`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________________
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`WESTERN DIGITAL CORPORATION
`Petitioner
`
`v.
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`SPEX TECHNOLOGIES, INC.
`Patent Owner
`_________________________
`
`Case No. IPR2018-00082
`Patent 6,088,802
`_________________________
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`
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`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`I.
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`PRELIMINARY STATEMENT
`Pursuant to this Board’s Rules and the Federal Rules of Evidence (“FRE”),
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`Petitioner moves to exclude the following exhibit, which Patent Owner submitted,
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`and to which Petitioner timely objected.
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`Exhibit No. Description
`2004
`Plaintiff SPEX Technologies, Inc. Disclosure of Asserted Claims
`and Infringement contentions
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`In accordance with the Trial Practice Guide requirements, Petitioner
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`(a) identifies where in the record Petitioner’s original objections were made,
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`(b) identifies where in the record this exhibit was relied upon by Patent Owner,
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`(c) addresses objections to the exhibit in numerical order (as only one exhibit is
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`being challenged), and (d) explains the basis and grounds for each objection.
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`II. EXHIBIT 2004 SHOULD BE EXCLUDED
`Petitioner timely objected to Exhibit 2004 as irrelevant under FRE 402 and 37
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`C.F.R. § 42.62; as unfairly prejudicial, confusing, misleading, and a waste of time
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`under FRE 402; and as hearsay under FRE 801 and 802 and 37 C.F.R. § 42.62.
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`Paper 14 at 2-3. Patent Owner relies on Exhibit 2004 in Patent Owner’s Preliminary
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`Response at 8 in support of its argument that the Board should have exercised its
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`discretion to deny the Petition. Paper 6 at 11.
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`Exhibit 2004 is irrelevant under FRE 402 and 37 C.F.R. § 42.62 because
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`neither it nor its contents are cited or discussed in the patent, file history, or instituted
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`2
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`references. Furthermore, the exhibit discusses subject matter unrelated to this inter
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`partes review—allegations of patent
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`infringement are
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`irrelevant
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`to
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`these
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`proceedings—and is dated many years after the priority date of the patent.
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`Exhibit 2004 should be excluded under FRE 403 because reliance on
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`irrelevant discussions of products accused of infringement is misleading, a waste of
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`time, and risks confusing the issues in this proceeding. Exhibit 2004 is particularly
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`misleading and unfairly prejudicial in this case because Patent Owner’s infringement
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`allegations are not only unproven, they are also incorrect.
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`Exhibit 2004 should be excluded also because it constitutes hearsay under
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`FRE 801 and 802 and 37 C.F.R. § 42.62. Infringement contentions are out-of-court
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`statements used for the truth of the matter asserted, and Exhibit 2004 contains
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`unsworn representations from Patent Owner regarding products accused of
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`infringement.
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`III. CONCLUSION
`In view of the reasons explained above, Petitioner respectfully requests the
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`Board exclude Exhibit 2004.
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`3
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`Dated: November 30, 2018
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`
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`Respectfully submitted,
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`
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`By: /Brian M. Buroker/
`Brian M. Buroker (Reg. No. 39,125) (lead)
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, DC 20036-5306
`Telephone: 202.955.8500
`Facsimile: 202.467.0539
`bburoker@gibsondunn.com
`Frank P. Coté (pro hac vice)
`GIBSON, DUNN & CRUTCHER LLP
`3161 Michelson Drive, Ste. 1200
`Irvine, CA 92612
`Telephone: 949.451.4090
`Facsimile: 949.475.4610
`fcote@gibsondunn.com
`
`Attorneys for Petitioner Western Digital
`Corporation
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`4
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service pursuant to 37 C.F.R. § 42.6(e) on the Patent
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`Owner via e-mail a copy of this Petitioner’s Motion to Exclude Evidence on the
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`following counsel of record for Patent Owner:
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`Peter Lambrianakos, plambrianakos@brownrudnick.com
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`Alfred R. Fabricant, afabricant@brownrudnick.com
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`Vincent J. Rubino, III, vrubino@brownrudnick.com
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`Enrique W. Iturralde, eiturralde@brownrudnick.com
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`DATED: November 30, 2018
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`By: /Brian M. Buroker/
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`
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`Brian M. Buroker (Reg. No. 39,125)
`
`Attorney for Petitioner
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`5
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