`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CODE200, UAB; TESO LT, UAB; METACLUSTER LT, UAB; OXYSALES,
`UAB; AND CORETECH LT, UAB,
`Petitioners,
`
`v.
`
`BRIGHT DATA LTD.,
`Patent Owner.
`____________
`
`Case IPR 2021-01492
`Patent 10,257,319
`____________
`
`PETITIONERS’ MOTION TO EXCLUDE NEW EVIDENCE
`IN PATENT OWNER’S SUR-REPLY
`
`
`
`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`Petitioners move to exclude purported new evidence included in Patent
`
`Owner’s Sur-Reply (Paper 41) filed on May 1, 2023.
`
`I.
`
`Compliance With Trial Practice Guide
`
`Petitioners comply with requirements (a)-(d) found in the Board’s Trial
`
`Practice Guide (p.79):
`
`(a)
`
`Petitioners objected to the new evidence in PO’s Sur-Reply in
`
`Petitioners’ objections filed May 8 (Paper 44), within five business
`
`days of service of PO’s Sur-Reply.
`
`(b)
`
`PO relies on the evidence on page 29 of its Sur-Reply, in the chart
`
`reproduced below in Section II.
`
`(c)-(d) Petitioners argue below in Section II that the evidence should be
`
`excluded because it is new evidence.
`
`II.
`
`PO’s New Evidence in its Sur-Reply Should be Excluded
`
`Patent Owner included the following table in its Sur-Reply:
`
`
`
`1
`
`
`
`Sur-Reply at 29. As shown above, Patent Owner’s purported support for “Approx.
`
`$22.1 million revenue in 2021” is its footnote 13. Footnote 13 cites to a document
`
`from another proceeding: “IPR2022-00687, Paper 18 at 75 (PTAB Jan. 20, 2023).”
`
`Sur-Reply at 29 n.13.
`
`Petitioners move to exclude the alleged new evidence cited in footnote 13
`
`from a different proceeding (IPR2022-00687) and the evidentiary sentence
`
`(“Approx. $22.1 million revenue in 2021”) that is based on the new evidence.
`
`The basis for Petitioners’ motion is simple: Patent Owner cannot include new
`
`evidence in its Sur-Reply. 37 CFR § 42.23(b) (“A sur-reply may only respond to
`
`arguments raised in the corresponding reply and may not be accompanied by new
`
`evidence other than deposition transcripts of the cross-examination of any reply
`
`witness.”); Patent Trial and Appeal Board Consolidated Trial Practice Guide
`
`(November 2019) at 73 (same). Not only has PO included new evidence in its Sur-
`
`Reply, but the cited evidence is not even from this proceeding.
`
`For the foregoing reasons, Petitioners request that the Board exclude the new
`
`evidence noted above.
`
`
`
`
`
`
`
`
`
`
`
`2
`
`
`
`
`
`Respectfully submitted,
`
`CHARHON CALLAHAN ROBSON
`& GARZA, PLLC
`
`
`
`
`/s/ Craig Tolliver
`Craig Tolliver (Reg. No. 45,975)
`(Lead Attorney for Petitioners)
`George “Jorde” Scott (Reg. No. 62,859)
`John C. Heuton (Reg. No. 62,467)
`
`3333 Lee Parkway
`Suite 460
`Dallas, TX 75219
`(214) 521-6400
`
`
`
`Dated: May 25, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies that the
`
`above Petitioners’ Motion to Exclude New Evidence Included in Patent Owner’s
`
`Sur-Reply was served on counsel for Patent Owner via e-mail, as authorized by
`
`Patent Owner, at the following e-mail addresses:
`
`Thomas Dunham tomd@cherianllp.com
`Elizabeth O’Brien elizabetho@cherianllp.com
`Robert Harkins
`bobh@cherianllp.com
`
`
`
`CHARHON CALLAHAN ROBSON &
`GARZA, PLLC
`
`
`
`/s/ Craig Tolliver
`Craig Tolliver (Reg. No. 45,975)
`(Lead Attorney for Petitioners)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: May 25, 2023
`
`
`
`
`4
`
`
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