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 CBM2012-00003
`Patent 8,140,358
`______________
`
`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 2005, Exhibit 2007, Exhibit 2011,
`
`and any reference to/reliance on the foregoing, including without limitation citations
`
`to Exhibit 2011 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.”).
`
`
`
`
`
`1
`
`Liberty Mutual Exhibit 1045
`Liberty Mutual v. Progressive
`CBM2012-00003
`Page 00001
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`______________
`
`Case CBM2012-00003
`Patent 8,140,358
`______________
`
`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 2005, Exhibit 2007, Exhibit 2011,
`
`and any reference to/reliance on the foregoing, including without limitation citations
`
`to Exhibit 2011 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.”).
`
`
`
`
`
`1
`
`Liberty Mutual Exhibit 1045
`Liberty Mutual v. Progressive
`CBM2012-00003
`Page 00001
`
`
`
`I.
`
`Objections to Portions of Exhibit 2011 Previously Objected To, and Any
`Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2011.
`
`Grounds for objection: As stated on the record in Exhibit 2011.
`
`Petitioner maintains its objections set forth on the record during the deposition
`
`transcribed as Exhibit 2011. Furthermore, to the extent any submission of Patent
`
`Owner purports to refer to or rely on portions of the transcript (Exhibit 2011) that
`
`are objected to, Petitioner objects to such reference/reliance on the same basis.
`
`II. Objections to Citations to Exhibit 2011
`
`Evidence objected to: citations to Exhibit 2011, titled “Transcript of
`
`Deposition of Scott Andrews,” on Response page 26.
`
`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 2011, Patent Owner’s citations to that Exhibit in the Response (on page
`
`26) 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).
`
`Page 00002
`
`
`
`III. Objections to Exhibit 2007 and Any Reference to/Reliance Thereon,
`And Improper Incorporation Thereof into Response
`
`Evidence objected to: Exhibit 2007 of the Response, titled “Declaration of
`
`Ivan Zatkovich.”
`
`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”); Improper Incorporation by reference under Rule 42.6(a)(3);
`
`Improper exceeding of page limits under Rule 42.24.
`
`The witness providing the declaration attached as Exhibit 2007 (i) is not an
`
`expert in the pertinent subject matter qualified to provide the opinions contained in
`
`Exhibit 2007 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 and/or was not sufficiently
`
`knowledgeable at the pertinent time (see, e.g., Ex. 2007, ¶ 8) about insurance (see, e.g.,
`
`id., ¶¶ 8, 60-61, 63, 95-107, 111-115, 128-142, 144-149) or telematics 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).
`
`Petitioner also objects to Patent Owner’s apparent incorporation by reference
`
`in the Response of dozens of paragraphs from the Zatkovich declaration. Rule
`
`Page 00003
`
`
`
`42.6(a)(3) (“Arguments must not be incorporated by reference from one document
`
`into another document. Combined motions, oppositions, replies, or other combined
`
`documents are not permitted.”). As a result, Petitioner further objects to Exhibit
`
`2007 as an improper attempt by Patent Owner to exceed the page limits set out under
`
`Rule 42.24 for an Owner’s Response. The Zatkovich declaration is 85 pages long and
`
`contains arguments that should have been set out in Patent Owner’s Response, which
`
`is limited to 80 pages. Patent Owner should be limited to rely only on the arguments
`
`specifically made (rather than just referenced) in its Response, rather than the further
`
`arguments made by Zatkovich in his declaration not included in the Response.
`
`IV. Objections to Evidence relating to the “Risk Classification Statement of
`Principles of the American Academy of Actuaries”
`
`Evidence objected to: Paragraph 15 and any other paragraphs of Exhibit 2005
`
`of the Response, titled “Declaration of Michael J. Miller,” and any statements in the
`
`Owner’s Response which cite to, reference, or rely upon a purported document
`
`entitled “Risk Classification Statement of Principles of the American Academy of
`
`Actuaries.”
`
`Grounds for objection: Improper evidence in this proceeding under Rule
`
`42.61(a); Improper form of documentary evidence not in the form of an Exhibit
`
`under Rule 42.63(a); F.R.E. 901 (“Authenticating or Identifying Evidence”); F.R.E.
`
`801, 802 (“Hearsay”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice,
`
`Confusion, Waste of Time, or Other Reasons”).
`
`Page 00004
`
`
`
`In paragraph 15 of the Miller declaration (Exhibit 2005), Mr. Miller purports to
`
`define “actuarial class,” and alleges that his “definition is consistent with the definition
`
`in the Risk Classification Statement of Principles of the American Academy of
`
`Actuaries.” Patent Owner, however, does not provide this incompletely identified
`
`document as an Exhibit or otherwise, and Petitioner therefore objects to this
`
`statement, and any other statements in the Miller declaration or Owner’s Response
`
`Brief that cite to Miller paragraph 15 or the document identified therein.
`
`First, the “Statement of Principles” violates Rule 42.61(a) as “not taken, sought,
`
`or filed in accordance” with the Board’s Rules because “[a]ll evidence must be filed in
`
`the form of an exhibit” under Rule 42.63(a). Second, to the extent this document as
`
`referenced exists, Petitioner objects to it as not having been sufficiently identified,
`
`much less authenticated pursuant to F.R.E. 901. Patent Owner fails to provide any
`
`evidence on the date for when such a document was purportedly created, the origin of
`
`such a document, or any other authenticating evidence sufficient to support a finding
`
`that any such purported item is what Mr. Miller claims it is, in violation of F.R.E. 901.
`
`Third, the witness providing the declaration cites to statements in the
`
`purported “Risk Classification Statement of Principles of the American Academy of
`
`Actuaries” alleging facts about it to prove those very same facts—i.e. “consisten[cy]
`
`with [his] definition” and that a POSITA “would have adhered to this Statement of
`
`Principles.” Patent Owner is therefore improperly attempting to offer these
`
`statements from this alleged document “to prove the truth of the matter asserted in
`
`Page 00005
`
`
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`the statement[s],” which are inadmissible hearsay to which Patent Owner has not
`
`demonstrated any exception. F.R.E. 801, 802.
`
`Finally, to the extent the Response or any other submission of Patent Owner
`
`purports to refer to or rely on the “Statement of Principles,” Petitioner objects to
`
`such reference to/reliance on evidence that is not properly authenticated and as
`
`misleading and unfairly prejudicial (F.R.E. 403).
`
`Respectfully submitted,
`
`ROPES & GRAY LLP
`
`
`
`
`
`
`By _/J. Steven Baughman/
`J. Steven Baughman, Lead Counsel
`James R. Myers (pro hac vice)
`Nicole M. Jantzi
`ROPES & GRAY LLP
`Prudential Tower
`800 Boylston Street
`Boston, Massachusetts 02199-3600
`Steven.baughman@ropesgray.com
`James.myers@ropesgray.com
`Nicole.jantzi@ropesgray.com
`
`Attorneys for Petitioner Liberty Mutual Insurance Co.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`June 19, 2013
`
`
`
`
`
`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 June 19, 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.
`
`
`
`
` Darrell W. Stark
`Darrell W. Stark
`
`ROPES & GRAY LLP
`
`
`
`
`
`
`
`Page 00007
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