UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`XILINX, INC. and XILINX ASIA PACIFIC PTE. LTD.
`Petitioner,
`v.
`ANALOG DEVICES, INC.
`Patent Owner.
`
`U.S. Patent No. 8,487,659
`_______________
`
`Inter Partes Review No. IPR2020-01219
`____________________________________________________________
`PETITIONER’S MOTION TO EXCLUDE
`
`
`_______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`XILINX, INC. and XILINX ASIA PACIFIC PTE. LTD.
`Petitioner,
`v.
`ANALOG DEVICES, INC.
`Patent Owner.
`
`U.S. Patent No. 8,487,659
`_______________
`
`Inter Partes Review No. IPR2020-01219
`____________________________________________________________
`PETITIONER’S MOTION TO EXCLUDE
`
`
`
`IPR2020-01219
`
`TABLE OF CONTENTS
`
`
`Page
`
`
`Introduction ..................................................................................................... 1
`I.
`Petitioner’s Timely Objections ....................................................................... 1
`II.
`III. Argument ........................................................................................................ 2
`A.
`The Board Should Exclude Exhibit 2030 in its Entirety ...................... 2
`B.
`The Board Should Exclude Paragraphs 20-22 of Exhibit 2001
`and Paragraphs 92-98 of Exhibit 2044 ................................................. 4
`IV. Conclusion ...................................................................................................... 7
`
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`sf-4577907
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`IPR2020-01219
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Other Authorities
`37 C.F.R. § 42.62 ....................................................................................................... 1
`37 C.F.R. § 42.64(b) .................................................................................................. 1
`37 C.F.R. § 42.64(c) ................................................................................................... 1
`37 C.F.R. § 42.65(a) ............................................................................................... 4, 7
`FRE 702 ............................................................................................................. 4, 6, 7
`FRE 801 ..................................................................................................................... 3
`FRE 802 ..................................................................................................................... 3
`FRE 901 ................................................................................................................. 2, 3
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`I.
`
`INTRODUCTION
`Pursuant to 37 C.F.R. § 42.64(c), Xilinx, Inc. and Xilinx Asia Pacific Pte.
`
`Ltd. (“Petitioner” or “Xilinx”) moves to exclude unauthenticated Exhibit 2030 and
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`portions of Exhibits 2001 and 2044 pertaining to simulations that Patent Owner’s
`
`expert Dr. Pavan Hanumolu purportedly performed and Patent Owner’s reliance on
`
`these portions of the exhibits. Because Petitioner has timely objected to Patent
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`Owner’s evidence that does not comport with either the Federal Rules of Evidence
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`(FRE) or the rules of the Board, the Board should grant this Motion and exclude
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`the evidence identified below from consideration.
`
`II.
`
`PETITIONER’S TIMELY OBJECTIONS
`The Federal Rules of Evidence generally apply to these proceedings. See 37
`
`C.F.R. §42.62. When timely objections are filed, a party may move to exclude
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`improper evidence. See 37 C.F.R. §§42.64(b), (c).
`
`Exhibits 2030 and 2044 were served with Patent Owner’s Response, filed on
`
`April 19, 2021. (See Paper 13 at Certificate of Service.) On April 26, 2021—
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`within five business days of Patent Owner’s Response—Petitioner timely objected
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`to Exhibits 2030 and 2044. (See Paper 16.) Patent Owner did not serve any
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`supplemental evidence to address these objections.
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`Exhibit 2001 was served with Patent Owner’s Preliminary Response filed on
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`October 27, 2020. (See Paper 6 at Table of Exhibits.) The Petition was instituted
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`on January 25, 2021. (Paper 9.) On February 8, 2021—within ten business days
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`of the Institution Decision in this proceeding—Petitioner timely objected to
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`Exhibit 2001. Patent Owner did not serve any supplemental evidence to address
`
`these objections.
`
`III. ARGUMENT
`A.
`The Board Should Exclude Exhibit 2030 in its Entirety
`Exhibit 2030—purportedly a “[s]creenshot of lab test of ‘GECKO LQFP’”
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`(see Ex. 2043 at 88) and the only testing data ADI points to in an attempt to show
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`that the invention was successfully reduced to practice—is unauthenticated and
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`constitutes inadmissible hearsay. Federal Rule of Evidence 901(a) requires that
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`“the proponent must produce evidence sufficient to support a finding that the item
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`is what the proponent claims it is.” Patent Owner, however, fails to identify,
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`among other things, who conducted the test, what file this is a screenshot of, and
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`where that file was located in Patent Owner’s records.
`
`Patent Owner attempts to use Mr. Ronald Kapusta’s declaration to
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`authenticate Exhibit 2030. But it is clear from Mr. Kapusta’s carefully crafted
`
`language that he cannot.
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`When first citing to Exhibit 2030, Mr. Kapusta intentionally uses passive
`
`voice: “During testing, the following lab test picture was generated.” (Ex. 2043,
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`¶ 59.) He does not say that he personally generated the lab test picture or who
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`generated the picture. Later, he vaguely states: “The lab test picture was part of
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`the typically [sic] battery of tests performed on an AFE chip by myself and other
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`engineers who performed lab evaluation, and the lab picture relates to matters of
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`my personal knowledge.” (Id.) But Mr. Kapusta conspicuously focuses on
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`“typical” practice and does not state that he or who of these “other engineers”
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`performed the particular test Exhibit 2030 is purportedly a screenshot of. There is
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`no indication of where this particular file was located in either Mr. Kapusta or
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`Patent Owner’s records, when this particular file was generated (e.g., reference to
`
`any date modified for the document), or even a statement that Mr. Kapusta could
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`personally locate the file and took the screenshot shown in Exhibit 2030. In fact,
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`Exhibit 2030 is clearly a modified version of the full file, as the screenshot cuts the
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`document off partway through a graph. (See Ex. 2030.)
`
`This is in stark contrast to other exhibits referenced in his declaration. (See,
`
`e.g., Ex. 2043, ¶ 6 (stating that he personally finalized and circulated a document,
`
`referring to screenshots of the file system folder where the document was located,
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`the modified date, and properties of the document itself); ¶¶ 23-24, 30-33, 44-46
`
`(stating that he personally generated screenshots).)
`
`Accordingly, Exhibit 2030 is inadmissible as unauthenticated under Federal
`
`Rule of Evidence 901 and constitutes inadmissible hearsay under Federal Rules of
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`Evidence 801-802, as it was offered to prove the truth of the testing results.
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`Exhibit 2030 should be excluded from the record of this proceeding.
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`B.
`
`The Board Should Exclude Paragraphs 20-22 of Exhibit 2001 and
`Paragraphs 92-98 of Exhibit 2044
`Petitioner moves to exclude paragraphs 20-22 of Exhibit 2001 (Declaration
`
`of Pavan Hanumolu) and paragraphs 92-98 of Exhibit 2044 (Second Declaration of
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`Pavan Hanumolu), and Patent Owner’s reliance on these portions of the exhibits,
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`on the grounds that they lack foundation and are unreliable for failing to meet the
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`requirements of 37 C.F.R. § 42.65(a) and Federal Rule of Evidence 702.
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`“Expert testimony that does not disclose the underlying facts or data on
`
`which the opinion is based is entitled to little or no weight.” 37 C.F.R. § 42.65(a).
`
`Federal Rule of Evidence 702 states:
`
`RULE 702. TESTIMONY BY EXPERT WITNESS
`A witness who is qualified as an expert by knowledge,
`skill, experience, training, or education may testify in the
`form of an opinion or otherwise if:
`(a) The expert’s scientific, technical, or other specialized
`knowledge will help the trier of fact to understand the
`evidence or to determine a fact in issue;
`(b) The testimony is based on sufficient facts or data;
`(c) The testimony is the product of reliable principles and
`methods; and
`(d) The expert has reliably applied the principles and
`methods to the facts of the case.
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`In paragraphs 20-22 of Exhibit 2001 (Declaration of Pavan Hanumolu) and
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`paragraphs 92-98 of Exhibit 2044 (Second Declaration of Pavan Hanumolu),
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`Patent Owner’s expert Dr. Hanumolu purportedly provides simulations of Ajit’s
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`circuit 116 “using reasonable values for the various circuit components and input
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`signals.” (Ex. 2044, ¶ 92.) But Dr. Hanumolu does not disclose all of these
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`“reasonable values.”
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`Ajit does not provide transistor sizing or other quantitative associations of its
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`circuit. Taking advantage of this, Dr. Hanumolu cherry-picks self-serving values
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`to fabricate simulations that contradict the express teachings of Ajit. While
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`disclosing certain component values, Dr. Hanumolu intentionally did not disclose
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`the netlist for the circuit, which contains the transistor sizing he used in his
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`simulations, despite doing so in other proceedings. For example, in IPR2020-
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`01210, Dr. Hanumolu made sure to include the underlying netlist file. See, e.g.,
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`Xilinx v. Analog Devices, Inc., IPR2020-01210, Ex. 2009, ¶ 58, Ex. B:
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`Because Dr. Hanumolu did not disclose the netlist with transistor sizing for
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`the circuit he used for his simulations, nor describe what facts, data, principles, or
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`methods he used for choosing whatever transistor sizing he used, the Board and
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`Petitioner cannot assess under Federal Rule of Evidence 702 whether Dr.
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`Hanumolu’s opinion testimony is “based on sufficient facts or data,” is “the
`
`product of reliable principles and methods,” or if Dr. Hanumolu “reliably applied
`
`the principles and methods to the facts of the case.”
`
`Accordingly, paragraphs 20-22 of Exhibit 2001 and paragraphs 92-98 of
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`Exhibit 2044, and Patent Owner’s reliance on these portions of the exhibits, are
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`inadmissible on the grounds that they lack foundation and are unreliable for failing
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`to meet the requirements of 37 C.F.R. § 42.65(a) and Federal Rule of
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`Evidence 702, and should be excluded from the record in this proceeding.
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`IV. CONCLUSION
`For the reasons set forth above, Petitioner requests the Board to grant this
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`Motion To Exclude the evidence identified above.
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`
`
`Dated: October 4, 2021
`
`Respectfully submitted,
`
`
`By: /Alex S. Yap/
`Alex S. Yap
`ayap@mofo.com
`Registration No.: 60,609
`MORRISON & FOERSTER LLP
`707 Wilshire Boulevard, Suite 6000
`Los Angeles, CA 90017
`Tel: (213) 892-5630
`Fax: (213) 892-5454
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`CERTIFICATE OF SERVICE
`
`I hereby certify that the attached PETITIONER’S MOTION TO EXCLUDE
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`was served as of the below date via email on the Patent Owner at the following
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`correspondence address:
`
`Peter Dichiara
`Wilmer Cutler Pickering Hale and Dorr, LLP
`60 State Street
`Boston, Massachusetts 02109
`Peter.Dichiara@wilmerhale.com
`Scott.Bertulli@wilmerhale.com
`Cynthia.Vreeland@wilmerhale.com
`Jason.Kipnis@wilmerhale.com
`Dominic.Massa@wilmerhale.com
`Mihai.Murgulescu@analog.com
`Claire.Rollor@analog.com
`Michael.Diener@analog.com
`whanalog-xilinxIPRteam@wilmerhale.com
`
`
`
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`Date: October 4, 2021
`
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`By: /Alex S. Yap/
`Alex S. Yap
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