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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
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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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`Case CBM2013-00009
`Patent 8,140,358
`______________
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`Before the Honorable JAMESON LEE, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
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`PETITIONER LIBERTY MUTUAL INSURANCE CO.’S NOTICE OF
`THIRD SET OF OBJECTIONS TO PATENT OWNER PROGRESSIVE
`CASAULTY INSURANCE CO.’S EXHIBITS
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`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting in
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`a representative capacity for Petitioner, Liberty Mutual Insurance Company
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`(“Petitioner”), hereby provides Notice to the Board that the objections made on the
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`record herewith to Patent Owner Progressive Casualty Insurance Co.’s (“Patent
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`Owner”) new Exhibit 2031 were served to Patent Owner pursuant to 37 C.F.R. §
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`42.64.
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`October 8, 2013
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`Case CBM2013-00009
`Patent 8,140,358
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`Respectfully submitted,
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`ROPES & GRAY LLP
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`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
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`Attorneys for Petitioner Liberty Mutual Insurance Co.
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________
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`LIBERTY MUTUAL INSURANCE CO.
`Petitioner
`
`v.
`
`PROGRESSIVE CASUALTY INSURANCE CO.
`Patent Owner
`______________
`
`Case CBM2013-00009
`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 THIRD 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
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`a representative capacity for Petitioner, Liberty Mutual Insurance Company
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`(“Petitioner”), hereby submits the following objections to Patent Owner Progressive
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`Casualty Insurance Co.’s (“Patent Owner”) new Exhibit 2031, and any reference
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`to/reliance on the foregoing in connection with Patent Owner’s Response Pursuant
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`To 37 C.F.R. § 42.220 (“Response” or “Resp.”) or otherwise. As required by 37
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`C.F.R § 42.62, Petitioner’s objections below apply the Federal Rules of Evidence
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`(“F.R.E.”).
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`I.
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`Objections to Exhibit 2031
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`Case CBM2013-00009
`Patent 8,140,358
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`Petitioner objects to Exhibit 2031 and particularly to Progressive’s attempt to
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`introduce this additional evidence, in the form of Exhibit 2031, at this stage in the
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`proceeding on October 4, 2013, days before oral hearing, as untimely in violation of
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`the Board’s Rules governing this proceeding. See 37 C.F.R. §§ 42.6(c), 42.51(b)(1),
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`42.63, and 42.64(b)(2). See also 37 C.F.R. § 42.223; F.R.E 403 (“undue delay”).
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`Progressive had ample opportunity to submit this evidence with Mr. Miller’s
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`declaration filed with its Response, the first document in which it was purportedly
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`cited in this proceeding, or in response to Petitioner’s First and Second Set of
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`Objections pointing out Progressive’s failure to submit this evidence. 37 C.F.R. §§
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`42.64(b)(2), 42.223. Petitioner pointed out this very issue in its previous objections
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`(e.g., MX1045 § I, MX1046 § II), the last of which was served on July 3, 2013. Thus,
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`Progressive had notice of the defect and 10 business days to submit supplemental
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`evidence to cure. 37 C.F.R. §§ 42.64(b)(2). Instead, Progressive chose not to
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`produce the evidence as permitted by the Rules; it cannot belatedly change its mind
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`and submit the evidence in violation of the Rules, three months later and days before
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`the oral hearing in this trial.
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`October 8, 2013
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`Case CBM2013-00009
`Patent 8,140,358
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`Respectfully submitted,
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`ROPES & GRAY LLP
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`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
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`Attorneys for Petitioner Liberty Mutual Insurance Co.
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`CERTIFICATE OF SERVICE
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`Case CBM2013-00009
`Patent 8,140,358
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`It
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`is certified
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`that a copy of PETITIONER LIBERTY MUTUAL
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`INSURANCE CO.’S NOTICE OF THIRD SET OF OBJECTIONS TO PATENT
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`OWNER PROGRESSIVE CASAULTY INSURANCE CO.’S EXHIBITS and
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`PETITIONER LIBERTY MUTUAL INSURANCE CO.’S THIRD SET OF
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`OBJECTIONS TO PATENT OWNER PROGRESSIVE CASAULTY
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`INSURANCE CO.’S EXHIBITS have been served in their entirety on the Patent
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`Owner as provided in 37 CFR § 42.6.
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`The copy has been served on October 8, 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.
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`/Jordan M. Rossen/
`Jordan M. Rossen
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`ROPES & GRAY LLP
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