`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`PATENT: 6,415,280
`
`INVENTOR: DAVID A. FARBER
`
`AND RONALD D. LACHMAN
`
`FILED: APR. 1, 1999
`
`ISSUED: JUL. 2, 2002
`
`TITLE: IDENTIFYING AND
`
`REQUESTING DATA IN A
`NETWORK USING IDENTIFIERS
`
`WHICH ARE BASED ON THE
`
`CONTENT OF THE DATA
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`US. Patent & Trademark Office
`
`PO. Box 1450
`
`Alexandria, VA 223 13-1450
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`
`PURSUANT TO 37 C.F.R. § 42.64
`
`EMC/VMware v. PersonalWeb
`
`IPR2013-00083
`
`EMCVMW 108 l
`
`
`
`US. Patent 6,415,280
`IPR2013-00083
`
`Petitioner’s Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
`
`Pursuant to 37 CPR. § 42.64, EMC Corporation and VMware, Inc.
`
`(collectively, “Petitioner”) serve the following objections to evidence served with
`
`the Response of PersonalWeb Technologies, LLC (“Patent Owner”).
`
`Petitioner objects to Exhibits 2009, 2010, 2011, and 2012 because these
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`exhibits are not only irrelevant (FRE 402), but also ambiguous, confusing, or
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`misleading, and would lead to an unnecessary waste of time to address (FRE 403).
`
`Mr. Bermeister’s testimony (Exhibit 2009) and the Brilliant Digital
`
`Entertainment, Inc. (“BDE”) licenses (Exhibits 2010, 2011, 2012) do not establish
`
`a sufficient nexus between the subject matter of any of these licenses and any of
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`the challenged claims. See, e.g., In re Antor Media Corp., 689 F.3d 1282, 1293-94
`
`(Fed. Cir. 2012); Honeywell Intl ’l, Inc. v. Nikon Corp, No. 04-01337, 2009 WL
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`577274, at * 1 (D. Del. Mar. 4, 2009) (excluding patentee’s 21 license agreements
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`as evidence of nonobviousness because “licenses lacked a sufficient nexus to the
`
`asserted patent claim”).
`
`Moreover, the corporate relationship and certain common ownership
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`interests between the parties to the license agreements render the latter’s existence
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`of little or no probative value to nonobviousness. Transocean Ofifshore Deepwater
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`Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1353 (Fed. Cir. 2012)
`
`(arm’s length licensing agreements with customers and competitors supported
`_ 2 _
`
`
`
`US. Patent 6,415,280
`IPR2013-00083
`
`Petitioner’s Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
`nonobviousness). For example, the licensees in Exhibit 2011 (BDE and Altnet)
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`were substantially owned or controlled by Kevin Bermeister, who is now the Non-
`
`Executive Chairman of PersonalWeb Technologies, LLC — the Patent Owner in
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`this proceeding. Similarly, the licensee in Exhibit 2010 (Skype) was a company in
`
`which Mr. Bermeister was a founding investor. Finally, based on publicly
`
`available documents, the licensee in Exhibit 2012 (Sharman Networks — former
`
`operator of the Kazaa file sharing service) also appears to have been substantially
`
`owned or controlled by Mr. Bermeister through intermediary companies. Such
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`purported evidence of licensing is irrelevant where the licenses are entered into
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`“because of prior business relationships, or for other economic reasons.” In re
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`Antor Media Corp, 689 F.3d at 1294.
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`Petitioner further objects to Exhibit 2011 as an incomplete copy (FRE 1002,
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`1003), Exhibit 2012 as an incomplete, partially illegible copy (FRE 1002, 1003),
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`and 1111 6, 7, and 9 of Exhibit 2009 as lacking foundation and personal knowledge
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`(FRE 602).
`
`
`
`US. Patent 6,415,280
`IPR2013-00083
`
`Petitioner’s Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
`
`Respectfully Submitted,
`
`/David L. Cavanaugh/
`
`David L. Cavanaugh
`Registration No. 36,476
`WILMER CUTLER PICKERING
`
`HALE AND DORR LLP
`
`1875 Pennsylvania Avenue, NW.
`Washington, DC. 20006
`david.cavanaugh@wilmerhale.com
`Tel: 202-663-6025
`
`Fax: 202-663-6363
`
`
`Dated: July 31, 2013
`
`
`
`US. Patent 6,415,280
`IPR2013-00083
`
`Petitioner’s Objections to Evidence
`Pursuant to 37 C.F.R. § 42.64
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 31, 2013, I caused a true and correct copy of the
`
`following materials:
`
`0 Petitioner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64
`
`to be served via email, as previously agreed between the parties, on the following
`
`attorney of record:
`
`Joseph Rhoa
`Nixon Vanderhye, PC.
`901 North Glebe Road, 11th Floor
`Arlington, Virginia 22203
`
`Joseph A. Rhoa <j ar@nixonvan.com>
`
`/Heather M. Petruzzi /
`
`Heather M. Petruzzi
`
`Registration No. 71,270
`
`
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