UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC.
`Petitioner
`
`v.
`
`IMPLICIT, LLC
`Patent Owner
`
`Case: IPR2020-00587
`Patent No. 9,591,104
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`UNDER 37 § C.F.R. 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`JUNIPER NETWORKS, INC.
`Petitioner
`
`v.
`
`IMPLICIT, LLC
`Patent Owner
`
`Case: IPR2020-00587
`Patent No. 9,591,104
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`UNDER 37 § C.F.R. 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner objects to the following
`
`Exhibits submitted with the Petition:
`
`Exhibit
`Number
`1011
`1012
`1013
`1014
`1015
`1016
`1030
`1031
`1032
`1033
`1034
`1035
`1036
`1037
`1038
`1039
`1040
`1043
`1044
`1045
`1046
`1047
`
`Description
`
`Nielson Declaration
`Smith - The AltaVista firewall 1997
`Hall-Ellis Declaration
`Decasper - Router plugins 1998-10
`Declaration - Decasper
`CheckPoint & Affidavit
`Stevens - TCP-IP Illustrated vol 1
`rfc2068
`Hunt
`Company Overview _ Check Point Software
`Awards and Recognition _ Check Point Software
`CPnwsltr1
`Checkpoint95
`rfc1825
`rfc1826
`rfc1827
`SSL 3.0 1996
`Audio Streaming
`Computer Networks
`Emerging Technologies
`Network Firewalls
`rfc791
`
`
`
`1
`
`
`
`Exhibit
`Number
`1048
`1049
`1050
`1051
`1052
`1053
`1055
`1056
`1057
`
`Description
`
`rfc793
`rfc879
`rfc1919
`rfc1945
`The SSL 0.2 Protocol
`World-Wide Web proxies
`rfc959
`rfc788
`rfc2616
`
`
`I.
`
`OBJECTIONS TO EXHIBITS 1011 AND 1013
`
`Patent Owner objects to Exhibits 1011 and 1013 because they contain
`
`unreliable testimony under FRE 401, 402, 403, 602, 801, 802, 901, 902 and 702, and
`
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and the incorporation
`
`by reference rules under 37 C.F.R. § 42.6(a)(3).
`
`For Exhibit 1011, for example, Dr. Nielson was not a person of ordinary skill
`
`in the art at the time of the date of invention of the Implicit Patents. Dr. Nielson’s
`
`declaration also contains inadmissible hearsay under FRE 801 and 802 (and no
`
`exception applies), relies on documents that have not been shown to be authentic
`
`under FRE 901 and 902, and testifies to factual matters to which Dr. Nielsen lacks
`
`personal knowledge (e.g., the state of the art in the 1990s and earlier), which is
`
`inadmissible under FRE 602. As such, this testimony is inadmissible as irrelevant
`
`
`
`2
`
`
`
`and misleading and not the result of scientific, technical, or other specialized
`
`knowledge that will help the trier of fact to understand the evidence or to determine
`
`a fact in issue.
`
`For Exhibit 1013, for example, Dr. Hall-Ellis provides a declaration on
`
`whether certain documents were publicly available, provides opinions based through
`
`the lens of a person of ordinary skill in the art, contains inadmissible hearsay under
`
`FRE 801 and 802 (and no exception applies), relies on documents that have not been
`
`shown to be authentic under FRE 901 and 902, and testifies to factual matters to
`
`which Dr. Hall-Ellis lacks personal knowledge (e.g., library index, procedures, and
`
`publication relating to the Smith reference), which is inadmissible under FRE 602.
`
`As such, this testimony is inadmissible as irrelevant and misleading and not the result
`
`of scientific, technical, or other specialized knowledge that will help the trier of fact
`
`to understand the evidence or to determine a fact in issue.
`
`These expert declarations were also improperly incorporated by reference
`
`under 37 C.F.R. § 42.6(a)(3), and the word limits imposed by 37 C.F.R. §
`
`42.24(b)(2). Exhibit 1001, for example, is a 228-page declaration with large amount
`
`of testimony and arguments incorporated throughout the Petition. Exhibit 1013 was
`
`incorporated by reference into a single citation. See, e.g., Pet. at 16. These were
`
`improper incorporations by reference.
`
`
`
`3
`
`
`
`II. OBJECTIONS TO EXHIBITS 1015 AND 1016
`
`Patent Owner objects to Exhibits 1015 and 1016 because they contain
`
`unreliable testimony under FRE 401, 402, 403, 602, and 702, and Daubert v. Merrell
`
`Dow Pharm., Inc., 509 U.S. 579 (1993), and 37 C.F.R. § 42.23(b).FRE 401, 402,
`
`403, 602, and 702, and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
`
`Both of these declarations were proffered as fact witness declarations. They
`
`contain, however, expert testimony that does not meet the expert requirements of
`
`FRE 702 and Daubert in the disclosure of the declarations.
`
`For Exhibit 1015, it contains factual matters on which Mr. Knott has not been
`
`shown to have personal knowledge under FRE 601 and 602, including opinion
`
`testimony regarding what the images on the references show, when a reference was
`
`cataloged and available to the public, when a reference could be publicly searched
`
`for, and the normal processes and procedures, including procedures that pre-date Mr.
`
`Knott’s employment at the University of Michigan. The declaration contains
`
`inadmissible opinion testimony.
`
`For Exhibit 1016, the declaration of Mr. Butler contains factual matters on
`
`which Mr. Butler has not been shown to have personal knowledge under FRE 601
`
`and 602, including opinion testimony regarding how the Wayback Machine operates
`
`(and operated prior to the filing date of the Implicit Patents), how it collects and
`
`preserves webpages, how it presents webpages to users, how it determines the date
`
`
`
`4
`
`
`
`of webpage, and how it prints out webpages. Patent Owner further objects to Exhibit
`
`2015 for the reasons in the following objections.
`
`III. OBJECTIONS TO INADMISSIBLE HEARSAY EXHIBITS
`
`Patent Owner objects to Exhibits 1012, 1014–1016, 1030–1040, and 1043–
`
`1057 to the extent that Petitioner relies on the contents in these Exhibits for the truth
`
`of any matters asserted therein, including, but not limited to, relying on a date
`
`presented in a document as establishing the date the document was created or last
`
`edited. These Exhibits are inadmissible hearsay under FRE 801 and 802 that does
`
`not fall under any exceptions, including those of FRE 803, 804, 805, or 807.
`
`IV. OBJECTIONS TO EXHIBITS THAT LACK OF AUTHENTICATION
`Patent Owner objects to Exhibits 1012, 1014–1016, 1030–1040, and 1043–
`
`1057 as not properly authenticated under FRE 901 because Petitioner has not
`
`presented sufficient evidence that these documents are authentic nor that the
`
`documents are self-authenticating under FRE 902.
`
`V. OBJECTIONS TO EXHIBITS UNDER RELEVANCE RULES
`Patent Owner objects to Exhibits 1014, 1015, 1030–1040, and 1043–1057
`
`under FRE 401, 402, ad 403. These exhibits include documents that do not bear on
`
`the issues for which review has been instituted, including documents that are not the
`
`references that form the grounds upon which institution was granted, such as
`
`documents relating to the state of the art, various RFCs, CheckPoint corporate
`
`
`
`5
`
`
`
`documents, and papers and documents unrelated to the institution grounds. Those
`
`documents not relevant under FRE 401 and 402. To the extent they are relevant,
`
`FRE 403 excludes those documents because any potential relevance is substantially
`
`outweighed by a danger of one or more of the following: unfair prejudice, confusing
`
`the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence.
`
`Patent Owner also objects to Exhibit 1015 as a “composite” exhibit that
`
`contains multiple, unrelated documents, including documents and disclosures for
`
`which the Board did not institute proceedings on. This is irrelevant under FRE 401
`
`and 402. To the extent any of those documents are relevant, FRE 403 excludes them
`
`because any potential relevance is substantially outweighed by a danger of one or
`
`more of the following: unfair prejudice, confusing the issues, misleading the jury,
`
`undue delay, wasting time, or needlessly presenting cumulative evidence. To the
`
`extent the Board considers this Exhibit, it should consider each webpage as a
`
`separate reference.
`
`Dated: August 24, 2020
`
`
`
`Respectfully submitted,
`
`
`
`By: /s/Christian Hurt Reg.No.63,659
` Christian Hurt
`DAVIS FIRM, PC
`213 N. Fredonia Street, Suite 230
`Longview, Texas 75601
`903-230-9090
`churt@davisfirm.com
`
`
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on August 24, 2020, a true copy of the following
`
`document(s):
`
`PATENT OWNER’S OBJECTIONS TO PETITIONER’S EVIDENCE
`UNDER 37 § C.F.R. 42.64(b)(1)
`was served electronic mail to the address and parties as follows:
`
`Juniper-Implicit@irell.com
`Jonathan M. Lindsay
`David McPhie
`Courtney Dennis
`Irell & Manella LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`
`
`I declare under penalty of perjury under the laws of the United States of
`
`America that the foregoing is true and correct. Executed on August 24, 2020 at
`
`Dallas, Texas.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/Christian Hurt
`Christian Hurt
`
`7
`
`
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
