UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`______________
`
`Case CBM2012-00002
`Patent 6,064,970
`______________
`
`Before the Honorable JAMESON LEE, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`PETITIONER LIBERTY MUTUAL INSURANCE CO.’S FIRST SET OF
`OBJECTIONS TO PATENT OWNER PROGRESSIVE CASAULTY
`INSURANCE CO.’S EXHIBITS
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting in
`
`
`
`a representative capacity for Petitioner, Liberty Mutual Insurance Company
`
`(“Petitioner”), hereby submits the following objections to Patent Owner Progressive
`
`Casualty Insurance Co.’s (“Patent Owner”) Exhibit 2012, Exhibit 2013, Exhibit 2016,
`
`Exhibit 2018, and any reference to/reliance on the foregoing, and to citations to
`
`Exhibit 2013 and Exhibit 2018 in Patent Owner’s Response Pursuant To 37 C.F.R. §
`
`42.220 (“Response” or “Resp.”). As required by 37 C.F.R § 42.62, Petitioner’s
`
`objections below apply the Federal Rules of Evidence (“F.R.E.”).
`
`
`
`Liberty Mutual Exhibit 1035
`Liberty Mutual v. Progressive
`CBM2012-00002
`Page 00001
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`______________
`
`Case CBM2012-00002
`Patent 6,064,970
`______________
`
`Before the Honorable JAMESON LEE, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`PETITIONER LIBERTY MUTUAL INSURANCE CO.’S FIRST SET OF
`OBJECTIONS TO PATENT OWNER PROGRESSIVE CASAULTY
`INSURANCE CO.’S EXHIBITS
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting in
`
`
`
`a representative capacity for Petitioner, Liberty Mutual Insurance Company
`
`(“Petitioner”), hereby submits the following objections to Patent Owner Progressive
`
`Casualty Insurance Co.’s (“Patent Owner”) Exhibit 2012, Exhibit 2013, Exhibit 2016,
`
`Exhibit 2018, and any reference to/reliance on the foregoing, and to citations to
`
`Exhibit 2013 and Exhibit 2018 in Patent Owner’s Response Pursuant To 37 C.F.R. §
`
`42.220 (“Response” or “Resp.”). As required by 37 C.F.R § 42.62, Petitioner’s
`
`objections below apply the Federal Rules of Evidence (“F.R.E.”).
`
`
`
`Liberty Mutual Exhibit 1035
`Liberty Mutual v. Progressive
`CBM2012-00002
`Page 00001
`
`
`
`I.
`
`Objections to Exhibit 2012 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2012, and any reference to or reliance thereon.
`
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying Evidence”);
`
`F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time,
`
`or Other Reasons”).
`
`Patent Owner fails to provide for Exhibit 2012 the authentication required by
`
`F.R.E. 901. Patent Owner’s only reference to Exhibit 2012 in the Response states: “A
`
`copy of standards in effect as of 1996 is attached as Exhibit 2012. (Ex. 2012, Miller
`
`Decl. at ¶ 34.)” (Resp. at 8). The Miller Declaration’s only mention of Exhibit 2012
`
`(found in paragraph 34, as cited in the Response), is that “Exhibit 2012 is a copy of
`
`standards in effect as of 1996.” (Ex. 2010 at ¶ 34). There is nothing to indicate that
`
`the document constitutes “standards in effect”, nor is there any information as to
`
`what entity supposedly put this “standard into effect.” This is particularly
`
`objectionable when on its face the document, although not authenticated, purports to
`
`be a “Statement of Principles” issued by one Committee. Patent Owner elsewhere
`
`states in its Exhibit List that Exhibit 2012 is dated “1980,” but nowhere in Exhibit
`
`2012 is a date identified, and no evidentiary support for this assertion is provided.
`
`Similarly, while Patent Owner’s exhibit list refers to Exhibit 2012 as “Risk
`
`Classification Statement of Principles, American Academy of Actuaries Committee on
`
`Risk Classification,” Patent Owner has presented no evidence concerning the origin
`
`of this document or confirming that it is what it is labeled to be. Patent Owner thus
`
`2
`
`Page 00002
`
`
`
`improperly cites to Exhibit 2012 without providing any authenticating evidence
`
`sufficient to support a finding that the item is what Progressive claims it is, in
`
`violation of F.R.E. 901.
`
`Furthermore, to the extent the Response, the Miller Declaration, or any other
`
`submission of Patent Owner purports to refer to or rely on Exhibit 2012, Petitioner
`
`objects to such reference to/reliance on evidence that is not properly authenticated
`
`under F.R.E. 901, and as misleading and unfairly prejudicial (F.R.E. 403).
`
`II. Objections to Portions of Exhibits 2013 and 2018 Previously Objected
`To, and Any Reference to/Reliance Thereon
`
`
`
`Evidence objected to: Exhibits 2013 and 2018.
`
`Grounds for objection: As stated on the record in those documents.
`
`Petitioner maintains its objections set forth on the record during the
`
`depositions transcribed as Exhibits 2013 and 2018. Furthermore, to the extent any
`
`submission of Patent Owner purports to refer to or rely on portions of these
`
`transcripts (Exhibits 2013 and 2018) that are objected to, Petitioner objects to such
`
`reference/reliance on the same basis.
`
`III. Objections to Citations to Exhibit 2013
`
`Evidence objected to: citations to Exhibit 2013, titled “Transcript of
`
`Deposition of Mary L. O’Neil,” on Response pages 20, 20-21, 25-27, 33, and 34.
`
`3
`
`Page 00003
`
`
`
`Grounds for objection: F.R.E. 106 (“Remainder of or Related Writings or
`
`Recorded Statements”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice,
`
`Confusion, Waste of Time, or Other Reasons”).
`
`While Patent Owner attaches the transcript of the deposition of Mary L. O’Neil
`
`as Exhibit 2013, Patent Owner’s citations to that Exhibit in the Response (on pages
`
`20, 20-21, 25-27, 33, and 34) omit citations to portions “that in fairness ought to be
`
`considered at the same time” (F.R.E. 106; see also Fed. R. Civ. P. 32(a)(6)), and/or
`
`inaccurately characterize the testimony so as to be misleading and unfairly prejudicial
`
`(F.R.E. 403).
`
`IV. Objections to Citations to Exhibit 2018
`
`Evidence objected to: citations to Exhibit 2018, titled “Transcript of
`
`Deposition of Scott Andrews,” on Response pages 32 and 33.
`
`Grounds for objection: F.R.E. 106 (“Remainder of or Related Writings or
`
`Recorded Statements”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice,
`
`Confusion, Waste of Time, or Other Reasons”).
`
`While Patent Owner attaches the transcript of the deposition of Scott Andrews
`
`as Exhibit 2018, Patent Owner’s citations to that Exhibit in the Response (on pages
`
`32 and 33) omit citations to portions “that in fairness ought to be considered at the
`
`same time” (F.R.E. 106; see also Fed. R. Civ. P. 32(a)(6)), and/or inaccurately
`
`characterize the testimony so as to be misleading and unfairly prejudicial to Petitioner
`
`(F.R.E. 403).
`
`4
`
`Page 00004
`
`
`
`V. Objections to Exhibit 2016 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2016 of the Response, titled “Declaration of Dr.
`
`Mark Ehsani,” including at least ¶¶ 20-34.
`
`Grounds for objection: F.R.E. 702 (“Testimony by Expert Witnesses”); F.R.E.
`
`403 (“Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or
`
`Other Reasons”).
`
`The witness providing the declaration attached as Exhibit 2016 (i) is not an
`
`expert in the pertinent subject matter qualified to provide the opinions contained in
`
`Exhibit 2016 and lacks the necessary “scientific, technical, or other specialized
`
`knowledge [to] help the trier of fact to understand the evidence or to determine a fact
`
`in issue” because he is not sufficiently knowledgeable about vehicle telematics, and is
`
`not sufficiently knowledgeable about insurance issues, especially actuarial issues; and
`
`(ii) provides insufficient underlying facts or data upon which they could legitimately
`
`be based, in violation of F.R.E. 702. Accordingly, permitting any reliance on this
`
`purported expert testimony in the Response or other submissions of Patent Owner
`
`would be misleading and unfairly prejudicial to Petitioner (F.R.E. 403).
`
`5
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`Page 00005
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`
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`May 8, 2013
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`ROPES & GRAY LLP
`
`
`
`/s/ J. Steven Baughman
`By
`J. Steven Baughman, Lead Counsel
`Nicole M. Jantzi
`ROPES & GRAY LLP
`Prudential Tower
`800 Boylston Street
`Boston, Massachusetts 02199-3600
`Steven.baughman@ropesgray.com
`Nicole.jantzi@ropesgray.com
`
`Attorneys for Petitioner Liberty Mutual Insurance Co.
`
`
`
`6
`
`Page 00006
`
`
`
`CERTIFICATE OF SERVICE
`
`It
`
`is certified
`
`that a copy of PETITIONER LIBERTY MUTUAL
`
`
`
`
`
`INSURANCE CO.’S FIRST SET OF OBJECTIONS TO PATENT OWNER
`
`PROGRESSIVE CASAULTY INSURANCE CO.’S EXHIBITS has been served in
`
`its entirety on the Patent Owner as provided in 37 CFR § 42.6.
`
`The copy has been served on May 8, 2013 by causing the aforementioned
`
`document to be electronically mailed to:
`
`Calvin P. Griffith, at: cpgriffith@jonesday.com
`
`James L. Wamsley, III at: jlwamsleyiii@jonesday.com
`
`John V. Biernacki at: jvbiernacki@jonesday.com
`
`pursuant to the Petitioner and Patent Owner’s agreement.
`
`
`
`
`
` /s/Jordan M. Rossen
`Jordan M. Rossen
`
`ROPES & GRAY LLP
`
`
`
`
`
`7
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`Page 00007
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