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`BEFORE THE PATENT TRIAL AND APPEAL BOARD IN THE UNITED
`STATES PATENT AND TRADEMARK OFFICE
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`Trial No.:
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`IPR 2013-00083
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`In re:
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`U.S. Patent No. 6,415,280
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`Patent Owners:
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`PersonalWeb Technologies, LLC & Level 3 Communications
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`Petitioner:
`Inventors:
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`EMC Corp. and VMware, Inc.
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`David A. Farber and Ronald D. Lachman
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`* * * * * * * * * * *
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`November 27, 2013
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`PATENT OWNER’S REPLY TO PETITIONER’S OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE
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`A. Clark’s Statements About Non-Instituted Material
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`Petitioner has offered no credible response to PO’s motion to exclude Dr.
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`Clark’s statements concerning Langer on the basis that this IPR was not instituted
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`on Langer and testimony regarding Langer should be excluded. These statements
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`should be excluded for the reasons explained in PO’s motion. Petitioner
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`improperly relies on Langer as alleged “prior art” and attempts to shoehorn into
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`the record additional teachings which are not disclosed or suggested in Woodhill.
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`B. FRE 901(b)(1) and 901(b)(4) are Not Applicable to Langer
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`Contrary to petitioner’s argument, the Moore testimony cannot authenticate
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`Langer under FRE 901(b)(1) and 901(b)(4). Langer was allegedly printed off the
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`Internet in 2003 – see the “7/29/2003” date in the lower-right corner of Langer
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`(Ex. 1003). There is no evidence authenticating Langer as having been in
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`existence prior to the April 11, 1995 effective filing date of the patent.
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`Regarding FRE 901(b)(1), Moore’s testimony makes clear that he has no
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`personal knowledge authenticating Langer. The first time he saw Langer was in
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`2012/2013. (Moore Dep. 49-50 [Ex. 2020].) No witness has personal knowledge
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`of Langer existing prior to April 11, 1995. FRE 901(b)(1) cannot apply.
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`Regarding FRE 901(b)(4), there is nothing in the content of Langer (Ex.
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`1003) that Langer himself would have had unique knowledge of. There are no
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`aspects of Langer’s appearance, substance, patterns, or content that alleviate the
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`IPR 2013-00083
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`likelihood of forgery and require that the document existed prior to April 11, 1995.
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`Anyone could have prepared Langer at any time.
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`Moreover, under FRE 901(b)(4) “all the circumstances” must be taken into
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`account. Here, Langer’s authenticity is suspicious for numerous reasons, and these
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`suspicions must be taken into account. First, electronic data such as Langer is
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`inherently untrustworthy because it could have been created and manipulated by
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`anyone from virtually any location at any time. Novak v. Tucows, Inc., No. 06-
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`CV-1909 (JFB) (ARL), 2007 U.S. Dist. LEXIS 21269, *17-18 (E.D.N.Y. Mar. 26,
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`2007) [Ex. 2018]; Wady v. Provident Life and Accident Insur. Co. of Am., 216
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`F.Supp.2d 1060, 1064-65 (C.D. Calif. 2002) (excluding computer documents as
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`unauthenticated - “anyone can put anything on the Internet . . . any evidence
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`procured off the Internet is adequate for almost nothing”); and St. Clair v. Johnny’s
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`Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999) (the “Web
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`provides no way of verifying the authenticity . . .”, that there is a “presumption that
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`the information he discovered on the Internet is inherently untrustworthy.”)
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`Second, the “7/29/2003” date in the lower-right corner of Langer calls into
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`question whether Langer existed prior to April 11, 1995. Third, Langer has no
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`signature, was not in a recognized journal such as IEEE, surfaced only after the
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`True Name patents were first asserted in litigation (see Ex. 2001), there is no chain
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`of custody, and no one recalls Langer existing prior to the critical date or prior to
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`the initial litigations involving the True Name patents. Fourth, the fact that Langer
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`is inexplicably missing the required Usenet “path” header further calls its
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`authenticity into question. (Moore Dep. 30, 32-33, 50 [Ex. 2020]; Moore Decl. ¶
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`17 [Ex. 1048]; Ex. 2006.) In re Hall’s Estate, 328 F.Supp. 1305, 1311-12 (D.D.C.
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`1971) (finding document suspicious and excluding when portion of document
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`missing). The “path” header field was required under the Usenet standard for
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`Usenet communications at the time, and the fact that Langer does not have the
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`required field raises significant suspicions. Id. Fifth, there is no evidence that Mr.
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`Langer himself was not available to testify, and petitioner provided nothing from
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`him. These suspicions further demonstrate that FRE 901(b)(4) is not applicable.
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`C. FRE 901(b)(8) is Not Applicable to Langer
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`Petitioner’s “ancient document” argument is also wrong. First, subsection
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`(A) of FRE 901(b)(8) is not met for Langer because there are suspicions about its
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`authenticity for the reasons explained above in Section B.
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`Second, Petitioner has failed to satisfy subsection (B) of FRE 901(b)(8). For
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`electronic information “the important of appearance diminishes in this situation,
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`and the importance of custody or place where found increases correspondingly”
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`(emphasis added). FRE 901 advisory committee’s note, Example (8). Petitioner
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`has provided no evidence of chain of custody regarding Langer prior to 2012.
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`There is no evidence that Langer was found in a place where, if authentic, it would
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`likely be. Petitioner fails to address the unexplained 10+ year gap in chain of
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`custody. Rio Bravo Oil Co. v. Staley Oil Co., 158 S.W.2d 293, 294-95 (Comm’n
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`App. 1942); In re Hall’s Estate, 328 F.Supp. at 1311-12 (ancient document rule not
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`applicable where insufficient chain of custody).
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`Third, there is insufficient evidence that Langer was at least 20 years old.
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`FRE 901(b)(8)(C). The date in a document itself cannot be used to establish the
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`alleged 20 years – here, petitioner has provided no independent evidence that
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`Langer existed at least 20 years ago. Rio Bravo, 158 S.W.2d at 294-95 (excluding
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`because purported date in document cannot be used to prove that it was ancient).
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`D. FRE 901(b)(3) is Not Applicable to Langer
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`There is no “authenticated specimen” for comparison purposes as required
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`by FRE 901(b)(3). The Google Groups document (Ex. 1062), dated “6/10/13”, has
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`not been authenticated as having existed prior to April 11, 1995. Authentication as
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`having existed prior to April 11, 1995 is the relevant inquiry here, and petitioner
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`has not authenticated the Google Groups document in this respect. FRE 901(b)(3)
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`cannot apply. Still further, Moore is not an “expert” or trier of fact, and thus
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`cannot be relied upon under FRE 901(b)(3).
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`E. FRE 902(6) & 902(7) are Not Applicable to Langer
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`FRE 902(7) is used for connecting something with a particular entity – it is
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`not used to establish existence of a document as of a particular date and is not
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`applicable here. Langer has no trade inscription or the like that was affixed in the
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`course of any business as required by FRE 902(7). And Usenet postings are not
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`newspapers or periodicals under FRE 902(6), and Langer is not part of a series.
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`Specht v. Google Inc., 758 F.Supp.2d 570, 582 (N.D. Ill. 2010) (printout from
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`website not self-authenticating under FRE 902(6)). Moreover, the significant
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`authenticity suspicions explained above regarding Langer also dictate that it is not
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`admissible under FRE 902(6) or 902(7).
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`F. Hearsay in Langer
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`Dates and other information in Langer for allegedly dating it are
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`inadmissible hearsay. FRE 801(c), 802. Contrary to petitioner’s argument,
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`petitioner relies on such information in an attempt to establish that Langer existed
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`and was published prior to the critical date, and thus relies on it for the truth of the
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`matter asserted – it is hearsay. Moreover, hearsay exceptions FRE 803(16) and
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`807 are inapplicable for the reasons explained above in Sections B-D (not
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`trustworthy, no chain of custody, not 20+ years old, etc.). And petitioner never
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`provided PO with Langer’s address as required by FRE 807, so that exception
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`cannot apply for that reason as well.
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`G. Additional Exclusions
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`Petitioner has provided no credible reason why the information on pages 4-5
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`of PO’s motion to exclude should not be excluded. That information should be
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`excluded for the reasons explained in PO’s motion. PO notes that petitioner
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`appears to acknowledge that Woodhill’s “claim amendment” is not “prior art.”
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`
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`By: /Joseph A. Rhoa/
`Joseph A. Rhoa, Reg. No. 37,515
`Counsel for Patent Owner PersonalWeb
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`IPR 2013-00083
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`CERTIFICATE OF SERVICE
`I hereby certify service of the foregoing Patent Owner’s Reply to
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`Petitioner’s Opposition to Patent Owner’s Motion to Exclude to the following lead
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`counsel for petitioner on November 27, 2013 via email (under an agreement
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`between the parties):
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`Peter M. Dichiara
`WilmerHale
`60 State Street
`Boston, MA 02109
`(peter.dichiara@wilmerhale.com)
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`By: /Joseph A. Rhoa/
`Joseph A. Rhoa
`Reg. No. 37,515
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