Case CBM2015-00028
`Patent 7,334,720 B2
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`SMARTFLASH LLC,
`Patent Owner
`______________________
`
`Case CBM2015-00028
`Patent 7,334,720 B2
`______________________
`
`Before the Honorable JENNIFER S. BISK, RAMA G. ELLURU, GREGG I.
`ANDERSON and MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`PETITIONER APPLE INC.’S FIRST SET OF OBJECTIONS TO PATENT
`OWNER SMARTFLASH LLC’S EXHIBITS
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`in a representative capacity for Petitioner Apple Inc. (“Petitioner”), hereby submits
`
`the following objections to Patent Owner Smartflash LLC’s (“Patent Owner”)
`
`Exhibits 2001, 2002, 2040, 2041, 2042, and 2043 and any reference to/reliance on
`
`the foregoing without limitation. Petitioner’s objections below apply the Federal
`
`Rules of Evidence (“F.R.E.”) as required by 37 C.F.R § 42.62.
`
`The following objections apply to Exhibits 2001, 2002, 2040, 2041, 2042,
`
`and 2043 as they are actually presented by Patent Owner, in the context of Patent
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`
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`1
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`Patent 7,334,720 B2
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`APPLE INC.,
`Petitioner
`
`v.
`
`SMARTFLASH LLC,
`Patent Owner
`______________________
`
`Case CBM2015-00028
`Patent 7,334,720 B2
`______________________
`
`Before the Honorable JENNIFER S. BISK, RAMA G. ELLURU, GREGG I.
`ANDERSON and MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`PETITIONER APPLE INC.’S FIRST SET OF OBJECTIONS TO PATENT
`OWNER SMARTFLASH LLC’S EXHIBITS
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`in a representative capacity for Petitioner Apple Inc. (“Petitioner”), hereby submits
`
`the following objections to Patent Owner Smartflash LLC’s (“Patent Owner”)
`
`Exhibits 2001, 2002, 2040, 2041, 2042, and 2043 and any reference to/reliance on
`
`the foregoing without limitation. Petitioner’s objections below apply the Federal
`
`Rules of Evidence (“F.R.E.”) as required by 37 C.F.R § 42.62.
`
`The following objections apply to Exhibits 2001, 2002, 2040, 2041, 2042,
`
`and 2043 as they are actually presented by Patent Owner, in the context of Patent
`
`
`
`1
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`
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`Case CBM2015-00028
`Patent 7,334,720 B2
`Owner’s March 6, 2015 Preliminary Response (Paper 8) and not in the context of
`
`any other substantive argument on the merits of the instituted grounds in this
`
`proceeding. Petitioner expressly objects to any other purported use of these
`
`Exhibits, including as substantive evidence in this proceeding, which would be
`
`untimely and improper under the applicable rules, and Petitioner expressly asserts,
`
`reserves and does not waive any other objections that would be applicable in such
`
`a context.
`
`I. Objections to Exhibits 2001 and 2002, and Any Reference to/Reliance
`Thereon
`
`Evidence objected to: Exhibits 2001 (“Congressional Record – House, June
`
`
`
`23, 2011, H4480-4505”) and 2002 (“Congressional Record – Senate, Sep. 8, 2011,
`
`S5402-5443”).
`
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 1002 (“Requirement of
`
`the Original”); F.R.E. 1003
`
`(“Admissibility of Duplicates”); and 37 C.F.R. § 42.61 (“Admissibility”).
`
`Apple objects to the use of Exhibits 2001 and 2002 under F.R.E. 901, 1002,
`
`1003, and 37 C.F.R. § 42.61 because Patent Owner fails to provide the
`
`authentication required for these documents.
`
`II. Objections to Exhibits 2040, 2041, 2042, and 2043, and Any Reference
`to/Reliance Thereon
`
`Evidence objected to: 2040 (“Declaration of Anthony Wechselberger in
`
`
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`2
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`Case CBM2015-00028
`Patent 7,334,720 B2
`CBM2014-00104”), 2041 (“Declaration of Anthony Wechselberger in CBM2014-
`
`00105”), 2042 (“Patent Owner’s Preliminary Response in CBM2014-00104”), and
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`2043 (“Patent Owner’s Preliminary Response in CBM2014-00105”).
`
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 1002 (“Requirement of
`
`the Original”); F.R.E. 1003
`
`(“Admissibility of Duplicates”); F.R.E. 401 (“Test for Relevant Evidence”); F.R.E.
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`402 (“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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`and 37 C.F.R. § 42.61 (“Admissibility”).
`
`Apple objects to the use of Exhibits 2040, 2041, 2042, and 2043, under
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`F.R.E. 901, 1002, 1003, and 37 C.F.R. § 42.61 because Patent Owner fails to
`
`provide the authentication required for these documents.
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`Apple further objects to the use of Exhibits 2040, 2041, 2042, and 2043,
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`under F.R.E. 401, 402, and 403, and 37 C.F.R. § 42.61. Patent Owner purports to
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`rely on these Exhibits from other proceedings only to support its assertion that the
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`testimony of Apple’s expert, Anthony Wechselberger, is entitled “to little or no
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`weight” because he “did not include any reference to the standard of evidence” in
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`his Declaration for this proceeding, even though Patent Owner objected to his
`
`declarations in earlier proceedings (i.e., Exhibits 2040 and 2041) for the same
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`reasons (see Exhibits 2042 and 2043). See Pap. 8 at 14. However, whether Mr.
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`Case CBM2015-00028
`Patent 7,334,720 B2
`Wechselberger applied a particular standard in another proceeding is not relevant
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`to this proceeding. Further, “[e]xperts are not required to recite or apply the
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`preponderance of the evidence standard expressly in order for the expert testimony
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`to be accorded weight.” See IPR2013-00172, Pap. 50 at 42. Because the recitation
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`or omission of the evidentiary standard from Mr. Wechselberger’s declarations (in
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`this and other proceedings) is irrelevant to any issue in this proceeding, Exhibits
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`2040, 2041, 2042, 2043 do not appear to make any fact of consequence in
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`determining this action more or less probable than it would be without them and
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`are thus irrelevant and not admissible (F.R.E. 401, 402); permitting reference
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`to/reliance on these documents in any future submissions of Patent Owner would
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`also be impermissible, misleading, irrelevant, and unfairly prejudicial to Petitioner
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`(F.R.E. 402, 403); and to the extent Patent Owner attempts to rely on or submit
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`these aforementioned Exhibits in the future as evidence in support of new
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`substantive positions, doing so would be untimely, in violation of the applicable
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`rules governing this proceeding, and unfairly prejudicial to Apple (F.R.E. 403).
`
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`
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`Respectfully submitted,
`
`
`
`
`
`By:/J. Steven Baughman/
`J. Steven Baughman (Lead Counsel)
`Reg. No. 47,414
`ROPES & GRAY LLP
`One Metro Center, 700 12th St.
`Suite 900
`Washington, DC 20005-3948
`P: 202-508-4606 / F: 202-383-8371
`
`
`
`4
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`June 11, 2015
`
`
`
`
`Ching-Lee Fukuda (Backup Counsel)
`Reg. No. 44,334
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`P: 212-596-9336 /F: 212-596-9000
`
`
`
`Case CBM2015-00028
`Patent 7,334,720 B2
`ching-lee.fukuda@ropesgray.com
`steven.baughman@ropesgray.com
`Mailing address for all PTAB correspondence: ROPES & GRAY LLP
`IPRM – Floor 43, Prudential Tower, 800 Boylston Street, Boston, MA 02199-
`3600
`
`Attorneys for Petitioner Apple Inc.
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`5
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`Case CBM2015-00028
`Patent 7,334,720 B2
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`CERTIFICATE OF SERVICE
`
`
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`The undersigned hereby certifies that a copy of the foregoing PETITIONER
`
`APPLE INC.’S FIRST SET OF OBJECTIONS TO PATENT OWNER SMART-
`
`FLASH LLC’S EXHIBITS was served on June 11, 2015, to the following Counsel
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`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
`
`6
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