UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`SAMSUNG ELECTRONICS AMERICA, INC. and
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner
`v.
`SMARTFLASH LLC,
`Patent Owner.
`________________________
`Case CBM2014-00192
`Patent 8,033,458 B2
`
`PATENT OWNER’S OBJECTIONS TO ADMISSIBILITY OF EVIDENCE
`
`Smartflash - Exhibit 2095
`Samsung et al. v. Smartflash
`CBM2014-00192
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`

`
`Case CBM2014-00192
`Patent 8,033,458 B2
`Pursuant to 37 C.F.R. § 42.64, Patent Owner hereby objects to the admissibility of certain
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`evidence submitted with Petitioner’s petition (“the Petition”). Patent Owner’s objections are
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`based on the Federal Rules of Evidence and the Board Rules and are set forth with particularity
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`below.
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`Exhibit 1003 (Declaration of Dr. Jeffrey Bloom re the ‘458 Patent)
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`Patent Owner objects to Exhibit 1003, Declaration of Dr. Jeffrey Bloom re the ‘458
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`Patent (“the Bloom Declaration”), in its entirety under Fed. R. Evid. 401 as the trial as instituted
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`is limited to patentability under 35 U.S.C. § 101. As such, paragraphs 23-112 (and any portion
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`other of the Bloom Declaration that is directed to patentability under 35 U.S.C. §§ 102/103) is
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`not relevant to the instituted proceeding. Fed. R. Evid. 401. Being irrelevant evidence, those
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`paragraphs are not admissible. Fed. R. Evid. 402.
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`Furthermore, the remaining portions of the declaration (i.e., paragraphs 23-26 and 113-
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`128) deal with the strictly legal issue of statutory subject matter for which Dr. Bloom is not an
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`expert. Thus, those portions of the Bloom Declaration are objected to under Fed. R. Evid. 401 as
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`not relevant, under Fed. R. Evid. 602 as lacking foundation, and under Fed. R. Evid. 701 and 702
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`as providing legal opinions on which the lay witness is not competent to testify. Being irrelevant
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`evidence, those paragraphs are not admissible. Fed. R. Evid. 402.
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`In addition, the Patent Owner objects to Exhibit 1003 under 37 CFR 42.65 in its entirety
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`as it does not set forth the relative evidentiary weight (e.g., substantial evidence versus
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`preponderance of the evidence) Dr. Bloom used in arriving at his conclusions.
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`The Bloom Declaration is further objected to in all instances where any paragraph relies
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`upon an exhibit that specifically is objected to herein for the reasons set forth in those specific
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`objections. Further, any paragraph in the Bloom Declaration that relies upon any exhibit not
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`Case CBM2014-00192
`Patent 8,033,458 B2
`relied upon by the PTAB to institute this proceeding is further objected to (under Fed. R. Evid.
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`401) as not being relevant and therefore being inadmissible (under Fed. R. Evid. 402).
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`Patent Owner also objects to the following specific paragraphs of the Bloom Declaration:
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`Paragraphs 102-107 – Patent Owner objects to Paragraphs 102-107 under Fed. R. Evid.
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`1002 because they purport to prove the content of multiple writings without submitting into
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`evidence the original writings to prove their content. Moreover, duplicates of the original
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`writings as contemplated by Fed. R. Evid. 1003 have not been submitted, nor do Paragraphs 102-
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`107 meet any of the exceptions for the requirements of an original set forth in Fed. R. Evid.
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`1004. Patent Owner further objects to Paragraphs 102-107 as hearsay pursuant to Fed. R. Evid.
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`801 and 802, not meeting any of the hearsay exceptions of Fed. R. Evid. 803 or 804.
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`Paragraph 122 – Patent Owner objects to Paragraph 122 on relevance grounds because
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`the description of the ASCAP licensing scheme for performance rights is not relevant to the
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`technological solution for digital rights management embodied in the ‘458 Patent. Paragraph
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`122 fails the test for relevant evidence because nothing in Paragraph 122 makes a fact of
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`consequence in determining this action more or less probable than it would be without Paragraph
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`122. Fed. R. Evid. 401(b). Being irrelevant evidence, Paragraph 122 is not admissible. Fed. R.
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`Evid. 402. Patent Owner further objects to Paragraph 122 under Fed. R. Evid. 1002 because it
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`purports to prove the content of a writing without submitting into evidence the original writing to
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`prove its content. Moreover, a duplicate of the original writing as contemplated by Fed. R. Evid.
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`1003 has not been submitted, nor does Paragraph 122 meet any of the exceptions for the
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`requirements of an original set forth in Fed. R. Evid. 1004. Patent Owner further objects to
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`Paragraph 122 as hearsay pursuant to Fed. R. Evid. 801 and 802, not meeting any of the hearsay
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`exceptions of Fed. R. Evid. 803 or 804.
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`Case CBM2014-00192
`Patent 8,033,458 B2
`Paragraph 123 – Patent Owner objects to Paragraph 123 on relevance grounds because
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`the descriptions of the ASCAP licensing scheme for performance rights and audit logs is not
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`relevant to the technological solution for digital rights management embodied in the ‘458 Patent.
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`Paragraph 123 fails the test for relevant evidence because nothing in Paragraph 123 makes a fact
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`of consequence in determining this action more or less probable than it would be without
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`Paragraph 123. Fed. R. Evid. 401(b). Being irrelevant evidence, Paragraph 123 is not
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`admissible. Fed. R. Evid. 402. Patent Owner further objects to Paragraph 123 under Fed. R.
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`Evid. 1002 because it purports to prove the content of multiple writings without submitting into
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`evidence the original writings to prove their content. Moreover, duplicates of the original
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`writings as contemplated by Fed. R. Evid. 1003 have not been submitted, nor does Paragraph
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`123 meet any of the exceptions for the requirements of an original set forth in Fed. R. Evid.
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`1004. Patent Owner further objects to Paragraph 123 as hearsay pursuant to Fed. R. Evid. 801
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`and 802, not meeting any of the hearsay exceptions of Fed. R. Evid. 803 or 804.
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`Paragraph 124 – Patent Owner objects to Paragraph 124 on relevance grounds because
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`the description of the manner in which a radio station program director plans station
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`programming is not relevant to the technological solution for digital rights management
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`embodied in the ‘458 Patent. Patent Owner further objects on relevance grounds because the
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`referenced article by Keith was published after the effective filing date of the ‘458 Patent and
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`thus has no bearing on the state of knowledge at the time the ‘458 Patent application was filed.
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`Paragraph 124 fails the test for relevant evidence because nothing in Paragraph 124 makes a fact
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`of consequence in determining this action more or less probable than it would be without
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`Paragraph 124. Fed. R. Evid. 401(b). Being irrelevant evidence, Paragraph 124 is not
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`admissible. Fed. R. Evid. 402.
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`Case CBM2014-00192
`Patent 8,033,458 B2
`Paragraph 125 – Patent Owner objects to Paragraph 125 on relevance grounds because
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`the description of formal requirements on programming for internet radio stations is not relevant
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`to the technological solution for digital rights management embodied in the ‘458 Patent.
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`Paragraph 125 fails the test for relevant evidence because nothing in Paragraph 125 makes a fact
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`of consequence in determining this action more or less probable than it would be without
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`Paragraph 125. Fed. R. Evid. 401(b). Being irrelevant evidence, Paragraph 125 is not
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`admissible. Fed. R. Evid. 402. Patent Owner further objects to Paragraph 125 under Fed. R.
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`Evid. 1002 because it purports to prove the content of a writing without submitting into evidence
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`the original writing to prove its content. Moreover, a duplicate of the original writing as
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`contemplated by Fed. R. Evid. 1003 has not been submitted, nor does Paragraph 125 meet any of
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`the exceptions for the requirements of an original set forth in Fed. R. Evid. 1004. Patent Owner
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`further objects to Paragraph 125 as hearsay pursuant to Fed. R. Evid. 801 and 802, not meeting
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`any of the hearsay exceptions of Fed. R. Evid. 803 or 804.
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`Paragraph 128 – Patent Owner objects to Paragraph 128 on relevance grounds because
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`the description of the planned establishment of credit facilities into retail establishments is not
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`relevant to the technological solution for digital rights management embodied in the ‘458 Patent.
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`Paragraph 128 therefore fails the test for relevant evidence because nothing in Paragraph 128
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`makes a fact of consequence in determining this action more or less probable than it would be
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`without Paragraph 128. Fed. R. Evid. 401(b). Being irrelevant evidence, Paragraph 128 is not
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`admissible. Fed. R. Evid. 402. Patent Owner further objects to Paragraph 128 as hearsay
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`pursuant to Fed. R. Evid. 801 and 802, not meeting any of the hearsay exceptions of Fed. R.
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`Evid. 803 or 804.
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`Exhibit 1004 (U.S. Patent No. 5,530,235 (“Stefik ‘235”))
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`Case CBM2014-00192
`Patent 8,033,458 B2
`Exhibit 1005 (U.S. Patent No. 5,629,980 (“Stefik ‘980”))
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`Exhibit 1006 (PCT Publication No. WO 00/08909 (“Gruse”))
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`Patent Owner objects to Exhibits 1004, 1005, 1006 (“the Alleged Prior Art Exhibits”) on
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`relevance grounds because the Patent Trial and Appeal Board’s (PTAB’s) Decision did not adopt
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`any of the proposed invalidity grounds based on the Alleged Prior Art Exhibits. The Alleged
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`Prior Art Exhibits therefore fail the test for relevant evidence because nothing in the Alleged
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`Prior Art Exhibits makes a fact of consequence in determining this action more or less probable
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`than it would be without the Alleged Prior Art Exhibits. Fed. R. Evid. 401(b). Being irrelevant
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`evidence, the Alleged Prior Art Exhibits are not admissible. Fed. R. Evid. 402.
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`
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`Exhibit 1028 (Weinstein “MasterCard Plans Point-of-Sale Product for Merchants Leery of
`Bank Cards”)
`
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`Patent Owner objects to Exhibit 1028 on relevance grounds because the description of the
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`planned establishment of credit facilities into retail establishments is not relevant to the
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`technological solution for digital rights management embodied in the ‘458 Patent. Exhibit 1028
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`therefore fails the test for relevant evidence because nothing in Exhibit 1028 makes a fact of
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`consequence in determining this action more or less probable than it would be without Exhibit
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`1028. Fed. R. Evid. 401(b). Being irrelevant evidence, Exhibit 1028 is not admissible. Fed. R.
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`Evid. 402. Patent Owner further objects to Exhibit 1028 on authenticity grounds under Fed. R.
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`Evid. 901 because the proponent has produced no evidence sufficient to support a finding that
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`Exhibit 1028 is what the proponent claims it is.
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`Exhibit 1039 (Keith, Michael C., The Radio Station Broadcast, Satellite and Internet,
`Eighth Edition, 2009)
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`Case CBM2014-00192
`Patent 8,033,458 B2
`Patent Owner objects to Exhibit 1039 on relevance grounds because alleged publication
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`is after the effective filing date of the ‘458 Patent. Exhibit 1039 therefore fails the test for
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`relevant evidence because nothing in Exhibit 1039 makes a fact of consequence in determining
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`this action more or less probable than it would be without Exhibit 1039. Fed. R. Evid. 401(b).
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`Being irrelevant evidence, Exhibit 1039 is not admissible. Fed. R. Evid. 402. Patent Owner
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`further objects to Exhibit 1039 on authenticity grounds under Fed. R. Evid. 901 because the
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`proponent has produced no evidence sufficient to support a finding that Exhibit 1039 is what the
`
` /
`
` Michael R. Casey /
`
`
`Michael R. Casey
`Registration No. 40,294
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Telephone: (571) 765-7705
`Fax: (571) 765-7200
`Email: mcasey@dbjg.com
`Attorney for Patent Owner
`
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`proponent claims it is.
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`Dated: April 15, 2015
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`Case CBM2014-00192
`Patent 8,033,458 B2
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that this PATENT OWNER’S OBJECTIONS TO
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`ADMISSIBILITY OF EVIDENCE in CBM2014-00192 was served April 15, 2015, by
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`agreement of the parties, by emailing a copy to counsel for the Petitioner as follows:
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`
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`CBM39843-0005CP1@fr.com
`renner@fr.com, and
`rozylowicz@fr.com
`
` /
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` Michael R. Casey /
`
`
`Michael R. Casey
`Registration No. 40,294
`Davidson Berquist Jackson & Gowdey, LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Telephone: (571) 765-7705
`Fax: (571) 765-7200
`Email: mcasey@dbjg.com
`Attorney for Patent Owner
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`Dated: April 15, 2015