply 1–4. By contrast,
`Dr. Yaqub testifies that the contents of the 3GPP FTP server directories
`(webpages) he relied upon were made and kept in the course of 3GPP’s
`regularly conducted business activity, and were made at or near the times
`indicated by their upload date and time stamps from information transmitted
`by 3GPP contributing members. See Ex. 1012 ¶¶ 24, 28–30, 33, 37, 54–56.
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`Dr. Yaqub’s declaration and the webpages (printouts of the 3GPP FTP
`server directories) he relied upon were served on Patent Owner with notice
`of intent to use them, and Patent Owner was provided with the opportunity
`to challenge the webpages and their content, as well as Dr. Yaqub’s
`testimony regarding how that content was created. See 37 C.F.R.
`§ 42.51(b)(1)(ii).
`Based on the evidence presented, as summarized above, we find Dr.
`Yaqub’s testimony sufficient to authenticate the 3GPP FTP server’s
`directories (webpages) and their content, such that they are admissible under
`Federal Rule of Evidence 902(11) and not hearsay under Federal Rule of
`Evidence 803(6). We, therefore, deny Patent Owner’s motion to exclude
`paragraphs 54–56 of Dr. Yaqub’s declaration.
`As discussed above, Petitioner also argues the 3GPP FTP server
`directories (webpages) Dr. Yaqub relies upon can be authenticated under
`Federal Rule of Evidence 901(b)(4), and their content is not hearsay under
`Federal Rules of Evidence 807. Opp. 4–13. Patent Owner argues to the
`contrary. Opp. Reply 2–3. Because we find Petitioner has shown the
`webpages are self-authenticating business records and their contents are not
`hearsay, we need not address these additional arguments. See Beloit Corp.
`v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (finding an
`administrative agency is at liberty to reach a decision based on a single
`dispositive issue to “not only save the parties, the [agency], and [the
`reviewing]
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