`______________
`
`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’S RESPONSE TO PATENT OWNER’S OBSERVATIONS
`ON TESTIMONY OF MARY L. O’NEIL
`
`
`
`
`
`
`
`
`
`Case CBM2012-00003
`
`Patent 8,140,358
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`Petitioner, Liberty Mutual Insurance Co., has the following responses to each
`
`of Patent Owner’s observations on the September 13, 2013 cross-examination
`
`testimony of Mary L. O’Neil:
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`In its observations 1-5, Progressive quotes five portions of Mary L. O’Neil’s
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`testimony and states that they all refute the same sections of Liberty Mutual’s Reply
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`brief and Mary L. O’Neil’s Rebuttal Declaration dealing with rating factors. However,
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`as pointed out repeatedly by Ms. O’Neil, these discussions related to classification
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`“relativities,” which are sometimes referred to as rating factors, but are “not the same
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`as the rating factors in the '358.” Ex. 1047, p. 121, lines 15-17; p. 98, lines 7-10. Cf.
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`Institution Decision, Paper 15, p. 8 (“a ‘rating factor’ is a calculated insurance risk
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`value such as a safety score or a usage discount, which reflects a level of insurance risk
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`and a corresponding insurance premium”) and Ex. 1001 at 44:10-11 (“calculate an
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`insured’s premium . . . based on the rating factor”).
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`A rating factor, as claimed in the ‘358 patent, is from the “perspective of the
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`actuary” in “setting price[s]” and must be a calculated insurance risk value that is used
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`to calculate an individual insured’s risk level or premium. Ex. 1047, p. 131, lines 14-
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`17. On the other hand, the term rating factor, as used in Exhibit 2014 is different
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`and irrelevant to the ‘358 patent and this proceeding, as it occurs “after the actuary
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`already” set the prices for each actuarial class. Ex. 1047, p. 131, lines 18-24. As
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`Ms. O’Neil explained in her testimony, those “classification relativities” are just ratios
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`relating different prices for “convenience sake” between actuarial classes and for
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`2
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`
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`Case CBM2012-00003
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`
`Patent 8,140,358
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`“agent’s use” in updating multiple class determinations, so they “don’t have to publish
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`a price for each class every time they issue the rate manual to the agent.” Ex. 1047,
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`p. 99, lines 2-22. These classification relativities between actuarial classes “are not
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`calculated directly” and are “just a ratio of two prices” produced after “the prices for
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`the two classes” have already been determined. Ex. 1047, p. 100, lines 7-22.
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`It is clear from reading Ms. O’Neil’s entire testimony that the challenged
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`statements regarding rating factors (1) related to traditional rate manuals used by
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`agents to update the prices of existing actuarial classes based on price ratios between
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`actuarial classes, and (2) concerned completely different concepts than claimed in the
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`‘358 patent.
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`
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`3
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`Respectfully submitted,
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`
`ROPES & GRAY LLP
`
`Case CBM2012-00003
`Patent 8,140,358
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`
`
`
`
`By /J. Steven Baughman/
`J. Steven Baughman, Lead Counsel
`James R. Myers (pro hac vice)
`Nicole M. Jantzi
`ROPES & GRAY LLP
`700 12th St. NW, Suite 900
`Washington, DC 20005
`Steven.baughman@ropesgray.com
`James.myers@ropesgray.com
`Nicole.jantzi@ropesgray.com
`
`Attorneys for Petitioner Liberty Mutual Insurance Co.
`
`Mailing address for all PTAB correspondence:
`ROPES & GRAY LLP
`IPRM – Floor 43
`Prudential Tower
`800 Boylston Street
`Boston, Massachusetts 02199-3600
`
`4
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`October 4, 2013
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`CERTIFICATE OF SERVICE
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`It is certified that a copy of Petitioner’s Response to Patent Owner’s
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`
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`
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`Observations on Testimony of Mary L. O’Neil has been served in its entirety on
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`the Patent Owner as provided in 37 CFR § 42.6.
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`The copy has been served on October 4, 2013 by causing the aforementioned
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`document to be electronically mailed to:
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`Calvin P. Griffith, at: cpgriffith@jonesday.com
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`James L. Wamsley, III at: jlwamsleyiii@jonesday.com
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`John V. Biernacki at: jvbiernacki@jonesday.com
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`pursuant to the Petitioner and Patent Owner’s agreement.
`
`
`
`
` /s/ Jordan M. Rossen
`Jordan M. Rossen
`
`
`ROPES & GRAY LLP
`
`
`
`
`
`5
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