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`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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`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
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`v.
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`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
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`—————————————
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`Case CBM2012-00002
`Patent 6,064,970
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`—————————————
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`PATENT OWNER’S NOTICE OF OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`CLI-2138992
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`The undersigned, on behalf of Patent Owner Progressive Casualty Insurance
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`Case CBM2012-00002
`Patent 6,064,970
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`Co. (“Patent Owner”), hereby provides Notice to the Board that the objections
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`made on the record herewith were served to Liberty Mutual Insurance Co. pursuant
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`to 37 C.F.R. § 42.64. See also 37 C.F.R. § 42, Office Patent Trial Practice Guide,
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`part II, § I (77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012)).
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`September 4, 2013
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`By:
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`Respectfully submitted,
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`JONES DAY
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`/s/Calvin P. Griffith
`Calvin P. Griffith
`Registration No. 34,831
`JONES DAY
`North Point
`901 Lakeside Avenue
`Cleveland, Ohio 44114-1190
`(216) 586-3939
`(216) 579-0212 (Fax)
`Attorney For Patent Owner
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`CLI-2138992
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`1
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`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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`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
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`v.
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`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
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`—————————————
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`Case CBM2012-00002
`Patent 6,064,970
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`—————————————
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`PATENT OWNER’S OBJECTIONS TO
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64
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`CLI-2138992
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`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of Patent
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`Case CBM2012-00002
`Patent 6,064,970
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`
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`Owner Progressive Casualty Insurance Co. (“Patent Owner”), hereby submits the
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`following objections to Exhibits 1031-1033 filed on August 27, 2013 by Liberty
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`Mutual Insurance Co. (“Liberty” or “Petitioner”) in response to Patent Owner’s
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`Objections to Evidence, filed August 13, 2013. Pursuant to 37 C.F.R. § 42.62,
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`Patent Owner’s objections below apply the Federal Rules of Evidence (“F.R.E.”).
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`I.
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`PATENT OWNER MAINTAINS ITS PRIOR OBJECTIONS
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`Patent Owner maintains all objections it previously set forth, including its
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`objections filed on August 13, 2013. (See CBM2012-00002, Paper No. 34).
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`II. EXHIBITS 1031-1033 GO BEYOND EVIDENCE PERMITTED
`UNDER 37 C.F.R. § 42.64(B)(2)
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`37 C.F.R. § 42.64(b)(2) provides that a “party relying on evidence to which
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`an objection is timely served may respond to the objection by serving supplemental
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`evidence within ten business days of service of the objection.” Patent Owner
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`objects to Exhibits 1031-1033 because they go beyond, and are not proper
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`supplemental evidence pursuant to, 37 C.F.R. § 42.64(b)(2).
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`III. OBJECTIONS TO EXHIBIT 1031 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1031, Declaration of Scott Andrews,
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`dated August 26, 2013 (“Andrews Third Declaration”).
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`CLI-2138992
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`1
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`
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`Grounds for objection: 37 C.F.R. § 42.61 (Admissibility of Evidence),
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`Case CBM2012-00002
`Patent 6,064,970
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`
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`F.R.E. 402 (Relevance), F.R.E. 403 (Excluding Relevant Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons), F.R.E. 901 (Authentication), 37
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`C.F.R. § 42.223 (Filing of Supplemental Evidence), F.R.E. 702, 703, 705 (Witness
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`Not Qualified to Provide Expert Testimony), F.R.E. 602 (Lack of Personal
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`Knowledge), F.R.E. 801, 802 (Impermissible Hearsay), 37 C.F.R. § 42.23(b)
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`(Outside Scope of Response and Petition), and the Andrews Third Declaration is
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`unauthorized testimony.
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`Patent Owner advanced no position that provides a proper basis for the
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`belated submission of the Andrews Third Declaration or the exhibits referenced
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`therein, i.e., the Andrews Second Declaration (Exhibit 1019), a purported copy of
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`an article titled “Application of a Clustering Adaptive Fuzzy Logic Controller in a
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`Brushless DC Drive” (Exhibit 1020), and the Stark Declaration (Exhibit 1030).
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`(37 C.F.R. § 42.23(b); 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial
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`Practice Guide, part II, § I, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012)). The
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`statements in the Andrews Third Declaration have no relevant bearing on any issue
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`properly raised in this proceeding or argued by Patent Owner. (F.R.E. 402, 403; 37
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`C.F.R. § 42.61). Rather, the Andrews Third Declaration is an attempt to raise new
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`theories to support invalidity arguments in an effort to establish a prima facie case
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`of unpatentability of the claims that should have been submitted with the
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`CLI-2138992
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`2
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`Petitioner’s petition.1 The content of the Andrews Third Declaration and Exhibits
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`Case CBM2012-00002
`Patent 6,064,970
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`1019, 1020, and 1030 are either inapplicable or should have been submitted when
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`the petition for review was filed, not after the institution of this trial. (F.R.E. 403;
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`37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide, part II, § I).
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`Further, Andrews’s new testimony could have been elicited during direct
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`examination in the first instance. (Id.) Andrews’s attempt to now offer testimony
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`in his Third Declaration is not rebuttal evidence and must not be allowed to
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`remedy any deficiency with the improperly filed Andrews Second Declaration.
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`Nor is Andrews’s characterization in ¶ 4 that he “was not attempting to clarify [his]
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`testimony” in Exhibit 1019 change that fact that he was clarifying his testimony.
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`1 For example, in ¶ 3, Andrews challenges Patent Owner’s objection that he
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`is raising new theories in order to make out a prima facie case. Andrews bases this
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`challenge on his understanding that “the Board already found [a prima facie case]
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`to exist in its Institution Decision.” This challenge demonstrates Petitioner’s and
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`Andrews’s profound misunderstanding as to what is proper to raise in a reply or
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`rebuttal declaration. The fact that the Board instituted this case does not mean that
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`Petitioner and Andrews are free to later raise new arguments and introduce new
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`evidence that should have been offered at the time of filing the Petition.
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`CLI-2138992
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`3
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`
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`The Andrews Third Declaration was not authorized by the Board. None of
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`Case CBM2012-00002
`Patent 6,064,970
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`
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`the PTAB rules or regulations authorizes filing new testimonial evidence in
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`conjunction with a Petitioner reply that does not arise from the submission of a
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`substitute claim or is responsive to a Patent Owner’s claim amendments, especially
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`in light of the prejudice to Patent Owner because there is no opportunity to respond
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`to or rebut new declarations submitted at this stage. Consequently, the Andrews
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`Third Declaration is both outside the scope of the Patent Owner’s Response and
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`impermissible supplemental evidence. (37 C.F.R. § 42.223; 37 C.F.R. § 42.23(b);
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`37 C.F.R. 42, Office Patent Trial Practice Guide, part II, § I).
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`Petitioner apparently presents the Andrews Third Declaration, and
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`specifically ¶ 5, in an attempt to verify the source, dates and authenticity of Exhibit
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`1020 and the veracity of Exhibit 1030. Stark claimed that Exhibit 1020 is a “true
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`and correct copy” of Exhibit 1020 (Exhibit 1030, at ¶ 3), but the Andrews Third
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`Declaration only establishes that Andrews downloaded a document on July 31,
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`2103, not that he downloaded Exhibit 1020. Andrews also fails to provide any
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`relevant statement or personal knowledge regarding the original publication date of
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`Exhibit 1020. (F.R.E. 402, 602, 901; 37 C.F.R. § 42.61). He fails to establish any
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`proper basis for concluding that it is a true and accurate copy as it existed at the
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`time of publication. (F.R.E. 402, 901; 37 C.F.R. § 42.61). Therefore, the
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`CLI-2138992
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`4
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`declaration and testimony regarding Exhibit 1020 are both prejudicial and
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`Case CBM2012-00002
`Patent 6,064,970
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`irrelevant to any issue in this proceeding. (F.R.E. 402, 403; 37 C.F.R. § 42.61).
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`Furthermore, the Andrews Third Declaration seeks to verify the source of
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`Exhibit 1020 even though it is inadmissible supplemental evidence and not
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`relevant to any issue of this proceeding. (F.R.E. 402; 37 C.F.R. § 42.61; 37 C.F.R.
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`§ 42.23(b); 37 C.F.R. § 42, Office Patent Trial Practice Guide, part II, § I).
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`Consequently, the Andrews Third Declaration is irrelevant, outside the scope of
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`Patent Owner’s Response, and constitutes impermissible supplemental evidence.
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`(37 C.F.R. § 42.223; 37 C.F.R. § 42.23(b); 37 C.F.R. § 42, Office Patent Trial
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`Practice Guide, part II, § I).
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`All the statements contained in the Andrews Third Declaration are out of
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`court statements offered for the truth of the matter asserted therein and constitute
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`impermissible hearsay. (F.R.E. 801, 802). Further, the Andrews Third Declaration
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`refers to out of court statements offered for the truth of the matter asserted therein,
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`and they also constitute impermissible hearsay. (F.R.E. 801, 802).2 Nor has a
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`showing been made that a hearsay exception or exclusion applies.
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`2 For example, in ¶ 5, Andrews refers to Stark’s Declaration (Exhibit 1030)
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`as to the website from which Exhibit 1020 was downloaded.
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`CLI-2138992
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`5
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`Additionally, the Andrews Third Declaration is not relevant because
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`Case CBM2012-00002
`Patent 6,064,970
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`
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`Andrews is not qualified to testify and lacks the necessary “scientific, technical, or
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`other specialized knowledge [to] help the trier of fact to understand the evidence or
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`to determine a fact in issue” because he is not sufficiently knowledgeable about the
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`subject matter on which he has offered his opinions in his declaration. (F.R.E.
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`702; 37 C.F.R. § 42.61; 37 C.F.R. § 42.65; see also F.R.E. 402, 703, 705).
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`Accordingly, permitting any reliance on this purported expert testimony
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`submissions of Petitioner would be misleading and unfairly prejudicial to Patent
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`Owner. (F.R.E. 403).
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`IV. OBJECTIONS TO EXHIBIT 1032 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1032, Declaration of Mary Lou
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`O’Neil, dated August 27, 2013 (“O’Neil Third Declaration”).
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`Grounds for objection: 37 C.F.R. § 42.61 (Admissibility of Evidence),
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`F.R.E. 402 (Relevance), F.R.E. 403 (Excluding Relevant Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons), F.R.E. 901 (Authentication), 37
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`C.F.R. § 42.223 (Filing of Supplemental Evidence), F.R.E. 702, 703, 705 (Witness
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`Not Qualified to Provide Expert Testimony), F.R.E. 602 (Lack of Personal
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`Knowledge), F.R.E. 801, 802 (Impermissible Hearsay), 37 C.F.R. § 42.23(b)
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`CLI-2138992
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`6
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`(Outside Scope of Response and Petition), and the O’Neil Third Declaration is
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`Case CBM2012-00002
`Patent 6,064,970
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`unauthorized testimony.
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`Patent Owner advanced no position that provides a proper basis for the
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`belated submission of the O’Neil Third Declaration or the exhibits referenced
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`therein, i.e., the O’Neil Second Declaration (Exhibit 1022) and a purported copy of
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`Interpretative Opinion Nos. 3 and 4 (Exhibit 1023). (37 C.F.R. § 42.23(b); 37
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`C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide, part II, § I). The
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`statements in the O’Neil Third Declaration have no relevant bearing on any issue
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`properly raised in this proceeding or argument raised by Patent Owner. (F.R.E.
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`402, 403; 37 C.F.R. § 42.61). Rather, the O’Neil Third Declaration is an attempt
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`to raise new theories to support invalidity arguments in an effort to establish a
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`prima facie case of unpatentability of the claims that should have been submitted
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`with the Petitioner’s petition.3 The content of the O’Neil Third Declaration and
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`3 For example, in ¶ 3, O’Neil challenges Patent Owner’s objection that she is
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`raising new theories in order to make out a prima facie case. O’Neil bases this
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`challenge on her understanding that “the Board already found [a prima facie case]
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`to exist in its Institution Decision.” As indicated in footnote 1, supra, this
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`challenge demonstrates Petitioner’s and O’Neil’s profound misunderstanding as to
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`what is proper to raise in a Reply or rebuttal declaration. The fact that the Board
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`CLI-2138992
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`7
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`Exhibits 1022 and 1023 are either inapplicable or should have been submitted
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`Case CBM2012-00002
`Patent 6,064,970
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`when the petition for review was filed, not after the institution of this trial. (F.R.E.
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`403; 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide, part II,
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`§ I).
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`Further, O’Neil’s new testimony could have been elicited during direct
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`examination in the first instance. (Id.) O’Neil’s attempt to now offer testimony in
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`her Declaration is not rebuttal evidence and should not be allowed to remedy any
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`deficiency with the improperly filed O’Neil Second Declaration.
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`The O’Neil Third Declaration was not authorized by the Board. None of the
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`PTAB rules or regulations authorizes filing new testimonial evidence in
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`conjunction with a Petitioner reply that does not arise from the submission of a
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`substitute claim or is responsive to a Patent Owner’s claim amendments, especially
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`in light of the prejudice to Patent Owner because there is no opportunity to respond
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`to or rebut new declarations submitted at this stage. Consequently, the O’Neil
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`(continued…)
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`instituted this case does not mean that Petitioner and O’Neil are free to later raise
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`new arguments and introduce new evidence that should have been offered at the
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`time of filing the Petition – theories to which Patent Owner has no opportunity to
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`rebut or respond.
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`CLI-2138992
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`8
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`Third Declaration is both outside the scope of Patent Owner’s Response and
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`Case CBM2012-00002
`Patent 6,064,970
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`impermissible supplemental evidence. (37 C.F.R. § 42.223; 37 C.F.R. § 42.23(b);
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`37 C.F.R. 42, Office Patent Trial Practice Guide, part II, § I).
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`Petitioner apparently presents the O’Neil Third Declaration, and specifically
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`¶ 4, in an attempt to verify the source, dates and authenticity of Exhibit 1022, titled
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`“Interpretative Opinion 3: Professional Communications of Actuaries and
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`Interpretive Opinion 4: Actuarial Principles and Practices.” O’Neil claimed that
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`Exhibit 1023 is a “true and correct copy” of Interpretative Opinion Nos. 3 and 4
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`(O’Neil Second Declaration, at ¶ 6 n.1), but then does not purport to have any
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`knowledge as to Opinion No. 3. (See O’Neil Third Declaration, at ¶ 4.) Even as to
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`Opinion No. 4, O’Neil claims to have been in possession of a hard copy since
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`1982, even though it was purportedly revised in 1990. (See id.) Nor is O’Neil
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`claiming that her hard copy document is identical to Exhibit 1023, but rather
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`simply that it contains similar “substance.” (See id.) O’Neil has failed to provide
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`any relevant statement or personal knowledge regarding the original publication
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`date of the materials submitted as Exhibit 1023 (F.R.E. 402, 602; 37 C.F.R.
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`§ 42.61); and she failed to provide any proper basis for concluding that the
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`document is a true and accurate copy as it existed at the time of publication, to the
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`extent it was published prior to when she purportedly downloaded it on July 30,
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`2013 (F.R.E. 901). Therefore, the declaration, and testimony regarding Exhibit
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`CLI-2138992
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`9
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`1023, is both prejudicial and irrelevant to any issue in this proceeding. (F.R.E.
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`Case CBM2012-00002
`Patent 6,064,970
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`402; 37 C.F.R. § 42.61; F.R.E. 403).
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`Furthermore, the O’Neil Third Declaration seeks to verify the source of
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`Exhibit 1023 even though it is inadmissible supplemental evidence and not
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`relevant to any issue of this proceeding. (F.R.E. 402; 37 C.F.R. § 42.61; 37 C.F.R.
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`§ 42.23(b); 37 C.F.R. § 42, Office Patent Trial Practice Guide, part II, § I).
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`Consequently, the O’Neil Third Declaration is irrelevant, outside the scope of
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`Patent Owner’s Response, and constitutes impermissible supplemental evidence.
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`(37 C.F.R. § 42.223; 37 C.F.R. § 42.23(b); 37 C.F.R. § 42, Office Patent Trial
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`Practice Guide, part II, § I).
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`All the statements contained in the O’Neil Third Declaration are out of court
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`statements offered for the truth of the matter asserted therein and constitute
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`impermissible hearsay. (F.R.E. 801, 802). Further, the O’Neil Third Declaration
`
`refers to out of court statements offered for the truth of the matter asserted therein,
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`and they also constitute impermissible hearsay. (Id.)4 Nor has a showing been
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`made that a hearsay exception or exclusion applies.
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`4 For example, in ¶ 4, O’Neil refers to Exhibit 1023 and the date it was
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`purportedly “adopted” by the American Academy of Actuaries and “republished”
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`by the Actuarial Standards Board.
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`CLI-2138992
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`10
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`Additionally, the O’Neil Third Declaration is not relevant because O’Neil is
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`Patent 6,064,970
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`not qualified to testify and lacks the necessary “scientific, technical, or other
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`specialized knowledge [to] help the trier of fact to understand the evidence or to
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`determine a fact in issue” because she is not sufficiently knowledgeable about the
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`subject matter on which she has offered her opinions in her declaration. (F.R.E.
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`702; 37 C.F.R. § 42.61; 37 C.F.R. § 42.65; see also F.R.E. 402, 703, 705).
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`Accordingly, permitting any reliance on this purported expert testimony in
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`submissions of Petitioner would be misleading and unfairly prejudicial to Patent
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`Owner. (F.R.E. 403).
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`V. OBJECTIONS TO EXHIBIT 1033 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1033, Declaration of Jordan M.
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`Rossen (“Rossen Declaration”), an attorney in the office of Petitioner’s counsel,
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`dated August 27, 2013.
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`Grounds for objection: 37 C.F.R. § 42.61 (Admissibility of Evidence),
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`F.R.E. 402 (Relevance), F.R.E. 403 (Excluding Relevant Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons), F.R.E. 901 (Authentication), 37
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`C.F.R. § 42.223 (Filing of Supplemental Evidence), F.R.E. 702, 703, 705 (Witness
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`Not Qualified to Provide Expert Testimony), F.R.E. 602 (Lack of Personal
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`Knowledge), F.R.E. 801, 802 (Impermissible Hearsay), 37 C.F.R. § 42.23(b)
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`CLI-2138992
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`11
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`(Outside Scope of Response and Petition), and the Rossen Declaration is
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`unauthorized testimony.
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`Petitioner apparently presents the Rossen Declaration in an attempt to verify
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`the source, date and/or authenticity of Exhibits 1021 and 1024-1029 and
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`substantiate the allegations in Exhibit 1030 that they are “true and correct
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`cop[ies].” However, the Rossen Declaration simply reiterates allegations from
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`Exhibit 1030, indicating that Exhibit 1021 “bears a library identification and date
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`stamp” and Exhibit 1029 contains the date “(8/6/2013 9:34:54 AM) on the bottom
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`of every page” and states that he downloaded documents on August 16, 2013.
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`(Rossen Declaration at ¶¶ 3-9). However, the Rossen Declaration only establishes
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`that what he allegedly downloaded on August 16, 2103 were not Exhibits 1024-
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`1029 and, in fact, differed in formatting as to Exhibit 1029 and differed in
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`formatting and headings as to Exhibit 1028. (See id. at ¶¶ 8-9). Rossen also fails
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`to provide any relevant statement or personal knowledge regarding the original
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`publication date of Exhibits 1021 and 1024-1029 or that the statements in Exhibit
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`1030 are accurate. (F.R.E. 402, 602, 901; 37 C.F.R. § 42.61). He fails to establish
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`any proper basis for concluding that Exhibits 1021 and 1024-1029 are true and
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`accurate copies as they existed at the time of publication. (F.R.E. 402, 901; 37
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`C.F.R. § 42.61). Therefore, the declaration and testimony regarding Exhibits 1021
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`12
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`and 1024-1029 are both prejudicial and irrelevant to any issue in this proceeding.
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`Case CBM2012-00002
`Patent 6,064,970
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`(F.R.E. 402, 403; 37 C.F.R. § 42.61).
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`The Rossen Declaration is also unauthorized. None of the PTAB rules or
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`regulations authorizes filing a new declaration as to new exhibits in conjunction
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`with a Petitioner Reply that do not arise from the submission of a substitute claim
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`or is responsive to a Patent Owner’s claim amendments, especially in light of the
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`prejudice to Patent Owner because there is no opportunity to respond to or rebut
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`new declarations submitted at this stage. Furthermore, the Rossen Declaration
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`seeks to verify the source of a documents that are inadmissible supplemental
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`evidence and not relevant to any issue of this proceeding. (F.R.E. 402; 37 C.F.R.
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`§ 42.23(b); 37 C.F.R. § 42.61; 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent
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`Trial Practice Guide, part II, § I). Consequently, the Rossen Declaration is
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`irrelevant, outside the scope of Patent Owner’s Response, and constitutes
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`impermissible supplemental evidence. (Id.)
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`All the statements contained in the Rossen Declaration are out of court
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`statements offered for the truth of the matter asserted therein and constitute
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`impermissible hearsay. (F.R.E. 801, 802). Further, the Rossen Declaration refers
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`to out of court statements offered for the truth of the matter asserted therein, and
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`CLI-2138992
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`13
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`they also constitute impermissible hearsay. (Id.)5 Nor has a showing been made
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`Patent 6,064,970
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`that a hearsay exception or exclusion applies.
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`VI. CONCLUSION
`For at least these reasons, the Patent Owner objects to Exhibits 1031-1033.
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`September 4, 2013
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`By:
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`Respectfully submitted,
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`JONES DAY
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`/s/Calvin P. Griffith
`Calvin P. Griffith
`Registration No. 34,831
`JONES DAY
`North Point
`901 Lakeside Avenue
`Cleveland, Ohio 44114-1190
`(216) 586-3939
`(216) 579-0212 (Fax)
`Attorney For Patent Owner
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`5 In ¶¶ 3-9, Rossen refers to Stark’s Declaration (Exhibit 1030) as to what it
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`indicates and refers to a “library identification and date stamp” on Exhibit 1021.
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`CLI-2138992
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`14
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`CERTIFICATE OF SERVICE
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`I certify that a copy of the foregoing PATENT OWNER’S NOTICE OF
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`OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 and PATENT
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`OWNER’S OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64
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`were served on September 4, 2013 by causing them to be sent by email to counsel
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`for the Petitioner at the following email addresses:
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`Steven.baughman@ropesgray.com
`Nicole.jantzi@ropesgray.com
`James.myers@ropesgray.com
`LibertyMutualPTABService@ropesgray.com
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`/s/ John V. Biernacki
`John V. Biernacki
`Registration No. 40,511
`JONES DAY
`North Point
`901 Lakeside Avenue
`Cleveland, Ohio 44114-1190
`Attorney For Patent Owner
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