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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
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`v.
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`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`
`—————————————
`
`Case CBM2013-00009
`Patent 8,140,358
`
`—————————————
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`PATENT OWNER’S NOTICE OF OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
`
`CLI-2141240
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`
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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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`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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`September 16, 2013
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`By:
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`Respectfully submitted,
`
`JONES DAY
`
`/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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`CLI-2141240
`
`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
`
`—————————————
`
`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`
`—————————————
`
`Case CBM2013-00009
`Patent 8,140,358
`
`—————————————
`
`PATENT OWNER’S OBJECTIONS TO
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64
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`CLI-2141240
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of Patent
`
`Case CBM2013-00009
`Patent 8,140,358
`
`
`
`Owner Progressive Casualty Insurance Co. (“Patent Owner”), hereby submits the
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`following objections to Exhibits 1041-1043 filed on September 9, 2013 by Liberty
`
`Mutual Insurance Co. (“Liberty” or “Petitioner”) in response to Patent Owner’s
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`Objections to Evidence, filed August 23, 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 23, 2013. (See CBM2013-00009, Paper No. 28).
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`II. EXHIBITS 1041-1043 GO BEYOND EVIDENCE PERMITTED
`UNDER 37 C.F.R. § 42.64(B)(2)
`
`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 1041-1043 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 1041 AND ANY REFERENCE
`TO/RELIANCE THEREON
`
`Patent Owner hereby objects to Exhibit 1041, Declaration of Mary Lou
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`O’Neil, dated September 6, 2013 (“O’Neil Second Declaration”).
`
`CLI-2141240
`
`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 CBM2013-00009
`Patent 8,140,358
`
`
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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 1031) and a purported copy of
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`Interpretative Opinion Nos. 3 and 4 (Exhibit 1033). (37 C.F.R. § 42.23(b); 37
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`C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide, part II, § I, 77
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`Fed. Reg. 48,756, 48,767 (Aug. 14, 2012)). The statements in the O’Neil Second
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`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
`
`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-2141240
`
`2
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`
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`petition.1 The content of the O’Neil Second Declaration and Exhibits 1031 and
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`Case CBM2013-00009
`Patent 8,140,358
`
`1033 are either inapplicable or should have been submitted when the petition for
`
`review was filed, not after the institution of this trial. (F.R.E. 403; 37 C.F.R. §
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`42.223; 37 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-2141240
`
`3
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`
`
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`conjunction with a Petitioner reply that does not arise from the submission of a
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`Case CBM2013-00009
`Patent 8,140,358
`
`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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`Petitioner apparently presents the O’Neil Second Declaration, and
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`specifically ¶ 4, in an attempt to verify the source, dates and authenticity of Exhibit
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`1033, titled “Interpretative Opinion 3: Professional Communications of Actuaries
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`and Interpretive Opinion 4: Actuarial Principles and Practices.” O’Neil claimed
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`that Exhibit 1033 is a “true and correct copy” of Interpretative Opinion Nos. 3 and
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`4 (O’Neil First Declaration, at ¶ 6 n.1), but then does not purport to have any
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`knowledge as to Opinion No. 3. (See O’Neil Second Declaration, at ¶ 4.) Even as
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`to Opinion No. 4, O’Neil claims to have been in possession of a hard copy since
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`1982, even though it was purportedly revised in 1990. (See id.) Nor is O’Neil
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`claiming that her hard copy document is identical to Exhibit 1033, but rather
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`simply that it contains similar “substance.” (See id.) O’Neil has failed to provide
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`any relevant statement or personal knowledge regarding the original publication
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`date of the materials submitted as Exhibit 1033 (F.R.E. 402, 602; 37 C.F.R.
`
`CLI-2141240
`
`4
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`
`
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`§ 42.61); and she failed to provide any proper basis for concluding that the
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`Case CBM2013-00009
`Patent 8,140,358
`
`document is a true and accurate copy as it existed at the time of publication, to the
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`extent it was published prior to when she purportedly downloaded it on July 30,
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`2013 (F.R.E. 901). Therefore, the declaration, and testimony regarding Exhibit
`
`1033, is both prejudicial and irrelevant to any issue in this proceeding. (F.R.E.
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`402; 37 C.F.R. § 42.61; F.R.E. 403).
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`Furthermore, the O’Neil Second Declaration seeks to verify the source of
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`Exhibit 1033 even though it is inadmissible supplemental evidence and not
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`relevant to any issue of this proceeding. (F.R.E. 402; 37 C.F.R. § 42.61; 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 O’Neil Second Declaration is irrelevant, outside the scope of
`
`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 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
`
`refers to out of court statements offered for the truth of the matter asserted therein,
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`CLI-2141240
`
`5
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`
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`and they also constitute impermissible hearsay. (Id.)2 Nor has a showing been
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`Case CBM2013-00009
`Patent 8,140,358
`
`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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`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 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 1042 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1042, Declaration of Scott Andrews,
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`dated September 6, 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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`2 For example, in ¶ 4, O’Neil refers to Exhibit 1033 and the date it was
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`purportedly “adopted” by the American Academy of Actuaries and “republished”
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`by the Actuarial Standards Board.
`
`CLI-2141240
`
`6
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`
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`Confusion, Waste of Time, or Other Reasons), F.R.E. 901 (Authentication), 37
`
`Case CBM2013-00009
`Patent 8,140,358
`
`C.F.R. § 42.223 (Filing of Supplemental Evidence), F.R.E. 702, 703, 705 (Witness
`
`Not Qualified to Provide Expert Testimony), F.R.E. 602 (Lack of Personal
`
`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
`
`therein, i.e., the Andrews Second Declaration (Exhibit 1027). (37 C.F.R.
`
`§ 42.23(b); 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide,
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`part II, § I). The statements in the Andrews Third Declaration have no relevant
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`bearing on any issue properly raised in this proceeding or argued by Patent Owner.
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`(F.R.E. 402, 403; 37 C.F.R. § 42.61). Rather, the Andrews Third Declaration is an
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`attempt to raise new theories to support invalidity arguments in an effort to
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`establish a prima facie case of unpatentability of the claims that should have been
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`submitted with the Petitioner’s petition.3 The content of the Andrews Third
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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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`CLI-2141240
`
`7
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`
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`Declaration and Exhibit 1027 is either inapplicable or should have been submitted
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`Case CBM2013-00009
`Patent 8,140,358
`
`when the petition for review was filed, not after the institution of this trial. (F.R.E.
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`403; 37 C.F.R. § 42.223; 37 C.F.R. 42, Office Patent Trial Practice Guide, part II,
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`§ I).
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`Further, Andrews’s new testimony could have been elicited during direct
`
`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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`
`(continued…)
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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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`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-2141240
`
`8
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`
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`substitute claim or is responsive to a Patent Owner’s claim amendments, especially
`
`Case CBM2013-00009
`Patent 8,140,358
`
`in light of the prejudice to Patent Owner because there is no opportunity to respond
`
`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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`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 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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`Additionally, the Andrews Third Declaration is not relevant because
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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. (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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`4 For example, in ¶ 3, Andrews refers to his Second Declaration.
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`CLI-2141240
`
`9
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`Accordingly, permitting any reliance on this purported expert testimony
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`Case CBM2013-00009
`Patent 8,140,358
`
`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 1043 AND ANY REFERENCE
`TO/RELIANCE THEREON
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`Patent Owner hereby objects to Exhibit 1043, 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 9, 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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`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
`
`Not Qualified to Provide Expert Testimony), F.R.E. 602 (Lack of Personal
`
`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 Exhibits 1029 and 1034-1039 and
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`substantiate the allegations in Exhibit 1040. However, the Rossen Second
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`Declaration simply reiterates allegations from Exhibit 1040, indicating that Exhibit
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`CLI-2141240
`
`10
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`1029 “bear[s] a library identification and date stamp.” He also states that Exhibit
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`Case CBM2013-00009
`Patent 8,140,358
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`1029 “was” a true and correct copy and that he did not obtain or copy the pages
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`himself but rather it was done by an unnamed person. (See Rossen Second
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`Declaration at ¶ 3). And, as to Exhibits 1029 and 1034-1039, Rossen admits that
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`his First Declaration is in “error” and that he downloaded documents on August
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`16, 2013. (See id. at ¶ 4). However, the Rossen Second Declaration only
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`establishes that he allegedly downloaded documents on August 16, 2103, not that
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`Exhibits 1034-1038 are, in fact, true and accurate copies. 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 Exhibits 1029 and 1034-1038 or that the statements in Exhibit
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`1040 are accurate. (F.R.E. 402, 602, 901; 37 C.F.R. § 42.61). He fails to establish
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`any proper basis for concluding that Exhibits 1029 and 1034-1038 are true and
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`accurate copies as they existed at the time of publication. (F.R.E. 402, 901; 37
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`C.F.R. § 42.61). Therefore, the declaration and testimony regarding Exhibits 1029
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`and 1034-1038 are both prejudicial and irrelevant to any issue in this proceeding.
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`(F.R.E. 402, 403; 37 C.F.R. § 42.61).
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`The Rossen Second Declaration is also unauthorized. None of the PTAB
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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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`CLI-2141240
`
`11
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`in light of the prejudice to Patent Owner because there is no opportunity to respond
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`Case CBM2013-00009
`Patent 8,140,358
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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 Second
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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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`and they also constitute impermissible hearsay. (Id.)5 Nor has a showing been
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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 1041-1043.
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`
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`5 In ¶¶ 3-4, Rossen refers to his First Declaration as to what it indicates and
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`refers to a “library identification and date stamp” on Exhibit 1029.
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`CLI-2141240
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`12
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`Case CBM2013-00009
`Patent 8,140,358
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`By:
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`Respectfully submitted,
`
`JONES DAY
`
`/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 16, 2013
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`CLI-2141240
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`13
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`CERTIFICATE OF SERVICE
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`I certify that a copy of the foregoing PATENT OWNER’S NOTICE OF
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`OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 and PATENT
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`OWNER’S OBJECTIONS TO EVIDENCE PURSUANT TO 37 C.F.R. § 42.64
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`were served on September 16, 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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