UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`STARBUCKS CORPORATION
`Petitioner
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`v.
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`Ameranth, Inc.
`Patent Owner
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`__________________
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`Case CBM2015-00091
`Patent No. 6,384,850 B1
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`__________________
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`PETITIONER’S MOTION TO EXCLUDE
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`Paper No. 26
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`TABLE OF CONTENTS
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`
`I.
`II.
`
`5
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`10
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`15
`
`INTRODUCTION .......................................................................................... 1
`ARGUMENT .................................................................................................. 1
`A.
`Patent Owner’s Exhibits 2047-48, 2050, 2053, 2059, 2062 and
`2077-78 Should be Excluded ............................................................... 1
`Exhibits 2053 and Exhibit 2059 ................................................. 2
`1.
`Exhibits 2047, 2077 and 2078 ................................................... 6
`2.
`Exhibit 2048 ............................................................................... 8
`3.
`Exhibit 2062 ............................................................................. 10
`4.
`Exhibit 2050 ............................................................................. 11
`5.
`Patent Owner’s Exhibits 2002, 2004, 2006-07, 2011-14, 2017,
`2019-32, 2035-38, 2059, 2063-64, and 2067-81 Should be
`Excluded ............................................................................................. 13
`Dr. Weaver’s Testimony Concerning “Hospitality” Should be
`Excluded ............................................................................................. 13
`III. Conclusion .................................................................................................... 14
`
`
`B.
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`C.
`
`
`
`i
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`

`
`TABLE OF AUTHORITIES
`(Continued)
`
`CASES
`Air Land Forwarders, Inc. v. United States,
`38 Fed. Cl. 547 (1997), aff'd ................................................................................. 4
`
`
`
`Belber v. Lipson,
`905 F.2d 549 (1st Cir. 1990) ............................................................................... 12
`
`5
`
`Costantino v. Herzog,
`203 F.3d 164 (2nd Cir. 2000) ............................................................................. 12
`
`Daubert v. Merrell Dow Pharm., Inc.,
`509 U.S. 579 (1993) .................................................................................. 9, 14, 15
`
`10
`
`Kumho Tire Co. v. Carmichael,
`526 U.S. 137, 119 S.Ct. 1167, 413 L.Ed. 2d 238 (1999) ................................... 14
`
`Lodsys, LLC v. Brother Int’l Corp.,
`2013 U.S. Dist. LEXIS 85614 (E.D. Tex. June 14, 2013) ................................. 13
`
`Seiler v. Lucasfilm, Ltd.,
`808 F.2d 1316 (9th Cir. 1986) .............................................................................. 6
`
`15
`
`Triboro Quilt Mfg. Corp. v. Luve LLC,
`2014 WL 1508606 (S.D.N.Y. Mar. 18, 2014) ...................................................... 5
`
`U.S. v. Davis,
`571 F.2d 1354 (5th Cir. 1978) ............................................................................ 12
`
`20
`
`U.S. v. Mejia,
`545 F.3d 179 (2d Cir. 2008) ................................................................................. 5
`
`OTHER AUTHORITIES
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`37 C.F.R. § 42.62 ..................................................................................................... 14
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`37 C.F.R. § 42.64(c) ................................................................................................... 1
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`25
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`Fed. R. Evid. 401 and 402 ........................................................................................ 13
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`Fed. R. Evid. 801-03, 805 .................................................................................... 1, 11
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`Fed. R. Evid. 801(c) ................................................................................................... 2
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`
`
`ii
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`

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`TABLE OF AUTHORITIES
`(Continued)
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`Fed. R. Evid. 801(d)(2) .............................................................................................. 3
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`Fed. R. Evid. 803(6) ................................................................................................... 4
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`Fed. R. Evid. 803(6)(B), (C) ...................................................................................... 4
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`Fed. R. Evid. 803(6)(D), 902(11) .............................................................................. 4
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`5
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`Fed. R. Evid. 803(18) ......................................................................................... 12, 13
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`Fed. R. Evid. 901, 902, 903 ..............................................................................passim
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`Fed. R. Evid. 901(a) ................................................................................................... 1
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`Fed. R. Evid. 902(4) ................................................................................................. 12
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`Fed. R. Evid. 902(11) ............................................................................................... 10
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`10
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`Fed. R. Evid. 1002 ..................................................................................................... 6
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`Fed. R. Evid. 1003 ................................................................................................. 6, 8
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`Fed. R. Evid. 1004 ................................................................................................. 6, 9
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`
`
`
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`iii
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`
`I.
`
`
`INTRODUCTION
`
`Pursuant to 37 C.F.R. § 42.64(c) and the Federal Rules of Evidence,
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`Petitioners Starbucks (“Starbucks” or “Petitioner”) hereby submits its Motion to
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`Exclude inadmissible evidence proffered by Patent Owner Ameranth (Paper Nos.
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`5
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`7, 17) based on Petitioner’s timely filed objections . ’91 Paper 15.
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`
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`II. ARGUMENT
`A.
`Patent Owner’s Exhibits 2047-48, 2050, 2053, 2059, 2062 and
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`2077-78 Should be Excluded
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`
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`The contents of Exhibit Nos. 2047-48, 2050, 2053, 2059, 2062 and 2077-78
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`10
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`are inadmissible hearsay. Fed. R. Evid. 802. The challenged exhibits meet Fed. R.
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`Evid. 801’s definition of hearsay as each is being offered by the Patent Owner for
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`the truth of the matter asserted therein. Many of the challenged exhibits are not
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`only hearsay, but hearsay within hearsay. Fed. R. Evid. 801, 805. Because Patent
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`Owner cannot establish any exceptions to the hearsay rule for the challenged
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`15
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`exhibits, they are inadmissible. Fed. R. Evid. 801-03, 805.
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`
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`These exhibits are also inadmissible because they are not properly
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`authenticated. Fed. R. Evid. 901, 902, 903. To satisfy the requirement of
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`authenticating or identifying an item of evidence, the proponent must produce
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`evidence to support a finding that the item is what the proponent claims it is. Fed.
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`20
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`R. Evid. 901(a). None of these exhibits are self-authenticating, and they thus
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`
`1
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
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`required Patent Owner to authenticate them, which it failed to do. Fed. R. Evid.
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`902.
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`
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`As discussed below, there are further reasons why these exhibits are
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`inadmissible, including for failing the Best Evidence Rule under Fed. R. Evid.
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`5
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`1002 and 1003, inter alia. Because of the reasons discussed herein, these exhibits
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`as well as Patent Owner’s arguments and Dr. Weaver’s testimony relying on them
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`should all be excluded.
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`1.
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`Exhibits 2053 and Exhibit 2059
`a.
`In alleging Starbucks copied the patented invention, Patent Owner offers
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`Inadmissible Hearsay under FRE 801, 802 and 805
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`10
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`
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`Exhibit 2053 as support for its claim that it provided a PowerPoint presentation to
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`Starbucks in 2006. ’91 Paper 17 at 74; Ex. 2041, ¶¶ 146-47. Exhibit 2053
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`contains, purportedly, a series of emails between inventor Keith McNally at
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`Ameranth and Steven Larson, an employee at Microsoft, a non-party to this
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`15
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`petition.1 Despite the missing link between Patent Owner’s claim and the content
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`of Exhibit 2053, it appears to be offered for the truth of the matter asserted therein
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`and thus is hearsay. Fed. R. Evid. 801(c). Specifically, Patent Owner claims that
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`Rob Reed at Starbucks received the underlying presentation as he “liked what he
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`saw” and “had sent the details around,” quoting the e-mails presented in Exhibit
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`1 This implicates an authenticity issue as will be discussed below.
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`2
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`2053. Ex. 2041, ¶ 146; Ex. 2053 at 2-3. The author of those e-mails, however, is
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`not Rob Reed, but Steven Larson, who has no relationship to Starbucks and so
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`there cannot be an “opposing party’s statement” exemption to the hearsay rule for
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`this exhibit. Fed. R. Evid. 801(d)(2). This exhibit is not only hearsay, but hearsay
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`5
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`within hearsay - with the first layer offered for the truth of the purported statement
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`in Exhibit 2053 (e.g., Patent Owner’s proposition that Rob Reed “liked what he
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`saw” and “had sent the details around”), and the second layer offered for the truth
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`that Steven Larson actually stated those words in the purported e-mails.
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`
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`Patent Owner failed to show any exception to the hearsay rule with respect
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`10
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`to Exhibit 2053. Ostensibly, Patent Owner does not even remotely identify any
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`exception for the first layer of hearsay - purported to prove that Rob Reed at
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`Starbucks had received the underlying presentation. Regarding the e-mail layer of
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`hearsay, Patent Owner has also failed to establish it falls within any exception.
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`Patent Owner does not rely on the “records of a regularly conducted activity”
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`15
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`exception for Exhibit 2053. Fed. R. Evid. 803(6). But even assuming Patent
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`Owner does, it cannot testify to or certify the portions of Exhibit 2053 to the extent
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`they were not within Patent Owner’s conducted activity. As shown in Exhibit
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`2053, the statements purportedly came from Steven Larson, who was not a person
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`within Ameranth charged with the responsibility of making that statement. Ex.
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`20
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`2053 at 2-3. To use the regular records hearsay exception, Patent Owner is
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`3
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`required to demonstrate the evidence was in the regularly kept records of Microsoft
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`- the business Steven Larson’s e-mails came from. IPR2013-00578, Paper 54 at 5-
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`6; Air Land Forwarders, Inc. v. United States, 38 Fed. Cl. 547, 555-56 (1997),
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`aff'd in part, 172 F.3d 1338 (Fed. Cir. 1999). Patent Owner has not established
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`5
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`through declaration or otherwise that the email exchange was “kept in the course of
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`a regularly conducted activity” or “making the record was a regular practice of the
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`activity,” as this exception requires. Fed. R. Evid. 803(6)(B), (C). Moreover,
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`Patent Owner does not even certify the e-mail exchange, as required by this
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`exception. Fed. R. Evid. 803(6)(D), 902(11). Therefore, Exhibit 2053 is
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`10
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`inadmissible because neither layer of the hearsay fits within any exception.
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`
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`Turning to Exhibit 2059, it is offered to show the state of Ameranth’s
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`technology at the time of the presentation, and that Starbucks was aware of that
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`technology (and then copied it). ’91 Paper 17 at 74; Ex. 2041, ¶¶ 146-47.
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`However, for the same reasons as discussed above, there are no hearsay exceptions
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`15
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`that get around Patent Owner’s attempt to use this out of court statement to prove
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`the state of its technology, and that Starbucks knew of that technology (or that it
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`copied that technology). There is no evidence that this undated document is a
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`record of regularly conducted business (or that any other exception applies).
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`Moreover, Dr. Weaver is not allowed to transmit hearsay to the Board. U.S.
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`20
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`v. Mejia, 545 F.3d 179, 197 (2d Cir. 2008); Triboro Quilt Mfg. Corp. v. Luve LLC,
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`
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`4
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`2014 WL 1508606, at *7 (S.D.N.Y. Mar. 18, 2014). Accordingly, Exhibits 2053
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`and 2059 should be excluded.
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`b.
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`Inadmissible as Unauthenticated under FRE 901, 902
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`and 903
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`5
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`
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`The contents of Exhibits 2053 and 2059 are also inadmissible because these
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`exhibits have not been properly authenticated under FRE 901, 902 and 903.
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`Exhibit 2053 is not self-authenticating under FRE 902. Patent Owner has offered
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`no testimonial or other supporting evidence in the record to authenticate the
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`integrity of the e-mails between itself and a third party. Dr. Weaver cannot
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`10
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`authenticate Exhibit 2053 because there is no showing he was involved or
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`otherwise had personal knowledge about the purported correspondence. Ex. 2041,
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`¶ 146.
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`
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`Exhibit 2059 is also not self-authenticating under FRE 902. Exhibit 2059 is
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`not even dated and is not supported by any evidence in the record to authenticate it
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`15
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`is what Patent Owner claims it to be.
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`As such, Exhibits 2053 and 2059 are inadmissible as not authenticated.
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`c.
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`Inadmissible as Failing the Best Evidence Rule under
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`FRE 1002 and 1003
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`Exhibits 2053 and 2059 are further inadmissible because they fail to satisfy
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`20
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`the Best Evidence Rule. Fed. R. Evid. 1002 (“An original writing, recording, or
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`
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`5
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
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`photograph is required in order to prove its content…”). Exhibit 2053 appears to
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`be a doctored copy of the original, with the header and/or footer information
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`removed, and is neither an original nor its duplicate. Fed. R. Evid. 1003. Exhibit
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`2053 also does not fit within any of the exceptions of Fed. R. Evid. 1004 or 1005.
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`5
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`It is Patent Owner’s burden to bring forward the best evidence, but here Patent
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`Owner failed to do so. Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1319 (9th Cir.
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`1986). Exhibit 2059 also fails the Best Evidence Rule because it appears to be
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`incomplete.2 No exception of FRE 1004 or 1005 applies. Therefore, Exhibits
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`2053 and 2059 are inadmissible under Fed. R. Evid. 1002 and 1003.
`
`10
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`
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`2.
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`Exhibits 2047, 2077 and 2078
`a.
`Patent Owner offers Exhibit 2047 as evidence that its 21CR system practiced
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`Inadmissible Hearsay under FRE 801, 802 and 805
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`the Challenged Claims in support of its non-obviousness claim. ’91 Paper 17 at
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`59-63, Ex. 2041, ¶¶ 119-21. Specifically, Exhibit 2047 purports to contain a
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`15
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`marketing brochure about the 21CR system. It also includes annotations with
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`various terms recited in the patents that obviously were added on the 21CR
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`brochure after the fact, although neither Ameranth nor its expert admit to the origin
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`of the mark-ups. Ex. 2047 at 4-5. Exhibit 2047 in its entirety is hearsay, offered
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`2 For example, Exhibit 2059 does not include any slide corresponding to the
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`section “Introduction” or “Ameranth/Proposal” as indicated in the slide tabs.
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`6
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`by the Patent Owner for the purported truth that the brochure correctly reflects the
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`21CR system. In addition, the annotated portions of Exhibit 2047 pose hearsay
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`within hearsay issues, with the first layer offered for the purported truth that the
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`21CR system practiced the claim limitations, and the second layer offered for the
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`5
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`purported truth that the brochure correctly reflects the 21CR system. Thus, for
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`similar reasons discussed above concerning Exhibit 2053, Exhibit 2047 is
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`inadmissible.
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`
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`Turning to Exhibits 2077 and 2078,3 they both also contain after-the-fact
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`annotations on purported case studies regarding the Ameranth Improv Comedy
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`10
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`Club Solution. Exhibits 2077 and 2078 suffer similar evidentiary deficiencies as
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`Exhibit 2047, in that they all include annotations added on the purported “original”
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`documents. Therefore, Exhibits 2077 and 2078 are inadmissible hearsay at least
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`for the same reasons discussed in connection with Exhibit 2047.
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`b.
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`Inadmissible as Unauthenticated under FRE 901, 902
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`15
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`and 903
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`
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`Exhibits 2047, 2077 and 2078 are also inadmissible because they have not
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`been properly authenticated under Fed. R. Evid. 901, 902 and 903. Put simply:
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`there is no evidence in the record as to who marked-up these exhibits with the self-
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`3 Patent Owner did not cite either Exhibit 2077 or 2078 in its Response, and so
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`they are further inadmissible as irrelevant, which is discussed in section II.B.
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`7
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`serving annotations. These exhibits are not self-authenticating under Fed. R. Evid.
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`902 as purporting to contain private business documentations. As such, Exhibits
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`2047, 2077 and 2078 are all unauthenticated and thus inadmissible.
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`c.
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`Inadmissible as Failing the Best Evidence Rule under
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`5
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`FRE 1002 and 1003
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`
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`Exhibits 2047, 2077 and 2078 are further inadmissible because they fail to
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`satisfy the Best Evidence Rule. All of these exhibits include mark ups which
`
`appear to have been later added onto the underlying documents, thus failing Fed.
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`R. Evid. 1003, and not satisfying any of the exceptions of Fed. R. Evid. 1004 or
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`10
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`1005. Thus, Exhibits 2047, 2077 and 2078 are all inadmissible under Fed. R. Evid.
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`1002 and 1003.
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`d.
`As noted above, Exhibits 2047, 2077 and 2078 contain annotations. There is
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`Inadmissible as Unqualified Testimony under FRE 702
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`
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`nothing in the record identifying who has made those annotations, much less
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`15
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`establishing that the annotator(s) had the requisite expertise to do so. As such, at
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`least the annotated versions of these exhibits should be excluded. Daubert v.
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`Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
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`3.
`
`Exhibit 2048
`a.
`Exhibit 2048 is hearsay as offered for the asserted truth that Patent Owner ha
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`Inadmissible hearsay under FRE 801, 802 and 805
`
`20
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`
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`entered license agreements on the challenged patents and Challenged Claims. ’91
`8
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`
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`

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`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
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`Paper 17 at 64-66; Ex. 2041, ¶¶ 123-26. Instead of providing the actual license
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`agreements at issue to support its claim, however, Patent Owner merely proffers
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`Exhibit 2048, which contains several press releases suggesting the existence of
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`Patent Owner’s licenses. Id. Exhibit 2048 includes only one document that
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`5
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`appears to relate to an actual license, although it is merely “Amendment No. 5 -
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`Distribution and License Agreement” (“Agilysys Amendment”), on its face
`
`identifying Ameranth and Agilysys NV, LLC (“Agilysys”) as the parties. Ex. 2048
`
`at 10-12. The press releases pose hearsay within hearsay issues, with the first layer
`
`offered for the truth of statements in the press releases discussing the content of the
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`10
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`licenses such as the parties and the subject matter; and the second layer offered for
`
`the truth of the actual statements in the licenses. The Agilysys Amendment is
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`hearsay, offered for the asserted truth that Agilysys entered into license with
`
`Ameranth covering the Challenged Patents. Like the reasons discussed above in
`
`connection with Exhibit 2053, Patent Owner failed to identify, much less
`
`15
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`demonstrate that any hearsay exception applies to either layer of the hearsay issues
`
`presented in Exhibit 2048. Therefore, Exhibit 2048 is inadmissible.
`
`b.
`
`Inadmissible as Unauthenticated under FRE 901, 902 and
`
`903
`
`
`
`Patent Owner has provided no testimonial or other evidence to authenticate
`
`20
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`the Agilysys Amendment, which is not self-authenticating under Fed. R. Evid. 902.
`
`
`
`9
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`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`Patent Owner has not certified any of those press releases as “domestic records of a
`
`regularly conducted activity” under Fed. R. Evid. 902(11), for example. As such,
`
`Exhibit 2048 has not been properly authenticated.
`
`4.
`
`Exhibit 2062
`a.
`The press releases concerning the purported technology awards and
`
`Inadmissible Hearsay under FRE 801, 802 and 805
`
`5
`
`
`
`Microsoft investment contained in Exhibit 2062 is inadmissible hearsay. Fed. R.
`
`Evid. 802. Specifically, these press releases - namely, the European Hospitality
`
`Convention in 1999 (Ex. 2062 at 95-96), the Moby Award (Ex. 2062 at 141), the
`
`10
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`Computer World Honors (Ex. 2062 at 152-53), and Microsoft’s investment in
`
`Ameranth (Ex. 2062 at 136-37) are offered to support Patent Owner’s allegation of
`
`the non-obviousness of the Challenged Claims. ’91 Paper 17 at 68-70; Ex. 2041,
`
`¶¶ 131-35. Accordingly, they are hearsay within hearsay - with the first layer
`
`offered for the truth of statements in the press releases discussing the awards and
`
`15
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`Microsoft investment; and the second layer offered for the truth that Ameranth
`
`actually received the awards and investments. Like the discussion with respect to
`
`Exhibit 2053, Patent Owner has failed to show either layer of hearsay fits within
`
`any exception. Therefore, at least the press releases at 95-96, 141, 152-53 and
`
`136-37 of Exhibit 2062 are inadmissible.
`
`
`
`10
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`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
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`Inadmissible as Unauthenticated under FRE 901, 902 and
`
`b.
`
`903
`
`
`
`The press releases of Exhibit 2062 are not self-authenticating under Fed. R.
`
`Evid. 902 and thus must be authenticated. Patent Owner has failed to do so.
`
`5
`
`Submitting those press releases to the USPTO as part of the prosecution history of
`
`a related patent does not automatically authenticate the press releases under Fed. R.
`
`Evid. 902(4), for example. Belber v. Lipson, 905 F.2d 549, 552 (1st Cir. 1990); see
`
`U.S. v. Davis, 571 F.2d 1354, 1357-59 (5th Cir. 1978). At most it is the
`
`prosecution history itself that can be self-authenticated, if certified, but that does
`
`10
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`not make otherwise unauthenticated pieces associated with the prosecution history
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`authenticated. Accordingly, at least the foregoing press releases of Exhibit 2062 is
`
`inadmissible as unauthenticated.
`
`5.
`
`Exhibit 2050
`a.
`Exhibit 2050 purportedly contains an 8th Annual Microsoft RAD Awards
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`Inadmissible Hearsay under FRE 801, 802 and 805
`
`15
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`
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`document. ’91 Paper 17 at 68-70; Ex. 2041 at 134. Patent Owner uses this Exhibit
`
`to support its claim that Ameranth’s 21CR system received the award as stated
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`therein. It is hearsay as being offered for the truth of the statements in the RAD
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`Awards document that Ameranth’s system (HostAlert, not the 21CR system as
`
`
`
`11
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`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`
`Patent Owner alleges though) received the award in 2003 (Ex. 2050 at 6). Patent
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`Owner has not pointed to any exception that applies to Exhibit 2050.
`
`
`
`Even assuming Patent Owner relies on the hearsay exception that permits
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`statements from “learned treatise, periodical or pamphlet[s],” (Fed. R. Evid.
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`5
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`803(18); Costantino v. Herzog, 203 F.3d 164, 170 (2nd Cir. 2000)), Dr. Weaver
`
`has failed to establish the source of the exhibits as reliable authorities, inter alia, as
`
`the exception requires. Fed. R. Evid. 803(18); Lodsys, LLC v. Brother Int’l Corp.,
`
`2013 U.S. Dist. LEXIS 85614, at * 161-162 (E.D. Tex. June 14, 2013). And even
`
`if Dr. Weaver had demonstrated these sources to be reliable, which he did not,
`
`10
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`Patent Owner still could not offer such references into evidence as exhibits. Fed.
`
`R. Evid. 803(18) (“If admitted, the statement may be read into evidence but not
`
`received as an exhibit.”) (emphasis added).
`
`
`
`b.
`
`Inadmissible as Unauthenticated under FRE 901, 902
`
`and 903
`
`15
`
`
`
`Patent Owner has provided no explanation or evidence to authenticate
`
`Exhibit 2050, and it is not self-authenticating under Fed. R. Evid. 902.
`
`Accordingly, Exhibit 2050 is inadmissible because it is unauthenticated.
`
`
`
`12
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`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`Patent Owner’s Exhibits 2002, 2004, 2006-07, 2011-14, 2017, 2019-
`
`B.
`
`32, 2035-38, 2059, 2063-64, and 2067-81 Should be Excluded
`
`
`
`Patent Owner has submitted eighty one (81) exhibits, more than half of
`
`which (totaling over 600 pages) were never cited or otherwise relied on by Patent
`
`5
`
`Owner.4 Patent Owner has failed to establish how these exhibits are relevant to the
`
`issues of this proceeding. Accordingly, these exhibits are inadmissible under Fed.
`
`R. Evid. 401 and 402 and this Board’s case law, and thus should be excluded.
`
`IPR2014-00679, Paper 58, at 49.
`
`C. Dr. Weaver’s Testimony Concerning “Hospitality” Should be
`
`10
`
`Excluded
`
`
`
`Federal Rule of Evidence 702 governs the admissibility of expert testimony
`
`in this proceeding. 37 C.F.R. § 42.62. The threshold determination to the
`
`admissibility of expert testimony is whether an expert has the requisite
`
`“knowledge, skill, experience, training, or education” in the subject matter of the
`
`15
`
`proffered testimony. Fed. R. Evid. 702. The proponent of expert testimony must
`
`demonstrate its admissibility by a preponderance of the evidence. See, e.g.,
`
`Daubert, 509 U.S. 592 n. 10; see, also, Kumho Tire Co. v. Carmichael, 526 U.S.
`
`137, 149, 119 S.Ct. 1167, 413 L.Ed. 2d 238 (1999).
`
`4 Neither Patent Owner’s Response nor Dr. Weaver’s declaration cited these
`
`exhibits.
`
`
`
`13
`
`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`
`
`
` One of the central issues in this Petition is whether car rental reservations
`
`are related to the claimed “hospitality applications.” Instead of proffering an
`
`expert having sufficient knowledge in this critical field, Patent Owner relies on a
`
`Computer Science professor whose expertise is limited to Computer Science and
`
`5
`
`Electronics Commerce (Ex. 2041, ¶¶ 2-10, Appendix A) to testify extensively
`
`regarding the realm of “hospitality.” ’91 Paper 17 at 5-11; Ex. 2041, ¶¶ 2-10, 33-
`
`38, Appendix A. Dr. Weaver’s Curriculum Vitae shows that he lacks the
`
`necessary knowledge and experience in the hospitality and tourism field. Ex.
`
`2041, Appendix A. Patent Owner thus cannot meet its legal burden to qualify Dr.
`
`10
`
`Weaver as an expert in the “hospitality industry.”
`
`
`
`Because Dr. Weaver clearly lacks the requisite expertise in the hospitality
`
`and tourism discipline, his testimony on “hospitality applications” is inadmissible.
`
`Daubert, 509 US at 597. Accordingly, Paragraphs 33-38 of the Weaver
`
`Declaration should be excluded.
`
`15
`
`III. CONCLUSION
`
`For the forgoing reasons, Starbucks respectfully requests that the Board
`
`grant the present motion and exclude Patent Owner’s inadmissible evidence.
`
`
`
`14
`
`

`
`Dated: April 8, 2016
`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`
`Respectfully submitted,
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`
` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
`
`Back-Up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Patrick J. McKeever, Reg. No. 66,019
`Yun L. Lu, Reg. No. 72,766
`Attorneys for
`STARBUCKS CORPORATION
`
`
`
`15
`
`

`
`CBM2015-00091, Petitioner’s Motion to Exclude, Paper No. 26
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true copy of the foregoing
`
`PETITIONER’S MOTION TO EXCLUDE has been served in their entirety this
`
`8th day of April, 2016 by electronic mail as agreed upon by the parties on the
`
`Patent Owner via its attorneys of record:
`
`
`
`LEAD COUNSEL
`John W. Osborne
`USPTO Reg. No. 36,231
`OSBORNE LAW LLC
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`Email: josborne@osborneipl.com
`
`BACK-UP COUNSEL
`Michael D. Fabiano
`USPTO Reg. No. 44,675
`Fabiano Law Firm, P.C.
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`Email: mdfabiano@fabianolawfirm.com
`
`Dated: April 8, 2016
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`(858) 720-5702
`
`
`
`
`
`Respectfully submitted,
`
` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
`
`Back-Up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Patrick J. McKeever, Reg. No. 66,019
`Yun L. Lu, Reg. No. 72,766
`Attorneys for
`STARBUCKS CORPORATION
`
`
`
`1