SIGHTSOUND TECHNOLOGIES, LLC
`EXHIBIT 2372
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
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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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`_______________
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`APPLE INC.,
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`Petitioner,
`
`v.
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`SIGHTSOUND TECHNOLOGIES, LLC,
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`Patent Owner.
`_______________
`
`Case CBM2013-00023
`Patent 5,966,440
`
`_______________
`
`
`
`PATENT OWNER SIGHTSOUND TECHNOLOGIES, LLC’S FIRST SET
`OF OBJECTIONS TO PETITIONER APPLE INC’S EXHIBITS
`SUBMITTED IN SUPPORT OF REPLY
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`EXHIBIT 2372
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`APPLE INC.,
`
`Petitioner,
`
`v.
`
`SIGHTSOUND TECHNOLOGIES, LLC,
`
`Patent Owner.
`_______________
`
`Case CBM2013-00023
`Patent 5,966,440
`
`_______________
`
`
`
`PATENT OWNER SIGHTSOUND TECHNOLOGIES, LLC’S FIRST SET
`OF OBJECTIONS TO PETITIONER APPLE INC’S EXHIBITS
`SUBMITTED IN SUPPORT OF REPLY
`
`
`
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`
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`PAGE 000002
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`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
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`in a representative capacity for SightSound Technologies, LLC (“Patent Owner”),
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`hereby submits the following objections to Petitioner Apple Inc.’s (“Petitioner”)
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`Exhibits 4358-4466 and any reference to/reliance on the foregoing, including,
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`without limitation, citations thereto in Petitioner’s Reply. Petitioner’s objections
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`below apply the Federal Rules of Evidence (“F.R.E.”) as required by 37 C.F.R.
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`§ 42.62, as well as pursuant to 37 C.F.R. §§ 42.23(b), 42.53, 42.61, and 42.65, as
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`stated below.
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`I.
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`Objections to Exhibit 4414 and Exhibits 4379, 4395-4396, 4398-4399,
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`4400-4408, 4412, 4417-4418, 4460, and 4466 cited therein, Any
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`Reference to/Reliance Thereon, and Improper Incorporation Thereof
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`into Reply
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`Evidence objected to: Exhibit 4414, titled “Declaration of Lawrence
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`Kenswil,” and exhibits 4379, 4395-4396, 4398-99, 4400-4408, 4412, 4417-4418,
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`4460, and 4466 cited therein.
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`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”); 37 C.F.R. § 42.61 (“Admissibility”); F.R.E.
`
`601 (“Competency to Testify in General”); F.R.E. 602 (“Need for Personal
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`Knowledge”); F.R.E. 701 (“Opinion Testimony by Lay Witness”); F.R.E. 702
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`-1-
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`PAGE 000003
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`(“Testimony by Expert Witnesses”); F.R.E. 703-705 (“Witness Not Qualified to
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`Provide Expert Testimony”); F.R.E. 801, 802 (“Impermissible Hearsay”); 37
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`C.F.R. § 42.65 (“Expert testimony; tests and data”); 37 C.F.R. § 42.23(b)
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`(“Oppositions and replies”).
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`There has been no showing that Mr. Kenswil is qualified to provide expert
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`opinions on any technical matter, including bandwidth, compression, hard drives,
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`memory size, storage systems, hard disks, data transmission, DRM, the iTunes user
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`interface, the prevalence of computers and access to data-enabled
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`telecommunications lines in consumers’ homes, and encryption and purported
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`technical problems solved or not solved by the patents (see, e.g., Ex. 4414,
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`Sections VII-VIII), rendering his opinions on these matters improper and
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`inadmissible under at least F.R.E. 702 and F.R.E. 703-705. There has further been
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`no showing that Mr. Kenswil is qualified to provide any expert opinion on whether
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`the iTunes Music Store (“ITMS”) practices or is coextensive with the patented
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`claims (see, e.g., Ex 4414 ¶¶ 29-31), rendering his opinions on these matters
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`improper and inadmissible under at least F.R.E. 702 and F.R.E. 703-705. There
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`has further been no showing that Mr. Kenswil is qualified to provide any expert
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`opinion on any consumer-related issue, including branding, consumer behavior,
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`consumer purchasing patterns, and consumer demand for the ITMS or for any
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`particular feature of the ITMS (see, e.g., Ex. 4414, Section VIII), rendering his
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`PAGE 000004
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`opinions on these matters improper and inadmissible under at least F.R.E. 702 and
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`F.R.E. 703-705. Further, Mr. Kenswil has not demonstrated that he possesses first-
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`hand knowledge, experience, or perceptions regarding the above-identified
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`opinions, rendering any lay testimony or lay opinions on these matters improper
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`and inadmissible under at least F.R.E. 601, F.R.E. 602 and F.R.E. 701.
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`Mr. Kenswil’s testimony regarding SightSound’s business strategies, its
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`operations, and the reasons for its purported failure (Ex. 4414, Section VI, ¶¶ 34-
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`50, 77-79, 82-83) are similarly not based upon any established expertise or first-
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`hand experience or knowledge in violation of F.R.E. 602, F.R.E. 701, F.R.E. 702
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`and F.R.E. 703-705. Instead, Mr. Kenswil’s testimony recites and misconstrues
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`internal SightSound documents, many of which are incomplete drafts, and thus not
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`appropriate facts or data upon which to base expert testimony under F.R.E. 702.
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`Mr. Kenswil’s opinions regarding the failure of other digital download companies
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`(see, e.g., Ex. 4414 ¶ 32) are similarly unsupported by expertise or first-hand
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`knowledge in violation of F.R.E. 602, F.R.E. 701, F.R.E. 702 and F.R.E. 703-705,
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`and the documents upon which he bases his opinion regarding the failure of other
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`digital download companies are impermissible hearsay documents in violation of
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`F.R.E. 801 and 802.
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`Mr. Kenswil’s statements in paragraphs 90-92 and 95-96 of Exhibit 4414
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`provide neither expert opinion nor facts or data upon which any testimony is based.
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`-3-
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`PAGE 000005
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`These paragraphs recite what SightSound’s expert, Mr. Snell, testified to in
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`deposition, and are not relied upon or commented on by Mr. Kenswil in any
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`fashion whatsoever, and thus violate F.R.E. 402, 403 and 702.
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`Mr. Kenswil’s opinions regarding the reasons for the commercial success of
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`the ITMS, including that such commercial success is attributable to features or
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`attributes other than the claimed invention or that such features are important to the
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`success of the ITMS, are not based upon reliable facts, data, or empirical or
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`scientific evidence (including survey evidence), and thus such testimony is
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`improper and inadmissible. Specifically, Mr. Kenswil’s opinions on the reasons
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`for the commercial success of the ITMS appear to be based either: (1) on no
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`evidence or data, or undisclosed evidence and data, in violation of F.R.E. 702 and
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`37 C.F.R. § 42.65 (see, e.g., Ex. 4414 ¶¶ 67 (no data disclosed to support opinion
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`that the ITMS success is based upon “its experience, its credibility, its established
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`brand name . . . its user-friendly features, the existing iPod and iTunes music
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`management software. . .”), 68 (no data disclosed to support opinion that
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`consumers demand for content has driven the success of the ITMS), 92-94 (no data
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`disclosed to support opinion that success of ITMS was driven by the identified
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`features)); or (2) on impermissible hearsay documents as discussed below in
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`violation of F.R.E. 801 and 802 (see Ex. 4414, Section VIII).
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`-4-
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`PAGE 000006
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`Mr. Kenswil appears to rely upon out of court statements in Exhibits 4379,
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`4395-4396, 4398-4399, 4400-4408, 4412, 4417-4418, 4460, and 4466 for the truth
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`of the matters asserted therein, rendering his testimony and the associated exhibits
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`inadmissible hearsay pursuant to F.R.E. 801 and 802. There has been no showing
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`that a hearsay exception or exclusion applies to the statements or exhibits.
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`Further, the statements by Mr. Kenswil that the concept of selling digital
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`audio and video signals over telecommunications lines was well known in the prior
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`art or often discussed by those skilled in the art prior to the invention constitute
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`new evidence of obviousness that is improper on reply in violation of 37 C.F.R.
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`§ 42.23(b). See, e.g., Ex. 4414 ¶¶ 52 (citing Ex. 4306), 52 n.28 (same), 64.
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`Further, the statements of Mr. Kenswil that purport to declare what any
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`person associated with Universal, UMG, RCA, or the RIAA planned, conceived,
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`intended, anticipated, or believed are unsupported by the personal knowledge of
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`the declarant and thus improper under at least F.R.E. 601 and 602, and irrelevant
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`under F.R.E. 402 or prejudicial/misleading under F.R.E. 403.
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`Finally, the statements of Mr. Kenswil that purport to declare what any
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`person associated with “the labels” or “record labels” planned, conceived,
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`intended, anticipated, believed or was capable of are unsupported by the personal
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`knowledge of the declarant and thus improper under at least F.R.E. 601 and 602,
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`and irrelevant under F.R.E. 402 or prejudicial/misleading under F.R.E. 403.
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`PAGE 000007
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`II. Objections to Portions of Exhibit 4416, Any Reference to/Reliance
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`Thereon, and Improper Incorporation Thereof into Reply
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`Evidence objected to: Exhibit 4416, titled “Declaration of Tom Weyer.”
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`Grounds for objection: F.R.E. 402 (“General Admissibility of Relevant
`
`Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion,
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`Waste of Time, or Other Reasons”); 37 C.F.R. § 42.61 (“Admissibility”); F.R.E.
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`601 (“Competency to Testify in General”); F.R.E. 602 (“Need for Personal
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`Knowledge”).
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`Mr. Weyer declares that while he remembers “attending a lunch meeting”
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`with a “SightSound entity” and recalls seeing “some documents,” he did “not recall
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`discussing any specific patents” and no longer has any notes. Ex. 4416 ¶¶ 4-6. No
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`foundation or explanation is provided for the statement that “[i]f we had been
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`impressed with the technology offered by the company, Apple would have
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`followed up with additional meetings.” Ex. 4416 ¶ 7. Mr. Weyer was “not
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`involved in the development of iTunes or the iTunes Music Store,” but states that
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`“[a]s far as I know, nothing from the early 1999 meeting was communicated to
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`anyone who was involved with the development of iTunes or the iTunes Music
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`Store.” Ex. 4416 ¶ 9. By Mr. Weyer’s own admission he lacks relevant
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`information and personal knowledge regarding what information Apple may have
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`possessed and what was done with that information after the 1999 meeting; Mr.
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`PAGE 000008
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`Weyer instead provides conjecture about what Apple “would have” done. The
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`declaration was made without personal knowledge, is irrelevant, and its probative
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`value is substantially outweighed by prejudice to Patent Owner in violation of
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`F.R.E. 402-403 and F.R.E. 601-02.
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`III. Objection to Exhibit 4413, Any Reference to/Reliance Thereon, and
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`Improper Incorporation Thereto into Reply
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`Evidence objected to: Exhibit 4413, titled “Declaration of Jeffrey Robbin.”
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`Grounds for objection: F.R.E. 401 (“General Admissibility of Relevant
`
`Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion,
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`Waste of Time or Other Reasons”); F.R.E. 601 (“Competency to Testify in
`
`General”); F.R.E. 602 (“Need for Personal Knowledge”); F.R.E. 701 (“Opinion
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`Testimony by Lay Witness”); F.R.E. 702 (“Testimony by Expert Witnesses”);
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`F.R.E. 703-705 (“Witness Not Qualified to Provide Expert Testimony”); 37 C.F.R.
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`§ 42.61 (“Admissibility”); 37 C.F.R. § 42.65 (“Expert testimony; tests and data).
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`The statements by the witness, Jeffrey Robbin, purporting to state what any
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`person associated with Apple planned, conceived, intended, anticipated, or
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`developed, are unsupported by the personal knowledge of the declarant and thus
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`improper under at least F.R.E. 601 and 602, and irrelevant under F.R.E. 402 or
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`prejudicial/misleading under F.R.E. 403.
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`PAGE 000009
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`There has been no showing that Mr. Robbin is qualified to provide expert
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`opinion or other opinion about the U.S. Patents and “features” cited in paragraph 7
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`of his declaration, nor the application of such patented inventions to the ITMS.
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`Mr. Robbin’s declaration also does not provide sufficient underlying facts or data
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`upon which the opinions about these patents and features could be based and are
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`thus improper lay or expert opinion testimony under at least F.R.E. 701, 702, and
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`703-705, and 37 C.F.R. § 42.65. To the extent Apple intends to rely upon the truth
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`of any of the data contained in any specifications or drawings contained in the U.S.
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`Patents identified in Mr. Robbin’s declaration, Mr. Robbin’s declaration fails to
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`identify any facts based on first-hand knowledge regarding how such data was
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`generated and is thus inadmissible pursuant to 37 C.F.R. § 42.61.
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`Further, the statements in paragraph 9 of Mr. Robbin’s declaration that the
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`idea to sell music and video files over computer networks was “prevalent in the
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`industry since the mid-1980s” is not based upon personal knowledge and is
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`improper under at least F.R.E. 601-602 and 701-705 (as well as for the additional
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`reason that it is improper new evidence on Reply as stated below).
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`PAGE 000010
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`IV. Objections to Exhibit 4420 and Exhibits 4376-4394, 4409, and 4421-4459
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`cited therein, Any Reference to/Reliance Thereon, and Improper
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`Incorporation Thereof into Reply
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`Evidence objected to: Exhibit 4420, titled “Second Declaration of Dr. John
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`P.J. Kelly In Support of Apple Inc.’s Petition For Covered Business Method Patent
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`Review of United States Patent No. 5,966,440 Pursuant to 35 U.S.C. § 321, 37
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`C.F.R. § 42.304,” and Exhibits 4376-4394, 4409, and 4421-4459 cited therein.
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`Grounds for objection: F.R.E. 402 (“General Admissibility of Relevant
`
`Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice, Confusion,
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`Waste of Time, or Other Reasons”); 37 C.F.R. § 42.61 (“Admissibility”); F.R.E.
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`601 (“Competency to Testify in General”); F.R.E. 602 (“Need for Personal
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`Knowledge”); F.R.E. 701 (“Opinion Testimony by Lay Witness”); F.R.E. 702
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`(“Testimony by Expert Witnesses”); F.R.E. 703-705 (“Witness Not Qualified to
`
`Provide Expert Testimony”); F.R.E. 801, 802 (“Impermissible Hearsay”); 37
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`C.F.R. § 42.65 (“Expert testimony; tests and data); 37 C.F.R. § 42.23(b)
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`(“Oppositions and replies”).
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`Dr. Kelly’s declaration lists dozens of unrelated patents held by Apple which
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`purportedly “demonstrate Apple’s innovation, including in the context of
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`iTMS/iTunes . . . .” Ex. 4420 ¶¶ 67, 68-82 (citing Exs. 4421-4459). There has
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`been no showing that this recitation of unrelated patents is relevant to this
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`PAGE 000011
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`proceeding, and if admitted, the minimal probative value of such materials would
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`be substantially outweighed by the unfair prejudice it would cause, the confusing
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`and misleading nature of the materials, the undue delay upon these proceedings,
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`and the waste of time that would ensue, in violation of F.R.E. 401-403. While Dr.
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`Kelly suggests that the identified patents bear some relation to the ITMS, he
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`discloses no facts, data, or analysis linking the identified patented inventions to the
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`ITMS, in violation of at least F.R.E. 702 and 37 C.F.R. § 42.65.
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`Dr. Kelly purports to offer numerous opinions concerning the working of the
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`ITMS. Ex. 4420, Sections V-VI. Dr. Kelly has not demonstrated that he is
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`qualified to present opinions concerning the ITMS and whether it practices the
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`claims of U.S. Patent No. 5,966,440, nor the various patents cited that have issued
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`to Apple, particularly those that Dr. Kelly asserts “issued over” a SightSound
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`patent. Ex. 4420 ¶¶ 68-82. Reference to such patents is irrelevant and likely
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`prejudicial to SightSound far in excess of any probative value these references may
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`provide, in violation of F.R.E. 402-403. Dr. Kelly also relies on insufficient facts
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`and data and inadmissible hearsay for his testimony regarding the workings of the
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`ITMS and payment methods accepted by Apple, such as undated screenshots and
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`printouts from Apple’s website (Ex. 4420 ¶¶ 28-47, 54 (citing Exs. 4383-4387,
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`4390-4392)) and third-party descriptions of how payment for content purchased
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`from the ITMS works (Ex. 4420 ¶¶ 38, 40 (citing Exs. 4387-4388)). For other
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`PAGE 000012
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`opinions concerning the role played by Akamai Technologies, Inc. in connection
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`with the ITMS, Dr. Kelly provides no citation or support at all. Ex. 4420 ¶¶ 43-45.
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`Dr. Kelly also provides no support or citation for his opinions concerning the
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`sequence in which the ITMS processes transactions. Ex. 4420 ¶¶ 56-58.
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`Furthermore, Dr. Kelly provides no support or citation for opinions concerning
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`playback on iPod classic, iPod nano, and iPod shuffle devices, and whether certain
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`devices contain a hard disk. Ex. 4420 ¶¶ 61, 63-64. The foregoing opinions rely
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`on unauthenticated hearsay materials, do not reflect Dr. Kelly’s personal
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`knowledge, and do not rest on reliable materials (such as technical documentation
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`or schematics) or methods of analysis that were available to Dr. Kelly and which a
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`qualified expert would have analyzed or utilized in reaching opinions and
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`conclusions of this nature. As such, Dr. Kelly’s opinions and conclusions
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`constitute prejudicial and unreliable expert testimony or inadmissible lay opinion
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`testimony based on hearsay in violation of F.R.E. 402-403, 602, 701-703, 801-802,
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`901, 37 C.F.R. § 42.61(c) and 37 C.F.R. § 42.65.
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`Additionally, Dr. Kelly’s declaration submits and relies upon new material
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`and opinions in support of Petitioner’s prima facie case for the first time on reply,
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`in contravention of 37 C.F.R. § 42.23(b). For example, Dr. Kelly provides several
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`new opinions concerning the information or combinations that would have been
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`known or obvious to a person of ordinary skill in the art as of the priority date.
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`PAGE 000013
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`See, e.g., Ex. 4420 ¶¶ 6, 14, 18, 19, 22 (“it would have been obvious to a person of
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`ordinary skill in the art to combine the known elements of electronic sale and
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`electronic transmission . . .”), 24 (“one of ordinary skill in the art would understand
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`that providing a monthly bill versus immediately billing the customer for the
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`content are both feasible options a seller would consider . . .”), 65 (“shared public
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`key encryption[] was already well known in the art”). Dr. Kelly offers new
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`information and opinions concerning hard drive technology in the early 1980’s.
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`Ex. 4420 ¶ 5 n.3 (citing Ex. 4409). Dr. Kelly also offers new opinions concerning
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`whether an electronic purchase inherently assumes charging a fee. Ex. 4420 ¶ 17.
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`The witness also provides several new opinions based on previously undisclosed
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`materials concerning the uses of credit cards as of and prior to the priority date.
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`Ex. 4420 ¶¶ 20-22 (citing Exs. 4376-4378, 4380-4382, 4393-4394). Dr. Kelly
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`impermissibly provides extensive opinions for the first time on reply concerning
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`the workings of the ITMS and Apple’s own patents that are purportedly related to
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`the ITMS. Ex. 4420, Sections V-VI (citing Exs. 4421-4459). Finally, Dr. Kelly
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`has opined for the first time concerning whether CompuSonics “would have
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`enabled one of ordinary skill in the art to practice the claims.” Ex. 4420 ¶ 83.
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`V. Objections to Exhibits 4410-4411 and 4421-4459, Any Reference
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`to/Reliance Thereon, and Improper Incorporation Thereof into Reply
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`Evidence Objected To: Exhibits 4410-4411 and 4421-4459.
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`PAGE 000014
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`Grounds for Objection: 37 C.F.R. § 42.61 (“Admissibility”); F.R.E. 402
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`(“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding Relevant
`
`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”).
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`Apple identifies numerous U.S. Patents for the first time in support of its
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`Reply along with various assertions regarding the truth of the data contained in the
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`patents. To the extent that Apple is relying upon the truth of any of the data
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`contained in the specifications and drawings in such patents (Exs. 4410-4411,
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`4421-4459), Apple has not provided the requisite affidavit or declaration by an
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`individual having first-hand knowledge of how the data was generated, rendering
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`these exhibits improper and inadmissible under 37 C.F.R. § 42.61.
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`To the extent Apple claims that the ITMS includes inventions disclosed in
`
`Exhibits 4421-4459, Apple has provided no testimony or other evidence
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`establishing that these inventions are utilized by the ITMS or were utilized by the
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`ITMS during the relevant time period, rendering the exhibits irrelevant under
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`F.R.E. 402 and to the extent relevant, unduly prejudicial, confusing, and/or a waste
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`of time under F.R.E. 403.
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`VI. Objections to Portions of Exhibits 4366, 4367 and 4374, Any Reference
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`to/Reliance Thereon, and Improper Incorporation Thereof into Reply
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`Evidence objected to: Exhibit 4366, titled “Deposition Transcript of John
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`Snell in Apple v. SightSound Technologies, LLC, Nos. CBM 2013-0020, -0023,
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`PAGE 000015
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`March 6, 2014”; Exhibit 4367, titled “Redacted Version of Plaintiff SightSound
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`Technologies, LLC’s Expert Report of John Snell on Validity, 6/5/13”; and Exhibit
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`4374, titled “Technology Tutorial SightSound Technologies, LLC v. Apple, Inc.
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`No. 2:11-cv-1192-DWA Special Master Gregory Bradley October 11, 2012,”
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`marked “Exhibit 15 of the Deposition of John Snell.”
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`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”); 37 C.F.R. § 42.61 (“Admissibility”); 37
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`C.F.R. § 42.53(d)(5)(ii) (“Taking testimony”).
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`With respect to portions of Exhibit 4366, SightSound objects to the extent
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`that Apple questioned Mr. Snell regarding claim construction issues and other
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`issues that are unrelated to his declaration. Exhibits 4367 and 4374, upon which
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`Apple questioned Mr. Snell, similarly relate to issues outside the scope of his direct
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`testimony and the issues raised by Apple in its Petition. These documents and
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`testimony relate to validity and claim construction issues raised in District Court
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`litigation between the parties and not relevant to the current proceedings, and are
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`thus improper, prejudicial, and/or confusing in violation of 37 C.F.R.
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`§ 42.53(d)(5)(ii), F.R.E. 402, and F.R.E. 403.
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`PAGE 000016
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`VII. Objections to Portions of Exhibits 4393, 4394, 4376, 4377, 4378, 4380,
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`4381, 4382, 4306, 4410, 4411, 4413, 4414, and 4420, Any Reference
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`to/Reliance Thereon, and Improper Incorporation Thereof into Reply
`
`Evidence objected to: Portions of Exhibits 4393, 4394, 4376, 4377, 4378,
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`4380, 4381, 4382, 4306, 4410, 4411, 4413, 4414, and 4420.
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`Grounds for Objection: 37 C.F.R. § 42.23(b) (“Oppositions and replies”).
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`In Exhibits 4306, 4410, 4411, 4413, 4414, and 4420, Apple attempts to offer
`
`new evidence relating to obviousness for the first time in its Reply briefing which
`
`was not included in Apple’s Petition. For example, Apple seeks to offer new
`
`evidence regarding obviousness via new opinions from new witnesses who opine
`
`that, prior to the invention, the desirability and advantages of selling and
`
`distributing digital audio and digital video signals over telephone lines was well
`
`known. See, e.g., Ex. 4414 (Declaration of Lawrence Kenswil) ¶¶ 52 (citing Ex.
`
`4306), 52 n.28 (same), 64; Ex. 4413 (Declaration of Jeffrey Robbin) ¶ 9; Ex. 4420
`
`(Second Declaration of Dr. John P.J. Kelly) ¶¶ 6, 18, 22, 23, 24.
`
`Further, Apple offers new materials via Exhibits 4410 and 4411 regarding
`
`whether electronic payment methods would have been obvious. Apple submits
`
`new materials in Exhibits 4393, 4378, 4380, 4381 and 4382, concerning what was
`
`known in the art.
`
`
`
`-15-
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`
`
`PAGE 000017
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`
`
`Apple also offers new evidence regarding anticipation, obviousness, and
`
`inherency, including new testimony and evidence regarding the features of
`
`CompuSonics, electronic payment, and matters within the knowledge and
`
`understanding of persons of ordinary skill in the art. See, e.g., Ex. 4420 (Second
`
`Declaration of Dr. John P.J. Kelly) ¶¶ 17, 19, 20, 21, 22, 23, 24, 83; Exhibits 4376-
`
`4377.
`
`VIII. Objections to Exhibit 4462 and Exhibits 4383-4403, 4406, and 4408
`
`Thereto
`
`Evidence objected to: Exhibit 4462, title “Declaration of Roberto J.
`
`Gonzalez” and Exhibits 4383-4403, 4406, and 4408 thereto.
`
`Grounds for Objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 602 (“Need for Personal Knowledge”).
`
`Mr. Gonzalez’s declaration attempts to authenticate documents he located on
`
`the Internet by claiming that they are “true and correct copies” of certain materials
`
`such as articles and presentations. Mr. Gonzalez has offered no facts establishing
`
`that he has sufficient knowledge to verify that in fact, the exhibits cited are true
`
`and correct copies of the documents they purport to be, and only establishes that
`
`Mr. Gonzalez located them at particular Internet addresses. For example, Mr.
`
`Gonzalez states that Exhibit 4389 is a true and correct copy of a “presentation
`
`entitled ‘Payment Systems, E-Commerce Winter 2011, Maurek Maurizio,’”
`
`
`
`-16-
`
`
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`PAGE 000018
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`
`
`however, he only declares that he retrieved the document provided at a particular
`
`URL address. Mr. Gonzalez provides no information whatsoever to establish that
`
`the document provided is a copy of any presentation, who authored it, or other
`
`information establishing that the exhibit is what it purports to be. The exhibit itself
`
`contains no self-authenticating information. Another example is Exhibit 4388,
`
`which Mr. Gonzalez states is a “true and correct” copy of an “article.” The only
`
`fact his declaration establishes about the document is that it was located at a
`
`particular Internet address. This violates F.R.E. 901 and 602. The remaining
`
`Gonzalez exhibits suffer from the same defects.
`
`
`
`Dated: March 28, 2014
`
`
` By:
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/David R. Marsh/
`David R. Marsh, Ph.D.
`Kristan L. Lansbery, Ph.D.
`ARNOLD & PORTER LLP
`555 12th Street, N.W.
`Washington, DC 20004
`Tel: (202) 942-5068
`Fax: (202) 942-5999
`
`Attorneys for Patent Owner
`SightSound Technologies, LLC
`
`
`
`
`-17-
`
`
`
`PAGE 000019
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing PATENT OWNER
`
`SIGHTSOUND TECHNOLOGIES, LLC’S FIRST SET OF OBJECTIONS
`
`TO PETITIONER APPLE INC’S EXHIBITS SUBMITTED IN SUPPORT
`
`OF REPLY, was served on March 28, 2014 to the following Counsel for
`
`Petitioner via e-mail, pursuant to the parties’ agreement concerning service:
`
`J. Steven Baughman, Lead Counsel
`Ching-Lee Fukuda
`ROPES & GRAY LLP
`Prudential Tower
`800 Boylston Street
`Boston, Massachusetts 02199-3600
`Steven.Baughman@ropesgray.com
`Ching-Lee.Fukuda@ropesgray.com
`ApplePTABServiceSightSound@ropesgray.com
`
`Attorneys for Petitioner Apple Inc.
`
`/David R. Marsh/
`David R. Marsh (Atty. Reg. No. 41,408)
`ARNOLD & PORTER LLP
`555 12th Street, N.W.
`Washington, D.C. 20004
`Tel: (202) 942-5068
`Fax: (202) 942-5999
`
`-18-
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