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 CBM2012-00003
`Patent 8,140,358
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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-2141248v1
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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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 CBM2012-00003
`Patent 8,140,358
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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-2141248v1
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`The undersigned, on behalf of Patent Owner Progressive Casualty Insurance
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`Case CBM2013-00009
`Patent 8,140,358
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`
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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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`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
`Progressive Casualty Insurance Co.
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`September 12, 2013
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`CLI-2141248v1
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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
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`
`—————————————
`
`Case CBM2012-00003
`Patent 8,140,358
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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-2141248v1
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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 CBM2012-00003
`Patent 8,140,358
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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 1039-1041 filed on September 5, 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 22, 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 22, 2013. (See CBM2012-00003, Paper No. 40).
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`II. EXHIBITS 1039-1041 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 1039-1041 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 1039 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1039, Declaration of Mary Lou
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`O’Neil, dated September 5, 2013 (“O’Neil Second Declaration”).
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`CLI-2141248v1
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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 CBM2012-00003
`Patent 8,140,358
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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 O’Neil Second 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 O’Neil Second Declaration or the exhibits referenced
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`therein, i.e., the O’Neil First Declaration (Exhibit 1032). (37 C.F.R. § 42.23(b);
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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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`(77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012)). The statements in the O’Neil
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`Second Declaration have no relevant bearing on any issue properly raised in this
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`proceeding or argument raised by Patent Owner. (F.R.E. 402, 403; 37 C.F.R. §
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`42.61). Rather, the O’Neil Second Declaration is an attempt to raise new theories
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`to support invalidity arguments in an effort to establish a prima facie case of
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`unpatentability of the claims that should have been submitted with the Petitioner’s
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`CLI-2141248v1
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`2
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`petition.1 The content of the O’Neil Second Declaration and Exhibit 1032 are
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`Case CBM2012-00003
`Patent 8,140,358
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`either inapplicable or should have been submitted when the petition for review was
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`filed, not after the institution of this trial. (F.R.E. 403; 37 C.F.R. § 42.223; 37
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`C.F.R. 42, Office Patent Trial Practice Guide, part II, § 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 First Declaration.
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`The O’Neil Second Declaration was not authorized by the Board. None of
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`the PTAB rules or regulations authorizes filing new testimonial evidence in
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`1 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.” This challenge demonstrates Petitioner’s and
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`O’Neil’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 O’Neil 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 – theories
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`to which Patent Owner has no opportunity to rebut or respond.
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`CLI-2141248v1
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`3
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`conjunction with a Petitioner reply that does not arise from the submission of a
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`Case CBM2012-00003
`Patent 8,140,358
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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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`Second Declaration is both outside the scope of 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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`All the statements contained in the O’Neil Second 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 O’Neil Second 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. (Id.)2 Nor has a showing been
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`made that a hearsay exception or exclusion applies.
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`Additionally, the O’Neil Second Declaration is not relevant because O’Neil
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`is 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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`2 For example, in ¶¶ 2-3, O’Neil refers to her First Declaration.
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`CLI-2141248v1
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`4
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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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`Case CBM2012-00003
`Patent 8,140,358
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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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`IV. OBJECTIONS TO EXHIBIT 1040 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1040, Declaration of Scott Andrews,
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`dated September 5, 2013 (“Andrews 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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`(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 1034), a purported copy of
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`ISO8790-1987, “Information Processing Systems – Computer System
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`CLI-2141248v1
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`5
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`Configuration Diagram Symbols and Conventions” (Exhibit 1035), purported
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`Case CBM2012-00003
`Patent 8,140,358
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`website printout titled “The Apache Software Foundation ASF History Project –
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`Timeline” (Exhibit 1037), and the Rossen First Declaration (Exhibit 1038). (37
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`C.F.R. § 42.23(b); 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice
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`Guide, part II, § I). The statements in the Andrews Third Declaration have no
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`relevant bearing on any issue properly raised in this proceeding or argued by Patent
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`Owner. (F.R.E. 402, 403; 37 C.F.R. § 42.61). Rather, the Andrews Third
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`Declaration is an attempt to raise new theories to support invalidity arguments in
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`an effort to establish a prima facie case of unpatentability of the claims that should
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`have been submitted with the Petitioner’s petition.3 The content of the Andrews
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`3 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.” As indicated in footnote 1, supra, this
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`challenge demonstrates Petitioner’s and Andrews’s profound misunderstanding as
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`to what is proper to raise in a Reply or rebuttal declaration. The fact that the Board
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`instituted this case does not mean that Petitioner and Andrews 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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`CLI-2141248v1
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`6
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`Third Declaration and Exhibits 1034-1035 and 1037-1038 are either inapplicable
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`Case CBM2012-00003
`Patent 8,140,358
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`or should have been submitted when the petition for review was filed, not after the
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`institution of this trial. (F.R.E. 403; 37 C.F.R. § 42.223; 37 C.F.R. 42, Office
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`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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`The Andrews Third Declaration was not authorized by the Board. None of
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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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`(continued…)
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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-2141248v1
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`7
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`impermissible supplemental evidence. (37 C.F.R. § 42.223; 37 C.F.R. § 42.23(b);
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`Case CBM2012-00003
`Patent 8,140,358
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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 ¶¶ 4-5, in an attempt to verify the source, dates and authenticity of
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`Exhibits 1035 and 1037. Andrews claims that Exhibit 1035 “was” a true and
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`correct but then does not purport to have any knowledge of Exhibit 1035 beyond
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`that it was downloaded on August 15, 2013. (See Andrews Third Declaration, at
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`¶ 4.) Similarly, Andrews claims to have visited and consulted “The Apache
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`Software Foundation website” but then does not purport to have any knowledge as
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`to the specific information set forth in Exhibit 1037. (See id. at ¶ 5.) Andrews also
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`cites another webpage (“http://www.apache.org/foundation/”) as to the purported
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`Apache Software Foundation’s legal status, without any allegation as to the
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`veracity of that information. (See id.) Andrews has failed to provide any relevant
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`statement or personal knowledge regarding the original publication date of the
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`materials submitted as Exhibits 1035 and 1037 (F.R.E. 402, 602; 37 C.F.R.
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`§ 42.61); and he failed to provide any proper basis for concluding that the they are
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`true and accurate copies as they existed at the time of publication, to the extent
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`they were published prior to when he purportedly downloaded or accessed them
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`(F.R.E. 901). Therefore, the declaration and testimony regarding Exhibits 1035
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`CLI-2141248v1
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`8
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`and 1037 are both prejudicial and irrelevant to any issue in this proceeding.
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`Case CBM2012-00003
`Patent 8,140,358
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`(F.R.E. 402; 37 C.F.R. § 42.61; F.R.E. 403).
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`Furthermore, the Andrews Third Declaration seeks to verify the source of
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`Exhibits 1035 and 1037 even though they are inadmissible supplemental evidence
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`and not relevant to any issue of this proceeding. (F.R.E. 402; 37 C.F.R. § 42.61;
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`37 C.F.R. § 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).4 Nor has a
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`showing been made that a hearsay exception or exclusion applies.
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`4 For example, in ¶ 3, Andrews refers to his Second Declaration; in ¶ 4, he
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`indicates when Exhbit 1035 was “in effect;” and in ¶ 5, he quotes another
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`CLI-2141248v1
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`9
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`Additionally, the Andrews Third Declaration is not relevant because
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`Case CBM2012-00003
`Patent 8,140,358
`
`
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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. 5 (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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`V. OBJECTIONS TO EXHIBIT 1041 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1041, Declaration of Jordan M.
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`Rossen (“Rossen Second Declaration”), an attorney in the office of Petitioner’s
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`counsel, dated September 5, 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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`(continued…)
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`purported webpage (“http://www.apache.org/foundation/”) as to the purported
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`Apache Software Foundation’s legal status.
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`5 See, e.g., supra at 8 and 9-10 n.4.
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`CLI-2141248v1
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`10
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`Confusion, Waste of Time, or Other Reasons), F.R.E. 901 (Authentication), 37
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`Case CBM2012-00003
`Patent 8,140,358
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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 Rossen Second Declaration is
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`unauthorized testimony.
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`Petitioner apparently presents the Rossen Second Declaration in an attempt
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`to verify the source, date and/or authenticity of Exhibit 1036 and substantiate the
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`allegations in Exhibit 1038. However, Rossen simply reiterates allegations from
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`Exhibit 1038 and then claims that Exhibit 1036 “was” a true and correct copy, that
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`he obtained a copy at some point in August 2013, and that he did not copy the
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`pages himself but rather had it done by an unnamed person. Rossen also fails to
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`provide any relevant statement or personal knowledge regarding the original
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`publication date of Exhibit 1036 or that the statements in Exhibit 1038 are
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`accurate. (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 Exhibit 1036 is a true and accurate copies as it
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`existed at the time of publication. (F.R.E. 402, 901; 37 C.F.R. § 42.61).
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`Therefore, the declaration and testimony regarding Exhibits 1036 and 1038 are
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`both prejudicial and irrelevant to any issue in this proceeding. (F.R.E. 402, 403; 37
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`C.F.R. § 42.61).
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`CLI-2141248v1
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`11
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`
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`The Rossen Second Declaration is also unauthorized. None of the PTAB
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`Case CBM2012-00003
`Patent 8,140,358
`
`
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`rules or regulations authorizes filing a new declaration as to new exhibits in
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`conjunction with a Petitioner Reply that do 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. Furthermore, the Rossen
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`Second Declaration seeks to verify the source of documents that are inadmissible
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`supplemental evidence and not relevant to any issue of this proceeding. (F.R.E.
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`402; 37 C.F.R. § 42.23(b); 37 C.F.R. § 42.61; 37 C.F.R. § 42.223; 37 C.F.R. 42,
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`Office Patent Trial Practice Guide, part II, § I). Consequently, the Rossen
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`Declaration is irrelevant, outside the scope of Patent Owner’s Response, and
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`constitutes impermissible supplemental evidence. (Id.)
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`All the statements contained in the Rossen Second 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 Rossen Second Declaration
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`refers to out of court statements offered for the truth of the matter asserted therein,
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`CLI-2141248v1
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`12
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`and they also constitute impermissible hearsay. (Id.)6 Nor has a showing been
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`Case CBM2012-00003
`Patent 8,140,358
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`made that a hearsay exception or exclusion applies.
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`VI. CONCLUSION
`For at least these reasons, the Patent Owner objects to Exhibits 1039-1041.
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`September 12, 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
`Progressive Casualty Insurance Co.
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`6 In ¶ 3, Rossen refers to his First Declaration as to what it indicates and
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`refers to “library identification and date stamps” on Exhibit 1036.
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`CLI-2141248v1
`
`13
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that a copy of the foregoing PATENT OWNER’S NOTICE OF
`
`OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 and PATENT
`
`OWNER’S OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64
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`were served on September 12, 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
`
`
`
`/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
`Progressive Casualty Insurance Co.
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