Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA678305
`ESTTA Tracking number:
`06/16/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92055558
`Plaintiff
`Economy Rent-A-Car, Inc.
`NICOLE M MEYER
`DICKINSON WRIGHT PLLC
`1875 EYE STREET NW, SUITE 1200
`WASHINGTON, DC 20006
`UNITED STATES
`trademark@dickinsonwright.com, nmeyer@dickinsonwright.com, slittle-
`page@dickinsonwright.com
`Motion to Strike
`Melissa Alcantara
`trademark@dickinsonwright.com, slittlepage@dickinsonwright.com, mdi-
`carlo@dickinsonwright.com, malcantara@dickinsonwright.com
`/Melissa Alcantara/
`06/16/2015
`Petitioner's Motion to Strike.pdf(703099 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`ECONOMY RENT-A-CAR, INC.
`
`Petitioner,
`
`v.
`
`EMMANOUIL KOKOLOGIANNIS
`
`AND SONS, SOCIETE
`ANONYME OF TRADE,
`HOTELS AND TOURISM S.A.
`
`Respondent.
`
`-./-../-u..4-_z-_av'-.4‘-_z-..a~...rs.a-._a-._a-.._a~._p
`
`Cancellation No. 92055558
`
`Registration No. 3256667
`
`PETITIONER’S MOTION TO STRIKE
`
`PORTIONS OF RESPONDENT’S NOTICE OF RELIANCE
`
`On May 26, 2015, Respondent Emmanouil Kokologiannis And Sons, Societe
`
`Anonyme Of Trade Hotels And Tourism S.A. filed its Notice of Reliance (“NOR") in the
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`above-styled Cancellation proceeding. Petitioner Petitioner Economy Rent-A-Car. Inc.
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`hereby moves the Trademark Trial and Appeal Board ("TTAB") to strike the following
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`Exhibits recited in Respondent's aforesaid NOR: Exhibit Nos. 12. 13, 14. 15, 16. 17, 18,
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`21, 24, 25,26, 27, 28. 29, 30, 36, 37, 41, 42(in part), and 43(in part).
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`This motion to strike is based on what Petitioner perceives to be procedural
`
`defects
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`in Respondent's Notice of Reliance.
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`Petitioner
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`reserves
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`its
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`right
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`to
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`subsequently raise substantive objections to Respondent's evidence in Petitioner's Trial
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`Brief.
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`

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`Argument
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`Respondent seeks to introduce into evidence documents that are neither from
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`“public records" nor amount to "printed publications" within the meaning of 37 CFR
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`§2.122(e). The introduction of evidence through a notice of reliance under that rule is
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`intended to facilitate the introduction of publications for what they show on their face
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`subject to the safeguard that the party against whom they offered may corroborate or
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`refute the authenticity of the evidence. The basis for the rule is that a party may readily
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`become familiar with the materials that are in libraries or in general circulation. The
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`burden of establishing such public availability is placed on the proponent of the
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`proffered evidence. Glamorene Products Corp. v. Earl Grissmer Company,
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`lnc., 203
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`U.S.P.Q. 1090, 1092 (TTAB, 1979). Secondly, Respondent has improperly included
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`within its relied-upon Admissions. responses that are not,
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`in fact. “admissions." The
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`inclusion on non-admissions is not proper under Trademark Rule 2.120(j)(3)(i). Finally,
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`Respondent has not adequately stated the basis for the “relevance” of a number of its
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`Exhibits introduced by way of the Notice of Reliance.
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`Analysis of Petitioner's aforesaid objections, as applied to the specific Exhibits
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`that were included within Respondent's Notice of Reliance, is set forth below.
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`(Respondent’s NOR Exhibits 13, 14 and 15)
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`Respondent seeks to introduce into evidence documents allegedly setting forth
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`historical information (such as “prior trademark use" or similar "archived information")
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`

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`from various third party websites, such as Whols, Internet Archive WayBack Machine,
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`Who.Godaddy, Domaintoo|s.Com, Whsk.Com and Google. None of those "archived"
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`documents are "se|f-authenticating" and none of
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`those documents have been
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`authenticated through the testimony of any competent witnesses. Thus, the documents
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`that are subject to this motion are being introduced by Respondent's to show how
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`something purportedly appeared in the past based on a subsequently-printed document
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`(as opposed to being offered to show how a webpage looked at the time it was printed).
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`Respondent's attempt to introduce prior, archive evidence is simply not authorized
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`under Safer Inc. v. OMS Investments, Inc., 94 U.S.P.Q.2d 1031 (TTAB, 2010).
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`In considering the authentication of
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`Internet web pages from sites that
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`purportedly show how a web page previously appeared on a date other than the stated
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`print-out date, federal courts have consistently required independent authentication
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`under the Federal Rules of Evidence. See, Specht v. Google,
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`:'nc., 758 F. Supp. 2d
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`570, 580 (N.D. Ill. 2010) (holding that screenshots from the Internet Archive are properly
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`authenticated by a knowledgeable employee of the Internet Archive); Audi AG v.
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`Shokan Coachworks, Inc., 592 F. Supp. 2d 246, 278 (N.D.N.Y. 2008) (stating that
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`search results from the Internet Archive may only be authenticated by a knowledgeable
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`employee of the website); St. Luke's Cataract and Laser Institute, P.A. v. Sanderson,
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`Case No. 8:06-cv-223-T-MSS, 2006 U.S. Dist. LEXIS 28873, *6 (M.D. Fla. May 12,
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`2006) (stating that, to authenticate printouts from the Internet Archive, "Plaintiff must
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`provide the Court with a statement or affidavit from an Internet Archive representative
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`with personal knowledge of the contents of the Internet Archive website."). The Patent
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`and Trademark Office is believed to follow the same evidentiary rule as articulated by
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`

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`the federal courts. See, for example, Standard Innovation Corp. v. Lelo, Inc, Patent
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`Owner, 2015 WL 190673D,*5. Case No. |PR2D14-00148 (Pat. Tr. & App. Bd., April 23,
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`2015) (copy attached as Petitioner's Exhibit A) in which the Board cited St. Luke's
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`Cataract & Laser Inst, supra, in holding that Fed. R. Evid. 901 required the proponent
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`of evidence such as archived websites to produce a statement or affidavit from
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`someone with knowledge of the website when seeking to authenticate the information
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`from the website itself. Accord, U.S. v. Bansai, 663 F.3d 634, 667 (3"' Cir. 2011)
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`(requiring supporting testimony to authenticate a website obtained from the Wayback
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`Machine).
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`(Respondent's NOR Exhibits 26, 27, 28, 29 and 30)
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`With regard to the Google "photographic evidence" (Exhibits 28, 29 and 30),
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`Petitioner believes that such evidence is completely beyond the T‘|'AB's ruling in Safer.
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`Such photographs are not "se|f~authenticating" under any evidentiary rule. When those
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`photographic documents were marked during the deposition of Alejandro Muniz (Muniz
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`Dep. Exhibits 31 through 33 and introduced in Respondent's NOR as Exhibits 28, 29
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`and 30), Petitioner timely and properly objected to their introduction into evidence. See
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`Petitioner's Exhibit B submitted herewith. That very same evidentiary shortcoming or
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`flaw also exists in connection with NOR Exhibits 26 and 27. No foundation for the
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`introduction of such photographic evidence was attempted by Respondent, even after
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`Petitioner promptly raised its objection to such evidence on that basis.
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`(Respondent's NOR Exhibits 36, 37 and 41)
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`With regard to Respondent's NOR Exhibits 36 and 41, those documents were
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`apparently obtained from the Wikepedia website and amount to hearsay in view of the
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`

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`purpose to which Respondent states that it intends to use such documents. Likewise,
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`NOR Exhibit 37, obtained from Linkedln, also constitutes hearsay for the purpose to
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`which Respondent has stated that it intends to use the document. See, American
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`Optical Corp. v. American Olean Tile Co., 169 U.S.P.Q. 123, 124 (TTAB, 1971)(striking
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`evidence submitted in a party's NOR because it was being introduced not for what is
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`shown on the face of the document, but rather for the truth of the matters contained
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`within the document and, therefore, hearsay).
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`(Respondent's NOR Exhibits 12, 15, 17 and 18)
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`All four of these exhibits were obtained from the Whols website.
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`In view of
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`Respondent's statement of how it intends to use such documents,
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`they are being
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`introduced into evidence for the truth of the statements contained therein, as opposed to
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`what is shown on the face of the documents. Accordingly, this is an impermissible use
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`of the NOR process and is objected to because of the obvious hearsay nature of the
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`evidence. See, American Optical, supra.
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`(Respondent's NOR Exhibits 21, 24 and 25)
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`These three exhibits were obtained from private websites and relate to a
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`nonparty to this proceeding. As in the situation concerning Respondent's stated intent
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`concerning the Whols web pages noted above,
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`that party's intended use of these
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`exhibits (i.e., to somehow "show priority") is clearly being introduced for the truth of the
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`statements contained therein, as opposed to showing what
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`is on the face of the
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`documents themselves. The use of these three exhibits, therefore, violates Fed. R.
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`Evid. 802—which precludes written hearsay. Use of documents in a NOR in violation of
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`the rule against hearsay is not permitted. American Optical, supra.
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`

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`(Respondent's NOR Exhibits 42 and 43)
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`in addition to the above-noted objections, Petitioner also objects to portions of
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`Respondents Exhibits 42 and 43 on the basis that Respondent's reliance on Petitioner's
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`responses to requests for admissions which comprised denials, objections and lack of
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`knowledge are not admissible. See Trademark Rule 2.120(j)(3)(i); see also, Life Zone
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`Inc. v. Middleman Group Inc., 87 USPQ2d 1953, 1957 n.10 (TTAB, 20D8)(the denial of
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`a request for admission establishes neither the truth nor the falsity of the assertion. but
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`rather leaves the matter for proof at trial).
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`Accordingly, Petitioner objects to the
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`following “denials" in Exhibits 42 and 43: Admission Response Nos. 4, 10, 11, 14, 15,
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`16, 17, 18, 20, 21, 24, 25, 26, 30, 48, 49, 57, 60, 61, 62, 63. 65 and 71. Petitioner also
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`objects to the following “objections" in Exhibits 42 and 43: Admission Responses 3, 8, 9.
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`12, 13, 27, 50, 53 and 67. Finally, Petitioner objects to the following "lack of knowledge"
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`responses in Exhibits 42 and 43: Admission Responses 43, 44, 45, 46 and 66.
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`(Objection Based on Inadequate Explanation of Relevance)
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`Respondent provides an insufficient explanation of the “relevance” of Exhibits 12,
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`13, 14, 15, 16, 17, 18, 21, 24, 25, 26, 27, 23, 29, 30, 36, 37 and 41. The sole
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`explanation provided by Respondent concerning the purported "relevance" of each of
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`those exhibits is because they either "show priority (or lack thereof)" or,
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`in the case of
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`Exhibits 36, 37 and 41, they show "the credibility (or lack thereof) of Petitioner’.
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`It is
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`respectfully submitted that this is an insufficient explanation of the “relevance" of those
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`particular exhibits. To allow such a conclusory claim of relevance as sufficient to
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`comply with the TTAB's rule would be allow any party to easily circumvent the rule itself.
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`Respondent's statement provides no guidance to either the TTAB or to Petitioner as to
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`

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`“how" the evidence is, in fact. ‘‘relevant'‘ to any claim or defense in this proceeding and,
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`therefore, requires further explanation by Respondent of the relevance of the proffered
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`evidence.
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`Conclusion
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`In view of the foregoing, Petitioner requests the TTAB to strike Exhibits 12, 13,
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`14, 15, 16, 17, 18, 21, 24, 25, 26, 27, 28, 29, 30, 36, 37, 41, 42(in part) and 43(in part)
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`from Respondent's Notice of Reliance filed in this proceeding.
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`Dated: June 16,2015
`
`Respectfully submitted,
`
`{Melissa Alcantaral
`
`Samuel D. Littlepage, Esquire
`Melissa Alcantara, Esquire
`DICKINSON WRIGHT PLLC
`
`international Square Building
`1875 Eye Street, N.W., Suite 1200
`Washington, DC. 20006-5420
`Tel:
`(202) 457-0160
`Fax:
`(202) 659-1559
`Email:
`s|ittlepage@dickinsonwrightcom
`Email:
`rnalcantara@ciickinsonwright.com
`
`Counsel for Petitioner
`
`

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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the foregoing
`
`PETITIONER ECONOMY RENT-A-CAR, lNC.’S MOTION TO STRIKE PORTIONS OF
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`RESPONDENT'S NOTICE OF RELIANCE was served this 16th day of June, 2015,
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`upon Respondent's counsel of record, via first class mail, postage prepaid, and email as
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`identified below:
`
`Peter S. Sloane
`
`Cameron Reuber
`
`LEASON ELLIS LLP
`
`One Barker Avenue, Fifth Floor
`White Plains, New York 10601
`Tel: (914)288-0022
`Fax: (914) 288-0023
`Email: sloane@|easonellis.com
`
`‘_"-‘E i I
`Michelle DiCarlo
`
`Paralegal
`
`-E !'I D
`
`

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`PET|T|ONER’S
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`EXHIBIT A
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`

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`STANDARD INNOVATION CORPORATION, PETITIONER, v. LELO, INC, PATEN... Page I of 13
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`STANDARD INNOVATION CORPORATION, PETITIONER, v. LELO, INC, PATENT OWNER.
`2o1swL1eue7:so Ami 21.2015 (Approx. 19 pages]
`
`2015 WL 1906730 (‘Patent Tr. & App. Ed.)
`
`Patent Trial and Appeal Board
`
`Patent and Trademark Office (P T 0.)
`
`STANDARD INNOVATION CORPORATION, PETITIONER,
`v
`
`LELO, INC, PATENT OWNER.
`
`Case IPRZD14-D0148
`Patent 7.749.173 B2
`April 23. 2015
`
`FOR PETITIONER:
`'1 Robert P Lord
`Tammy Terry
`Lisa E Margonis
`OSHA LIANG LLP
`
`Iord@osI1aIiang oom
`Ierry@oshaIlang com
`margonIs@osha|Iang.com
`
`FOR PATENT OWNER:
`Robert A. Hulse
`Hector J Ribera
`FENWICK 8- WEST LLP
`rhu|se@Ienwl'ck,com
`I1ribera@I'enwick com
`
`Before PHILLIP J. KAUFFMAN.JACOUE1.INE WRIGHT BONILLA. and CHRISTOPHER L
`CRUMBLEY
`Administrative Patent Judges
`KAUFFMAN
`Administrative Patent Judge
`
`FINAL WRITTEN DECISION
`
`JSUSC §318fa)artd37CFR §4273
`
`I BACKGROUND
`
`A. Procedural History
`
`Standard Innovation Corporation ("Petitioner") tiled a Petition (Paper 2, 'Pet.') to institute an
`interpartes review of claims 1-20 and 22-27 ol U.S Patent No 7.749.175 B2 (Ex. 1001. ‘the
`'178 patent‘) pursuant to 35 U S C §§ 311-319 Lelo Inc.. (‘Patent Owner‘) waived its
`preliminary response (Paper 6). In a May 6. 2014. Decision to Institute (Paper 7. ‘Dec '3. we
`instituted trial on claims 1-3, 10-12 14-20. and 22-24 based on the following grounds‘
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`1 CIaIms1-8, 14-20. and 22-24 based on obviousness over LILY. ' Dahl.’ and Kontos; ”
`and
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`2 Claims 10-12 based on obviousness over LILY. Dahl. Kontos. and Mccambridge ‘
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`Patent Owner filed a Patent Owner Response (Paper 12. ‘P0 Resp ‘I.’ and Petitioner filed
`a Reply (Paper 22, “Pet. Reply‘) Patent Owner did not tile a motion to amend.
`
`Patent Owner also filed a Motion to Exclude (Paper 28) certain evidence. which we discuss
`in Section II below
`
`At the request of both parties. oral hearing was held on January 9. 2015. Papers 26 27. and
`:32 A transcript of the oral hearing is Included In the record Paper 33 ("Tr ')
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`After the oral hearing. Pettioner contacted the Board seekng author.zation to file a mot on to
`submit supplemental information under 37 C F R ‘g’ 42 123 After a conference call on the
`matter. we denied Petitioners request for authorization to file such motion Paper 39 see
`also Paper 40 (related enata)
`
`B. The 'i7B patent
`
`'2 The '17B patent relates to a massager with an nductively chargeable power source Ex
`1001.1:13-15
`
`As background, the ‘in patentdescribes that massagers are typically either battery
`powered or run on conventional alternating current (‘AC’) electric ty id at 1 23-25. 7 58 A
`drawback of prior art massagers is that internally contained disposable batteries have limited
`operating time. and replacement of the batteries has been associated with inconvenience
`and expense. id. at 1 26-35 Additionally massagers that operate on AC power tend to be
`unsafe for internal use or use in damp environments. and have the -nconven ence of
`requiring proximity to a wall plug id at 1 36-40
`
`The '1?B palenl also discloses as background that wireless contro's for pr or art massagers
`are limited in function id. at 2 32-33 To overcome these and other drawbacks. the "-73
`patent describes a vibrating rnassager that includes inductive charg ng and a h-gh-y
`functional radio frequency wireless control system id. at 2 40-49 In one embodiment.
`massager system 10 includes inductively chargeable vibrat ng massager 12 and supportive
`inductive charging base 14. id at 3 4-5. 9-10. 41-44.
`
`Figures 1 and 4 otthe '17Ei patent are reproduced below‘
`
`Fig. 4
`Figure 1 is a perspective view of inductively chargeable massage: 12 on charging base 14.
`and Figure 4 is an assembly view of the v'brating massager oi Figure 1
`
`Massager 12 Includes. one oia plurality of d-'tlerent motive sources (eg . vibrating motors
`46A. 463). an energetic coupler ije g.. inductive charging coil 42), and a rechargeable battery
`48. id. at 5:60-63. 16 19-22. Vibrating massager 12 is sealed by ultrasonic welding and
`further by thin bio-compatible “skin” 13 id. at 3 52-55. Controls. in the lonn of two buttons 20
`and 22. are positioned underneath, but are visible and operable through, skin 13 id. at
`4 3-6.
`
`Charging base 14 includes. AC power source 16, power converter 66 (converting AC to
`direct current ('DC')). and inductive coil 64 for inductively coupling the converted power to
`inductive coil 42 of massager 12 to charge battery 45. id. at 7 55-57. Upper surface 14!: of
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`charging base 14 Includes a pair of ovo d indentations 14A and 143 for receiving the ends of
`vibrating massager 12 in a supportive. stable re atit:lnsh'p while being Inductively charged
`id at 4 24-31
`
`C llluslrallve Claim
`
`Of the instituted claims. claim 1, is the sole Independent claim. and is reproduced below‘
`
`'3 1. A rnassager apparatus comprising
`
`[11 a massager including
`
`a first electric motive source,
`
`a rechargeable battery connected to the first electric mot ve source. and
`
`a first coupler connected to the battery.
`
`a massager housing adapted to receive at least the first electric motive source the
`rechargeable battery. and the first coupler,
`
`a soft surface overlaying at least a charging area of the rnassager housing so as to provide a
`substantially smooth operative portion for massagin application to a part of the human
`body:
`
`|
`
`] a base Including
`
`a base housing.
`
`a power connector at least partially contained with n the base housing.
`
`a second coupler contained within the base hous ng connected to the power connector. and
`
`the base hous ng inc'uding a receiving surface formed to support the rnassager housing w th
`the first coupler energetically coupled to the second coupler through the re-celv.ng surface
`wherein the operative portion is in contact with the receiving surface
`
`whereby the battery in the massager can be charged us-ng the base
`
`Ex 1001, claim 1 (numbering designations added)
`
`0 Overview
`
`Each asserted ground of unpatentability relies in part on LILY ° We address a Motion to
`Exclude as it relates to LILY (Ex 1002) and associated exh bits. and then address whether
`Petitioner has demonstrated that LILY is prior art as a printed publ caton under 35 U S C §
`102
`
`II. MOTION TO EXCLUDE
`
`A introduction
`
`As mentioned above. Patent Owner filed a Motion to Exclude Exhibits 1002. 1010 1013-
`1023 and 1026-1029 under the Federal Rules of Evidence (‘Fed R Evid ') Paper 23
`("Mot '). Petitioner tiled an Oppos tlon to the Motion (Paper 30. ‘Opp '). and Patent Owner
`filed a Reply to the Opposition (Paper 31. ‘Opp Reply‘) For the follow:ng reasons. Patent
`Owner's motion is granted’-in-part and denied-in-part
`
`Prior to filing its Motion to Exclude. Patent Owner objected to Exhibits 1002 and 1010 within
`the required ten business days of institution of trial (qirst set of objections‘) 7 37 C F R 5
`42.64(b)(1) Ex 2020 2-3. Patent Owner objected to Exh bits1013-1023 and 1025-1029
`within the required five business days of serv ce of the exhibits (‘second set of ob1ectons') '
`37 C F R §42.B4(b)(1). Ex. 2030. 2-5 Petitionerd d not respond to the first set ofobiectuons.
`and responded to some of the second set of objections See Ex 2031
`
`Patent Owner preserved both sets ol obtections by filing its Motion to Exclude Exh bits 1002.
`1010 1013-1023, and 1026-1029. The Motion identifes and expla ns the objections Mot
`1-15. 37 C F R. §42 6-t(c) As noted above. Petitioner filed an Opposition to that Mot-on
`(‘Opp '). a-d Patent Owner filed a Reply to that Opposition (‘Opp Rep'y') As moving party.
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`STANDARD INNOVATION CORPORATION, PETITIONER, v. LELO, INC, PATEN... Page 4 of 13
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`Patent Owner bears the burden of proof to establish that it is entitled to the requested relief
`See 37 C F R §§ 42 20ic}. -12.62(a)
`
`"4 Before addressing the merits of the Motion to Excfude. we address an interretated
`procedural issue
`
`3 Exhibits 1013-1022. 1031. 1032 as SuppiementatEv.i'dence"
`
`Petitioner contends that Patent Owner tirst cha lenged the publication date of Exh-bit 1002
`(LILY) in its Patent Owner Response. alter the ten business day deadline of 37 C.F R §
`42 64(b) Pet Reply 14 As detailed be'ow. th s oontention contiates different deadl.nes and
`the issues of a challenge to the sutflciency or evidence in a Patent Owners response and
`that of a challenge to the admissbility of ev dence under 37 C F R § 42 64(1)) See generally
`Gmupon inc. v Blue Calypso. LLC. Case CBM2013-00033. si.p op at 25 (PTAB May 12.
`2013) (Paper 29) (dstinguishlng admEssib:|ity of evidence trom sufficiency of ev.dence)
`
`The Patent Owner Response challenges the sutliciency of proof that Exhibit 1002 is prior art
`as a printed publication under 35 U 5 C § 102 PO Resp 9-23 (challenging the pubflcation
`date and accessibility ot the reference] The time lim t of 37 C F R § 42.!-i4(b) does not apply
`to a Patent Owner's response Separate y. Patent Owner also challenged the admissabi ty of
`Exhibit 1002 -n ts first set oi’ ob,ect-ons As noted above. Patent Owner served those
`objections within the requ red ten business days of insilution oi trial 37 C F R § 42 64(0)
`(1). Ex. 2020. 2-3 Consequently. both Patent Owner's challenge to the sufficiency oi the
`evidence in its Patent Owner Response and its chalenge to the admiss bilaty of the evidence
`in its objections are proper and timely
`
`Although Patent Owner has complied with 37 C F R § 42 64(b:. Petit oner has not
`Petitioner submitted Exhib is 1013-1022. 1031. and 1032wth ts Reply. arguably In
`response to arguments raised in the Patent Owner Response See Pet Reply I i, iv. 12-15.
`37 C F R. § 42 23(b} PO Resp 9 (contending that Exhib t 1002 s not a printed publication)
`In its Reply. Pet.tioner rei es upon each of these exhibits In support or the admlssib '.ity of
`Exhibit 1002. but on y after it chose not to submit those exhibits as supplemental evidence
`within ten business days of Patent Owner's first set of objections See Opp 1-5_ 37 C F R §
`42 64(b)(2) Patent Owner's chat enge to the sufflciency of proof that Exhibit 1002 Is a
`printed publication does not create a second window for Petitioner to subm-t suppiementa.
`ev dence See Opp Reply 4-5 (arguing that the Exhibits at issue should have been
`submitted in response to Patent Owner's objections)
`
`Interpreting 37 0 FR. § 42 23(b) to permit consideration of these exhzbits with regard to the
`admissibility of Exhibit 1002 would evisoerate the requirement that supplemental evidence
`he served within ten business days See 37 C F R §§ 42 23(b). 42 64(b)(1) Such an
`interpretation would not promote the just. speedy. and inexpensive reso ution of this
`proceeding See 37 C F R § 42 1th) "Petitioner wanted consideration of those exhibits
`with regard to the adm sslbility of Exhibl 1002. Petitioner could have served Patent Owner
`with the exhibits as supplemental evidence in a timely manner. In accordance with § 42 64
`(him It it had done so. thereafter. Petitoner could have filed and relied upon such ev'dence
`appropriately nits Opposition to the Motion to Exc'ude
`
`'5 Accordingly. our determination regarding the adm=ssibllity of Exhibit 1002 w it not consider
`Exhibits 1013-1022, 1031. and 1032 as supplemental evidence
`
`C Exhibits 1013-1023
`
`These exhibits are inadmissible tor the reasons that to: ow
`
`1 Authentication
`
`a Exhibits 1013-1022
`
`In its Opposition to the Motion to Exclude. Petitioner indicates that each of these exhibits are
`printouts oi webpages. Opp 7-12
`
`Patent Owner contends that these exh.-bits were not properly authenticated under Federal
`Rules of Evidence 901 and 902 Mot 5-11 Pet-tloner responds that each exhibit has distinct
`characteristics that authenticate it under Federal Rule of Evidence 901(b)(4). but does not
`identity any such characteristics Opp 7-13
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`Federal Rule of Evidence 901 requires that the proponent produce evidence sufficient to
`support a finding that an item is what the proponent claims it is. When offering a printout of a
`webpage into evidence to prove the website's contents. the proponent of the evidence must
`authenticate the information trom the webs ie ltsei not merely the printout See Victauiic Co
`v Tieman. 499 F 3d 227 236 (ad Cir 2007:. as amended (Nov 20, 2007) (cit-ng United
`States v. Jackson 203 F 3d 633. 638 (7th Cir 2000:). For this reason the Board has stated
`that '[t|o authenticate printouts from a webs te. the party protfering the evidence must
`for
`produce some statement or affidavit trom someone w ih knowledge of the website
`exampte a web master or someone else with persona! knowledge would be sufficient ' EMC
`Corp. v. Personativeb Techs. i.l.C Case lPR2013-00084, slip op 45 (PTAB May ‘.5 2014)
`(Paper 134) (quoting St. t.uke's Cataract is Laser inst. P.A. v. Sanderson. No B 06-CV-22$
`T-M5S_ 2006 WL 1320242 at '2 (M D Fta May 12. 2006)}; see also liictauiic Co v
`Tieman. 499 F.3d 227. 236 (3d Cir 2007) (c ting with approval the hold rig in in re
`Hornestorecom, inc Sec t.iti'g.. 34? F Supp 2d 769. 782-83 (C.D Cal 2004] that printouts
`oi webpages must be authenticated by a witness).
`
`Petitioner has not provided the testirriony of any witness with personal knowledge of the
`information on the website or the associated printouts for any of the exhibits at issue "1
`
`Exh bits 1015, 1016. and 1022 appear to be printouts oiwebpages retrieved from the
`lntemet Archive's 'Waybaci< Mach ne.' which shows archived versions ct other websites
`our reviewing court has held that printouts of webpages from the Wayback Machine were
`admissible under Federal Rule of Evidence 901(b)(1) where the proponent prov ded one of
`two types of supporting ev denoe- one a witness that testified regarding how the Wayback
`Machine worked and how reliable its contents were. or two. a witness having persona'
`knowledge that the printouts were authent c. iJ.S v. Barisai, 663 F.3d 634. 667-8 (Fed Cir
`201 1). Here. in contrast to Bansai. Petit oner has not provided either form of support rig
`evidence.
`
`'6 Consequently, Exh hits ‘D13-1022 are inadmiss bie ..nder Federal Rule oi Evidence 901
`because Petitioner has not put forth suffcent evidence to support a finding that these
`exh bits are what Petitioner cia ms. or that any of these exhibits is sell-authenticating -.nder
`Federal Rule of Evidence 902
`
`b. Exhibit 1023
`
`Petitioner contends that Exhibit 1023 ‘is a screenshot show rig a PDF copy of Exhibit 1002
`as it was found oniine and its automatically computer generated docurnent properties ' Opp
`12, Pet Reply 13 The left side of Exhibit 1023 is fitted ‘Document Properties ' and the right
`side of the exhlb I shows a document similar in appearance to page 1 of Exhibt 1002 Ex
`1023 The Document Propert es section indicates a created date of October 13. 2005 and a
`modified date of October 15 2005. id. Patent Owner argues that Exhibi 1023 is not properly
`authenticated under Fedora‘ Rules of Evidence 901 and 902 Met. 12 Petitioner responds
`that the authenticity of this exhibit is corroborated by the distinct characteristics of the LELO
`name and description of LEl.O's product (Lily) as presented the exhi|:i.t.. in conjunction with
`the circumstances Opp 13 Petitioner does not elaborate on those circumstances id
`
`Petitioner has provided no evidence regarding the significance and reiiability of the created
`and modified dates in Exhibit 1023 Petitioner has provided .-nsutficient evidence ‘inking
`Exhibit 102:1 to Exhibit 1002 For example. Petitioner has not provided testimony of any
`witness with personal knowledge of the information on the website(s) or the associated
`printouts at ssue indeed Petitioner has not identifed the website(s) from which Exhibits
`1023 and 1002 were downloaded. The fact that Exhilzi t 1023 bears the 'LELO" name and
`properties of the Lily dev.ce provides '.it1|e support regardng the authenticity oi Exh:bit 1002
`or Exhibit 1023
`
`Consequently. Exhibt 1023 is inadmissible under Federal Ruie of Evidence 901 because
`Petitioner has not put forth sufficient evidence to support a finding that this exh bit is what
`Petitioner claims. or that the exhibit is self-authenticating under Federal Ru e of Ev.r.tence
`902
`
`2. Hearsay
`
`Patent Owner contends that the dates in Exhibits 1013-1023 are hearsay under Federal
`Rule of Evidence 802 Mot 6-12 Petitioners contentions vary by exhibit as detailed below if
`an exception does not apply. the rute against hearsay operates to prohibit out-of-court
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`statements from being offered to prove the truth oi the matter asserted Fed R Evid
`301-803
`
`a Exhibit 1013
`
`'7 Petitioner represents that Exhibit 1013 consists of printouts ot the webpages that te'l the
`full story of LELO's 10-year history " Opp. 2. T The first page oi Exh.bit 1013 Includes the
`statements ‘LELO.’ '10 YEARS OF PLEASURE.‘ "A VIRTUAL TOUR OF HOW LELO
`BEGAN.’ and "0 2003-2013 LELOI A8 ' id. at 1. The exhibit describes that In Stockholm in
`2003. LELO team members initially sought to create a massager. id at 3. The story goes on
`to state that this led to development and marketing of the massagers 'IDA‘ and ‘LILY ' id. at
`19.
`
`'i‘.'i
`Petitioner relies upon the dates indicated on Exhibit 1013, I e . ‘(Z003)’ (Ex 1013. 1:-.
`2003-2014' (id at 2). as proof of a date that Exhibit 1002 was disseminated publicly Opp
`2-3”. 7, Pet. Reply 1:
`
`Petitioner contends the dates In Exhibit 1013 are not hearsay because they are party
`admissions Opp 8. Fed R. Evid. B01(d)(2) For the reasons that Io‘.Iow Petitioner has not
`presented suflicient evidence to establish that the admissions of Le'oi AB should be
`attributed to Petitioner (Lelo, Inc ).
`
`Exhibit 1013 refers to Lelol AB and makes no reference to Patent Owner (Le o. Inc) Ex
`1013 Lelol AB is not the parent company of Patent Owner Opp Rep y 1 (citing Ex. 2040;-
`Patent Owner was not incorporated until 2006 (Opp Reply 1. Ex 2032). three years alter
`the beginning of the LELO story told in Exhibit 1013 According to Patent Owner's counsel.
`Leloi AB is a Swedish company that is not a party to these proceed.ngs and 'Le!o.com' [the
`website Exhibit 1013 recites) is Leloi AB‘: website Ex. 10:52 3. Tr 29.30
`
`Petitioner contends that Patent Owner is in the best position to verily the pubtication date of
`Exhibit 1002. and therefore. by extension. Exhibit 1013 " Opp 4 First. as the proponent oi
`Exhibit 1013. it is Petit-oner's burden to establish adm-sszbility Second Petitioner submitted
`a request to Patent Owner to depose a corporate representative of Lelol AB and Lelo Inc
`regarding the publication date of Exhibit 1002. Ex. 1032. 3-4 Patent Owner refused to
`comply with the deposition requests tor several reasons id. at 2-3 In particular. Patent
`Owner asserted that the depositions sought were not part of routine discovery. and had not
`been authorized as additional discovery i'd.. 37 C F R. §§ 42.51(b)(l). 42 51(b)(2) 42 52
`Following this. Petitioner did not seek a conterence call with the Board on the matter. nor did
`Petitioner otherwise seek authorization to file a motion for add tional discovery Petitioner
`Indicates it based its inaction. at least in part. on the better that the evidence of record was
`sufficient to demonstrate that Exhibit 1002 was a printed publicaton Tr 65-66 Under these
`circumstances. Petitioners contentions do not persuade us that the dates in Exhibit 1013
`constitute party admissions
`
`'8 Petitioner contends that even i the dates in Exhibit 1013 are hearsay. they are adm-.ssible
`under Federal Rule of Evidence B07 Opp 6
`
`Federal Rule of Evidence 607 prov des a ‘residual exception" to the hearsay ru e. which may
`apply even it no specific exception of Federal Ru