`_______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________________________
`
`AVAYA INC., DELL INC., SONY CORPORATION OF AMERICA,
`and HEWLETT-PACKARD CO.
`Petitioners
`
`v.
`
`NETWORK-1 SECURITY SOLUTIONS, INC.
`Patent Owner
`____________________
`
`CASE IPR2013-00071
`U.S. Patent No. 6,218,930
`____________________
`
`Before the Honorable Joni Y. Chang, Justin T. Arbes, and Glenn J. Perry
`____________________
`
`
`
`PETITIONER AVAYA INC.’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`
`Objections to Evidence
`
`
`
`IPR2013-0071
`
`
`
`
`
`
`
`Exhibit N1-2024 (Second Declaration of Dr. James Knox) was submitted by
`
`the Patent Owner Network-1 Security Solutions LLC in support of its Reply to
`
`Petitioner Avaya’s Opposition to the Patent Owner’s Motion to Amend. Petitioner
`
`Avaya hereby objects to Exhibit N1-2024. The following objections are timely as
`
`they are being served within five business days of the service date of the objected-
`
`to evidence, as required under 37 C.F.R. 42.64(b)(1). The bases for the objections
`
`are as follows:
`
`•
`
`Exhibit N1-2024 is objected to under 37 C.F.R. § 42.23(b) because “[r]eply
`
`evidence … must be responsive and not merely new evidence that could
`
`have been presented earlier to support the movant’s motion.” 77 Fed. Reg.
`
`48620 (Aug. 14, 2012). Portions of Knox’s declaration – including ¶¶ 248-
`
`252, 259-266, 281-282, 284-297, 311-314 and 331-335 – are new evidence
`
`that could have been presented in the declaration filed with Patent Owner’s
`
`motion to amend.
`
`•
`
`Exhibit N1-2024 is objected to as it contains new evidence that does not
`
`“only respond to arguments raised in the corresponding opposition . . .,” as
`
`provided for under 37 C.F.R. § 42.23(b). Paragraphs 271 – 280 introduce
`
`new evidence of Matsuno’s disclosure of a “low level current,” which was
`
`not an issue raised in Avaya’s Opposition to the Motion to Amend.
`
`1
`
`
`
`Objections to Evidence
`
`
`
`IPR2013-0071
`
`
`
`•
`
`Exhibit N1-2024 is inadmissible under Federal Rule of Evidence 401
`
`because Patent Owner does not rely on portions of Dr. Knox’s declaration –
`
`including ¶¶ 219-223, 227-231, 241-249, 259-260, 267-291, 298-302, 315-
`
`316, 327-335 – in its reply brief.
`
`•
`
`Exhibit N1-2024 is inadmissible under Federal Rule of Evidence 702
`
`because Dr. Knox is not qualified to express an opinion about U.S. Patent
`
`Law. (See ¶¶ 230-232, 242-245, 300, 310, 315, 335, headings for Paragraphs
`
`II(A)(1), II(A)(2), III, IV, V, V(A), V(B) and VI).
`
`•
`
`Exhibit N1-2024 is inadmissible under Federal Rule of Evidence 702
`
`because Dr. Knox is not qualified to express an opinion about efficient and
`
`cost-effective alternatives to district court litigation. (See ¶¶ 331-334).
`
`•
`
`Exhibit N1-2024 is inadmissible under Federal Rule of Evidence 602
`
`because Dr. Knox provides testimony – including at ¶¶ 326, 328, 331 and
`
`333-335 – on subject matter that is outside the scope of his personal
`
`knowledge.
`
`•
`
`•
`
`Exhibit N1-2024 contains inadmissible hearsay. (See ¶ 326).
`
`Exhibit N1-2024 is objected to for violating 37 C.F.R. § 42.6(A)(III)
`
`because it fails to comply with proper formatting requirements. (See single
`
`spacing of block quotes throughout declaration, single spacing of appendix
`
`text).
`
`2
`
`
`
`Objections to Evidence
`
`
`
`IPR2013-0071
`
`
`Respectfully submitted,
`
`/Jonathan M. Lindsay/
`
`Jeffrey D. Sanok, Reg. No. 32,169
`Jonathan M. Lindsay, Reg. No. 45,810
`
`
`
`3
`
`
`
`
`
`November 21, 2013
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE UNDER 37 C.F.R. § 42.6(e)
`
`I hereby certify that on this 21st day of November 2013, a true and correct
`copy of the foregoing “PETITIONER AVAYA INC.’S OBJECTIONS TO
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(b)(1)” was served, by electronic
`mail, upon the following:
`
`Robert G. Mukai
`Charles F. Wieland III
`BUCHANAN, INGERSOLL & ROONEY
`P.C.
`1737 King St., Suite 500
`Alexandria, VA 22314
`Robert.Mukai@BIPC.com
`Charles.Wieland@BIPC.com
`Counsel for Network-1 Security Solutions, Inc.
`
`Lionel M. Lavenue, Esq.
`Erika Arner, Esq.
`FINNEGAN, HENDERSON, FARABOW,
`GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190-5675
`(571) 203-2700
`lionel.lavenue@finnegan.com
`erika.arner@finnegan.com
`Counsel for Sony Corp. of America
`
`Michael J. Scheer
`Thomas M. Dunham
`WINSTON & STRAWN LLP
`200 Park Ave.
`New York, NY 10166
`(212) 294-4700
`mscheer@winston.com
`tdunham@winston.com
`Counsel for Dell Inc.
`
`Robert J. Walters, Esq.
`Charles J. Hawkins, Esq.
`MCDERMOTT WILL & EMERY LLP
`500 North Capitol Street, N.W.
`Washington, DC 20001
`(202) 756-8019
`rwalters@mwe.com
`chawkins@mwe.com
`Counsel for Hewlett-Packard Co.
`
`Respectfully submitted,
`
`
`November 21, 2013
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` /Jonathan Lindsay/
`Jonathan M. Lindsay, Reg. No. 45,810
`CROWELL & MORING LLP
`Intellectual Property Group
`1001 Pennsylvania Avenue, N.W.
`Washington, DC 20004-2595
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