Case IPR2013-00020
`Patent 7,297,364
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`Trials@uspto.gov
`Tel: 571.272.7822
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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.
`
`LKQ’S OBJECTIONS TO EVIDENCE SUBMITTED BY CLEARLAMP
`
`1
`
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`Patent 7,297,364
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`Trials@uspto.gov
`Tel: 571.272.7822
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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.
`
`LKQ’S OBJECTIONS TO EVIDENCE SUBMITTED BY CLEARLAMP
`
`1
`
`
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`Case IPR2013-00020
`Patent 7,297,364
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`Pursuant to 37 C.F.R. § 42.64, Petitioner LKQ serves and submits the
`
`following objections to evidence served with Patent Owner Clearlamp’s Response.
`
`Exhibit 2004
`
`LKQ objects to all statements in Exhibit 2004 about original equipment
`
`(“OEM”) standards and federal standards, including those related to quality, safety,
`
`longevity, and lamp characteristics, because such statements are irrelevant (FRE
`
`402).
`
`LKQ also objects to all evidence of LKQ’s products and/or services because
`
`it is irrelevant (FRE 402). LKQ denies that its products and services infringe the
`
`’364 Patent, and the Board will not be determining infringement in this IPR. See
`
`e.g., Garmin Int’l Inc. et al. v. Cuozzo Speed Tech. LLC, IPR2012-00001, Paper
`
`26, at 11-12 (explaining that the Board does not determine whether an IPR
`
`petitioner’s accused product infringes the patents challenged in the IPR).
`
`Comments about LKQ’s products and/or services say nothing about the non-
`
`obviousness of the ’364 Patent. Furthermore, even if LKQ’s products and/or
`
`services infringe the ’364 Patent, the Board has recognized that infringement is not
`
`necessarily evidence of copying. Id.
`
`LKQ reserves its right to further challenge Mr. Bell’s testimony based upon
`
`a deposition of Mr. Bell.
`
`The following chart lists objections to specific paragraphs in Exhibit 2004.
`
`2
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`
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`Case IPR2013-00020
`Patent 7,297,364
`
`
`Objections to Paragraphs in Exhibit 2004
`
`Paragraph 17
`
`Relevance (FRE 402)
`
`Paragraphs 23 to 29
`
`Foundation (FRE 702, 703)
`
`Paragraph 34
`
`Foundation (FRE 702, 703)
`
`Paragraphs 42 and 43
`
`Foundation (FRE 702, 703)
`
`Paragraphs 53 to 56
`
`Foundation (FRE 702, 703)
`
`Authentication (FRE 901)
`
`Inadmissible under § 42.65(b) for failing to
`
`provide affidavit regarding test
`
`Paragraphs 75 to 79
`
`Foundation (FRE 702, 703)
`
`Relevance (FRE 402)
`
`Paragraph 84
`
`Foundation (FRE 702, 703)
`
`Relevance (FRE 402)
`
`Paragraphs 85 to 86
`
`Relevance (FRE 402)
`
`3
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`Case IPR2013-00020
`Patent 7,297,364
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`
`Objections to Paragraphs in Exhibit 2004
`
`Paragraphs 87 to 89
`
`Foundation (FRE 702, 703)
`
`Authentication (FRE 901)
`
`Hearsay (FRE 802)
`
`Relevance (FRE 402)
`
`Paragraph 89
`
`Foundation (FRE 702, 703)
`
`Exhibit 2006
`
`LKQ objects to Exhibit 2006 because it is irrelevant (FRE 402). LKQ
`
`denies that its products and services infringe the ’364 Patent, and the Board will
`
`not be determining infringement in this IPR. See e.g., Garmin Int’l Inc. et al. v.
`
`Cuozzo Speed Tech. LLC, IPR2012-00001, Paper 26, at 11-12 (explaining that the
`
`Board does not determine whether an IPR petitioner’s accused product infringes
`
`the patents challenged in the IPR). Comments about LKQ’s products and/or
`
`services say nothing about the non-obviousness of the ’364 Patent. Furthermore,
`
`even if LKQ’s products and/or services infringe the ’364 Patent, the Board has
`
`recognized that infringement is not necessarily evidence of copying. Id.
`
`LKQ also objects to Exhibit 2006 because it is inadmissible under § 42.61 as
`
`4
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`evidence not obtained under Subpart A (Trial Practice and Procedure) of Federal
`
`Register Vol. 77, No. 157, Rules of Practice for Trials Before the Patent Trial and
`
`Appeal Board.
`
`LKQ also objects to Exhibit 2006 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802).
`
`Exhibit 2007
`
`The following chart lists objections to specific paragraphs in Exhibit 2007.
`
`LKQ reserves its right to further challenge Mr. Katsamberis’ testimony based upon
`
`a deposition of Mr. Katsamberis.
`
`Objections to Paragraphs in Exhibit 2007
`
`Paragraph 6
`
`Foundation (FRE 702, 703)
`
`Paragraph 37
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`Paragraph 43
`
`Paragraph 44
`
`Paragraph 47
`
`Relevance (FRE 402)
`
`Foundation (FRE 702, 703)
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`Relevance (FRE 402)
`
`Relevance (FRE 402)
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`Foundation (FRE 702, 703)
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`5
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`Case IPR2013-00020
`Patent 7,297,364
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`
`Objections to Paragraphs in Exhibit 2007
`
`Hearsay (FRE 802)
`
`Paragraph 48
`
`Foundation (FRE 702, 703)
`
`Hearsay (FRE 802)
`
`Relevance (FRE 402)
`
`Exhibit 2009
`
`LKQ objects to Exhibit 2009 in its entirety because it is inadmissible under §
`
`42.65(a) as testimony on United States patent law or patent examination practice.
`
`LKQ further objects to any statements by Mr. Rappaport about vehicles, lamps,
`
`vehicle repair/refurbishment, or the vehicle parts market because Mr. Rappaport is
`
`not an expert or a person of ordinary skill in the art and has no personal knowledge
`
`about the art (FRE 602, 702, 703).
`
`LKQ reserves its right to further challenge Mr. Rappaport’s testimony based
`
`upon a deposition of Mr. Rappaport.
`
`The following chart lists objections to specific paragraphs in Exhibit 2009.
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`6
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`Objections to Paragraphs in Exhibit 2009
`
`Paragraph 2
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`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.61 as evidence not
`
`obtained under Subpart A (Trial Practice and
`
`Procedure) of Federal Register Vol. 77, No.
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`157, Rules of Practice for Trials Before the
`
`Patent Trial and Appeal Board
`
`Paragraphs 3 to 22
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
`
`Paragraphs 23 to 25
`
`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
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`Relevance (FRE 402)
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`7
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`
`Objections to Paragraphs in Exhibit 2009
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`Hearsay (FRE 802)
`
`Paragraph 26
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`Relevance (FRE 402)
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`Hearsay (FRE 802)
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`Paragraph 27
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`Foundation (FRE 702, 703)
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`Inadmissible under § 42.65(a) as testimony
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`on United States patent
`
`law or patent
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`examination practice
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`Relevance (FRE 402)
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`Paragraph 28
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`Foundation (FRE 702, 703)
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`Inadmissible under § 42.65(a) as testimony
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`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
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`Hearsay (FRE 802)
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`8
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`Case IPR2013-00020
`Patent 7,297,364
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`Objections to Paragraphs in Exhibit 2009
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`Paragraph 29
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`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.65(a) as testimony
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`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
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`Paragraph 30
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`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
`
`Hearsay (FRE 802)
`
`Paragraph 31
`
`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`9
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`
`Objections to Paragraphs in Exhibit 2009
`
`examination practice
`
`Relevance (FRE 402)
`
`Hearsay (FRE 802)
`
`Paragraph 32
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
`
`Paragraphs 33 to 46
`
`Foundation (FRE 702, 703)
`
`Relevance (FRE 402)
`
`Hearsay (FRE 802)
`
`Inadmissible under § 42.61 as evidence not
`
`obtained under Subpart A (Trial Practice and
`
`Procedure) of Federal Register Vol. 77, No.
`
`157, Rules of Practice for Trials Before the
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`Patent Trial and Appeal Board
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`10
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`Objections to Paragraphs in Exhibit 2009
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`Paragraph 37
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`Mischaracterizes the evidence
`
`Paragraphs 43 and 44
`
`Prejudicial, Confusing, Misleading (FRE 403)
`
`Paragraph 47
`
`Foundation (FRE 702, 703)
`
`Inadmissible under § 42.61 as evidence not
`
`obtained under Subpart A (Trial Practice and
`
`Procedure) of Federal Register Vol. 77, No.
`
`157, Rules of Practice for Trials Before the
`
`Patent Trial and Appeal Board
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
`
`Paragraph 48
`
`Foundation (FRE 702, 703)
`
`Authentication (FRE 901)
`
`11
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`
`Objections to Paragraphs in Exhibit 2009
`
`Hearsay (FRE 802)
`
`Inadmissible under § 42.61 as evidence not
`
`obtained under Subpart A (Trial Practice and
`
`Procedure) of Federal Register Vol. 77, No.
`
`157, Rules of Practice for Trials Before the
`
`Patent Trial and Appeal Board
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`Paragraphs 49 and 50
`
`Hearsay (FRE 802)
`
`Inadmissible under § 42.65(a) as testimony
`
`on United States patent
`
`law or patent
`
`examination practice
`
`Relevance (FRE 402)
`
`Exhibit 2010
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`LKQ objects to pages 17 to 36 of Exhibit 2010 because they lack foundation
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`(FRE 602) and authentication (FRE 901) and are hearsay (FRE 802), irrelevant
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`(FRE 402) and prejudicial (FRE 403).
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`12
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`
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`Case IPR2013-00020
`Patent 7,297,364
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`Exhibit 2011
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`LKQ objects to Exhibit 2011 because it is irrelevant (FRE 402). LKQ
`
`denies that its products and services infringe the ’364 Patent, and the Board will
`
`not be determining infringement in this IPR. See e.g., Garmin Int’l Inc. et al. v.
`
`Cuozzo Speed Tech. LLC, IPR2012-00001, Paper 26, at 11-12 (explaining that the
`
`Board does not determine whether an IPR petitioner’s accused product infringes
`
`the patents challenged in the IPR). Comments about LKQ’s products and/or
`
`services say nothing about the non-obviousness of the ’364 Patent. Furthermore,
`
`even if LKQ’s products and/or services infringe the ’364 Patent, the Board has
`
`recognized that infringement is not necessarily evidence of copying. Id.
`
`LKQ also objects to Exhibit 2011 because it is inadmissible under § 42.61 as
`
`evidence not obtained under Subpart A (Trial Practice and Procedure) of Federal
`
`Register Vol. 77, No. 157, Rules of Practice for Trials Before the Patent Trial and
`
`Appeal Board.
`
`LKQ also objects to Exhibit 2011 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802).
`
`Exhibit 2012
`
`LKQ objects to Exhibit 2012 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802).
`
`Exhibit 2013
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`13
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`Case IPR2013-00020
`Patent 7,297,364
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`LKQ objects to Exhibit 2013 because it lacks foundation (FRE 602) and
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`authentication (FRE 901) and is hearsay (FRE 802).
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`Exhibit 2014
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`LKQ objects to Exhibit 2014 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802).
`
`Exhibit 2015
`
`LKQ reserves the right to assert all objections made on the record during
`
`Mr. Yarde’s deposition, but specifically objects to page 57, lines 3 to 10, of Exhibit
`
`2015 as ambiguous and assuming facts not in evidence (FRE 403).
`
`Exhibit 2016
`
`LKQ objects to Exhibit 2016 because it is inadmissible under § 42.61 as
`
`evidence not obtained under Subpart A (Trial Practice and Procedure) of Federal
`
`Register Vol. 77, No. 157, Rules of Practice for Trials Before the Patent Trial and
`
`Appeal Board.
`
`As the Patent Office Trial Practice Guide states, “Consistent with the policy
`
`expressed in Rule 1 of the Federal Rules of Civil Procedure, and corresponding §
`
`42.1(b), unnecessary objections, ‘speaking’ objections, and coaching of witnesses
`
`in proceedings before the Board are strictly prohibited.” LKQ objects to Exhibit
`
`2016 because it contravenes the PTAB’s prohibition on coaching witnesses. Mr.
`
`Sandau testified that prior to giving his deposition in the district court case he had a
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`14
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`Case IPR2013-00020
`Patent 7,297,364
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`meeting with Mr. Cutler, Clearlamp’s counsel and lead counsel for Patent Owner
`
`in this proceeding, in which the two discussed “[a]lmost the same line of
`
`questioning that I was just asked, or very similar.” (Sandau Dep. Tr. at 65:11-
`
`66:11). This dress rehearsal constitutes Mr. Cutler’s coaching of Mr. Sandau.
`
`Accordingly, the entirety of Mr. Sandau’s testimony is not admissible.
`
`LKQ also objects to Exhibit 2016 because, in general, it lacks foundation
`
`(FRE 602) and authentication (FRE 901) and is hearsay (FRE 802). In addition,
`
`LKQ objects to Exhibit 2016 because nearly all of the questions cited by
`
`Clearlamp are leading (FRE 611(c)). LKQ further objects to Exhibit 2016 because
`
`Clearlamp’s citations to it are often incomplete, starting or ending in the middle of
`
`a question or answer. The following table summarizes LKQ’s specific objections
`
`to the cited passages of Exhibit 2016:
`
`Objections to Cited Portions Of Exhibit 2016
`
`15:11-16:1
`
`Incomplete citation
`
`18:1-4
`
`18:5-11
`
`18:12-15
`
`Leading (FRE 611(c))
`
`Leading (FRE 611(c))
`
`Leading (FRE 611(c))
`
`15
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`
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`Case IPR2013-00020
`Patent 7,297,364
`
`
`Objections to Cited Portions Of Exhibit 2016
`
`20:20-21:9
`
`21:10-21
`
`Leading (FRE 611(c))
`
`Leading (FRE 611(c))
`
`22:22-23:1; 23:4-8
`
`Leading (FRE 611(c))
`
`23:9-11
`
`23:23-25:10
`
`25:11-16
`
`25:24-26:6
`
`26:17-27:4
`
`27:10-14
`
`27:24-25
`
`29:18-19
`
`30:1-7
`
`Compound (FRE 611(a))
`
`Leading (FRE 611(c))
`
`Relevance (FRE 402)
`
`Leading (FRE 611(c))
`
`Relevance (FRE 402)
`
`Incomplete citation
`
`Incomplete citation
`
`Incomplete citation
`
`Foundation (FRE 602)
`
`Foundation (FRE 602)
`
`16
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`
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`Case IPR2013-00020
`Patent 7,297,364
`
`
`Objections to Cited Portions Of Exhibit 2016
`
`32:1-2; 13-15
`
`Incomplete citation
`
`Leading (FRE 611(c))
`
`34:16-19; 34:23-35:3
`
`Incomplete citation
`
`35:7-12
`
`35:15-36:2
`
`36:16-23
`
`37:23-38:20
`
`38:16-20
`
`41:10-13
`
`46:15-20
`
`Leading (FRE 611(c))
`
`Foundation (FRE 602)
`
`Foundation (FRE 602)
`
`Leading (FRE 611(c))
`
`Compound (FRE 611(a))
`
`Leading (FRE 611(c))
`
`Leading (FRE 611(c))
`
`Leading (FRE 611(c))
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`Incomplete citation
`
`Leading (FRE 611(c))
`
`17
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`Case IPR2013-00020
`Patent 7,297,364
`
`
`Objections to Cited Portions Of Exhibit 2016
`
`56:1-7
`
`74:18-21
`
`Incomplete citation
`
`Incomplete citation
`
`LKQ has only objected to the passages of Exhibit 2016 cited by Clearlamp.
`
`Exhibit 2016 does not contain the full transcript of the deposition of Robert
`
`Sandau, and Clearlamp has not cited to all lines of the transcript attached exhibit
`
`2016. LKQ reserves the right to further object to additional passages of Exhibit
`
`2016, or to other portions of the deposition of Mr. Sandau not included in Exhibit
`
`2016, to the extent Clearlamp later tries to rely on such portions. LKQ further
`
`reserves the right to assert all objections made on the record during Mr. Sandau’s
`
`deposition.
`
`Exhibit 2017
`
`LKQ objects to Exhibit 2017 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802), and is irrelevant (FRE 402).
`
`Exhibit 2018
`
`LKQ objects to Exhibit 2018 because it lacks foundation (FRE 602) and
`
`authentication (FRE 901) and is hearsay (FRE 802).
`
`LKQ also objects to Exhibit 2018 because it is prejudicial (FRE 403).
`
`LKQ also objects to all evidence of LKQ’s products and/or services because
`
`18
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`
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`Case IPR2013-00020
`Patent 7,297,364
`
`it is irrelevant (FRE 402). LKQ denies that its products and services infringe the
`
`’364 Patent, and the Board will not be determining infringement in this IPR. See
`
`e.g., Garmin Int’l Inc. et al. v. Cuozzo Speed Tech. LLC, IPR2012-00001, Paper
`
`26, at 11-12 (explaining that the Board does not determine whether an IPR
`
`petitioner’s accused product infringes the patents challenged in the IPR).
`
`Comments about LKQ’s products and/or services say nothing about the non-
`
`obviousness of the ’364 Patent. Furthermore, even if LKQ’s products and/or
`
`services infringe the ’364 Patent, the Board has recognized that infringement is not
`
`necessarily evidence of copying. Id.
`
`The Patent Trial and Appeal Board is hereby authorized to charge any fees
`
`owed by Petitioner and associated with this case to Deposit Account 02-1818.
`
`
`
`Respectfully submitted by
`
`K&L Gates LLP,
`
`By:
`
`
`
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`
`
`
`
`
`
`
`
`
`
`
` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`Customer No. 24573
`Date: July 9, 2013
`K&L Gates LLP
`e-mail: alan.barry@klgates.com
`telephone number: 312-807-4438
`fax number: 312-827-8196
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
`
`19
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`Certification of Service Under 37 C.F.R. § 42.6(e)(4)
`
`A copy of this notice has been served to counsel for the Patent Owner at the
`
`following electronic mail addresses, pursuant to an agreement with the Patent
`Owner, on this 9th day of July, 2013:
`
`
`
`
`
`
`
`Matthew L. Cutler – mcutler@hdp.com
`Douglas A. Robinson – drobinson@hdp.com
`Bryan K. Wheelock – bwheelock@hdp.com
`Karen Bearley – kbearley@hdp.com
`
`By:
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`
`
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`
` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`K&L Gates LLP
`e-mail: alan.barry@klgates.com
`telephone number: 312-807-4438
`fax number: 312-827-8196
`70 W. Madison Street, Suite 3100
`Chicago, IL 60602
`
`1
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