UNITED STATES PATENT AND TRADEMARK OFFICE
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`_________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
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` CODE200, UAB; TESO LT, UAB; METACLUSTER LT, UAB;
`OXYSALES, UAB; AND CORETECH LT, UAB,
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`Petitioners
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`v.
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`BRIGHT DATA LTD.,
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`Patent Owner
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`_________________________
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`Case IPR2021-01492
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`Patent No. 10,257,319
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`_________________________
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`PATENT OWNER’S OPPOSITION
`TO PETITIONERS’ MOTION TO EXCLUDE
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`_________________________
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
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` CODE200, UAB; TESO LT, UAB; METACLUSTER LT, UAB;
`OXYSALES, UAB; AND CORETECH LT, UAB,
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`Petitioners
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`v.
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`BRIGHT DATA LTD.,
`
`Patent Owner
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`_________________________
`
`Case IPR2021-01492
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`Patent No. 10,257,319
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`_________________________
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`PATENT OWNER’S OPPOSITION
`TO PETITIONERS’ MOTION TO EXCLUDE
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`
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`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
`
`IPR2021-01492 of Patent No. 10,257,319
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`
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`Based on Petitioners’ Motion to Exclude, it is unclear whether Petitioners
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`seek to exclude Patent Owner’s recitation of the data center proxy service having
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`“Approx. $22.1 million revenue in 2021” and/or Patent Owner’s citation in
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`footnote 13 to “IPR2022-00687, Paper 18 at 75 (PTAB Jan. 20, 2023)”. See
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`generally Paper 46.
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`Regardless, Petitioners’ Motion to Exclude should be denied for at least 4
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`reasons.
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`First, Petitioners’ Motion to Exclude is effectively an unauthorized motion
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`to strike and should be denied on that basis alone. See Patent Trial and Appeal
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`Board Consolidated Trial Practice Guide (November 2019) (“TPG”) at 79
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`(explaining that a motion to exclude should not address evidence that a party
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`believes exceeds the proper scope of a sur-reply); see also TPG at 80-81
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`(discussing a motion to strike which requires prior authorization). The Board has
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`“repeatedly stated” that filing a motion to exclude evidence as failing to comply
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`with 37 C.F.R. § 42.23 is improper. Palo Alto Networks, Inc. v. Finjan Inc.,
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`IPR2015-01979, Paper 62 at 66 (PTAB Mar. 15, 2017)(citing collection of cases).
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`Second, Petitioners’ Motion to Exclude does not argue that Patent Owner
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`violated any of the Federal Rules of Evidence (e.g., inadmissible due to relevance
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`or hearsay). See TPG at 79; see also TPG at 8 (“Admissibility of evidence is
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`1
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`generally governed by the Federal Rules of Evidence). Petitioners thus fail to meet
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`IPR2021-01492 of Patent No. 10,257,319
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`their burden.
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`Third, Patent Owner has continuously argued the value of its residential
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`proxy service and, in the Sur-reply, directly responded to Petitioners’ arguments in
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`the Reply (see pages 24-26) regarding use of a residential IP address versus a
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`commercial IP address. $53.7 million in annual revenue of the residential proxy
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`service (which uses residential IP addresses) is significant in and of itself. Patent
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`Owner additionally recited the approximate annual revenue of the data center
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`proxy service (which uses commercial IP addresses) for comparison.
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`Fourth, Petitioners (now collectively known as Oxylabs, UAB) are the same
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`petitioners in IPR2022-00687. See Paper 39 at 1; IPR2022-00687, Paper 24 at 1.1
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`Petitioners have been aware of IPR2022-00687 since that petition was filed on
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`March 14, 2022. Petitioners have been aware of the annual revenue of Patent
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`Owner’s data center proxy service since at least January 20, 2023 when the Patent
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`Owner Response was filed in IPR2022-00687. Moreover, Petitioners have been
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`aware of the annual revenue of Patent Owner’s services through the various district
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`1 The original named petitioner in IPR2022-00687 was Metacluster LT, UAB and
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`Code200, UAB; Teso LT, UAB; Oxysales, UAB; and coretech lt, UAB were listed
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`as real parties-in-interest. IPR2022-00687, Paper 1 at 2.
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`
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`2
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`
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`IPR2021-01492 of Patent No. 10,257,319
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`
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`court litigations (e.g., Bright Data Ltd. v. Teso LT, UAB, et al., Case No. 2:19-cv-
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`395 (E.D. Tex.) and Bright Data Ltd. v. Code200, UAB et al., Case No. 2:19-cv-
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`396 (E.D. Tex.) and also, given that the annual revenue is public information
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`disclosed in Reexam Control Nos. 90/014,624; 90/014,827; 90/014,652; and
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`90/014,816; each of which Petitioners have been aware of since at least March 20,
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`2023. Paper 39 at 2. Most notably, Petitioners have been aware that the annual
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`revenue of Patent Owner’s services is inconsistent with their argument that the use
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`of residential IP addresses has no value compared to the use of commercial IP
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`addresses.
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`For at least the foregoing reasons, Petitioners’ Motion should be denied.
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`Additionally, Patent Owner notes that the Board need not decide Petitioners’
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`Motion at this time given that consideration of the objected-to evidence may
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`ultimately be unnecessary to resolve the patentability of the challenged claims,
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`rendering the Motion moot. See TPG at 79-80.
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`3
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`IPR2021-01492 of Patent No. 10,257,319
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`Respectfully submitted,
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`Date: June 1, 2023
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`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
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`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
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`4
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`CERTIFICATE OF COMPLIANCE
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`IPR2021-01492 of Patent No. 10,257,319
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`This paper consists of less than 15 pages and complies with the type-volume
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`as mandated in 37 C.F.R. § 42.24. In preparing this certificate, counsel has relied on
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`the word count of the word-processing system used to prepare the paper (Microsoft
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`Word).
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`Respectfully submitted,
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`Date: June 1, 2023
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`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`
`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
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`5
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`CERTIFICATE OF SERVICE
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`IPR2021-01492 of Patent No. 10,257,319
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certifies this paper
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`was served on the undersigned date via email, as authorized by Petitioners, at the
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`following email addresses:
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`jscott@ccrglaw.com
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`jheuton@ccrglaw.com
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`ctolliver@ccrglaw.com
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`Respectfully submitted,
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`Date: June 1, 2023
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`By: /s/ Thomas M. Dunham
`Thomas M. Dunham
`Reg. No. 39,965
`
`Cherian LLP
`1901 L Street NW, Suite 700
`Washington, D.C. 20036
`(202) 838-1567
`
`ATTORNEY FOR PATENT OWNER,
`BRIGHT DATA LTD.
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`6
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