`Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 17
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` Entered: 5 March 2013
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`LKQ CORPORATION
`Petitioner
`
`v.
`
`CLEARLAMP, LLC
`Patent OWNER
`_______________
`
`Case IPR2013-00020
`Patent 7,297,364
`_______________
`
`
`Before SALLY C. MEDLEY, KEVIN F. TURNER, and
`JOSIAH C. COCKS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`DECISION
`Objection to Evidence
`37 C.F.R. § 42.64
`
`Introduction
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`
`
`LKQ Corporation (LKQ) filed a petition to institute inter partes reviews of
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`U.S. Patent 7,297,364 (“the ‘364 patent”). Paper 1; “Pet.” The Patent Owner of
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`the ‘364 patent, Clearlamp, LLC (Clearlamp), filed a preliminary response. Paper
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`
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`14; “Prelim. Resp.” Clearlamp makes several arguments. This decision addresses
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`Clearlamp’s request to exclude Exhibits 1004, 1005 and 1007 submitted in support
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`of the petition. The request is treated as a motion to exclude Exhibits 1004, 1005
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`and 1007. 1 The motion is DISMISSED.
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`Background and Findings of Fact
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`
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`As part of its petition submission, LKQ relies on several exhibits. In its
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`patent owner preliminary response, Clearlamp moves to exclude Exhibits 1004,
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`1005 and 1007 from consideration, e.g., requests for us to exclude such evidence as
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`inadmissible. A description of Exhibits 1004, 1005 and 1007 follows.
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`1) Exhibit 1004 (“Eastwood”) is a copy of the following web page:
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`http://forum.eastwood.com/showthread.php?118-Plastic-headlight-
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`resealing&s=d3d5c104c4068d77bcc48e2e5ad49222;
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`2) Exhibit 1005 (“SHO”) is a copy of the following web page:
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`http://www.shoforum.com/showthread.php?t=38051;
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`3) Exhibit 1007 (“Autopia”) is a copy of the following web page:
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`http://www.autopia.org/forum/car-detailing/56737-another-plastic-headlight-
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`restoration.html.
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`
`
`The above exhibits are copies of web pages from Internet forums, or
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`message boards, with posted messages from forum participants. Pet. 11. The
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`submitted web pages have dates associated with the posted messages. For
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`example, the “Eastwood” exhibit shows a message post with the date of “2-18-
`
`
`1 Ordinarily, a party requesting relief must seek Board authorization to file a
`motion. 37 CFR § 42.20(b). Here, we exercise our discretion to decide
`Clearlamp’s request at pages 25-28 of its preliminary response and treat that
`request as a motion. 37 CFR § 42.1(b) and 37 CFR § 42.5 (b). This decision
`makes no other determinations regarding the petition or preliminary response.
`2
`
`
`
`
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`2005.” Ex. 1004. LKQ relies on Eastwood, SHO and Autopia as “prior art
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`consisting of … printed publications” under 35 U.S.C. § 311(b) and explains in its
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`petition why the exhibits qualify as printed publications. Id. 11-12.
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`The Request
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`
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`Clearlamp argues that LKQ’s Exhibits 1004, 1005 and 1007 are not
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`admissible since they have not been authenticated. Clearlamp additionally argues
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`that since LKQ has not proved the dates asserted of the same exhibits, the exhibits
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`are also inadmissible as hearsay. Prelim. Resp. 25-28. Clearlamp argues that since
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`the exhibits are inadmissible, LKQ’s Grounds 2, 3, 5, 7, 8, 10 and 11 that rely on
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`Exhibits 1004, 1005 and 1007, cannot succeed and therefore the request for inter
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`partes review should be denied in its entirety. Id.
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`Analysis
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`With few exceptions, the Federal Rules of Evidence apply to inter partes
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`proceedings. 37 CFR § 42.62. The rules governing inter partes review also set
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`forth the proper procedure for objecting to, and moving to exclude, evidence when
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`appropriate. When a party objects to evidence that was submitted during a
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`preliminary proceeding, such an objection must be served within ten business days
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`of the institution of trial. The objection to the evidence must identify the grounds
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`for the objection with sufficient particularity to allow correction in the form of
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`supplemental evidence. This process allows the party relying on the evidence to
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`which an objection is timely served, the opportunity to correct, by serving
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`supplemental evidence within so many days of the service of the objection. See,
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`37 CFR 42.64(b)(1) and (b)(2). If, upon receiving the supplemental evidence, the
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`opposing party is still of the opinion that the evidence is inadmissible, the opposing
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`party may file a motion to exclude such evidence. The time for filing a motion to
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`3
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`
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`exclude is typically several months into a trial. See, e.g., 77 Fed. Reg. 157
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`(August 14, 2012) 48765 regarding Scheduling Order and Appendix A – Due
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`Date 4.
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`Clearlamp has not followed the proper procedures for objecting to and/or
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`excluding evidence. Although Clearlamp recognizes that Exhibits 1004, 1005 and
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`1007 have dates associated with them, Clearlamp moves for us to exclude such
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`evidence, because the associated dates are allegedly inadmissible hearsay and
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`because the documents have not been authenticated. Such a request to exclude
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`evidence is typically made by way of a motion to exclude. 37 CFR § 42.64(c). As
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`stated above, motions to exclude are not authorized until much later during a trial,
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`if a trial is instituted. Clearlamp’s “motion to exclude” is premature and also
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`prevents LKQ from correcting as permitted by the rules. If a trial is instituted,
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`Clearlamp will have full opportunity to object, serve, reconsider any supplemental
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`evidence and finally file a motion to exclude evidence. To the extent that
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`Clearlamp urges the Board to consider the evidentiary issues as part of our
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`determination to institute a trial, Clearlamp has failed to explain, in any meaningful
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`way, why we should deviate from the rules governing inter partes review.
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`For all of these reasons, Clearlamp’s “motion to exclude” is DISMISSED
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`without prejudice for renewing under the proper procedures and circumstances.
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`
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`4
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`
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`Petitioner:
`
`Alan L. Barry
`Heather A. Boice
`K&L Gates, LLP
`Email: alan.barry@klgates.com
`Email: heather.boice@klgates.com
`
`Patent Owner:
`
`Matthew L. Cutler
`Bryan Wheelock
`Harness, Dickey & Pierce, PLC
`Email: mcutler@hdp.com
`Email: bwheelock@hdp.com
`
`
`
`
`5
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`
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