UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Elite Performance Footwear, LLC,
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`Petitioner
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`v.
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`Reebok International Limited,
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`Patent Owner
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`Case No. IPR2017-01689
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`Patent No. 8,020,320
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`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EXHIBITS
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`Elite Performance Footwear, LLC,
`
`Petitioner
`
`v.
`
`Reebok International Limited,
`
`Patent Owner
`
`
`
`
`
`Case No. IPR2017-01689
`
`Patent No. 8,020,320
`
`
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`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EXHIBITS
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Pursuant to 37 C.F.R. § 42.64(b), Patent Owner Reebok International
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`Limited objects as follows to the admissibility of evidence served with Petitioner
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`Elite Performance Footwear, LLC’s Petition for Inter Partes Review of U.S. Patent
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`No. 8,020,320.
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`Exhibit
`Exhibit 1009 – Reebok
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`Objections
`FRE 901: Petitioner has not produced evidence
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`Footwear Q4 2000 Catalog
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`sufficient to support a finding that the exhibit is
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`(“Reebok 2000”)
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`what Petitioner claims it is. Petitioner has not
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`established when, where, and how the exhibit was
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`published.
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`Exhibit 1010 – Nike Men’s
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`FRE 802: The exhibit is inadmissible hearsay if
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`Women’s and Kids’
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`offered to prove the truth of any matter allegedly
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`Holiday Footwear 1995
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`asserted therein.
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`Catalog (“Nike H1995”)
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`FRE 901: Petitioner has not produced evidence
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`sufficient to support a finding that the exhibit is
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`what Petitioner claims it is. Petitioner has not
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`2
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
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`Objections
`established when, where, and how the exhibit was
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`published.
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`Exhibit 1011 – Nike
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`FRE 802: The exhibit is inadmissible hearsay if
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`Footwear Spring 1997
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`offered to prove the truth of any matter allegedly
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`Catalog (“Nike S1997”)
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`asserted therein.
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`FRE 901: Petitioner has not produced evidence
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`sufficient to support a finding that the exhibit is
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`what Petitioner claims it is. Petitioner has not
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`established when, where, and how the exhibit was
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`published.
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`Exhibit 1012 – U.S.
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`FRE 402: The exhibit is not relevant to any
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`Design Patent No.
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`ground upon which trial was instituted.1
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`D294,537 (“Le”)
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`1 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`3
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
`Exhibit 1013 – U.S. Patent
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`Objections
`Lack of Foundation: Petitioner has not provided
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`No. 4,364,190 (“Yonkers”)
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`sufficient explanation of what the exhibit is or
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`what it allegedly shows.
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`FRE 901: Petitioner has not produced evidence
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`sufficient to support a finding that the exhibit is
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`what Petitioner claims it is.
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`Exhibit 1014 – U.S. Design
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`FRE 402: The exhibit is not relevant to any
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`Patent No. D388,241
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`ground upon which trial was instituted. 2
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`(“Merceron ’241”)
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`2 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`4
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
`Exhibit 1015 – U.S. Design
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`Objections
`FRE 402: The exhibit is not relevant to any
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`Patent No. D397,546
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`ground upon which trial was instituted. 3
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`(“Merceron ’546”)
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`Exhibit 1016 – U.S. Design
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`FRE 402: The exhibit is not relevant to any
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`Patent No. D133,176
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`ground upon which trial was instituted. 4
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`(“Gregg”)
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`Exhibit 1017 – U.S. Patent
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`FRE 402: The exhibit is not relevant to any
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`No. 4,241,524 (“Sink”)
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`ground upon which trial was instituted. 5
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`3 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`4 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`5 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`5
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
`Exhibit 1018 – U.S. Design
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`Objections
`FRE 402: The exhibit is not relevant to any
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`Patent No. D287,185
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`ground upon which trial was instituted. 6
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`(“Sironi”)
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`Exhibit 1019 – Reebok
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`FRE 402: The exhibit is not relevant to any
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`International Ltd. and
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`ground upon which trial was instituted. 7
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`Reebok International
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`Limited’s Initial Proposed
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`Claim Constructions, In the
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`Matter of Certain Athletic
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`Footwear, Inv. No. 337-
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`TA-1018 (2016)
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`
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`6 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`7 Reebok reserves the right to assert additional objections to this exhibit to the
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`extent Petitioner attempts to rely on this reference at a later date for any purpose.
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`6
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
`Exhibit 1020 – Declaration
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`Objections
`FRE 402: Portions of the exhibit, including, but
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`of David Ulan
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`not limited to, Paragraphs 35-41, 49-91 and 140-
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`165 are not relevant to any ground upon which
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`trial was instituted. The Board did not cite to or
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`rely on any of these Paragraphs in determining to
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`institute the proceeding and limited the proceeding
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`to the identified grounds. See, e.g., Institution
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`Decision, Case IPR2017-01689, Paper 7, slip op.
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`at 20 (“FURTHER ORDERED, that no other
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`ground of unpatentability, with respect to any
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`claim, is instituted for trial.”).
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`FRE 602: Paragraphs 10, 12-13, 20, 23-34, 39-45,
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`47-49, 52-56, 59, 63-66, 68, 73-75, 78-80, 82, 88,
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`90, 95, 98-99, 101-103, 106, 110-113, 115, 121,
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`127, 130-131, 136, 138, 142-144, 147, 149, 152,
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`154, 157, 159, 163, 165, and 172-185 of the
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`exhibit include assertions for which evidence has
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`7
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
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`Objections
`not been introduced sufficient to show that the
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`witness has personal knowledge of the matters
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`asserted.
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`FRE 701/702/703: Multiple paragraphs of the
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`exhibit include opinions that are not admissible
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`under FRE 701, 702, or 703, or Daubert v. Merrell
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`Dow Pharms., Inc., 509 U.S. 579 (1993). For
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`example, the expert lacks the necessary scientific,
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`technical, or other specialized knowledge to help
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`the trier of fact to understand the evidence or to
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`determine a fact in issue, including by not limited
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`to issues related to a person of ordinary skill in the
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`art and materials used in constructing athletic
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`footwear, as discussed in paragraphs 10, 12-13,
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`20, 23, 24-34, 39-45, 47-49, 52-56, 59, 63-66, 68,
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`73-75, 78-80, 82, 88, 90, 95, 98, 99, 101-103, 106,
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`110-113, 115, 121, 127, 130-131, 136, 138, 142-
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`8
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
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`Objections
`144, 147, 149, 152, 154, 157, 159, 163, 165, and
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`172-185; the testimony is based on sufficient facts
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`or data, including but not limited to information
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`regarding the publication and availability of
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`footwear catalogs as discussed in paragraphs 42,
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`44, 47, 172-185; the testimony is not the product
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`of reliable principles and methods because, for
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`example, the expert failed to employ a proper
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`claim construction of various claim terms as
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`discussed in paragraphs 20, 23, and throughout the
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`remainder of his analysis; and the expert has not
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`reliably applied the principles and methods to the
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`facts of the case. Further, experts in this field
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`would not reasonably rely on the kinds of facts or
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`data relied upon by the declarant in forming an
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`opinion on the subject.
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`9
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`Exhibit
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`Objections
`FRE 802: Paragraphs 42, 44, 47, 177-185 of the
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`exhibit include statements that are inadmissible
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`hearsay if offered to prove the truth of any matter
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`allegedly asserted therein.
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`FRE 901: Paragraphs 35-185 of the exhibit rely
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`on exhibits that have not been authenticated.
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`Dated: January 29, 2018
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`By: /Mitchell G. Stockwell/
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`Mitchell G. Stockwell
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`Reg. No. 39,389
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`Lead Counsel for Patent Owner
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`10
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`U.S. Patent No. 8,020,320
`IPR2017-01689
`Patent Owner’s Objections
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy Patent Owner’s Objections to
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`Petitioner’s Exhibits was served via email on the date below, upon the following:
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`Richard LaCava
`Arent Fox, LLP
`1675 Broadway
`New York, NY 10019
`Telephone: 212-484-3900
`richard.lacava@arentfox.com
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`Michael Scarpati
`Arent Fox, LLP
`1675 Broadway
`New York, NY 10019
`Telephone: 212-484-3900
`michael.scarpati@arentfox.com
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`Dated: January 29, 2018
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`By: /Mitchell G. Stockwell/
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`Mitchell G. Stockwell
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`Reg. No. 39,389
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`Lead Counsel for Patent Owner
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`11
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