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 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
`REPLY TO PATENT OWNER’S OPPOSITION TO LIBERTY’S MOTION
`TO EXCLUDE
`
`
`______________
`
`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
`______________
`
`Before the Honorable JAMESON LEE, JONI Y. CHANG, and MICHAEL R.
`ZECHER, Administrative Patent Judges.
`
`PETITIONER LIBERTY MUTUAL INSURANCE CO.’S
`REPLY TO PATENT OWNER’S OPPOSITION TO LIBERTY’S MOTION
`TO EXCLUDE
`
`
`
`Case CBM2013-00009
`Patent 8,140,358
`Petitioner1 hereby replies in support of its Motion to Exclude (“Mot.”, Paper
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`40) and in response to Progressive’s Opposition (“Opp.”, Paper 48). Ironically, Pro-
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`gressive’s strongest response here is an imagined one: Progressive imagines Petitioner
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`really made no motion at all, but argued, instead, that Progressive’s evidence should
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`be admitted. (Cf. Opp. 2). Far from it. While Petitioner acknowledges that the Board
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`has broad discretion to admit and consider evidence (Mot. 1-3), should the Board de-
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`cide to apply the rules of evidence strictly in the proceedings between these parties—
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`as Progressive itself urges (e.g., Paper 43 (Progressive’s Motion to Exclude); CBM2012-
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`00010, Paper 45 (same))—Progressive’s unqualified “expert” testimony and belated
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`evidence clearly fail under those rules, and should be excluded.
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`I. Neither Dr. Ehsani nor Mr. Zatkovich is Qualified
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`To begin with, Progressive does not dispute that Dr. Ehsani and Mr. Zatkovich
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`are not qualified to provide opinions regarding a POSITA’s understandings on insur-
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`ance matters. Mot. 6-7. At a minimum, those portions of their testimony (see, e.g.,
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`EX2015 ¶¶ 20-21, 25, 27, 33, 37-38, 40-44; EX2020 ¶¶ 8, 17, 19) should be excluded.
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`Nor does Progressive dispute that Mr. Zatkovich lacked the qualifications that he
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`conceded were required: he did not have “as of January 1996…at least one to two
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`years of experience with telematics systems for vehicles…including communica-
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`tions and locations technologies.” (EX2020 ¶¶ 8, 4, 5; Mot. 6; Opp 6-8). On this
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`1 All emphases are added and abbreviations are as in Petitioner’s Motion (Paper 40).
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`1
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`Case CBM2013-00009
`Patent 8,140,358
`point, Progressive, which bears the burden of proving Mr. Zatkovich qualified by a pre-
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`ponderance of the evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
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`592 n.10 (1993), points only to his statement that he has “more than 4 years experi-
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`ence designing and implementing vehicle telematics systems and ha[s] designed and
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`implemented ecommerce computer systems for the insurance industry, such as for
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`Geico and Hartford.” (Opp. 7). But Progressive omits that this Geico/Hartford ex-
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`perience only began in 1996: it did not give him one to two years of experience as of 1996
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`(EX2021 (Zatkovich CV) at 4; Mot. 6), as Mr. Zatkovich himself conceded was neces-
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`sary to testify, as he did, about a POSITA’s knowledge as of 1996. (EX 2020 ¶ 8).
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`Nor did Progressive ever offer the Board any evidence or explanation of how (in con-
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`tradiction of Mr. Zatkovich’s own testimony (id.), as well as Progressive’s own posi-
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`tions in co-pending proceedings between these parties2) any later, post-1996 experience
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`would enable Mr. Zatkovich to provide such testimony—and its current argument
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`(Opp. 8) implicitly concedes he lacked this experience as of 1996. The suggestion Peti-
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`tioner was somehow obligated to give Mr. Zatkovich a second chance to explain him-
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`self in deposition (Opp. 7) is nonsense,3 and is not the rule: if Progressive had further
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`2 E.g., CBM2012-00010, Mot. (Paper 45) at 5 (arguing expert’s “work experience prior
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`to 1993” is “irrelevant to the pertinent art of the ‘088 Patent”).
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`3 Instead, the Rules anticipate a “party challenging an expert’s qualifications may ques-
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`tion the expert’s qualifications during cross-examination and can raise the challenges in its
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`2
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`Case CBM2013-00009
`Patent 8,140,358
`evidence of Mr. Zatkovich’s qualifications, it could have offered it in response to Peti-
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`tioner’s objections (MX1045 § III; MX1046 § I). 37 C.F.R. § 42.64(b)(2). It did not
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`even try. Quite simply, Progressive failed its burden of qualifying Mr. Zatkovich.
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`So, too, Progressive failed to qualify Dr. Ehsani. While Progressive extols
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`Ehsani’s academic background, accolades and grants (Opp. 3-5), this has nothing to
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`do with Petitioner’s motion: Progressive fails to identify evidence of a single experience
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`with “telematics systems for vehicles, particularly, telematics systems including communications
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`and locations technologies,” which Dr. Ehsani concedes is required. (EX2015 ¶ 19; see
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`RX1027 ¶ 14). As Progressive’s papers reveal, Dr. Ehsani’s experience, at best, relates
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`to data acquisition and processing (Opp. 3; EX2015 ¶ 11 (arguing he is qualified be-
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`cause “telematics includes the acquisition of automotive onboard vehicle data and its
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`processing” and he has “extensively performed real-time vehicle data acquisition, log-
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`ging, and analysis for driver-specific drive cycle analysis”))—not the communication
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`and location technology aspects of telematics that Dr. Ehsani concedes are essential.4
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`Opp. 3-5; EX2015 ¶ 19. Again, Petitioner had no obligation to give Dr. Ehsani a sec-
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`oppositions and, where appropriate, in a motion to exclude evidence.” 77 Fed. Reg. 48,643.
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`4 While Petitioner’s expert, “not being a lawyer,” would not be expected to know the
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`legal “requirements” of admissibility (cf. Mot. 5), he does know that “looking at [Dr.
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`Ehsani’s] CV, [Dr. Ehsani] doesn’t have any experience with telematics systems or com-
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`munication systems, which is what he is opining on.” EX2032 261:13-17.
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`
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`3
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`Case CBM2013-00009
`Patent 8,140,358
`ond chance to explain himself at deposition to meet Progressive’s burden of proof (cf. Opp.
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`5-6)—Progressive’s second chance came in its opportunity to submit evidence in re-
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`sponse to Petitioner’s objections (MX1045 § II; MX1046 § I), and it did not do so.
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`II. The Testimony of Both of Progressive’s Experts Is Unreliable
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` As explained in Petitioner’s Motion, “[w]hile an expert need not consider every
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`possible factor to render a reliable opinion,” there are limits: “the expert still must con-
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`sider enough factors to make his or her opinion sufficiently reliable in the eyes of the court.”
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`Mot. 8 (quoting Microstrategy Inc. v. Business Objects, S.A., 429 F.3d 1344, 1355 (Fed. Cir.
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`2005)). Progressive’s experts, however, did not do so. Instead, they opined in broad
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`contradiction of prior art on the very topics of their testimony—art that would have
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`been known to any POSITA, e.g., Standard Oil Co. v. American Cyanamid Co., 774 F.2d
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`448, 454 (Fed. Cir. 1985), such as a raft of earlier publications contradicting Progres-
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`sive’s arguments that a POSITA would be unfamiliar with fuzzy logic, and demon-
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`strating instead that fuzzy logic was well-understood and known to be used for insur-
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`ance by 1996.5 See Mot. 9. The issue here is not that Progressive’s experts personally
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`ignored the particular examples cited as evidence of a POSITA’s knowledge (cf. Opp. 9,
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`10, fn. 1), but that more broadly they ignored the relevant knowledge of a POSITA.6
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`5 Progressive’s baseless assertions about the propriety of this evidence are addressed
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`in Petitioner’s Opposition to Progressive’s own motion to exclude (Paper 53, at 3-4).
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`6 The same is true of evidence they considered, but whose teachings they ignored, such
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`4
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`Case CBM2013-00009
`Patent 8,140,358
`In doing so, they showed their testimony to be unreliable under F.R.E. 702(b).
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`III. Progressive’s Belated Attempt to Introduce Evidence Improperly Relied
`Upon by Its Expert Should be Rejected
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`Finally, while Progressive tees up a multitude of excuses (Opp. 11-13), it never
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`actually explains why it never provided a copy of the document referred to and relied upon
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`by Mr. Miller in paragraph 17 of Exhibit 2013 in this trial—even in response to Petitioner’s
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`repeated objections under Rule 42.63 and Rule 42.6(c), which Progressive admits re-
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`quired it to file this exhibit “with the first document in which it is cited.” Opp. 12.
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`Remarkably, Progressive now argues it “complied” with Rule 42.6(c) by filing the
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`document in a different trial involving a different patent—a position that makes a
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`mockery of the Rules and is belied by Progressive’s own filing of that same document
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`again in other trial proceedings (e.g., CBM2012-00004, EX2012; CBM2012-00002,
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`EX2012)—although not in this trial. And now, having ignored its opportunity to do so
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`under Rule 42.64(b)(2) either time Petitioner objected, Progressive violates the Rules
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`again by attempting to file the document as a new Exhibit (Exhibit 2031) six busi-
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`ness days before the oral hearing in this trial. The issue is not whether Petitioner
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`or its experts were capable of locating a document Progressive purported to rely up-
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`on, but Progressive’s sustained refusal to follow the Board’s Rules even after its error had
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`been pointed out twice. See MX1045 § I; MX1046 § II. If the Board enforces its rules
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`with Progressive’s argued strictness, this improper evidence should also be excluded.
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`as the Geostar system (which the Opposition does not even address). Mot. 8-9.
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`5
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`Respectfully submitted,
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`Case CBM2013-00009
`Patent 8,140,358
`
`
`
`
`ROPES & GRAY LLP
`
`
`
`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
`
`6
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`October 8, 2013
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`CERTIFICATE OF SERVICE
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`It is certified that a copy of PETITIONER LIBERTY MUTUAL INSUR-
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`ANCE CO.’S REPLY TO PATENT OWNER’S OPPOSITION TO LIBER-
`
`TY’S MOTION TO EXCLUDE has been served in its entirety on the Patent
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`Owner as provided in 37 CFR § 42.6.
`
`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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`
`
`
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`
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`/Jordan M. Rossen/
`Jordan M. Rossen
`
`ROPES & GRAY LLP
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`
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