`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`SMARTFLASH LLC,
`Patent Owner
`______________________
`
`Case CBM2014-001121
`Patent 7,942,317 B2
`______________________
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`PETITIONER APPLE INC.’S OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE UNDER 37 C.F.R. § 42.64(c)
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`1 Case CBM2014-00113 has been consolidated with the instant proceeding.
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`CBM2014-00112
`Patent 7,942,317 B2
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`TABLE OF CONTENTS
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`
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`The Board Should Not Exclude Exhibit 1002 ................................................. 2
`I.
`The Board Should Not Exclude Exs. 1004-05, 1009, 1019, or 1027-29 ........ 3
`II.
`III. The Board Should Not Exclude Exs. 1006- 07, 1012, 1016-18, Or 1020....... 3
`IV. The Board Should Not Exclude Exhibit 1021 ................................................. 5
`V.
`The Board Should Not Exclude Any Portions of Exhibit 1031 ...................... 8
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`CBM2014-00112
`Patent 7,942,317 B2
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`In response to Patent Owner’s (“PO”) Motion to Exclude (“Mot.”, Pap. 38),
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`Petitioner respectfully submits that the Board, sitting as a non-jury tribunal with
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`administrative expertise, is well-positioned to determine and assign appropriate
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`weight to the evidence presented here, without resorting to formal exclusion that
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`might later be held reversible error. See, e.g., S.E.C. v. Guenthner, 395 F. Supp. 2d
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`835, 842 n.3 (D. Neb. 2005); Builders Steel Co. v. Comm’r of Internal Revenue,
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`179 F.2d 377, 379 (8th Cir. 1950) (vacating Tax Court decision for exclusion of
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`competent, material evidence); Donnelly Garment Co. v. Nat’l Labor Relations
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`Bd., 123 F.2d 215, 224 (8th Cir. 1941) (NLRB’s refusal to receive testimonial evi-
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`dence was denial of due process). See also, e.g., Samuel H. Moss, Inc. v. F.T.C.,
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`148 F.2d 378, 380 (2d Cir. 1945), cert. denied, 326 U.S. 734 (1945) (“Even in
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`criminal trials to a jury it is better, nine times out of ten, to admit, than to exclude,
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`… and in such proceedings as these the only conceivable interest that can suffer by
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`admitting any evidence is the time lost, which is seldom as much as that inevitably
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`lost by idle bickering about irrelevancy or incompetence”). But even under strict
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`application of the Rules of Evidence, cf. 77 Fed. Reg. 48,612, 48,616 (Aug. 14,
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`2012) (“42.5(a) and (b) permit administrative patent judges wide latitude in admin-
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`istering the proceedings to balance the ideal of precise rules against the need for
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`flexibility to achieve reasonably fast, inexpensive, and fair proceedings”), Petition-
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`er’s evidence here is entirely proper while PO’s objections are baseless; indeed,
`1
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`CBM2014-00112
`Patent 7,942,317 B2
`they appear in various instances to be nothing but unauthorized sur-reply. See 77
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`Fed. Reg. 48,756, 48,767 (Aug. 14, 2012) (“A motion to exclude must explain why
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`the evidence is not admissible (e.g., relevance or hearsay) but may not be used to
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`challenge the sufficiency of the evidence to prove a particular fact.”).2
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`I.
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`The Board Should Not Exclude Exhibit 10023
`Petitioner did not rely on Ex. 1002 for “evidence of the content” of the ’317
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`patent (cf. Mot. 2), but rather to show that PO’s own characterization of the sub-
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`ject matter of the ’317 patent supports Petitioner’s contention—and the Board’s
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`conclusion—that the ’317 patent relates to a financial activity or transaction and is
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`thus subject to the Board’s review as a covered business method patent. See Pap. 2
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`at 10-11. PO’s characterization of the ’317 in another proceeding is not found in
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`the patent itself; thus, Ex. 1002 is not cumulative of the ’317 patent and FRE 1004
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`is inapplicable. PO disputed the financial nature of the ’317 patent, see Pap. 6 at 3-
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`7, and its highly relevant admission to the contrary should not be excluded.
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`2 All emphasis herein is added unless otherwise indicated.
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`3 Exclusion of Exs.1102-1129 in consolidated CBM2014-00113, which correspond
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`to Exs.1002-1029 and to which PO objects for the same reasons (Mot. 13-15),
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`should be denied for the same reasons identified for Exs.1002-1029. Similarly Ex.
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`1101 (’317 patent), to which PO objects only as duplicative of Ex. 1001, should
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`not be excluded.
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`2
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`CBM2014-00112
`Patent 7,942,317 B2
`The Board Should Not Exclude Exs. 1004-05, 1009, 1019, or 1027-29
`II.
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`PO’s assertion that Exs. 1004-05, 1019, and 1027-1029 are not cited in the
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`Wechselberger Declaration (Mot. 3) is simply wrong4: all were cited as “Materials
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`Reviewed and Relied Upon,” see Ex. 1021, App. C, and properly filed with the Pe-
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`tition. See 37 C.F.R. § 42.6(c). (Indeed, Petitioner respectfully submits PO would
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`now be objecting if Petitioner had failed to provide these cited exhibits.) To the ex-
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`tent PO’s objection is based on imaginings that Petitioner will advance at oral hear-
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`ing arguments about these documents not presented in previous papers, this is
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`baseless – Petitioner intends to comply fully with the Board’s rules (e.g., Trial
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`Practice Guide, 77 Fed. Reg. 48756, 48768 (Aug. 14, 2012)), and expects PO will
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`do the same with respect to PO’s many exhibits (e.g., Exs. 2006-08, 2013, and
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`2019-21) not substantively cited or relied upon in any of PO’s submitted papers.
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`III. The Board Should Not Exclude Exs. 1006- 07, 1012, 1016-18, Or 1020
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`Contrary to PO’s assertions, Exs. 1006-07, 1012, 1017, and 1020 (“Prior Art
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`Exhibits”) are relevant and important to the Board’s obviousness analysis because
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`they are evidence of the state of the art and knowledge of a person of ordinary skill
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`in the art (“POSITA”) at the claimed priority date. E.g., In re Taylor Made Golf
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`Co., 589 F. App’x 967, 971 (Fed. Cir. 2014) (“[T]he Supreme Court and this court
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`4 Ex. 1009, cited in a parallel proceeding (CBM2014-00104), was not relied on
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`here. While exclusion of Ex. 1009 is unnecessary, Petitioner would not oppose it.
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`3
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`CBM2014-00112
`Patent 7,942,317 B2
`require that, as part of the obviousness analysis, the prior art must be viewed in the
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`context of what was generally known in the art at the time of the invention.”).
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`“The knowledge of [a POSITA] is part of the store of public knowledge that must
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`be consulted when considering whether a claimed invention would have been obvi-
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`ous.” Randall Mfg. v. Rea, 733 F.3d 1355, 1362 (Fed. Cir. 2013). Both the Peti-
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`tion and the Wechselberger Declaration describe the Prior Art Exhibits as evidence
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`of that knowledge. See Pap. 2 at 4-7 (Overview of Field of the Claimed Inven-
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`tion), 13-14; Ex. 1021 ¶¶ 31-49 (State of the Art). And the Federal Circuit has de-
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`clared that “perhaps the most reliable” evidence of the knowledge of a POSITA “is
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`documentary evidence consisting of prior art in the area” – precisely the evidence
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`presented in the Prior Art Exhibits. Randall, 733 F.3d at 1362-63.
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`That these Exhibits do not form the basis for the instituted grounds does not,
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`as PO contends (Mot. 4), mean they are not relevant to obviousness. To the con-
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`trary, the Supreme Court and Federal Circuit mandate that such evidence be con-
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`sidered, Taylor Made, 589 F. App’x at 971, and the Federal Circuit has criticized
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`the Board for considering only references recited as the basis of invalidity. Ran-
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`dall, 733 F.3d at 1362. The Prior Art Exhibits are unquestionably relevant and re-
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`quired for a proper obviousness analysis; there is no basis to exclude them.
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`PO’s assertion that Exs. 1016 and 1018 are irrelevant is similarly meritless.
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`As with the other Prior Art Exhibits, Exs. 1016 and 1018 are relevant and im-
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`4
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`CBM2014-00112
`Patent 7,942,317 B2
`portant to the Board’s obviousness analysis because they provide further evidence
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`of the state of the art and a POSITA’s knowledge . See Randall, 733 F.3d at 1363.
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`While the Board did not institute review based on grounds calling out Exs. 1016
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`and 1018, they nonetheless establish the state of the art and provide context for the
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`obviousness inquiry, see id., and the Petition and Wechselberger Declaration spe-
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`cifically rely on Exs. 1016 and 1018 for this purpose in their “Overview of Field of
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`the Invention” and “State of the Art” discussions, respectively. See Pap. 2 at 5; Ex.
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`1021 ¶¶ 37, 44. Again, Exs. 1016 and 1018 are relevant to the obviousness analy-
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`sis, and should not be excluded.
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`IV. The Board Should Not Exclude Exhibit 1021
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`Unable to identify any legitimate reason to exclude Exhibit 1021, PO objects
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`(1) under FRE 602 to the “sufficiency” of the opinions in the Wechselberger Dec-
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`laration, (2) without support, to Mr. Wechselberger’s qualifications as an expert,
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`and (3) to the inclusion of background state of the art information despite its man-
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`dated place in the obviousness analysis. PO is wrong on all counts.
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`First, there is no basis for PO’s objections to Mr. Wechselberger’s expert
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`testimony under FRE 602, as the rule plainly states it “does not apply to a wit-
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`ness’s expert testimony under Rule 703.” Thus, PO’s FRE 602 objections to the
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`Declaration, based on purported omission of the standard of evidence and on the
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`sufficiency of the opinions, should be rejected for this reason alone. Further, PO’s
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`5
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`CBM2014-00112
`Patent 7,942,317 B2
`purported objections to the Wechselberger Declaration for “not sufficiently
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`stat[ing] the criteria used to assess” whether, and “not address[ing] sufficiently”
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`why, a POSITA would have been motivated to make specific combinations (Mot.
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`7) are improper challenges to the sufficiency of the opinions presented rather than
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`challenges to their admissibility. See 77 Fed. Reg. at 48,767 (Aug. 14, 2012) (“A
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`motion to exclude must explain why the evidence is not admissible (e.g., relevance
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`or hearsay) but may not be used to challenge the sufficiency of the evidence to
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`prove a particular fact.”). And, in any event, PO cites no authority for its proposi-
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`tion that to be admissible the Wechselberger Declaration must state “whether he
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`considered evidence tending to show that [a POSITA] would not have made his
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`proposed combination.” Mot. 7 (emph. original). And PO is simply wrong in ar-
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`guing Ex. 1021 does not sufficiently lay out the reasons a POSITA would have
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`been motivated to combine references: for each combination, the Declaration spe-
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`cifically explains with supporting citations why a POSITA would have been moti-
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`vated to combine the prior art teachings. See, e.g., Ex. 1021 ¶53.
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`Despite the Board’s rejection of PO’s argument that the Wechselberger Dec-
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`laration should be disregarded for not reciting the evidentiary standard, PO rear-
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`gues it here for the third time. Mot. at 6-7; Pap. 7 at 4 n.9; see Pap. 6 at 15-16;
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`Pap. 22 at 4-7. But, as the Board properly found, the purported omission is not
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`“evidence that Mr. Wechselberger used incorrect criteria, failed to consider evi-
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`6
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`CBM2014-00112
`Patent 7,942,317 B2
`dence, or is not an expert in the appropriate field.” Pap. 7 at 4 n.9. Indeed, experts
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`like Mr. Wechselberger—who are, after all, technologists, not lawyers—are not
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`required to “recite or apply the ‘preponderance of the evidence’ standard expressly
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`in order for the expert testimony to be accorded weight. Rather, it is within [the
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`Board’s] discretion to assign the appropriate weight to be accorded to evidence
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`based on whether the expert testimony discloses the underlying facts or data on
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`which the opinion is based.” See IPR2013-00172, Pap. 50 at 42.
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`Equally baseless is PO’s throw-away argument (Mot. 8) that Mr. Wechsel-
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`berger does not qualify as an expert. Tellingly, PO offers no evidence disputing
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`that Mr. Wechselberger is a qualified expert; and, in contrast to the qualifications
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`of the “expert” Smartflash proffered, Mr. Wechselberger’s CV and Declaration
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`prove that Mr. Wechselberger qualifies as an expert under both parties’ proposed
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`definitions of a POSITA. For example, even a cursory review of Mr. Wechsel-
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`berger’s CV reveals that he “had a bachelor’s degree in electrical engineering or its
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`equivalent” by 1999. Ex. 2031 ¶ 9; Ex. 1021 at 40. And the Wechselberger Decla-
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`ration details in several paragraphs Mr. Wechselberger’s decades of experience in
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`relevant industries. Id. ¶¶ 3-12. Indeed, at trial in the litigation, PO had no objec-
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`tion to Petitioner’s offer of Mr. Wechselberger as an expert in the field of the al-
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`leged invention. Ex. 1034 62:12-18. As PO then acknowledged, Mr. Wechsel-
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`berger is a qualified expert and should not be excluded.
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`7
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`CBM2014-00112
`Patent 7,942,317 B2
`PO also seeks to exclude the portions of Ex. 1021 that cite prior art to de-
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`scribe the state of the art and provide context for his invalidity opinions. As de-
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`tailed in § III, supra, the Declaration’s description of the background and
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`knowledge of a POSITA at the relevant time is important and relevant to the ques-
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`tion of obviousness. See, e.g., Randall, 733 F.3d at 1362. For the same reasons
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`the Prior Art Exhibits and Exs.1016 and 1018 are relevant, expert descriptions and
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`analyses of those exhibits are relevant under FRE 401 and should not be excluded.
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`V.
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`The Board Should Not Exclude Any Portions of Exhibit 1031
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`Finally, PO complains about portions of Dr. Katz’s deposition testimony
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`highlighting that the opinions in his declaration (Ex. 2031) lack both support and
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`credibility. Many of these objections appear for the first time in PO’s motion, and
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`are thus waived: Rule 42.64(a) required counsel to object to each and every ques-
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`tion it considered improper. See, e.g., CBM2014-00008, Paper 48 (Aug. 12, 2014)
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`(“Patent Owner objected to many, but not all, … questions . . . , indicating its be-
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`lief that at least some of the questioning was proper.” (citing 42.64(a)). And even
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`on the occasions PO actually made them, its objections do not come close to estab-
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`lishing inadmissibility of any evidence. PO simply seeks to throw out highly rele-
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`vant testimony that is unfavorable to PO, and its motion is at best an improper sur-
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`reply aimed at rehabilitating PO’s unqualified witness.
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`Ex. 1031 36:10-37:11. While PO suggests it objected to this “line of ques-
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`8
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`CBM2014-00112
`Patent 7,942,317 B2
`tioning” based on relevance and scope (Mot. 9), the record reveals PO made no ob-
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`jection to the question and answer at 37:6-11 concerning whether a POSITA would
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`have understood that access to stored data could be restricted based on payment
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`validation; thus, any such objection was waived. See 37 C.F.R. § 42.64(a).
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`Moreover, both this exchange and the preceding one at 36:10-37:5 (to which
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`PO did object on “scope” and “relevance” grounds), concerning restricting access
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`based on whether or how much payment had been made, address concepts funda-
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`mental to the ’317 patent and Dr. Katz’s opinions. See, e.g., Ex. 1001 at 1:27-29,
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`2:7-11; Ex. 2031 at ¶¶ 28-30. The challenged claims recite “code responsive to the
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`request and to the received payment data” to read data from a data provider (claim
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`1) or output the item data to the requester (claim 16), and the prior art disclosed
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`minimizing unauthorized content use to ensure content owners are paid. See, e.g.,
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`Ex. 1014 at 1:11-24, 6:62-7:5; Ex. 1015 at 2:59-66, 3:21-32. The prior art disclos-
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`es requiring that conditions, including fee conditions, be met before content is pro-
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`vided to a user. See, e.g., Ex. 1014 at Fig. 18, 31:30-33, 32:19-26. Dr. Katz him-
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`self confirmed, in testimony Smartflash does not object to, that a POSITA would
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`have “understood that payment validation could be made a condition of providing
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`content that was electronically sold.” Ex.1031 27:4-9. But Dr. Katz inexplicably
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`says otherwise in his declaration, opining without basis that claims directed to
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`providing data responsive to received payment data are not obvious from the prior
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`9
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`CBM2014-00112
`Patent 7,942,317 B2
`art. E.g., Ex. 2028 at ¶¶ 21, 31. Dr. Katz’s inability at deposition to support his
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`opinions about the prior art conditioning access on payment is directly relevant to
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`disproving his false conclusions.
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`Ex. 1031 70:1-73:9. PO complains of Dr. Katz’s testimony about disclo-
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`sures in Stefik ’235 (Ex. 1013), even though these are directly relevant to the
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`claims that he opines are nonobvious, as pointed out by Petitioner. See Pap. 2 at
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`41-45; Ex. 2031 at ¶¶ 21, 31. And once more, almost all of PO’s current com-
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`plaints are waived: while PO argues objections based on relevance, scope, and an
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`“incomplete” hypothetical (Mot. 9-10), PO objected to only three of the fourteen
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`questions on which it now moves, and did not even begin objecting until after the
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`first nine questions it hopes to exclude. Ex. 1031 70:1-73:9.
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`Further, Petitioner’s questions are directly relevant to the obviousness of the
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`challenged claims in view of Stefik ’235, including his express Declaration testi-
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`mony that the challenged claims are not obvious in view of Stefik ’235 and Stefik
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`’980 (Ex. 1014). Ex. 2028 ¶¶ 21, 31. Each of Petitioner’s questions here was di-
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`rected to the disclosures in Stefik that invalidate the challenged claims, see Ex.
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`1031 70:1-73:9, which discloses “activat[ing] a credit account” before carrying out
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`a repository transaction. Ex. 1014 at 6:60-65. Fees incurred for the transaction are
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`assigned before the transaction is confirmed and completed. Id. at 6:66-7:3. Peti-
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`tioner’s questioning tested Dr. Katz’s opinions on a POSITA’s understanding of
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`10
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`CBM2014-00112
`Patent 7,942,317 B2
`using that credit account to pay for a transaction, and Dr. Katz was unable to pro-
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`vide any interpretation of these relevant disclosures of payment data, as claimed,
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`in Stefik. PO’s attempt to rehabilitate him by downplaying his failure (claiming
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`“[e]ven if Stefik ’235 does not exclude the use of a credit card, that does not mean
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`that it discloses it” (Mot. 10)), cannot hide its relevance to Petitioner’s showing of
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`obviousness.
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`Ex. 1031 110:7-111:4. PO objects to two questions in this passage,5 both
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`concerning alternate embodiments described in the ’317 patent, neither of which
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`should be excluded. PO moves to exclude the first question because of an alleged
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`issue in the wording “when does that payment data happen,” but ignores the con-
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`text in which the question was asked. Ex. 1031 at 109:14-110:6 (addressing when
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`verification of payment data happens in embodiments disclosed in the ’317 patent).
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`And in any event, Dr. Katz confirmed he was not sure of the order of verification
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`of payment data and receipt of content in the relevant passage of the ’317 patent in
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`response to a question to which PO raised no objection. Ex. 1031 110:13-16.
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`PO also moves to exclude a second question on differences between two
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`’317 patent embodiments (Ex. 1001 at 23:2-7)—one in which payment is verified
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`“concurrently with the content and access download process” and one in which
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`5 Any attempt to exclude other questions and answers in this passage (e.g., Ex.
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`1031 110:10-16) would fail as a result of waiver, in addition to the reasons below.
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`11
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`CBM2014-00112
`Patent 7,942,317 B2
`payment data is verified “at some later stage”—by taking the position that these
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`differences are not linked to any relevant issue. Mot. 11. But Dr. Katz opined that
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`claims that explicitly recite “code responsive to the request and to the received
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`payment data” to read data from a data provider (claim 1) or output the item data
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`to the requester (claim 16) are not obvious in view of the prior art, Ex. 2031 ¶¶ 21,
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`31, and in attempting to differentiate the prior art, Dr. Katz drew distinctions
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`based on the sequence of payment and usage. Id. ¶¶ 29 (“[T]o change from post-
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`usage tracking to prepurchase processing would change the principle upon which
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`Ginter works, which I understand indicates nonobviousness.”), 30. Yet the ’317
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`patent discloses an embodiment in which payment is validated before content is
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`provided and an embodiment in which payment validation takes place at a later
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`time, with no explanation of differences between those embodiments or how a sys-
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`tem implementer would change from one to another. Ex. 1001 at 23:2-7. No fur-
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`ther explanation was needed, as those two embodiments were well within the un-
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`derstanding of a POSITA. Dr. Katz’s inability to even discuss differences between
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`these embodiments undercuts his conclusion that a change from one to the other
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`fundamentally alters a system’s whole principle of operation.
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`Ex. 1031 114:3-116:13. Petitioner moves to exclude testimony regarding a
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`POSITA’s ability to implement alternate ’317 patent embodiments (Ex. 1001 at
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`23:2-7)—testimony that again squarely addresses the fundamental concept of pay-
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`12
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`CBM2014-00112
`Patent 7,942,317 B2
`ing for content and the sequence explicitly recited in claims 1 and 16: reading and
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`outputting data responsive to received payment data. PO claims this questioning is
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`limited to enablement to argue such questions are outside the scope of this pro-
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`ceeding, citing Dr. Katz’s answer that he has not considered this. Mot. 11; Ex.
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`1031 at 116:3-7. But these questions are not so limited: as discussed above, the
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`’317 provided no explanation of how a system would need to be altered from vali-
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`dating payment at one time to validating payment at a different time, underscoring
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`that a POSITA already knew how to implement systems in which payment was
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`collected before and systems in which payment was collected after providing con-
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`tent; but Dr. Katz had not even considered whether the ’317 provided any discus-
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`sion of how a system would need to be changed from one arrangement to another.
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`Ex. 1031 115:20-116:7. The fact that Dr. Katz has not even bothered to consider
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`differences between these embodiments, let alone form an opinion regarding a
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`POSITA’s ability to implement them, reveals the weakness of his opinions on what
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`a POSITA would have understood from the prior art, and this testimony certainly
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`should not be excluded.
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`Ex. 1031 124:10-128:11. PO’s objections to this examination regarding
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`“prepurchase processing”—a term used by Dr. Katz himself in his declaration—
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`also have no merit. As an initial matter, PO objects to a series of questions and
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`again asserts that it objected to them on scope grounds (Mot. 12), when PO actual-
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`13
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`CBM2014-00112
`Patent 7,942,317 B2
`ly objected to only half of the six questions. Ex. 1031 126:1-127:9. PO did not
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`object to the remaining three questions on whether “prepayments,” “realtime elec-
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`tronic debits from bank accounts,” and “VDE node currency token deposit ac-
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`counts” disclosed in Ginter are examples of “prepurchase processing,” id. 127:10-
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`128:11, and any such objection is waived. See 37 C.F.R. 42.64(a).
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`PO’s argument for exclusion of this testimony undermines Dr. Katz’s credi-
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`bility almost as much as the testimony itself does. See Pap. 35 at 4-9 (citing Dr.
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`Katz’s testimony to support Motion to Exclude his opinions). PO criticizes Peti-
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`tioner for “never establish[ing] a definition of what he meant by ‘prepurchase pro-
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`cessing’ and never ask[ing] for Dr. Katz’s understanding of that term” (Mot. 12).
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`But as PO points out, Dr. Katz testified he did not know what the term “prepur-
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`chase processing” meant (Mot. 12; see also Ex. 1031 190:11-20), even though Dr.
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`Katz himself used that very term multiple times in his declaration to draw purport-
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`ed differences between the claims and disclosures in Ginter. Ex. 2031 ¶¶ 29 (“[T]o
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`change from post-usage tracking to pre-purchase processing would change the
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`principle upon which Ginter works, which I understand indicates nonobvious-
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`ness.”), 30. Ginter discloses different payment methods, including the prepayment,
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`real-time debit, and credit about which Dr. Katz was asked. A POSITA would
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`have been fully capable of using those payment methods to confirm payment either
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`before or after providing content to a user, despite Dr. Katz’s unsupported opinion
`
`
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`14
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`CBM2014-00112
`Patent 7,942,317 B2
`that this would fundamentally change Ginter’s principle of operation. In a desper-
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`
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`ate attempt to exclude testimony that shows this Declaration opinion is wholly un-
`
`reliable, PO’s Motion incredibly criticizes Petitioner for not defining the very term
`
`used by PO’s own expert to characterize the supposedly patentable difference.6
`
`May 26, 2015
`
`
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`
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`Respectfully submitted,
`
`By /J. Steven Baughman/
`J. Steven Baughman, Lead Counsel
`
`
`
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`6 PO also objects to Ex. 1031 145:6-146:8 and 152:7-156:12 as addressing claims
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`and a reference (Poggio, Ex. 1016) instituted as invalidating prior art in related
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`proceedings. While the instituted ’317 patent grounds do not include combinations
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`expressly calling out Poggio or challenged claims reciting a SIM portion or SIM
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`card, Dr. Katz offered his “expert” opinions through Declarations and deposition
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`testimony on closely interrelated subject matter in proceedings on three related pa-
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`tents (see CBM2014-00102; CBM2014-00106; CBM2014-00108), and his lack of
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`basic knowledge regarding the contents of the common PO patent specifications
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`and prior art in those proceedings are certainly relevant to the credibility of his
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`opinions here. Petitioner respectfully submits that the Board is capable of assign-
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`ing appropriate weight to all of the challenged testimony in view of PO’s reliance
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`on Dr. Katz in this proceeding, and that formal exclusion is both unnecessary and
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`improper.
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`15
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`CBM2014-00112
`Patent 7,942,317 B2
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`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that a copy of the foregoing PETITIONER
`
`APPLE INC.’S OPPOSITION TO PATENT OWNER’S MOTION TO EX-
`
`CLUDE was served on May 26, 2015, to the following Counsel for Patent Owner
`
`via e-mail, pursuant to the parties’ agreement concerning service:
`
`Michael R. Casey
`J. Scott Davidson
`DAVIDSON BERQUIST JACKSON & GOWDEY LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Telephone: (571) 765-7700
`Facsimile: (571) 765-7200
`mcasey@dbjg.com
`jsd@dbjg.com
`docket@dbjg.com
`
`Attorneys for Patent Owner Smartflash LLC
`
`
`
`
`
`
`
`
`/s/ Megan Raymond
`Megan F. Raymond
`
`ROPES & GRAY LLP
`
`16
`
`
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