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
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`LKQ CORPORATION
`Petitioner
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`v.
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`CLEARLAMP, LLC
`Patent OWNER
`_____________
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`Case IPR2013-00020
`Patent 7,297,364
`_____________
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`Before SALLY C. MEDLEY, KEVIN F. TURNER and JOSIAH C. COCKS,
`Administrative Patent Judges.
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`MEDLEY, Administrative Patent Judge.
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`LKQ’S OBJECTIONS TO CLEARLAMP’S SUPPLEMENTAL EVIDENCE
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`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
`_____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LKQ CORPORATION
`Petitioner
`
`v.
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`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.
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`LKQ’S OBJECTIONS TO CLEARLAMP’S SUPPLEMENTAL EVIDENCE
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`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 Corp. (“LKQ”) serves and
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`submits the following objections to the supplemental evidence that Patent Owner
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`Clearlamp, LLC (“Clearlamp”) provided on July 23, 2013.
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`LKQ expressly maintains its previous objections to the evidence Clearlamp
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`submitted with its Patent Owner Response on July 1, 2013, which LKQ identified
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`in a set of objections served and filed on July 9, 2013. LKQ further expressly
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`reserves its right to file a Motion to Exclude based on any of the objections raised
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`in its July 9, 2013 objections.
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`LKQ also provides the following objections to Clearlamp’s supplemental
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`evidence.
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`Exhibit 2021
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`Exhibit 2021 is a full version of the deposition transcript of Robert Sandau,
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`filed under seal and in redacted form. Clearlamp previously submitted only
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`excerpts from the transcript of Mr. Sandau’s deposition as Exhibit 2016. To the
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`extent Clearlamp submitted Exhibit 2021 in response to LKQ’s previous objections
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`related to “Incomplete citation[s],” LKQ states that this objection was to
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`Clearlamp’s selective citation beginning or ending in the middle of questions or
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`answers, and not to pages from the transcript being omitted. Accordingly, Exhibit
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`2021 does not remedy these objections.
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`None of Clearlamp’s supplemental evidence makes reference to Exhibit
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`Patent 7,297,364
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`2021. Nor does Clearlamp’s Notice of Supplemental Evidence make reference to
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`Exhibit 2021. Clearlamp’s Motion for Entry Under Seal explains what Exhibit
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`2021 is and why it contains confidential information, but does not indicate why it
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`is being submitted. Indeed, from LKQ’s review of Clearlamp’s submissions to
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`date, LKQ cannot find any citation to any portion of Mr. Sandau’s deposition
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`testimony that was not included in the excerpts submitted as Exhibit 2016.
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`Accordingly, LKQ’s previous objections to Exhibit 2016 are equally
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`applicable to Exhibit 2021. Specifically, LKQ objects to Exhibit 2021 because it is
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`inadmissible under § 42.61 as evidence not obtained under Subpart A (Trial
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`Practice and Procedure) of Federal Register Vol. 77, No. 157, Rules of Practice for
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`Trials Before the Patent Trial and Appeal Board.
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`As the Patent Office Trial Practice Guide states, “Consistent with the policy
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`expressed in Rule 1 of the Federal Rules of Civil Procedure, and corresponding §
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`42.1(b), unnecessary objections, ‘speaking’ objections, and coaching of witnesses
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`in proceedings before the Board are strictly prohibited.” LKQ objects to Exhibit
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`2021 because it contravenes the PTAB’s prohibition on coaching witnesses. Mr.
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`Sandau testified that prior to giving his deposition in the district court case he had a
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`meeting with Mr. Cutler, Clearlamp’s counsel and lead counsel for Patent Owner
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`in this proceeding, in which the two discussed “[a]lmost the same line of
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`questioning that I was just asked, or very similar.” (Exhibit 2021 at 65:11-66:11).
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`Patent 7,297,364
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`This dress rehearsal constitutes Mr. Cutler’s coaching of Mr. Sandau.
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`Accordingly, none of Mr. Sandau’s testimony, as reflected in Exhibit 2021, is
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`admissible.
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`LKQ also objects to Exhibit 2021 because, in general, it lacks foundation
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`(FRE 602) and authentication (FRE 901) and is hearsay (FRE 802). In addition,
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`LKQ objects to Exhibit 2021 because nearly all of the questions cited by
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`Clearlamp are leading (FRE 611(c)). LKQ further objects to Exhibit 2021 because
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`Clearlamp’s citations to it are often incomplete, starting or ending in the middle of
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`a question or answer. The following table summarizes LKQ’s specific objections
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`to the cited passages of Exhibit 2021:
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`Objections to Cited Portions Of Exhibit 2021
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`15:11-16:1
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`18:1-4
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`18:5-11
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`18:12-15
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`20:20-21:9
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`21:10-21
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`Incomplete citation
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`Leading (FRE 611(c))
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`Leading (FRE 611(c))
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`Leading (FRE 611(c))
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`Leading (FRE 611(c))
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`Leading (FRE 611(c))
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`22:22-23:1; 23:4-8
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`Leading (FRE 611(c))
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`Compound (FRE 611(a))
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`4
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`Case IPR2013-00020
`Patent 7,297,364
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`Objections to Cited Portions Of Exhibit 2021
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`23:9-11
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`23:23-25:10
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`25:11-16
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`25:24-26:6
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`26:17-27:4
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`27:10-14
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`27:24-25
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`29:18-19
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`30:1-7
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`Leading (FRE 611(c))
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`Relevance (FRE 402)
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`Leading (FRE 611(c))
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`Relevance (FRE 402)
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`Incomplete citation
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`Incomplete citation
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`Incomplete citation
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`Foundation (FRE 602)
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`Foundation (FRE 602)
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`32:1-2; 13-15
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`Incomplete citation
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`Leading (FRE 611(c))
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`34:16-19; 34:23-35:3
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`Incomplete citation
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`35:7-12
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`35:15-36:2
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`Leading (FRE 611(c))
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`Foundation (FRE 602)
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`Foundation (FRE 602)
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`Leading (FRE 611(c))
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`Compound (FRE 611(a))
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`36:16-23
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`Leading (FRE 611(c))
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`5
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`Case IPR2013-00020
`Patent 7,297,364
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`Objections to Cited Portions Of Exhibit 2021
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`37:23-38:20
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`38:16-20
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`41:10-13
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`46:15-20
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`56:1-7
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`74:18-21
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`Leading (FRE 611(c))
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`Leading (FRE 611(c))
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`Incomplete citation
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`Leading (FRE 611(c))
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`Incomplete citation
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`Incomplete citation
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`LKQ has only objected to the passages of Exhibit 2021 cited by Clearlamp.
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`Clearlamp has not cited to all lines of the transcript attached Exhibit 2021. LKQ
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`reserves the right to further object to additional passages of Exhibit 2021 to the
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`extent Clearlamp later tries to rely on such additional passages. LKQ further
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`reserves the right to assert all objections made on the record during Mr. Sandau’s
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`deposition.
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`Exhibit 2022
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`Exhibit 2022 is a declaration of Michael J. Asselta, Chief Executive Officer
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`for Clearlamp, relating to previously-submitted Exhibits 2012, 2013, 2014, and
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`2017. Mr. Asselta’s declaration appears to attempt to lay foundation for Exhibits
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`2012, 2013, 2014, and 2017.
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`Patent 7,297,364
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`LKQ objects to Exhibit 2022 to the extent that the documents for which Mr.
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`Asselta’s testimony purports to lay foundation are irrelevant (Rule 402), as
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`indicated in LKQ’s previously-served objections to those documents. LKQ also
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`objects to Exhibit 2022 because Mr. Asselta’s declaration does not lay the proper
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`foundation for Exhibits 2012, 2013, 2014, or 2017 (FRE 702, 703). For example,
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`Mr. Asselta’s declaration does describe any details of the circumstances, including
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`the timing of the testing, payment arrangement of the testing, or reason for the
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`testing he asserts was conducted by various entities on various unidentified vehicle
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`lamps. LKQ also objects to Exhibit 2022 because Mr. Asselta’s declaration fails to
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`lay foundation for why any process is “according to the teachings of U.S. Patent
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`7,297,364.” (FRE 702, 703). LKQ also objects to Exhibit 2022 because Mr.
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`Asselta’s declaration related to the “teachings” of the ’364 Patent is irrelevant, as
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`this proceeding is examining the claims of the ’364 Patent. (FRE 402). LKQ also
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`objects to the extent that any safety standards referenced by Mr. Asselta, in
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`addition to being irrelevant because they are safety standards not related to the
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`claims of the ’364 Patent, are from an irrelevant time period. (FRE 402).
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`The following chart lists objections to specific paragraphs in Exhibit 2022.
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`Objections to Paragraphs in Exhibit 2022
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`Paragraph 2
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`Relevance (FRE 402)
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`7
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`Objections to Paragraphs in Exhibit 2022
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`Paragraph 3
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`Foundation (FRE 702, 703)
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`Relevance (FRE 402)
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`Paragraph 4
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`Foundation (FRE 702, 703)
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`Relevance (FRE 402)
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`Paragraph 5
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`Foundation (FRE 702, 703)
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`Relevance (FRE 402)
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`LKQ reserves its right to further challenge Mr. Asselta’s testimony based
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`upon a deposition of Mr. Asselta.
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`Exhibit 2023
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`Exhibit 2023 is a declaration of Douglas A. Robinson, counsel for
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`Clearlamp, relating to previously-submitted Exhibit 2018. Mr. Robinson’s
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`declaration appears to attempt to lay foundation for Exhibit 2018. LKQ objects to
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`Exhibit 2023 to the extent that it relates to evidence of LKQ’s products and/or
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`services because such information is irrelevant (FRE 402). LKQ denies that its
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`products and services infringe the ’364 Patent, and the Board will not be
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`determining infringement in this IPR. See e.g., Garmin Int’l Inc. et al. v. Cuozzo
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`Speed Tech. LLC, IPR2012-00001, Paper 26, at 11-12 (explaining that the Board
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`does not determine whether an IPR petitioner’s accused product infringes the
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`8
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`Case IPR2013-00020
`Patent 7,297,364
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`patents challenged in the IPR). Furthermore, even if LKQ’s products and/or
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`services infringe the ’364 Patent, the Board has recognized that infringement is not
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`necessarily evidence of copying. Id.
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`The following chart lists objections to specific paragraphs in Exhibit 2023.
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`Objections to Paragraphs in Exhibit 2023
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`Paragraph 2
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`Relevance (FRE 402)
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`Exhibit 2024
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`Exhibit 2024 is a partial version of the deposition transcript of James Devlin,
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`which Clearlamp filed only under seal. LKQ objects to Exhibit 2024 to the extent
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`it is a partial version of Mr. Devlin’s deposition transcript, particularly since
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`Clearlamp’s submission of Exhibit 2021 herein appears to concede that such partial
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`submission is improper.
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`None of Clearlamp’s supplemental evidence makes reference to Exhibit
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`2024. Nor does Clearlamp’s Notice of Supplemental Evidence make reference to
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`Exhibit 2024. Clearlamp’s Motion for Entry Under Seal explains what Exhibit
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`2024 is and why it contains confidential information, but does not indicate why it
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`is being submitted. Indeed, from LKQ’s review of Clearlamp’s submissions to
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`date, LKQ cannot find any citation to any particular portion of Mr. Devlin’s
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`deposition testimony at all. LKQ therefore objects to Exhibit 2024 on the grounds
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`9
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`Patent 7,297,364
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`of relevance (FRE 402).
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`LKQ objects to Exhibit 2024 because it is inadmissible under § 42.61 as
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`evidence not obtained under Subpart A (Trial Practice and Procedure) of Federal
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`Register Vol. 77, No. 157, Rules of Practice for Trials Before the Patent Trial and
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`Appeal Board.
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`LKQ has not specifically objected to any of the questions and answers in the
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`passages of Exhibit 2024 referenced in Clearlamp’s Motion for Entry under Seal.
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`LKQ reserves the right to object to any specific passages of Exhibit 2024 that the
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`extent Clearlamp later tries to rely on any specifically identified passages.
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`Exhibit 2025
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`Exhibit 2025 is a supplemental declaration of A. Harvey Bell, IV.
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`LKQ objects to Exhibit 2025 to the extent that it relates to evidence of
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`LKQ’s products and/or services because such information is irrelevant (FRE 402).
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`LKQ denies that its products and services infringe the ’364 Patent, and the Board
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`will not be determining infringement in this IPR. See e.g., Garmin Int’l Inc. et al.
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`v. Cuozzo Speed Tech. LLC, IPR2012-00001, Paper 26, at 11-12 (explaining that
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`the Board does not determine whether an IPR petitioner’s accused product
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`infringes the patents challenged in the IPR). Comments about LKQ’s products
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`and/or services, including Clearlamp’s belief as to why LKQ’s products and/or
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`services infringe the ’364 Patent, say nothing about the non-obviousness of the
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`’364 Patent. Furthermore, even if LKQ’s products and/or services infringe the
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`’364 Patent, the Board has recognized that infringement is not necessarily evidence
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`of copying. Id.
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`LKQ objects to Mr. Bell’s testimony in paragraph 5 about “testing that was
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`conducted in conjunction with General Motors’ and Volvo’s evaluations of
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`Clearlamp’s vehicle lamp refurbishing process” as being irrelevant, since
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`Clearlamp’s refurbishing process has not been shown to be covered by the claims
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`of the ’364 Patent.
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`The following chart lists objections to specific paragraphs in Exhibit 2025.
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`Objections to Paragraphs in Exhibit 2025
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`Paragraph 2
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`Foundation (FRE 702, 703)
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`Paragraphs 3
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`Paragraphs 4
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`Relevance (FRE 402)
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`Relevance (FRE 402)
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`Foundation (FRE 702, 703)
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`Authentication (FRE 901)
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`Hearsay (FRE 802)
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`Relevance (FRE 402)
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`LKQ reserves its right to further challenge Mr. Bell’s testimony based upon
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`a deposition of Mr. Bell.
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`Case IPR2013-00020
`Patent 7,297,364
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`The Patent Trial and Appeal Board is hereby authorized to charge any fees
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`owed by Petitioner and associated with this case to Deposit Account 02-1818.
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`Respectfully submitted by
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`K&L Gates LLP,
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`By:
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` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`Customer No. 24573
`Date: July 30, 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
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`Certification of Service Under 37 C.F.R. § 42.6(e)(4)
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`A copy of this notice has been served to counsel for the Patent Owner at the
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`following electronic mail addresses, pursuant to an agreement with the Patent
`Owner, on this 30th day of July, 2013:
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`
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`Matthew L. Cutler – mcutler@hdp.com
`Douglas A. Robinson – drobinson@hdp.com
`Bryan K. Wheelock – bwheelock@hdp.com
`Karen Bearley – kbearley@hdp.com
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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
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`By:
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