`
`_________________________________________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________________________________
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`TRIPLE PLUS LTD.,
`
`Petitioner
`
`v.
`
`MORDECHAI BEN OLD,
`
`Patent Owner
`
`_________________________________________________
`
`U.S. Patent No. 9,671,031
`
`Case No.: PGR2018-00038
`_________________________________________________
`
`PETITIONER’S MOTION TO EXCLUDE PAPER 7
`PURSUANT TO 37 C.F.R. 42.64(c)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Patent Owner filed a Preliminary Response in the form of his declaration.1
`
`However, shortly after institution Patent Owner refused to participate in these
`
`proceedings—he did not submit a Response; he failed to respond to
`
`correspondence about routine discovery; and he failed to appear for his noticed
`
`deposition or to otherwise respond to efforts to arrange his deposition.2
`
`Cross-examination by deposition of the other side’s declarant is routine
`
`discovery.3 The Patent Trial Practice Guide further states:
`
`The burden and expense of producing a witness for redirect or cross-
`examination should normally fall on the party presenting the witness. Thus,
`a party presenting a witness’s testimony by affidavit should arrange to make
`the witness available for cross-examination.4
`
`By failing to make himself available for cross-examination on the scope of
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`his declaration, Patent Owner thwarted Petitioner’s routine discovery—preventing
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`the development of a “fair record,” “meaningful discovery” and information
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`Petitioner “reasonably need[ed] to respond” to the issues raised by Patent Owner’s
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`declaration.”5
`
`
`1 Paper 7.
`2 Paper 10.
`3 37 Fed. Reg. 48756, 48761 (Aug. 14, 2012).
`4 Id.
`5 Id.
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`1
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`
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`Accordingly, Patent Owner’s declaration/Preliminary Response, Paper 7,
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`should be disregarded and excluded.6
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`Dated: April 19, 2019
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`
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`Respectfully submitted,
`
`
`
`
`
`/s/ Mark C. Johnson
`Mark C. Johnson, Reg. No. 51,854
`mjohnson@rennerotto.com
`Kyle B. Fleming (not yet admitted)
`RENNER OTTO
`1621 Euclid Avenue, Floor 19
`Cleveland, Ohio 44115
`T: 216-621-1113
`F: 216-621-6165
`
`Counsel for Triple Plus Ltd.
`
`
`
`
`
`6 See, e.g., 1964 Ears, LLC. v. Jerry Harvey Audio Holding, LLC, IPR2016-00494,
`Order, Paper 40 at p. 4. (“because Petitioner has been deprived [of] that routine
`discovery, the appropriate remedy is to strike and expunge Exhibits 2037 and 2038
`from the record.”).
`
`2
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`Pursuant to 37 C.F.R. §§ 42.24 et seq., the undersigned certifies that this
`
`Petition complies with the 15 page limitation.
`
`
`
`
`
`
`
`
`
`/s/ Mark C. Johnson
`Mark C. Johnson, Reg. No. 51,854
`mjohnson@rennerotto.com
`RENNER OTTO
`1621 Euclid Avenue, Floor 19
`Cleveland, Ohio 44115
`T: 216-621-1113
`F: 216-621-6165
`
`Counsel for Triple Plus Ltd.
`
`3
`
`
`
`CERTIFICATE OF SERVICE ON PATENT OWNER
`
`I certify that the foregoing PETITIONER’S MOTION TO EXCLUDE
`
`PAPER 7 PURSUANT TO 37 C.F.R. 42.64(c) was served on the Patent Owner by
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`electronic notification, as consented by Patent Owner:
`
`meir@mdpatent.co.il
`
`
`April 19, 2019
`
`
`
`
`
`
`
`
`/s/ Mark C. Johnson
`Mark C. Johnson, Reg. No. 51,854
`mjohnson@rennerotto.com
`RENNER OTTO
`1621 Euclid Avenue, Floor 19
`Cleveland, Ohio 44115
`T: 216-621-1113
`F: 216-621-6165
`
`Counsel for Triple Plus Ltd.
`
`4
`
`
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