`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`STARBUCKS CORP., APPLE, INC., EVENTBRITE, INC., and
`STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
`Petitioner
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`v.
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`AMERANTH, INC.
`Patent Owner
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`____________
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`Case CBM2015-000991
`Patent No. 6,871,325
`____________
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S
`MOTION TO EXCLUDE
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`1 Case CBM2016-00006 has been joined with this proceeding.
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`I.
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`INTRODUCTION.
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`In its Motion to Exclude (Paper 26), Petitioner argues that several of
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`Ameranth, Inc.’s (“Ameranth” or “Patent Owner”) exhibits should be excluded as
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`inadmissible hearsay, unauthenticated, inadmissible under the “Best Evidence
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`Rule” and irrelevant, and that a portion of Ameranth’s expert’s declaration should
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`be excluded for lacking the requisite expertise in the hospitality industry.
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`However, contrary to Petitioner’s Motion, the exhibits are highly relevant to
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`Ameranth’s Response to the Petition and do not constitute inadmissible hearsay,
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`lack authentication or fail under the Best Evidence Rule, and Ameranth’s expert is
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`more than qualified to offer the opinions stated in the challenged portion of his
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`declaration. The challenged exhibits are primarily cited by Ameranth in support of
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`its “secondary considerations” arguments, much from long ago, and considering
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`the tight timelines and limited discovery available under the AIA, the Board has
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`recognized the vital importance of considering such contemporaneous objective
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`evidence as part of the Graham factors analysis, especially when all the evidence
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`appears to be what it is claimed to be.
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`As discussed herein, the exhibits are used for non-hearsay purposes, such as
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`showing the existence of industry praise and recognition, and also are either non-
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`hearsay or meet an exception to the rule against hearsay such as the residual
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`exception of FRE 807(a). Further, Petitioner has waived any objections to
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`Ameranth’s press release exhibits since Petitioner itself has submitted Ameranth’s
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`press releases as exhibits, and has also used several exhibits itself that are similar
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`to those Ameranth exhibits it objects to now.
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`With respect to the exhibits challenged by Petitioner on authentication
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`grounds, many of them have been authenticated by testimonial evidence.
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`Ameranth also demonstrates below that there is at least a “reasonable probability”
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`that the exhibits are what Ameranth claims them to be, and thereby enables the
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`Board to conclude that the documents have been authenticated.
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`Therefore, the Board should deny the Motion to Exclude in its entirety.
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`II. AMERANTH’S EXHIBITS ARE NOT HEARSAY.
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`A. The Exhibits Are Used For Non-Hearsay Purposes.
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`Petitioner argues that Exhibits 2047-48, 2050, 2053, 2059, 2062 and 2077-
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`78 should be excluded on hearsay grounds. However, contrary to Petitioner’s
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`cursory analysis, many of the exhibits are not cited for the “truth of the matter
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`asserted,” but, rather, were cited for other non-hearsay purposes.
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`If the exhibits are cited for non-hearsay purposes, then they do not fall
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`within the rule against hearsay. In Medtronic, Inc. v. Nuvasive, Inc., IPR2014-
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`00073, Petitioner had brought a motion to exclude certain website printout exhibits
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`and financial industry documents as hearsay. Medtronic, Inc. v. Nuvasive, Inc.,
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`IPR2014-00073, Paper 48, pg. 33. Patent Owner argued that the exhibits were
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`presented for the non-hearsay purposes of showing praise and recognition by the
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`industry and the states of mind of the documents’ authors. Id. The Board agreed
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`and denied the motion to exclude as to those exhibits. Id. at pgs. 33-34.
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`The exhibits at issue here, similar to the Medtronic case discussed above, are
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`primarily used by Ameranth as evidence of “secondary considerations”, such as the
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`existence of industry praise and recognition, commercial success, copying and the
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`state of mind of the declarants or authors. For example, Exhibit 2062, which is a 37
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`C.F.R. § 1.132 declaration of Keith McNally and accompanying exhibits including
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`press releases, is cited to show the existence of industry praise. (Paper 17, at pg. 71
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`citing to Exh. 2062 and noting “Microsoft founder Bill Gates personally nominated
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`Ameranth with the praise that ‘Ameranth is one of the leading pioneers of the
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`information age for the betterment of mankind.’”) It is also cited to show the
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`existence of a nexus with the praise/awards/licensing and other “secondary factors”
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`(Paper 17, pgs. 58-59), commercial success (Paper 17, pg. 68) industry praise
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`(Paper 17, pgs. 71, 72) copying (Paper 17, pg. 77) and that companies such as
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`Micros sought to license Ameranth’s technology (Paper 17, pg. 53).
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`Similarly, Exhibit 2053 (email messages with Microsoft personnel) and
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`Exhibit 2059 (Ameranth presentation to Starbucks) are cited by Ameranth to show
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`copying. (Paper 17, pg. 74.) Exhibits 2077-2078 (annotated brochures) and
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`Exhibit 2047 (21 CR brochure with annotations) are used to show a nexus between
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`the patent claims and the awards, industry praise, and commercial success of
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`Ameranth’s 21CR family of products. (Paper 17, pgs. 59-61.) Exhibit 2050
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`(Microsoft RAD Awards document) is cited to show the existence of industry
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`acclaim and numerous awards (Paper 17, pg. 70) and Exhibit 2048 (press releases)
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`is also used to show things such as industry praise and recognition (see e.g. Paper
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`17 at pg. 65).
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`B. Starbucks Has Waived Its Objections To The Press Release Exhibits.
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`Although Petitioner moves to exclude Ameranth’s press release exhibits
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`(Exhibits 2062 and 2048), Petitioner itself submitted Ameranth’s press releases
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`with its petition as exhibits (Petitioner Exhibits 1040 and 1041). Petitioner also
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`used an Ameranth 21st Century Restaurant Overview brochure (Exhibit 1087) and
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`HostAlert brochure as exhibits. Thus, any objections Petitioner has to the same
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`categories of documents used by Ameranth, such as press releases, should be
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`deemed waived since Petitioner has used essentially the same documents itself. 2
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`2 It is also worth noting that Petitioner has submitted numerous exhibits in support
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`of its Petition which are similar in nature to many of the Ameranth exhibits
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`Petitioner challenges in its Motion to Exclude. For example, Petitioner submitted
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`books or excerpts from books (Exhibits 1019-1023, 1032-1036, 1038), technical
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`manuals or excerpts from technical manuals (Exhibits 1024-1031) and articles
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`C. The Exhibits Are Non-Hearsay Or Fall Within A Hearsay Exception.
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`In addition to the exhibits being used for non-hearsay purposes, as discussed
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`above, several exhibits are non-hearsay. Exhibit 2053, which includes statements
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`originating from a Starbucks representative (albeit via a Microsoft representative),
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`is a non-hearsay opposing party’s statement. FRE 801(d)(2). The annotations on
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`Exhibits 2047 and 2077-78 complained of by Petitioner are nothing more than
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`attorney argument. Indeed, Petitioner has done the exact same thing with one of
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`its exhibits in its Petition. (See Paper 2, pgs. 54 and 76, with annotations added to
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`figures of Petitioner’s exhibits.) Amaranth has made abundantly clear that the red
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`annotations are not part of the original documents. Ameranth’s Exhibit List refers
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`to the documents as “both original and annotated” (Exhibit 2047) and “annotated”
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`(Exhibits 2077-78), and Ameranth’s brief repeatedly describes them as “annotated”
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`(e.g. Paper 17, pgs. 59, 60). The annotations are clearly attorney argument and are
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`no more subject to exclusion on hearsay grounds than Ameranth’s brief itself.
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`Exhibits 2047-48, 2050, 2053, 2059, 2062 and 2077-78 also fall within the
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`“residual exception” of FRE 807(a). Under FRE 807(a), a hearsay statement is not
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`excluded by the rule against hearsay if: (1) the statement has equivalent
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`(Exhibits 1008, 1037, 1051).
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`circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a
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`material fact; (3) it is more probative on the point for which it is offered than any
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`other evidence that the proponent can obtain through reasonable efforts; and (4)
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`admitting it will best serve the purposes of these rules and the interests of justice.
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`Here, the Petitioner has made no showing that any of the exhibits are not
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`trustworthy. The exhibits include Ameranth press releases (some of which were
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`included with Mr. McNally’s 37 C.F.R. § 1.132 declaration),3 emails with
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`Microsoft personnel, an Ameranth presentation to Starbucks, the Ameranth 21 CR
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`brochures and the Microsoft RAD Awards document. These documents are not
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`subject to any reasonable challenge for untrustworthiness.
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`As discussed above, the exhibits are primarily offered as evidence of
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`material facts concerning “secondary considerations”, such as the existence of
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`industry praise and recognition and copying and/or the state of mind of the authors
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`or declarants concerning the same. These exhibits are probative on the points for
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`which they are offered, and Petitioner has made no showing that there is other
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`evidence that would be more probative that Ameranth can obtain through
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`reasonable efforts.
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`Admitting the exhibits will best serve the purposes of Federal Rules of
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`3 The Ameranth press releases would also be business records under FRE 803(6).
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`Evidence and the interests of justice in that the evidence is highly relevant to
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`Ameranth’s response to the Petition and, as such, it should be considered by the
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`Board. Therefore, the exhibits meet the “residual exception” of FRE 807(a) and
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`they should not be excluded.
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`Finally, Petitioner’s argument that “Dr. Weaver is not allowed to transmit
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`hearsay to the Board” fails for several reasons. First, as discussed above, the
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`exhibits are either used for a non-hearsay purpose, are non-hearsay or meet an
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`exception to the hearsay rule. Second, Dr. Weaver did not merely “transmit” any of
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`the exhibits to the Board, but rather referred to them when relevant to his opinions.
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`Third, although the cases cited by Petitioner hold that experts may not simply
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`transmit hearsay to the “jury”, there is no jury in this proceeding and the cases also
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`confirm FRE 703 which states in relevant part that the facts and data relied upon
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`by an expert “need not be admissible” if experts in the particular field would
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`reasonably rely on them. FRE 703; see also U.S. v. Mejia, 545 F.3d 179, 197 (2d
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`Cir. 2008); Triboro Quilt Mfg. Corp. v. Luve LLC, 2014 WL 1508606, at *7.
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`III. THE “BEST EVIDENCE RULE” DOES NOT APPLY.
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`Petitioner argues that Exhibits 2053 and 2059 “are further inadmissible
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`because they fail to satisfy the Best Evidence Rule.” (Paper 26, pg. 5.)
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`Petitioner’s apparent justification for the “Best Evidence Rule” based challenge is
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`that it claims Exhibit 2053 “appears to be a doctored copy of the original” and
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`states Exhibit 2059 “appears to be incomplete.” (Paper 26, pg. 6.) Similarly,
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`Petitioner argues that Exhibits 2047, 2077 and 2078 “fail to satisfy” the Best
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`Evidence Rule because they have mark ups “which appear to have been later added
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`onto the underlying documents.” (Paper 26, pg. 8.)
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`However, Petitioner fails to explain why any of its superficial arguments to
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`Ameranth’s exhibits satisfy Petitioner’s burden for challenging the documents
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`under the Best Evidence Rule. The purpose of the best evidence rule is to prevent
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`inaccuracy and fraud when attempting to prove the contents of a writing. FRE
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`1001, Adv. Comm. Notes; United States v. Ross (11th Cir. 1994) 33 F3d 1507,
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`1513. A duplicate is admissible to the same extent as an original document unless
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`a genuine question is raised as to the authenticity of the original, or under the
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`circumstances it would be unfair to admit the duplicate in lieu of the original. FRE
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`1003; Segrets, Inc. v. Gillman Knitware Co., Inc. (D MA 1998) 42 F. Supp. 2d 58,
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`79-80 (partially vacated on other grounds).
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`The burden of challenging admissibility of a duplicate or copy rests with the
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`party against whom it is offered. United States v. Georgalis (5th Cir. 1980) 631 F2d
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`1199, 1205. The Petitioner must demonstrate that there is “a genuine issue as to
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`the authenticity of the original” – i.e., there must be a genuine question about the
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`authenticity of the original from which the duplicate was made. See FRE 901,
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`1003; Keogh v. Commissioner of Internal Revenue (9th Cir. 1983) 713 F2d 496,
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`500. Any challenge to the authenticity of the original must be based on substance,
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`not mere speculation. See United States v. Chang An-Lo (2nd Cir. 1988) 851 F2d
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`547 at 557.
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`Here, as to Exhibits 2053 and 2059, Petitioner’s questioning of the
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`documents is nothing more than mere speculation. As discussed below, Ameranth
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`has provided evidence sufficient to support a finding that the documents in
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`question are what Ameranth claims, which is enough to meet Ameranth’s burden,
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`especially in the absence of any substantive evidence to the contrary. See United
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`States v. Workinger (9th Cir. 1996) 90 F3d 1409, 1415.
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`And Petitioner fails to even explain why annotations on Exhibits 2047, 2077
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`and 2078 “fail to satisfy” the Best Evidence Rule. As discussed above, the
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`annotations are merely attorney argument and are no more subject to a “Best
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`Evidence Rule” challenge than Ameranth’s brief itself. For this same reason (the
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`annotations are attorney argument), the Petitioner’s cursory argument that Exhibits
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`2047, 2077 and 2078 should be excluded under FRE 702 fails.
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`IV. AMERANTH’S EXHIBITS HAVE BEEN AUTHENTICATED.
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`Petitioner argues that Exhibits 2047-48, 2050, 2053, 2059, 2062 and 2077-
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`78 are “inadmissible” as unauthenticated. Petitioner’s argument is that Ameranth
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`has not provided testimonial evidence authenticating the exhibits and that they are
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`not self-authenticating under FRE 902.
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`As an initial matter and as discussed above, Petitioner has waived its
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`objections to Ameranth’s press release exhibits, since Petitioner itself submitted
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`Ameranth’s press releases with its Petition as exhibits (Petitioner Exhibits 1040
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`and 1041).
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`Further, some of the documents have been authenticated via testimonial
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`evidence. Specifically, Exhibit 2062 not only includes the various press release
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`documents challenged by Petitioner, but it also includes the Mr. McNally 37
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`C.F.R. § 1.132 declaration authenticating the documents, which are exhibits to the
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`declaration. (See, e.g., Exhibit 2062 at pgs. 5, 6, 7, 8, 10, 11, 12, 14, 15.)
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`But authenticating testimony is not the only means of establishing the
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`authenticity of documents. Documents may be authenticated by review of their
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`contents if they appear to be sufficiently genuine. Las Vegas Sands, LLC v. Nehme,
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`632 F.3d 526, 533 (9th Cir. 2010) (citing Orr v. Bank of Am., NT & SA, 285 F.3d
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`764 at 778 n. 24). The standard for authentication, and hence admissibility,
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`requires a showing that there is a “reasonable probability” that the evidence is what
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`the proponent claims. The proponent need not rule out “all possibilities
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`inconsistent with authenticity . . .” Rather, the proponent must show that the
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`“evidence is sufficient to allow a reasonable person to believe the evidence is what
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`it purports to be.” Associación De Periodistas De Puerto Rico v. Mueller, 680 F.3d
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`70, 79-80 (1st Cir. 2012) (internal quotes omitted); Ricketts v. City of Hartford, 74
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`F.3d 1397, 1407 (2nd Cir. 1996); America v. Mills, 654 F.Supp.2d 28, 34 (D.D.C.
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`2009) (court “need not find that the evidence is necessarily what the proponent
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`claims, but only that there is sufficient evidence so that the jury ultimately might
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`do so”). Documents may be authenticated by review of their contents if they
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`appear to be sufficiently genuine. FRE 901(b)(4); Las Vegas Sands, LLC, supra,
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`632 F.3d at 533 (citing Orr, supra, 285 F.3d at 778 n. 24); see also Thomas v.
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`Quintana, No. CV 10-2671-JGB CWX, 2014 WL 5419418, at *3 (C.D. Cal. Oct.
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`22, 2014) (“The characteristics of the records themselves in terms of appearance,
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`contents, and substance allow the Court to conclude that the documents have been
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`authenticated by their distinctive characteristics and that they are what they appear
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`to be.”) (citing FRE 901(b)(4); Las Vegas Sands, LLC, supra, 632 F.3d at 533;
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`Abdullah v. CDC, No. 06–2378, 2010 WL4813572, at *3 (E.D. Cal. Nov. 19,
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`2010); Sanchez v. Penner, No. 07–0542, 2009 WL 3088331, at *5 (E.D. Cal.
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`Sept.22, 2009); Johnson v. Roche, No. 06–1676, 2009 WL 720891, at *6 (E.D.
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`Cal. Mar.13, 2009); Burch v. Regents of the University of California, 433
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`F.Supp.2d 1110, 1119 (E.D. Cal. 2006).
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`Here, there is at least a “reasonable probability” that the exhibits are what
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`Ameranth claims. Although Petitioner complains of the annotations, Exhibit 2047
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`is an Ameranth 21CR product brochure. The document is titled “Ameranth 21st
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`Century Restaurant, includes diagrams and a description of the Ameranth 21st
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`Century Restaurant system. Exhibits 2077 and 2078 are an Ameranth/Improv
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`Comedy Clubs case study and a Computerworld Award summary, respectively.
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`The documents are dated and appear on their face consistent with how Ameranth
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`describes them. Petitioner has not pointed to anything about the exhibits that makes
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`it question their authenticity, and there is nothing on the face of the documents that
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`suggests they are not authentic. As already discussed, Ameranth has made
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`abundantly clear that the annotations are not part of the original documents.
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`In addition to Petitioner having waived its objections to the press releases in
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`Exhibits 2048 and 2062 and in addition to many of the documents having been
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`authenticated via testimonial evidence, the press release exhibits can also be
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`authenticated by their characteristics in terms of appearance, contents, and
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`substance. The documents clearly appear to be press releases, many are labeled
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`“Ameranth News”, and the documents discuss various topics such as third parties
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`entering into licenses or strategic partnerships with Ameranth.
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`Similarly, Exhibit 2050 is a document titled “8th Annual Microsoft RAD
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`Awards”, is dated, discusses the RAD Award and profiles the RAD Award winners
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`and therefore appears to be “Microsoft RAD Award” as described by Ameranth.
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`Exhibit 2053 contains email messages between Keith McNally and Steven Larson
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`at an email address of stevelar@microsoft.com, with other individuals copied on
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`some of the emails, and dated in late 2006 and early 2007. And Exhibit 2059 is
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`titled “Ameranth, Inc. 21st Century Communications Proposal/vision for
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`Starbucks” and includes a copyright notice dated 2006. The document contains
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`PowerPoint type slides with diagrams and illustrations pertaining to a system for
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`Starbucks. Thus, the characteristics of the documents themselves in terms of
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`appearance, contents, and substance allow the Board to conclude that the
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`documents have been authenticated by their distinctive characteristics and that they
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`are what they appear to be. See Thomas, No. CV 10-2671-JGB CWX, 2014 WL
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`5419418, at *3 (C.D. Cal. Oct. 22, 2014) (citing FRE 901(b)(4).
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`Accordingly, Ameranth’s exhibits meet the test that there is a “reasonable
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`probability” that the exhibits are what Ameranth claims. Indeed, even if Petitioner
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`were able to provide evidence that called into question the authenticity of the
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`documents, which it has not, the fact conflicting inferences can be drawn regarding
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`authenticity affects weight, not admissibility. Alexander Dawson, Inc. v. NLRB,
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`586 F.2d 1300, 1302 (9th Cir. 1978); United States v. Reilly, 33 F.3d 1396, 1409
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`(3rd Cir. 1994); Transamerica Leasing, Inc. v. Institute of London Underwriters,
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`267 F.3d 1303, 1308 (11th Cir. 2001); United States v. Tin Yat Chin, 371 F.3d 31,
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`37-38 (2nd Cir. 2004).
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`V.
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`PETITIONER’S RELEVANCY ARGUMENT IS MISTAKEN.
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`Petitioner claims in its Motion to Exclude that Ameranth does not cite to
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`several exhibits in its Patent Owner’s Response to the Petition and that, therefore,
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`Ameranth has not established the relevancy of the exhibits. (Paper 26, pg. 13.)
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`However, Petitioner is mistaken as to Exhibits 2012, 2025 and 2081, since
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`Ameranth does cite to those exhibits in Patent Owner’s Response at pages 12, 65
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`and 77, respectively. (Paper 17, pgs. 12, 65, 77.) Thus, Ameranth does discuss and
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`establish the relevancy of these exhibits, and they should not be excluded.
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`VI. DR. WEAVER’S TESTIMONY SHOULD NOT BE EXCLUDED.
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`Petitioner argues that “Dr. Weaver’s Curriculum Vitae shows that he lacks
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`the necessary knowledge and experience in the hospitality and tourism field” and
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`that therefore his testimony on “hospitality applications” is inadmissible. (Paper
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`26, pg. 14.) First, Petitioner’s expert Dr. Abdelsalam Helal, who has no more
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`experience or expertise in the hospitality industry than Dr. Weaver (see Exhibit
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`1003, Appendix A, Curriculum Vitae), submitted a declaration supporting the
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`Petition and opines on matters concerning the “hospitality industry”, including
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`opining on the scope of the hospitality industry. (See e.g. Exhibit 1003, ¶¶ 75-77
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`and 155.) Petitioner cannot now be heard to complain of Dr. Weaver’s opinions
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`concerning “hospitality.”
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`Second, Dr. Weaver’s opinions at the section of his declaration challenged
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`by Petitioner (Exhibit 2041, ¶¶ 33-38) discuss the intrinsic evidence and that the
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`Board viewed the definition of “hospitality industry” too broadly due to the fact
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`that it did not have access to the complete Dittmer reference at the time. Dr.
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`Weaver is sufficiently experienced and knowledgeable to express such opinions,
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`and they should not be excluded.
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`VII. THE BOARD SHOULD EXERCISE ITS DISCRETION.
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`Administrative agencies, such as the Board, are trusted with discretion with
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`respect to evidentiary issues because the protections necessary in a jury trial in
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`district court are not needed before the Board. See, e.g., Kewley v. HHS, 153 F.3d
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`1357, 1364 (Fed. Cir. 1998) (“In addition, we have held that procedural matters
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`such as the admissibility of evidence, including hearsay, fall within the sound
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`discretion of the Board and its AJs.”); SK Innovation Co. Ltd. V. Celgard, LLC,
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`IPR2014-00679, Paper 58, pg. 50 (“because the Board is not a lay jury,” … “the
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`danger of prejudice in this proceeding is considerably lower than in a conventional
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`district court trial”). If the Board should disagree with the applicability of the
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`authorities discussed above with respect to any of the challenged exhibits, the
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`Board should exercise its discretion and deny Petitioner’s Motion to Exclude
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`because the evidence is highly relevant and the protections needed in a jury trial
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`are not present in this proceeding.
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`VIII. CONCLUSION.
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`As discussed above, Petitioner’s Motion to Exclude should be denied.
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`April 20, 2016 Respectfully Submitted,
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`/John W. Osborne/
`John W. Osborne
`Lead Counsel for Patent Owner
`USPTO Reg. No. 36,231
`OSBORNE LAW LLC
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`josborne@osborneipl.com
`Tel.: 914-714-5936
`Fax: 914-734-7333
`
`Michael D. Fabiano
`Back-up Counsel for Patent Owner
`USPTO Reg. No. 44,675
`FABIANO LAW FIRM, P.C.
`12526 High Bluff Drive, Suite 300
`San Diego, CA 92130
`mdfabiano@fabianolawfirm.com
`Tel.: 619-742-9631
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`CERTIFICATE OF SERVICE
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` certify that, in accordance with 37 C.F.R. §42.6, a true and correct copy
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`of the foregoing was served on April 20, 2016 by causing said documents to be
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`delivered via electronic mail, per agreement of the parties, to counsel for
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`Patrick N. McKeever
`Perkins Coie LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`PMcKeever@perkinscoie.com
`
`
`Yun L. Lu
`Perkins Coie LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`Phone: 858-720-5732
`Fax: 858-720-5799
`LLu@perkinscoie.com
`
`
`Robert C. Williams
`DLA PIPER LLP (US)
`401 B Street, Suite 1700
`San Diego, CA 92101
` robert.williams@dlapiper.com
`
`
`Petitioner at the following addresses:
`
`
`
`Bing Ai
`Perkins Coie LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`Phone: 858-720-5707
`Fax: 858-720-5799
`Ai-ptab@perkinscoie.com
`
`Matthew C. Bernstein
`Perkins Coie LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`Phone: 858-720-5721
`Fax: 858-720-5799
`MBernstein@perkinscoie.com
`
`
`
`James M. Heintz
`DLA PIPER LLP (US)
`11911 Freedom Drive, Suite 300
`Reston, VA 20190
` jim.heintz@dlapiper.com
`
`
`
`
`
` April 20, 2016
`
`
`
`
`
`
`
`/Ethan M. Watts/
`
`
`
`-17-