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`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`__________________________________________________________________
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`SONY CORPORATION
`Petitioner
`
`v.
`
`YISSUM RESEARCH DEVELOPMENT COMPANY OF THE
`HEBREW UNIVERSITY OF JERUSALEM
`Patent Owner
`
`Case No. IPR2013-00219 (SCM)1
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`
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`Patent No. 7,477,284
`Issue Date: Jan. 13, 2009
`Title: SYSTEM AND METHOD FOR CAPTURING AND VIEWING
`STEREOSCOPIC PANORAMIC IMAGES
`__________________________________________________________________
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
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`MOTION TO EXCLUDE EVIDENCE
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`_________________________________________________________________
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`
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`1 The IPR2013-00327 proceeding has been joined with this proceeding.
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
` Pursuant to the Board’s Scheduling Order, see Paper No. 17, Petitioner Sony
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`Corporation (“Sony”) submits this opposition to Patent Owner’s Motion to Exclude
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`(Paper No. 44). Patent Owner seeks exclusion of exhibit Sony-1042 (Wikipedia
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`article), portions of exhibit Sony-1043 (Transcript of Prof. Essa’s Deposition), and
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`exhibit Sony-1044 (Second Expert Declaration of Prof. Darrell).
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`I. The Exhibit Sony-1042 (Wikipedia article) Should Not Be Excluded.
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`Patent Owner argues that Sony-1042 is inadmissible on grounds of lack of proper
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`authentication, hearsay, and because it is new evidence that should have been included
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`with Sony’s Petition. See Patent Owner’s Motion to Exclude (“Motion”), Paper No.
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`44 at 3-7.
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`A. Sony-1042 Is Admissible Under FRE § 901.
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`FED. R. EVID. 901(a) states: “To satisfy the requirement of authenticating or
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`identifying an item of evidence, the proponent must produce evidence sufficient to
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`support a finding that the item is what the proponent claims it to be.” One form of
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`evidence that satisfies the requirement is the testimony of witness with knowledge
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`that “an item is what it is claimed to be.” FED. R. EVID. 901(b)(1).
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`Here, Sony claims that Sony-1042 is copy of a Wikipedia article entitled
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`“Stereoscopy” available on the web through the URL http://en.wikipedia.org/
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`wiki/Stereoscopy, and that the definition of the term “stereoscopy” on which Patent
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`Owner relies (YRD-2003) provides a link to the Wikipedia article to “Learn more.”
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`2
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
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`YRD-2003 at 3. Specifically, YRD-2003 states: “Wikipedia offers a more detailed
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`explanation of stereoscopy.” Id. (hyperlink in original).
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`Sony served Sony-1042 on Patent Owner at the deposition of Prof. Essa on March
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`10, 2014. Prof. Essa testified that he may have reviewed Sony-1042 before, but did
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`not rely on it preparing his opinions set forth in his Declarations. Sony-1043 at 53:10-
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`16, 54:15-21. However, Prof. Essa testified that he did rely on YRD-2003 (see Sony-
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`1043 at 13:19 – 14:1, 48:17-25), and that YRD-2003 links to Sony-1042 for the
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`purposely of enabling the reader to learn more about stereoscopy. Sony-1043 at
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`59:14-22; see also YRD-2003 at 3.
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`After Patent Owner’s counsel objected to Sony-1042 at the deposition on of Prof.
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`Essa on March 10, 2014 on grounds of lack of authentication (see Sony-1043 at 61:20-
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`25), Sony served supplemental evidence on Patent Owner in the form of a
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`Declaration of Michael E. Sander. See YRD-2018. Sony also served the Second
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`Expert Declaration of Trevor Darrell. See Sony-1044. The Declarations were served
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`on March 24, 2014, and, therefore, Sony complied with the requirement of 37 C.F.R.
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`§ 42.64(b)(2) that supplemental evidence be served within ten business days of service
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`of the objection. Mr. Sander explains how he accessed the Wikipedia page entitled
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`“Stereoscopy” available at the web page http://en.wikipedia.org/wiki/Stereoscopy,
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`and using Wikipedia’s history tools, accessed the same page as it appeared on the
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`Wikipedia web site on June 10, 2013, which itself is available at http://
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`en.wikipedia.org/w/index.php?title=Stereoscopy&oldid=559166929&printable=yes.
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`3
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
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`(YRD-2003, which provides the link to Sony-1042, is dated June 13, 2013). Mr.
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`Sander further explains that after accessing the Wikipedia web page, he created a PDF
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`copy of it and labeled it Sony-1042. YRD-2018 ¶¶ 1-5. In his Declaration, Prof.
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`Darrell states that he reviewed the Wikipedia article on the Internet that is linked to
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`YRD-2003, and found it to be substantively the same as Sony-1042. Sony-1044 ¶ 15.
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`Mr. Sander is a witness with knowledge under FED. R. EVID. 901(b)(1) since he
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`actually accessed the Wikipedia web site and created the copy of the Wikipedia article
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`that is Sony-1042. Prof. Darrell is a witness with knowledge since he likewise
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`accessed the Wikipedia web site and compared the “Stereoscopy” article he found
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`there with Sony-1042.
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`The uncontroverted testimony of these witnesses, and that of Prof. Essa, is more
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`than sufficient to prove that Sony-1042 “is what it is claimed to be.” FED. R. EVID.
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`901(b)(1); Rivera v. Inc. Vill. of Farmingdale, 2013 U.S. Dist. LEXIS 181890, *21, *22
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`(E.D.N.Y. Dec. 31, 2013) (finding the testimony of a witness who personally
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`downloaded Internet postings sufficient to authenticate them: “The bar for
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`authentication of the internet postings is not particularly high, i.e., a reasonable
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`likelihood standard. The testimony of a witness with knowledge that a matter is what
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`it is claimed to be is sufficient to satisfy this standard. As long as such testimony is
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`sufficient, these postings should be admitted, notwithstanding that they were
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`editable.” (quoting U.S. v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007) (internal marks
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`omitted; citing FED. R. EVID. 901(b)(1))); ForeWord Magazine, Inc. v. OverDrive, Inc.,
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`4
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`2011 U.S. Dist. LEXIS 125373, *8-11 (W.D. Mich. Oct. 31, 2011) (finding screen
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`shots of an Internet site authenticated by a declarant identifying the “screen shots as a
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`true and accurate copy of the content found on the Internet sites[.] . . . [A]n affidavit
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`of a witness, when viewed in combination with circumstantial indicia of authenticity
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`(such as the existence of the URL, date of printing, or other identifying information)
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`would support a reasonable juror in the belief that the documents are what the
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`proponent says they are.” (citing United States v. Meienberg, 263 F.3d 1177, 1181 (10th
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`Cir. 2001) (additional citations omitted)).
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`The case Patent Owner cites for the proposition that testimony is required from
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`an employee of the web site host, Novak v. Tucows, Inc., 2007 U.S. Dist. LEXIS 21269
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`(E.D.N.Y. 2007), does not apply here. In Novak, the proponent offered copies of
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`web pages that were not obtained directly from the hosting web sites themselves, but
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`instead were obtained from a third party archive, the Wayback Machine. The court
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`noted that the Wayback Machine obtained the web pages from yet other third parties,
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`and that “the authorized owners and managers of the archived web sites play no role
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`in ensuring that the material posted in the Wayback Machine accurately represents
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`what was posted on their official websites.” 2007 U.S. Dist. LEXIS 21269 at *17.
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`Here, in contrast, Mr. Sander and Prof. Darrell went directly to hosting web site to
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`view and obtain a copy of the Wikipedia article. See Rivera, 2013 U.S. Dist. LEXIS
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`181890, *22; ForeWord Magazine, Inc., 2011 U.S. Dist. LEXIS 125373, *8-11.
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`5
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
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`B.
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`Patent Owner’s Hearsay Objection to Sony-1042 Was Untimely;
`Nevertheless, Sony-1042 Is Admissible Under FRE § 801.
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`Patent Owner’s hearsay objection to Sony-1042 was not timely made. Sony-1042
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`was served on Patent Owner at Prof. Essa’s deposition on March 10, 2014. See Sony-
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`1043 at 52:16-20. Patent Owner was required to object within five business days of
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`service (i.e., by March 17, 2014). See 37 C.F.R. § 42.64(b)(1). Patent Owner did not
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`object on hearsay grounds until March 27, 2014, thirteen business days after Sony
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`served Sony-1042 and even after Sony served supplemental evidence in response to
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`Patent Owner’s authentication objection (which was timely made). See YRD-2017 at
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`3, ¶ 3 (Objections); YRD-2018, YRD-2019 (Supplemental Evidence). Patent Owner
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`argues that it objected on hearsay grounds within five business days after Sony filed
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`Sony-1042 with Sony’s Reply (on March 24, 2014). However, 37 C.F.R. § 42.64(b)(1)
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`plainly states that objections must be served within five business days of service of the
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`evidence. Therefore, Patent Owner’s hearsay objection should be rejected.
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`Although Patent Owner seeks exclusion of the entirety of Sony-1042 on hearsay
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`grounds, the hearsay objection that Patent Owner served on March 27, 2014 is
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`directed to a portion of Sony-1042:
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`The Reply at 13 relies on statements of Exhibit SONY-1042 in asserting
`that the image reproduced in the Reply was made from images taken
`from 100 feet apart. Patent Owner notes that the relied upon statements
`of Exhibit SONY-1042 are nothing more than hearsay (i.e., out-of-court
`statement offered to prove the truth of the matter asserted).
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`6
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`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
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`YRD-2017 at 3, ¶ 3.
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`Notwithstanding the untimeliness of Patent Owner’s hearsay objection, Sony
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`responded to it by serving supplemental evidence in the form of a Declaration of
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`Leonard Barton, the photographer who created the image (the “hyper stereo”
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`anaglyph) from Sony-1042 that is reproduced in Sony’s Reply. See YRD-2019. (Mr.
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`Barton’s Declaration was timely served ten business days after Patent Owner’s hearsay
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`objection was served). Mr. Barton was cross-examined by Patent Owner on April 15,
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`2014. Mr. Barton testified in his Declaration and on cross-examination as to how he
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`created the hyper stereo anaglyph, and confirmed that the pair of images that he
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`recorded and used to create the anaglyph were recorded from camera positions 100
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`feet apart. YRD-2019 at 2, ¶ 5; YRD-2020 at 15:9-23, 19:15-18. Mr. Barton’s
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`Declaration and his cross-examination testimony remove any hearsay issue relating to
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`the anaglyph and the statement in Sony-1042 concerning it to which Patent Owner
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`directed its hearsay objection.
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`To the extent that the Board considers Patent Owner’s untimely hearsay objection
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`to have been directed to the entirety of Sony-1042, Sony submits that Patent Owner
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`waived any such objection by having offered and relied on YRD-2003, which
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`provides a definition of “stereoscopy” and links to the Wikipedia article for “a more
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`detailed explanation of stereoscopy.” YRD-2003 at 3. See Capobianco v. City of New
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`York, 422 F.3d 47, 55 (2d Cir. 2005) (a party “waive[s] any objections to the
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`admissibility of [evidence] by offering them themselves.”); Troeger v. Ellenville Cent. Sch.
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`7
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
`Dist., 2012 U.S. Dist. LEXIS 64477, 13-14 (N.D.N.Y May 8, 2012) (same) (quoting
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`Capobianco, 422 F.3d at 55).
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`C.
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`Patent Owner’s Objection That Sony-1042 Was Belatedly
`Presented Is Inappropriate for a Motion to Exclude; Nevertheless,
`the Objection Is Without Merit.
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`Patent Owner objects to Sony-1042 on the basis that it should have been
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`presented in Sony’s Petition, or within one month of institution of trial as
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`supplemental evidence under 37 C.F.R. § 42.123. Motion at 5-7. The Board has ruled
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`in other inter partes reviews that a motion to exclude is not the proper vehicle for
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`Patent Owner to argue that a reply exceeds the scope of the Patent Owner’s
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`Response. See, e.g., IPR2013-00483, No. 11 Notice (P.T.A.B. Feb. 26, 2014) (“[I]f an
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`issue arises regarding whether a reply argument or evidence in support of a reply
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`exceeds the scope of a proper reply, the matter should not be addressed in a motion
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`to exclude evidence.”); IPR2013-00519, No. 9 Order (P.T.A.B. Mar. 5, 2014) (“the
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`motion to exclude evidence is not provided as a vehicle to contend that any argument
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`or evidence in support of a reply exceeds the proper scope of a reply.”). In this
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`proceeding, the Board has expressly stated that “we will determine whether a reply
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`and evidence are outside the scope of a proper reply and evidence when we review all
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`of the parties’ submissions and prepare the final written decision.” Order, Paper No.
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`41, April 7, 2014, at 2.
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`Nevertheless, Patent Owner’s objection that Sony-1042 should have been
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`presented earlier lacks merit. Sony-1042 was submitted in response to Prof. Essa’s
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`8
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`reliance on YRD-2003 (which directs the reader to the Wikipedia article to “learn
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`more” about stereoscopy) and Prof. Essa’s testimony that “for a stereoscopic image
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`pair to provide a perception of depth, the image pair must (1) be capable of being
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`stereoscopically fused (i.e., specifically generated from the perspective of human eyes
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`. . . ).” YRD-2010 at ¶ 28; see also ¶ 59. Sony could not have reasonably assumed in
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`submitting its Petition that Patent Owner’s expert would make such a glaringly
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`incorrect technical argument, especially since the ’003 Patent, which the ’284 Patent
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`claims priority to and incorporates by reference, discloses that stereoscopic image
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`pairs can be generated with a baseline larger than the human inter-ocular distance for
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`“exaggerated stereo,” and similarly, with a baseline smaller than the human inter-
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`ocular distance for “reduced stereo.” See Sony-1002 at 7:17-26, 11:21-26; see also Sony-
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`1043 (Deposition of Prof. Essa) at 82:11-15, 86:3-11; Sony-1044 (Second Decl. of
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`Prof. Darrell) at ¶¶ 8-9. Further, a related patent by the same inventor, also
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`incorporated by reference into the ’284 Patent, describes the concept of increasing
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`stereoscopic range by increasing the baseline. See U.S. Pat. No. 6,831,677, Sony-1041
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`at 1:38-41. In light of the foregoing, Petitioner could not have reasonably expected
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`Prof. Essa to testify that only stereoscopic images recorded from positions separated
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`by a single distance, the human inter-ocular baseline, could provide a sense of depth.
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`In rebuttal to Prof. Essa’s testimony, Sony-1042 supports the fact that a
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`stereoscopic image pairs recorded using baselines other that the human inter-ocular
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`distance are capable of providing a perception of depth. Within the larger discussion
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`9
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`of “hyper stereo,” Sony-1042 depicts a stereoscopic image that clearly provides a
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`sense of depth, and which was generated from images recorded 100 feet apart. Sony-
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`1042 at 11-13. Sony-1042 is singularly targeted at Prof. Essa’s testimony, because
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`Prof. Essa relied on the definition of “stereoscopy” in YRD-2003, which links the
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`reader to Sony-1042 article to “learn more.” See YRD-2003 at 3.
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`Accordingly, Sony-1042 was not presented belatedly and should not be excluded.
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`II. The Exhibit Sony-1043 (Transcript of Prof. Essa’s Cross-Examination)
`Should Not Be Excluded.
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`Patent Owner’s objection to the portions of Prof. Essa’s deposition testimony
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`(Sony-1043) related to Sony-1042 as being beyond the scope of his declaration is
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`without merit. Prof. Essa relied on YRD-2003 (web page definition of “stereoscopy”)
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`which links the reader to the Wikipedia article to “learn more.” See YRD-2003 at 3.
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`Also, Prof. Essa testified in his Declaration that in order for a stereoscopic image pair
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`to provide a perception of depth, it must be generated in accordance with the
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`separation of human eyes. See YRD-2010 at ¶¶ 28, 59. The exhibit Sony-1042 is
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`relevant to that testimony, and is therefore within the scope of Prof. Essa’s
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`declaration.
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`III. The Exhibit Sony-1044 (Second Darrell Decl.) Should Not Be Excluded.
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`Patent Owner seeks exclusion of the entirety of Sony-1044, but argues only about
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`paragraphs 23-24. Motion at 7-11. Paragraphs 23-24 relate to Prof. Darrell’s opinion
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`that a person of ordinary skill in the art would have understood the term
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`10
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
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`“stereoscopic viewing” to refer to human viewing of a display of a stereoscopic image
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`pair. Patent Owner contends that Prof. Darrell’s testimony pertains to an issue raised
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`by Sony in the Petition (the meaning of “stereoscopic viewing”) and that his
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`testimony should have been provided with the Petition. Id. at 10-11. Alternatively,
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`Patent Owner argues that Prof. Darrell’s testimony should have been provided as a
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`supplemental declaration after Patent Owner made an argument about the meaning of
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`“stereoscopic viewing” in its Preliminary Response. Id. at 9.
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`Sony properly relied on the ordinary meaning of “stereoscopic viewing” in the
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`Petition, and Patent Owner’s argument in its Preliminary Response that “stereoscopic
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`viewing” means calculating height was contrary to the ordinary meaning and was
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`unsupported. See Patent Owner Preliminary Response, Paper No. 13 at 44 (“Asahi
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`uses the phrase ‘stereoscopic viewing’ to describe the process used to calculate the height
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`of objects.” (emphasis in original)). The Board relied on the ordinary meaning of
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`“stereoscopic viewing” in its Decision on Institution: “we are persuaded that Asahi’s
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`‘stereoscopic viewing’ discloses displaying mosaic images to a person so as to provide
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`a sense of depth of a scene.’” See Institution Decision, Paper No. 16 at 32. There was
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`no reason for Petitioner to provide testimony from Prof. Darrell either with the
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`Petition or after the Board’s Decision that the term “stereoscopic viewing” is used in
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`Asahi in accordance with its ordinary meaning. However, after Patent Owner offered
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`Prof. Essa’s testimony contradicting the ordinary meaning (i.e., that person of ordinary
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`skill in would have understood “stereoscopic viewing” in Asahi to mean calculating
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`11
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
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`height), it was appropriate for Petitioner to offer the testimony of Prof. Darrell in
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`reply. Patent Owner had the opportunity to cross-examine Prof. Darrell, and did so
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`on April 15, 2014.
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`Patent Owner’s statement regarding YRD-2012, the English translation of the
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`Asahi produced to Patent Owner in the I.T.C. investigation, is irrelevant because
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`Patent Owner waived any objection or argument about the accuracy of Sony-1010,
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`the translation submitted with the Petition.2 Moreover, Patent Owner does not
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`contend even now that the Sony-1010 is inaccurate or that YRD-2012 is more
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`accurate than Sony-1010. Moreover, if anything, YRD-2012 refutes Patent Owner
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`and Prof. Essa’s position that a person of ordinary skill in the art would understand
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`the phrase “stereoscopic viewing” in Asahi (Sony-1010) to mean “calculating height
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`of a terrain.” Patent Owner Response, Paper No. 35 at 26, 28-29; Essa Decl., YRD-
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`2010 at ¶ 55. The corresponding passage in YRD-2012 states that “a 3D image can
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`be shown to the viewer,” and thus, removes any room for argument that Asahi is referring
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`to height calculation. YRD-2012 at [0035] (emphasis added).
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`2 Petitioner more fully discusses the irrelevancy of YRD-2012 in its Motion to
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`Exclude, Paper No. 47.
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`12
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`IPR2013-00219, Inter Partes Review of U.S. Pat. No. 7,477,284
`Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence
`IV. Conclusion
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`In view of the forgoing, Petitioner respectfully submits that Patent Owner’s
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`Motion to Exclude should be denied.
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`Dated: May 28, 2014
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`
`
`_/s/ Walter Hanley__
`Walter Hanley, Lead Counsel, Reg. No 28,720
`whanley@kenyon.com
`Michelle Carniaux, Backup Counsel, Reg. No. 36,098
`mcarniaux@kenyon.com
`KENYON & KENYON LLP
`One Broadway, New York, NY 10004-1007
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`13
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`
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`Certificate of Service Under 37 C.F.R. § 42.6(e)(4)
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`I certify that I caused a true and correct copy of the forgoing to be served via
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`Electronic Mail on the following:
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`William Nelson and Robert Gerrity
`Robert.gerrity@tensegritylawgroup.com
`William.nelson@tensegritylawgroup.com
`Tensegrity Law Group LLP
`555 Twin Dolphin Dr., Suite 360
`Redwood Shores, CA 94065
`
`
`David McCombs and David O’Dell
`David.mccombs.ipr@haynesboone.com
`David.odell.ipr@haynesboone.com
`Haynes and Boone, LLP
`2323 Victory Avenue, Suite 700
`Dallas, Texas 75219
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`Dated: _ May 28, 2014___
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`_/s/ Michael E. Sander __
`Michael E. Sander
`Reg. No. 71,667
`msander@kenyon.com
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel: 212-425-7200
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