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 SECOND 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 2020 and Exhibit 2021, and any
`
`reference to/reliance on the foregoing 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 1036
`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 SECOND 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 2020 and Exhibit 2021, and any
`
`reference to/reliance on the foregoing 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 1036
`Liberty Mutual v. Progressive
`CBM2012-00002
`Page 00001
`
`
`
`I.
`
`Objections to Exhibit 2020 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2020 titled “Supplemental Declaration of
`
`Michael J. Miller,” 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”); F.R.E. 801, 802 (“Hearsay”).
`
`Exhibit 2020 contains evidence that is not properly supplemental evidence in
`
`response to an objection under 37 C.F.R. 42.64(b)(2). Exhibit 2020 contains new
`
`evidence, including a document that is purported to be “Actuarial Standard of
`
`Practice No. 12, ‘Concerning Risk Classification’” that should have been provided at
`
`the time of the Response or after seeking Board approval under 37 C.F.R. 42.223.
`
`Additionally, Patent Owner fails to provide for Exhibit 2020 the authentication
`
`required by F.R.E. 901. Although the witness providing the declaration asserts that it
`
`is a “true and accurate copy,” it is not suggested that the witness has personal
`
`knowledge of the document.
`
`The witness providing the declaration cites to statements in the purported
`
`“Actuarial Standard of Practice No. 12” alleging facts about Exhibit 2012 to prove
`
`those very same facts. Patent Owner is therefore improperly attempting to offer
`
`Exhibit 2020 “to prove the truth of the matter asserted in the statement[s],” which are
`
`inadmissible hearsay to which Patent Owner has not demonstrated any exception. See
`
`2
`
`Page 00002
`
`
`
`F.R.E. 801, 802. Accordingly, Petitioner further objects to Exhibit 2020 as improper
`
`hearsay evidence.
`
`Furthermore, to the extent the Response or any other submission of Patent
`
`Owner purports to refer to or rely on Exhibit 2020, 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 Exhibit 2021 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2021, titled “Supplemental Declaration of Dr.
`
`Mark Ehsani,” and any reference to or reliance thereon.
`
`Grounds for objection: F.R.E. 402 (“General Admissibility of Relevant
`
`Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion,
`
`Waste of Time, or Other Reasons”).
`
`Exhibit 2021 provides testimony that is irrelevant under F.R.E. 402 and a waste
`
`of time, repetitive, and needlessly cumulative in violation of F.R.E. 403 because it fails
`
`to cure the original objections. 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).
`
`III. All Previous Objections to Exhibits Maintained
`
`Petitioner maintains all previous objections stated in Liberty Mutual Insurance
`
`Co.’s Second Set of Objections to Patent Owner Progressive Casualty Insurance Co.’s
`
`Exhibits, as Patent Owner’s supplemental declarations do not cure those objections.
`
`3
`
`Page 00003
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`May 30, 2013
`
`
`
`
`
`
`
`Respectfully submitted,
`
`ROPES & GRAY LLP
`
`
`/ 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.
`
`4
`
`Page 00004
`
`
`
`CERTIFICATE OF SERVICE
`
`It
`
`is certified
`
`that a copy of PETITIONER LIBERTY MUTUAL
`
`
`
`
`
`INSURANCE CO.’S SECOND 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 30, 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.
`
`
`
`
`
`
`
` /Jordan M. Rossen/
`Jordan M. Rossen
`
`ROPES & GRAY LLP
`
`
`
`
`
`5
`
`Page 00005
`
`
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