IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SUPERCELL OY,
`Petitioner
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`v.
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`GREE, INC.,
`Patent Owner.
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`Case PGR2018-00036
`U.S. Patent No. 9,662,580
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`PATENT OWNER’S MOTION TO EXCLUDE UNDER 37 C.F.R. § 42.64
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`SUPERCELL OY,
`Petitioner
`
`v.
`
`GREE, INC.,
`Patent Owner.
`
`
`
`
`
`Case PGR2018-00036
`U.S. Patent No. 9,662,580
`
`
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE UNDER 37 C.F.R. § 42.64
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`TABLE OF CONTENTS
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`Page
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`I.
`II.
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`GREE TIMELY OBJECTED TO EVIDENCE .............................................. 1
`ARGUMENT ................................................................................................... 2
`A.
`Exhibit 1010 .......................................................................................... 2
`B.
`Exhibit 1011 .......................................................................................... 5
`C.
`Exhibit 1012 .......................................................................................... 7
`III. CONCLUSION ................................................................................................ 8
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`TABLE OF AUTHORITIES
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`Page
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`Statutes
`Fed. R. Evid. 401 ...................................................................................................7, 8
`Fed. R. Evid. 402 .......................................................................................... 4, 5, 7, 8
`Fed. R. Evid. 403 .......................................................................................... 4, 5, 7, 8
`Fed. R. Evid. 801(c) ...............................................................................................2, 5
`Fed. R. Evid. 802 ...................................................................................................3, 6
`Fed. R. Evid. 807 ....................................................................................................... 3
`Fed. R. Evid. 901 ....................................................................................................... 4
`Fed. R. Evid. 902 ....................................................................................................... 4
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`Exhibit No.
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`2001
`2002
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`PATENT OWNER’S EXHIBIT LIST
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`
`Exhibit Description
`Declaration of David Crane
`David Crane’s Curriculum Vitae
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`Patent Owner GREE, Inc. (“Patent Owner” or “GREE”) hereby respectfully
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`moves to exclude Exhibits 1010 (“Rules of Wheel of Fortune, available at
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`web.archive.org/web/20100102211300”), 1011 (“ “Game Show King: Monty
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`Hall’s ‘Let’s Make a Deal’ Most Successful Television Program,” Boca Raton
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`News, April 28, 1974), and 1012 (““Behind Month Hall’s Doors: Puzzle, Debate
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`and Answer?” NY Times, July 21, 1991”).
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`I.
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`GREE TIMELY OBJECTED TO EVIDENCE
`On March 21, 2019, Patent Owner objected to Exhibits 1010, 1011, and 1012
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`(Paper No. 18) that were included with Petitioner’s Reply filed March 14, 2019.
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`These objections were timely, having been filed within five business days of
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`Petitioner’s Reply.
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`On April 4, 2019, Petitioner served a “Declaration of Apriljoy H. Sanchez in
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`Response to Patent Owner’s Objections to Evidence” as Supplemental Evidence
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`pursuant to 37 C.F.R. §42.64(b)(2) in response to Patent Owner’s objection to
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`Exhibit 1010.1
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`Petitioner did not reply to Patent Owner’s objections to Exhibits 1011 or 1012.
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`1 Patent Owner will address the Supplemental Evidence if it is filed as an exhibit pursuant to 37
`C.F.R. § 42.63.
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`1
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`II. ARGUMENT
`A. Exhibit 1010
`Patent Owner moves to exclude Exhibit 1010, and Petitioner’s reference to
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`or reliance thereon in this proceeding, under F.R.E. 402 (“General Admissibility of
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`Relevant Evidence”), 403 (“Excluding Relevant Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons”), 802 (“The Rule Against
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`Hearsay”), and 901 (“Authenticating or Identifying Evidence”).
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`Exhibit 1010 should be excluded under F.R.E. 802 as hearsay because it
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`contains statements made outside of this proceeding, not submitted in the form of
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`an affidavit as required by 37 C.F.R. § 42.53(a), and relied upon by Petitioner to
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`prove the truth of the matter asserted in Exhibit 1010. See Fed. R. Evid. 801(c).
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`On its face, it is not even clear who authored Exhibit 1010, and Petitioner provides
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`no additional evidence in this regard.
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`For instance, Petitioner’s Reply states with respect to Exhibit 1010:
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`For example, in the “bonus round” of the popular
`television show Wheel of Fortune, a player spins a
`“bonus wheel,” comprising several different segments
`each with an envelope with a prize or cash check inside.
`Whichever envelope is selected by the spin becomes (or
`is “allocated” as) the bonus round prize. The player is
`then asked to solve a final puzzle without knowing the
`contents of the prize envelope. If the player is
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`2
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`successful, the envelope is opened and the player is
`provided the previously allocated prize contained
`therein. Ex. 1010, p.4.
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`Paper No. 17 at 10 (emphasis added). However, Petitioner’s only citation to
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`Exhibit 1010 is with respect to the statement that “if a player is successful, the
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`envelope is opened and the player is provided the previously allocated prize
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`contained therein.” Thus, Petitioner cites to Exhibit 1010 only for the factual
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`assertion that a successful player receives a prize in an envelope in “Wheel of
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`Fortune.” Id. Notably, nothing in Exhibit 1010 uses the word “allocated,” even
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`though Petitioner cites to Exhibit 1010 as support for this proposition. Id.
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`Besides also being irrelevant under F.R.E. 402-403, these statements are
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`inadmissible because they are hearsay under F.R.E. 802. See Fed. R. Evid. 802.
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`Furthermore, no exception to the rule against hearsay applies here, nor has
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`Petitioner laid any evidentiary foundation to support a finding that an exception
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`applies. Nor would the residual exception under Rule 807 apply to Exhibit 1010.
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`Fed. R. Evid. 807. There are no guarantees of trustworthiness apparent from
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`Exhibit 1010; it appears to be nothing more than a page from the Internet, and
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`Petitioner has offered no evidence as to the identity of the actual author of the
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`document, or any corroboration of the assertions made in the Exhibit. Petitioner
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`3
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`had a burden to provide this evidence or its equivalent in the Reply, and Petitioner
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`failed to do so.
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`Pursuant to F.R.E. 901, Petitioner also fails to provide the proper
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`authentication required for Exhibit 1010. See Fed. R. Evid. 901. Petitioner provides
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`no evidence that is sufficient to support a finding that this webpage is what
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`Petitioner claims it is. Petitioner provides no evidence of who the author of the
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`document is, when it was written, a date that it was published, or whether its
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`contents can be verified. Thus, Exhibit 1010 is inadmissible because Petitioner
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`fails to provide the proper authentication required by F.R.E. 901. Further, Exhibit
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`1010 does not fall under any of the categories of evidence that are self-
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`authenticating. Fed. R. Evid. 902.
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`Exhibit 1010 should also be excluded under F.R.E. 402-403. Fed. R. Evid.
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`403-02. Whether or not a player in “Wheel of Fortune” can receive a prize in an
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`envelope has no bearing on the merits of whether the ‘580 patent provides an
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`improvement in computer functionality. Paper No. 17 at 10-11. Moreover,
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`Petitioner’s citation to this Exhibit in its Reply is prejudicial to Patent Owner
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`because it appears to support Petitioner’s broad characterizations of the television
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`show “Wheel of Fortune,” when in fact the only citation to the Exhibit is for its
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`purported disclosure of a prize in an envelope in that specific television show. Id.
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`Exhibit 1010 should be excluded under F.R.E. 402-403 because it is has no
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`4
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`relevance to the ‘580 patent and its use in Petitioner’s Reply is prejudicial and
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`confusing. Fed. R. Evid. 402-03.
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`Most egregiously, Petitioner discusses a purported television show, “Let’s
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`Make a Deal” at pages 10-11 of the Reply. Discussing this television show,
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`Petitioner states that “the prize could be a joke, valueless prize such as a goat or a
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`chicken or a valuable prize such as a new Cadillac.” Paper No. 17 at 10-11. As
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`support for this statement, Petitioner cites to Exhibit 1010, page 1. Id. However,
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`nothing in Exhibit 1010 provides any support for this statement. Thus, Exhibit
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`1010 should also be excluded as not relevant under F.R.E. 402 and 403 for these
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`reasons. See Fed. R. Evid. 402-03.
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`B. Exhibit 1011
`Patent Owner moves to exclude Exhibit 1011, and Petitioner’s reference to
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`or reliance thereon in this proceeding, under F.R.E. 401 (“Test for Relevant
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`Evidence”), 402 (“General Admissibility of Relevant Evidence”), 403 (“Excluding
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`Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”),
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`and 802 (“The Rule Against Hearsay”).
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`Exhibit 1011 should be excluded under F.R.E. 802 as hearsay because it
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`contains statements made outside of this proceeding, not submitted in the form of
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`5
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`an affidavit as required by 37 C.F.R. § 42.53(a), and relied upon by Petitioner to
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`prove the truth of the matter asserted in Exhibit 1011. See Fed. R. Evid. 801(c).
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`For instance, Petitioner’s Reply states with respect to Exhibit 1011:
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`Similarly, in another television show, Let’s Make a Deal,
`a contestant would be given the opportunity to trade a
`currently-held prize for another prize, previously
`allocated and concealed behind a curtain. If the
`contestant decided to trade for the prize behind the
`curtain, the contestant would be provided the previously
`allocated reward hidden behind the curtain. The prize
`could be a joke, valueless prize such as a goat or
`chicken or a valuable prize such as a new Cadillac.
`Ex. 1010, p. 1; Ex. 1011, p. 1.
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`Paper No. 17 at 10-11 (emphasis added). However, Petitioner’s only citation to
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`Exhibit 1011 is with respect to the statement that “the prize could be a joke,
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`valueless prize such as a goat or chicken or valuable prize such as a new Cadillac,”
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`shown in bold above. Thus, Petitioner cites to Exhibit 1011 only for the factual
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`assertion that the prize in the television show “Let’s Make A Deal” can be a goat,
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`chicken, or Cadillac. Id
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`Besides also being irrelevant under F.R.E. 401-403, these statements are
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`inadmissible because they are hearsay under F.R.E. 802. See Fed. R. Evid. 802.
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`Furthermore, no exception to the rule against hearsay applies here, nor has
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`6
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`Petitioner laid any evidentiary foundation to support a finding that an exception
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`applies. Nor would the residual exception under Rule 807 apply to Exhibit 1011.
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`There are no guarantees of trustworthiness apparent from Exhibit 1011; it appears
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`to be nothing more than a page from a newspaper and Petitioner has not provided
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`any corroboration of the assertions made in the Exhibit. Petitioner had a burden to
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`provide this evidence or its equivalent in the Reply and failed to do so.
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`Exhibit 1011 should also be excluded under F.R.E. 401-403. See Fed. R.
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`Evid. 401-03. Whether or not a prize can be a goat, chicken, or Cadillac has no
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`bearing on the merits of whether the ‘580 patent provides an improvement in
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`computer functionality. Paper No. 17 at 10-11. Moreover, Petitioner’s citation to
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`this Exhibit in its Reply is prejudicial to Patent Owner because it appears to
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`support Petitioner’s broad characterizations of the television show “Let’s Make A
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`Deal,” when in fact the only citation to the Exhibit is for its purported disclosure of
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`a prize in that specific television show being a goat, chicken, or Cadillac. Id.
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`Exhibit 1011 should be excluded under F.R.E. 401-403 because it is has no
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`relevance to the ‘580 patent and its use in Petitioner’s Reply is prejudicial and
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`confusing. See Fed. R. Evid. 401-03.
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`C. Exhibit 1012
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`Patent Owner moves to exclude Exhibit 1012, and Petitioner’s reference to
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`or reliance thereon in this proceeding, under F.R.E. 401 (“Test for Relevant
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`7
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`Evidence”), 402 (“General Admissibility of Relevant Evidence”), and 403
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`(“Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other
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`Reasons”).
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`Although Exhibit 1012 is listed in Petitioner’s Exhibit List, it is not
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`discussed or even cited anywhere in Petitioner’s Reply. Therefore, it is unclear
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`why this Exhibit was included in the Exhibit list and it is impossible for Patent
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`Owner to ascertain its purpose. The Exhibit is therefore irrelevant and a waste of
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`time under F.R.E. 401-403, and should be excluded. See Fed. R. Evid. 401-03.
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`III. CONCLUSION
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`For the reasons set forth above, Patent Owner respectfully requests that the
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`Board exclude Exhibits 1010, 1011, and 1012 and any related statements in
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`Petitioner’s Reply citing thereto.
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`Dated:
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`5/9/2019
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`Respectfully submitted,
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`Maier & Maier, PLLC
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`/Siddhesh V. Pandit, Reg. No. 58,572/
`Timothy J. Maier, Reg. No. 51,986
`Siddhesh V. Pandit, Reg. No. 58,572
`Christopher J. Maier, Reg. No. 53,255
`Maier & Maier, PLLC
`345 S. Patrick Street
`Alexandria, VA 22314
`703-740-8322 (phone)
`703-991-7071 (fax)
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`By:
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`8
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. 42.6(e), I, Sid V. Pandit, certify that on this 9th day of
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`May, 2019, a copy of this
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`was served upon the below-listed counsel via email:
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`Jennifer R. Bush
`JBush-PTAB@fenwick.com
`Fenwick & West LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 988-5200
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`Michael J. Sacksteder
`msacksteder@fenwick.com
`Fenwick & West LLP
`555 California Street
`San Francisco, CA 94104
`Tel: (415) 875-2450
`
`Geoffrey Miller
`gmiller@fenwick.com
`Fenwick & West LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 988-5200
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`By: /Siddhesh V. Pandit, Reg. No. 58,572/
`Siddhesh V. Pandit, Reg. No. 58,572
`Maier & Maier, PLLC
`345 S. Patrick Street
`Alexandria, VA 22314
`703-740-8322 (phone)
`703-991-7071 (fax)
`
`
`
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