`
`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 CBM 2013-00009
`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 2013, Exhibit 2015, Exhibit 2020,
`
`Exhibit 2022, 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.”).
`
`
`
`
`
`1
`
`Liberty Mutual Exhibit 1045
`Liberty Mutual v. Progressive
`CBM2013-00009
`Page 00001
`
`
`
`
`
`I.
`
`Objections to Evidence relating to the “Risk Classification Statement of
`Principles of the American Academy of Actuaries”
`
`Evidence objected to: Paragraph 17 and any other paragraphs of Exhibit 2013
`
`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”).
`
`In paragraph 17 of the Miller declaration (Exhibit 2013), 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 17 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
`
`
`
`2
`
`Page 00002
`
`
`
`
`
`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
`
`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).
`
`II. Objections to Exhibit 2015 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibit 2015 of the Response, titled “Declaration of Dr.
`
`Mark Ehsani,” including at least ¶¶ 20-47.
`
`
`
`3
`
`Page 00003
`
`
`
`
`
`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”).
`
`The witness providing the declaration attached as Exhibit 2015 (i) is not an
`
`expert in the pertinent subject matter qualified to provide the opinions contained in
`
`Exhibit 2015 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 about vehicle telematics, and is
`
`not sufficiently knowledgeable about insurance issues, especially actuarial 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).
`
`III. Objections to Exhibit 2020 and Any Reference to/Reliance Thereon,
`And Improper Incorporation Thereof into Response
`
`Evidence objected to: Exhibit 2020 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”).
`
`
`
`4
`
`Page 00004
`
`
`
`
`
`The witness providing the declaration attached as Exhibit 2020 (i) is not an
`
`expert in the pertinent subject matter qualified to provide the opinions contained in
`
`Exhibit 2020 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. 2020, ¶ 8) about insurance (see, e.g.,
`
`id., ¶¶ 8, 17, 19, 20) 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).
`
`IV. Objections to Exhibits 2022 and Any Reference to/Reliance Thereon
`
`Evidence objected to: Exhibits 2022 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”).
`
`Patent Owner fails to provide sufficient evidence of the relevance of Exhibit
`
`2022. Patent Owner cites to Exhibits 2022 only in purporting to describe isolated
`
`portions of the Board’s decision in a different CBM hearing involving a different patent
`
`and grounds of invalidity.
`
`
`
`5
`
`Page 00005
`
`
`
`
`
`Furthermore, to the extent the Response or any other submission of Patent
`
`Owner purports to refer to or rely on Exhibits 2022, Petitioner objects to such
`
`reference to/reliance on evidence that is not relevant under F.R.E. 402, and further to
`
`such reference to/reliance as misleading and unfairly prejudicial to Petitioner (F.R.E.
`
`403).
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`June 20, 2013
`
`
`
`Respectfully submitted,
`
`ROPES & GRAY LLP
`
`
`
`By _/J. Steven Baughman /
`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.
`
`
`
`
`
`
`
`
`
`6
`
`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 20, 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
`
`
`
`7
`
`
`
`
`
`
`
`Page 00007
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
