Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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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
`
`v.
`
`Patent of CLEARLAMP, LLC
`Patent Owner
`_____________
`
`Case No. IPR2013-00020
`Patent 7,297,364
`_____________
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`Trials@uspto.gov
`Tel: 571.272.7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`LKQ CORPORATION
`Petitioner
`
`v.
`
`Patent of CLEARLAMP, LLC
`Patent Owner
`_____________
`
`Case No. IPR2013-00020
`Patent 7,297,364
`_____________
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`
`
`
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`Introduction ...................................................................................................... 1
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`Exh. 2004 - Declaration of A. Harvey Bell, IV ............................................... 1
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`A.
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`B.
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`“Federal Standards” and “Consumer Retail Market” Testimony ......... 1
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`PO’s Experiments Should be Excluded ................................................ 2
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`1. Mr. Bell Lacks Any Knowledge About the Experiments ........... 2
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`2.
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`The Underlying Data for PO’s Tests is Not in Evidence ............ 3
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`III. Exh. 2009 - Declaration of Irving S. Rappaport .............................................. 4
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`IV. Exhs. 2012 - 2014 - Testing Compilations ...................................................... 6
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`V.
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`Exh. 2016 - Excerpts of October 24, 2012 deposition of Robert
`Sandau ............................................................................................................ 10
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`VI. Exh. 2017 - FMVSS 108 ............................................................................... 14
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`VII. Conclusion ..................................................................................................... 15
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`i
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`I.
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`Introduction
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`Pursuant to 37 C.F.R. § 42.64 and the Federal Rules of Evidence, Petitioner
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`LKQ Corp. (“Petitioner” or “LKQ”) moves to exclude portions of Exhs. 2004,
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`2009, 2012 to 2014 and 2016 to 2017.
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`II. Exh. 2004 - Declaration of A. Harvey Bell, IV
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`LKQ objected to Exh. 2004 in its Objections filed on July 9, 2013 (Paper
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`39). Patent Owner Clearlamp, LLC (“PO” or “Clearlamp”) relied on Exh. 2004 in
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`its Response filed July 1, 2013 (Paper 33), and in its Reply filed September 30,
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`2013 (Paper 55). Paragraphs 6, 17, 22, 25 to 30, 41 to 43, 51 to 56, 58, 75, 77 to
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`79, and 87 of Exh. 2004 should be excluded for the following reasons.
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`A.
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`“Federal Standards” and “Consumer Retail Market” Testimony
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`Mr. Bell’s testimony about federal vehicle safety requirements is irrelevant
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`to the ‘364 Patent. Neither the specification nor the claims of the ‘364 Patent
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`mention federal vehicle safety requirements. And the document itself is irrelevant
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`to this proceeding, as described in detail below with regard to Exh. 2107.
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`Therefore, paragraphs 17, 25, 30, 77 and 87 of Exh. 2004 should be excluded.
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`Mr. Bell opines that the prior art is directed to creating a lamp acceptable to
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`the consumer retail market (see, e.g., Exh. 2004, ¶¶ 6 and 29) while the ‘364 Patent
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`is directed to creating lamps acceptable to the OEM replacement parts market (see,
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`e.g., ¶ 22). This distinction is not described or claimed in the ‘364 Patent, and
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`lacks foundation in Mr. Bell’s testimony. Neither the prior art nor the ‘364 Patent
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`describes any intended “market.” PO has not established that Mr. Bell has any
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`experience with these markets; indeed, Mr. Bell conceded he has no experience
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`with polycarbonate headlamps at all, much less specific markets for such lamps.
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`(Exh. 1018, 41:22-42:6). Paragraphs 6, 22, 25 to 29, 41 to 43, 56, 58, 75, 78 and
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`79 of Exh. 2004 should thus be excluded.
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`B.
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`PO’s Experiments Should be Excluded
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`Mr. Bell “requested that Clearlamp conduct” experiments described in
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`paragraphs 54 and 55 of his declaration. However, as explained below, PO’s
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`testing fails to meet the requirements of 37 C.F.R. § 42.65(b)(1)-(5), and PO has
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`not provided an affidavit that it does. These paragraphs are therefore inadmissible
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`“technical test[s] or data” under 37 C.F.R. § 42.65(b), and are also improper expert
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`testimony under 37 C.F.R. § 42.65(a). Paragraphs 54 and 55 of Exh. 2004 (and
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`paragraphs 51, 52, and 53, which rely on the experiments) should be excluded.
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`1. Mr. Bell Lacks Any Knowledge About the Experiments
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`37 C.F.R. § 42.65(a) requires an expert to “disclose the underlying facts or
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`data on which the opinion is based.” Mr. Bell not only failed to disclose these
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`facts--he did not even know those facts.
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`For the three experiments PO performed in this case, Mr. Bell does not know
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`if the lamps being sanded were brand new or used. (Exh. 1034, 16:13-15). He was
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`not present while the experiments were performed, and does not know who
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`performed them. (Id. at 7:20-8:1). He did not inspect the lamps before or after the
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`experiments. (Id. at 16:1-8). He does not know what clear coat was being
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`removed in the paragraph 54 experiment, or whether the removed clear coat was
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`original or a previously reapplied clear coat. (Id. at 8:2-5; 16:21-24). Mr. Bell also
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`did not know if the lamps were braced in a jig. (Id. at 8:6-9). He did not know
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`whether the same headlamp was used in the two experiments described in
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`paragraph 55. (Id. at 18:14-19:3). He admitted that the effectiveness of the
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`sandpaper depends on the amount of pressure applied, yet does not know the
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`pressure that was applied during the test. (Id. at 20:5-24).
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`Accordingly, Mr. Bell did not know any of the pertinent details needed to
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`satisfy 37 C.F.R. § 42.65(a), so paragraphs 54 and 55 should be excluded.
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`2. The Underlying Data for PO’s Tests is Not in Evidence
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`Despite LKQ’s timely objections, PO failed to provide any additional
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`underlying data in evidence that would satisfy either 37 C.F.R. § 42.65(a) or (b) for
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`the experiments referenced in paragraphs 54 and 55 of Mr. Bell’s declaration.
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`Other than the data contained in paragraphs 54 and 55, there is no other
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`evidence that pertains to the tests PO performed in this case. Although Mr. Bell
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`believes he was emailed information regarding the experiments, that email and the
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`underlying data and results from the experiments are not in evidence. (Exh. 1034
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`3
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`at 13:13-15:10). The videos of the sanding are also not in evidence.
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`In short, Mr. Bell does not know anything about these experiments outside
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`of what is in his declaration. Thus, Mr. Bell’s testimony cannot satisfy 37 C.F.R. §
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`46.65(b)(1)-(5), and the experiments cannot come into evidence. Without the
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`experiments, Mr. Bell’s testimony should be excluded or entitled to no weight
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`under 37 C.F.R. § 42.65(a). Thus, paragraphs 54 and 55 (and paragraphs 51, 52,
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`and 53, which rely on the experiments) should be excluded.
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`III. Exh. 2009 - Declaration of Irving S. Rappaport
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`LKQ objected to Exh. 2009 in Paper 39. PO relied on Exh. 2009 in its July
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`1, 2013 Response (Paper 33). Exh. 2009 should be excluded in its entirety under
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`37 C.F.R. § 42.65, F.R.E. 702, and/or F.R.E. 703. At a minimum, paragraphs 19 to
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`50 should be excluded for the reasons below.
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`Mr. Rappaport admitted he is “not a technical expert in this case”. (Exh.
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`1019, 15:8-9; see also id., 40:11,128:16-19). His opinions relate to patent law and
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`Patent Office procedure, which is strictly prohibited by 37 C.F.R. § 42.65(a). He
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`opined on the quality of examination (Exh. 2009, ¶¶ 22-25), the propriety of the
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`Board’s Decision to Institute Trial (Exh. 2009, ¶¶ 26-30), secondary considerations
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`law (Exh. 2009, ¶¶ 31-32), and ultimate legal conclusions of copying (Exh. 2009,
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`¶¶ 33-46), and commercial success (Exh. 2009, ¶¶ 47-48). He also offers improper
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`conclusions on the outcome of the proceeding. (Exh. 2009, ¶¶ 19-21, 49-50).
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`In paragraphs 22 to 25, Mr. Rappaport provided an impermissible opinion on
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`the quality of examination performed by the Examiner of the ‘364 Patent. (See
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`Exh. 1019 at 61:10-66:22). In paragraph 24, Mr. Rappaport presented the results
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`of analysis of the Examiner’s capability as an examiner, but failed to provide the
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`data underlying this opinion. (See Exh. 1019 at 65:18-66:22). These paragraphs
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`should be excluded under 37 C.F.R. § 42.65.
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`In paragraphs 26 to 30, Mr. Rappaport provided his commentary as to why
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`the Board’s Decision to Institute Trial was incorrect. However, Mr. Rappaport is
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`“not a technical expert in this case.” (Exh. 1019, 15:8-9; see also id.,
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`40:11,128:16-19). Thus, his analysis is either (a) impermissible expert testimony
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`under F.R.E. 702 on art in a technical area where he is not an expert or (b)
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`irrelevant commentary on the propriety of the Board’s work in this proceeding.
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`Paragraphs 31 and 32 recite Mr. Rappaport’s view of the law, and are
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`impermissible testimony on United States patent law. (Exh. 1019 at 77:2-15).
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`Paragraphs 33 to 46 contain Mr. Rappaport’s opinion on copying. Mr.
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`Rappaport assumes the role of the Board in weighing the purported evidence and
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`offering an ultimate conclusion as to whether secondary considerations are present.
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`Moreover, his copying opinion is based solely on testimony of Mr. Sandau, much
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`of which is impermissible hearsay and should be excluded as explained below.
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`Mr. Rappaport did not talk to Maurice Paperi to verify Mr. Sandau’s testimony.
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`(Exh. 1019, 81:13-23). Paragraphs 47 to 48 relate to Mr. Rappaport’s opinion on
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`commercial success. Once again, Mr. Rappaport assumes the role of the Board,
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`weighing the evidence and concluding that LKQ has been commercially
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`successful. Mr. Rappaport’s testimony is not a proper expert opinion, as the only
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`“methodology” was to analyze LKQ’s gross sales, taking no consideration of the
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`other factors that a competent economics expert would consider. (Exh. 1019,
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`99:23-100:14, 100:25-105:25; see also F.R.E. 702). Mr. Rappaport “just looked at
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`the total number, and that was what I used to show commercial success.” (Exh.
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`1019, 103:17-18). Thus, paragraphs 33 to 48 do not satisfy 37 C.F.R. § 42.65(a),
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`which requires “disclos[ing] the underlying facts or data on which the opinion is
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`based,” and does not satisfy F.R.E. 702, and therefore should be excluded.
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`Paragraphs 20, 21, 49, and 50 contain Mr. Rappaport’s ultimate conclusion
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`on the legal outcome. Not only does this invade the province of the Board, the fact
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`his conclusion is “based on [his] 40+ years of experience in the patent field” and
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`“customs, standards and practices related to patent validity,” along with his
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`concession that he is not a technical expert, show that these paragraphs are
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`improper expert testimony and/or are mere legal conclusions. (Ex. 2009, ¶¶ 20, 21,
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`49, 50) (emphasis added). Paragraphs 20, 21, 49, and 50 should be excluded.
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`IV. Exhs. 2012 - 2014 - Testing Compilations
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`LKQ objected to Exhs. 2012, 2013, and 2014 in Paper 39. Although the
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`Patent Owner Response (Paper 33) does not specifically reference any of these
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`exhibits, Mr. Bell referred to testing of lamps allegedly refurbished according to
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`PO’s process. (Exh. 2004, ¶ 77). 1 Exhs. 2012, 2013, and 2014 lack foundation
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`and have not been authenticated. They are also tests not properly presented under
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`37 C.F.R. §§ 42.65(a) or (b). Thus, they should be excluded.
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`No witness in this proceeding has been able to explain why Exh. 2012
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`reflects tests performed on lamps refurbished according to the process recited in
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`any claim of the ‘364 Patent. When questioned about Exh. 2012, Mr. Bell testified
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`that the only reason he believed the lamps were refurbished according to the ‘364
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`Patent is because the document references “Mo’s part.” (Exh. 1018, 29:20-30:2).
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`He also relied on the fact that Exh. 2012 was “submitted as part of the
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`proceedings.” (Exh. 1018, 30:7-12). He testified that when speaking with Mr.
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`Asselta, the witness who provided Exh. 2012, he did not “ask him what teachings
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`of the ‘364 Patent were applied to Mo’s lamps referenced in Exhibit 2012.” (Exh.
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`1018, 32:7-9). The following testimony summarizes this point:
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`Q. You don’t know whether Mo’s lamps were created with a different
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`1 Exh. 2022 specifies that the General Motors and Volvo processes are described
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`in Exhs. 2012 and 2013, respectively, and that Exh. 2014 is a copy of pictures
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`taken as part of the testing in Exh. 2012.
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`process than what’s described in the ‘364 patent; is that right?
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`A. I have no reason one way or the other to have an opinion on that subject.
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`(Exh. 1018, 33:15-19).
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`In response to LKQ’s objections to Exh. 2012, PO submitted a declaration of
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`Michael Asselta. (Exh. 2022). Mr. Asselta referred to Exh. 2012 as a “testing
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`package” that describes testing on lamps refurbished “according to the teachings of
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`U.S. Patent 7,297,364.” (Exh. 2022, ¶ 2). Mr. Asselta’s deposition, however, did
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`not provide foundation for Exh. 2012. He confirmed that the package references
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`multiple different tests. (Exh. 1033, 30:23-31:1). He also said that the results were
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`received “during the course of the litigation with LKQ,” and that they were
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`received in several emails, though Mr. Asselta could not recall when those emails
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`were received. (Exh. 1033, 32:2-20, 33:3-15). Those emails are not in evidence.
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`According to Mr. Asselta, Exh. 2012 was compiled from “the testing results that
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`[PO] had on hand.” (Exh. 1033, 33:24-34:3). He had no information about the
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`cover page, including what the various acronyms thereon meant or when the page
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`was added to the testing packet. (Exh. 1033, 35:1-14).
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`Mr. Asselta also asserted that certain lamps were made according to the
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`teachings of the ’364 Patent, without any evidence in support. Mr. Asselta said
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`that while the lamps were made prior to PO being formed, he was “told that they
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`were refurbished by Mo, generally, and submitted to these companies…” (Exh.
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`1033, 37:13-22). Yet as has been a theme in this case, PO relies on Mr. Paperi, an
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`inventor of the ‘364 Patent and principal at Clearlamp, without providing a
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`declaration from him. Thus, for “Mo’s lamps,” there is no foundation for the
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`statement that they were prepared in accordance with the ‘364 Patent. For the
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`other lamps (i.e., the ones that are not “Mo’s lamps”), Mr. Asselta was unable to
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`do more than speculate that those lamps were “baseline,” meaning that they are
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`General Motors OEM parts and not refurbished lamps at all. (Exh. 1033, 41:2-12).
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`Mr. Asselta testified that there is no way to tell whether the photographs at pages
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`11-13 are “before or after the application of the refurbishment process.” (Exh.
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`1033, 42:10-13). And Mr. Asselta had no idea why the presentation on pages 21-
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`24 was included in the larger testing packet. (Exh. 1033, 44:7-9). Exh. 2012 was
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`first compiled by counsel for PO after the individual portions were submitted to
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`counsel. (Exh. 1033, 44:10-17).
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`This litigation-motivated “testing packet,” marked as Exh. 2012, lacks
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`foundation and is not authentic, and should be excluded in its entirety.
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`Exh. 2013 “is also contained in 2012,” so the same reasoning applies to Exh.
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`2013 as to Exh. 2012. (Ex. 1033, 34:8-11).
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`Exh. 2014 presents problems similar to those discussed above with regard to
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`Exh. 2012. With regard to the lamps photographed in Exh. 2014, Mr. Asselta was
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`unable to describe the sanding process used to remove the clear coat. (Exh. 1033,
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`47:1-6). Nor was he aware of the details of any static neutralization. (Exh. 1033,
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`41:7-17). There is no evidence in the record about how Exh. 2014 was created,
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`and that exhibit should be excluded as lacking foundation.
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`Finally, PO asserts that Exhs. 2012, 2013, and 2014 contain test results.
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`(See, e.g., Exh. 2022, ¶¶ 2-4). PO has not come close to satisfying the
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`requirements to include “technical test[s] or data from such a test” outlined in 37
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`C.F.R. § 42.65(b), so those exhibits should be excluded. PO has not provided an
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`affidavit explaining why or how the tests are being used, how the tests were
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`performed or the data was generated, how the data is used to determine a value, or
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`how the test is regarded in the art. See 37 C.F.R. § 42.65(b)(1)-(5).
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`V. Exh. 2016 - Excerpts of October 24, 2012 deposition of Robert Sandau
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`LKQ objected to Exh. 2016 in Paper 39. PO relied on Exh. 2016 in its
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`Response filed July 1, 2013 (Paper 33). LKQ submits that the direct examination
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`of third party witness Robert Sandau, contained at page 4, line 11 through page 38,
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`line 22 of Exh. 2016,2 should be excluded because it (a) violates the PTAB’s strict
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`prohibition on coaching witnesses and was elicited through leading questioning,
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`2 Exh. 2021 is the full transcript of Mr. Sandau’s deposition, which Patent Owner
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`submitted in response to objections that Exh. 2016 was incomplete. Exh. 2021
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`should be excluded for the same reasons given for Exh. 2016.
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`and (b) constitutes inadmissible hearsay.
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`The Patent Office Trial Practice Guide prohibits coaching witnesses:
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`“Consistent with the policy expressed in Rule 1 of the Federal Rules of Civil
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`Procedure, and corresponding § 42.1(b), unnecessary objections, ‘speaking’
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`objections, and coaching of witnesses in proceedings before the Board are strictly
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`prohibited.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48756, 48772 (Aug.
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`14, 2012). Mr. Sandau is a third party, subpoenaed by PO, yet he met with Mr.
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`Cutler, one of PO’s attorneys, before his deposition. (Exh. 2021, 65:11-66:1).
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`During that meeting, Mr. Sandau and PO’s attorney went through “[a]lmost the
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`same line of questioning that I was just asked [by Mr. Cutler at the deposition], or
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`something very similar.” (Exh. 2021, 66:8-11). This meeting was purely a
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`coaching session, and should result in Mr. Sandau’s entire direct examination
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`being excluded. (Exh. 2016, 4:11-38:22).
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`Notwithstanding this coaching, PO elicited substantial testimony through
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`leading cross examination, rather than direct examination. Specifically, PO’s
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`questioning resulted in sixteen leading objections over the course of seventeen
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`pages of deposition testimony. (See Exh. 2021, 21:10-12; 21:22-24; 22:22-23:3;
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`25:17-20; 27:12-15; 28:15-18; 32:1-4; 33:1-2; 33:16-21; 34:16-22; 35:15-23; 36:3-
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`8; 36:16-21; 36:24-37:4; 37:23-38:4; 38:16-20). The coaching session clearly
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`enabled Mr. Cutler to do the bulk of the testifying during the deposition itself.
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`During the crescendo of PO’s questioning (see generally Exh. 2016, 36:24-38:22),
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`PO asked the following:
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`• Was there anything else that Mr. Wagman stated on the way out of the
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`restaurant in Birmingham, Michigan that made you believe that he was
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`trying to trick Mr. Paperi? (Exh. 2016, 36:24-37:2).
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`• Was there anything else that Mr. Wagman stated upon leaving lunch at
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`Mitchell’s Fish Restaurant that suggested to you that, despite the
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`meetings with Mr. Paperi, LKQ did not have an intention to enter into a
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`long-term relationship with Mr. Paperi? (Exh. 2016, 37:23-38:2).
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`• Did Mr. Wagman say something along the lines of that he couldn’t
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`believe Mr. Paperi fell for it? (Exh. 2016, 38:16-17).
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`These questions and their answers show that it was only through impermissible
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`leading questioning that Patent Owner was able to elicit the testimony it now relies
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`on to try to show copying. Accordingly, the entirety of Mr. Sandau’s direct
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`testimony should be excluded as being elicited with leading questions. (Exh. 2016,
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`4:11-38:22). Alternatively, at least the portion past the background, beginning
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`with the question “Did there come a point in time where you were presented with a
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`opportunity to take non-insurance quality headlamps and have them refurbished for
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`LKQ?” should be excluded. (Exh. 2016, 18:16-38:22).
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`Last, substantial portions of Mr. Sandau’s testimony constitute hearsay, and
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`should be excluded pursuant to F.R.E. 802. The Federal Rules of Evidence,
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`including Rule 802 prohibiting hearsay, apply to this proceeding. 37 C.F.R. §
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`42.62. Hearsay is an out of court statement offered for the truth of the matter
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`asserted. F.R.E. 801(c). Here, Patent Owner relies on Mr. Sandau’s testimony for
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`the truth of the substance of conversations Mr. Sandau had with LKQ personnel
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`and with Clearlamp’s principal/inventor of the ‘364 Patent, Mr. Paperi.
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`PO relies on Mr. Sandau’s testimony for the truth of statements made by
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`Clearlamp’s principal and ‘364 Patent inventor, Mr. Paperi. (Exh. 2021, 31:5-25,
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`32:11-18, 33:16-34:3). That is, PO relies on Mr. Sandau’s testimony about what
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`Mr. Paperi said as the predicate for its theory that LKQ copied Mr. Paperi’s
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`process. Yet PO has never offered a declaration or other testimony from Mr.
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`Paperi. This should not be permitted, particularly where a motion to take
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`additional evidence did not even need to be filed for Clearlamp’s own witness.
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`PO’s copying theory also turns on alleged statements by a current LKQ
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`employee, Robert Wagman, to Mr. Sandau. (See Patent Owner’s Response, pp.
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`38-46). PO did not move for additional discovery to depose Mr. Wagman. Still,
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`three block quotes in the copying section of the Patent Owner Response contain the
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`similar phrases “did he or did he not state…,” “Was there anything else that Mr.
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`Wagman stated…,” or “Did Mr. Wagman say…,” each referring to statements
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`made by Mr. Wagman. (PO Response, p. 44-45). Given that these citations are in
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`a section titled “Having Viewed Mr. Paperi’s Process, LKQ Decided to Cut Mr.
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`Paperi Out and Use the Patented Process Itself,” PO is indisputably relying on
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`these out of court statements for the truth of the matter asserted. PO has taken the
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`easy road, ignoring the Federal Rules of Evidence by declining to try to talk to the
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`maker of the statements, Mr. Wagman, during this proceeding. Thus, the portions
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`of Mr. Sandau’s transcript that relate to conversations he had with Mr. Wagman
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`should be excluded. (Exh. 2016, 34:11-35:4, 35:15-38:20).
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`VI. Exh. 2017 - FMVSS 108
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`LKQ objected to Exh. 2017 (FMVSS 108 dated April 12, 2013) in Paper 39.
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`PO relied upon Exh. 2017 in the declaration of Mr. Bell (Exh. 2004)3, and cited to
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`this reliance in its Patent Owner Response filed July 1, 2013 (Paper 33, pp. 29, 47).
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`Exh. 2017 should be excluded because it is irrelevant to the instant proceeding.
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`Mr. Bell did not know when the first version of FMVSS 108 was published
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`or whether a lamp that satisfies FMVSS 108 is per se “insurance quality,” and
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`complained that FMVSS 108 is frustrating because it only covers “point of sale”
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`and not refurbishment. (Exh. 1018, 76:4-80:14). Although Mr. Bell stated that
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`“[t]he ‘364 patent’s process results in lamps that meet those FMVSS 108
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`3 Exh. 2004 refers to FMVSS 108 but does not cite Exh. 2017. Exh. 2022 states
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`that Exh. 2017 is FMVSS 108.
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`14
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`standards,” he could not explain why that was so. (See, e.g., Exh. 1018, 29:7-
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`34:10). The claims of the ‘364 Patent certainly do not require such compliance.
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`PO is similarly unable to support its statement that “the patented process is the
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`only known process that meets federal safety standards….” (Patent Owner
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`Response, 47). The only citation for this statement is the previously mentioned
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`testimony of Mr. Bell, who conceded “Could there be a process out there that’s
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`conceivable. I don’t know. I don’t have an opinion.” (Exh. 1018, 88:2-13).
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`PO has not and cannot articulate any relevance for the FMVSS standards.
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`Because Exh. 2017 is not relevant to validity, it should be excluded.
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`VII. Conclusion
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`For the foregoing reasons, Petitioner requests that the above-discussed
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`evidence be excluded in this case.
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`By:
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`15
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`Respectfully submitted by
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`K&L Gates LLP
`
` /Alan L. Barry/
`Reg. No. 30,819
`Alan L. Barry
`Customer No. 24573
`Date: November 19, 2013
`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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`
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`Case IPR2013-00020; Petitioner’s Motion to Exclude Evidence
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`Certification of Service Under 37 C.F.R. § 42.6(e)(4)
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`A copy of this document 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 19th day of November, 2013:
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`
`Matthew Cutler – mcutler@hdp.com
`Bryan Wheelock – bwheelock@hdp.com
`Douglas Robinson – drobinson@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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`1
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