Paper No.
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`SONY CORPORATION
`Petitioner
`
`v.
`
`Patent of YISSUM RESEARCH DEVELOPMENT COMPANY OF THE
`HEBREW UNIVERSITY OF JERUSALEM
`Patent Owner
`___________________
`
`Case IPR2013-00219 (SCM)1
`Patent 7,477,284
`Title: SYSTEM AND METHOD FOR CAPTURING AND VIEWING
`STEREOSCOPIC PANORAMIC IMAGES
`_____________________
`
`Before SALLY C. MEDLEY, KARL D. EASTHOM, and
`JAMES B. ARPIN, Administrative Patent Judges.
`
`_____________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF
`MOTION TO EXCLUDE UNDER 37 C.F.R. §42.64(c)
`
`1 The IPR2013-00327 proceeding has been joined with this proceeding.
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`SONY CORPORATION
`Petitioner
`
`v.
`
`Patent of YISSUM RESEARCH DEVELOPMENT COMPANY OF THE
`HEBREW UNIVERSITY OF JERUSALEM
`Patent Owner
`___________________
`
`Case IPR2013-00219 (SCM)1
`Patent 7,477,284
`Title: SYSTEM AND METHOD FOR CAPTURING AND VIEWING
`STEREOSCOPIC PANORAMIC IMAGES
`_____________________
`
`Before SALLY C. MEDLEY, KARL D. EASTHOM, and
`JAMES B. ARPIN, Administrative Patent Judges.
`
`_____________________
`
`PATENT OWNER’S REPLY IN SUPPORT OF
`MOTION TO EXCLUDE UNDER 37 C.F.R. §42.64(c)
`
`1 The IPR2013-00327 proceeding has been joined with this proceeding.
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`
`I.
`
`INTRODUCTION
`In accordance with 37 C.F.R. § 42.64(c), Yissum Research Development
`
`Company of the Hebrew University of Jerusalem (“Patent Owner”) submits this
`
`Reply in support of its Motion to Exclude Evidence (Paper 44) and in response to
`
`Sony Corporation’s (“Petitioner”) Opposition ( Paper 51), filed on May 28, 2014.
`
`II.
`
`Exhibit SONY-1042 Should be Excluded
`The Wikipedia entry (SONY-1042) is hearsay and should be excluded under
`
`FRE 801. Petitioner’s argument in Paper 51 at 6 that Patent Owner did not object to
`
`the Wikipedia entry (SONY-1042) as hearsay, during the deposition of Dr. Essa,
`
`misses the point that a hearsay objection is only proper when the document is used for
`
`the truth of the matter asserted. During Dr. Essa’s deposition, the Wikipedia entry
`
`(SONY-1042) was not used for the truth of the matter asserted. Rather, it was used
`
`to question Dr. Essa as to the statements that it contained. Therefore, Patent
`
`Owner had no reason to object to SONY-1042 on hearsay grounds at that time.
`
`Patent Owner did timely object to the Wikipedia entry (SONY-1042) as
`
`hearsay under FRE 801, within five business days of Petitioner relying on
`
`statements of the Wikipedia entry for the truth of the matter asserted, in connection
`
`with its Reply (Paper 37) and the second declaration of Dr. Darrell (SONY-1044).2
`
`YRD-2017 at 2-3. And, Petitioner’s attempt to cure the hearsay objection by
`
`2 Contrary to Petitioner’s assertion, Patent Owner broadly objected to SONY-1042.
`
`1
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`proffering up the declaration of Leonard Barton (YRD-2019) fails since Mr.
`
`Barton admitted on cross-examination that he did not write a majority of the text
`
`relied upon by Petitioner and Dr. Darrell. See YRD-2020 at page 22 lines 9-20.
`
`Also, Petitioner’s argument in Paper 51 at 7 that Patent Owner “waived any
`
`such objection by having offered and relied on YRD-2003…which links to the
`
`Wikipedia article” fails and is not supported by the case to which Petitioner cites.
`
`In Capobianco, the defendant sought to exclude reports that itself submitted, relied
`
`upon, and to which no objections were made. See Capobianco v. City of New
`
`York, 422 F.3d 47, 55 (2d Cir. 2005). In contrast, here, Patent Owner did not offer
`
`the Wikipedia entry (SONY-1042) as an exhibit, did not rely on any statements of
`
`SONY-1042, and timely objected to the evidence. Petitioner’s argument is also
`
`beside the point since Wikipedia entries are generally recognized as unreliable
`
`hearsay. See, e.g., Ex parte Bailey, No. 2010-010310, Application No. 11,168,650,
`
`2013 Pat. App. LEXIS 2470 (Pat. App. Apr. 25, 2013). Therefore, the Wikipedia
`
`entry (SONY-1042) should be excluded as unreliable hearsay.
`
`The Wikipedia entry (SONY-1042) is also unauthenticated and should be
`
`excluded under FRE 901. Patent Owner objected to the Wikipedia entry (SONY-
`
`1042) as unauthenticated during the deposition of Dr. Essa. See SONY-1043 at
`
`61:20-25. Once an objection is made during a deposition, “[e]vidence to cure the
`
`objection must be provided during the deposition, unless the parties to the
`
`2
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`deposition stipulate otherwise.” 37 C.F.R. § 42.64(a). And, here, Petitioner failed
`
`to cure the objection during the deposition and the parties had no other agreement.
`
`Moreover, the declarations of Mr. Sander and Dr. Darrell are insufficient since
`
`neither declarant has the requisite personal knowledge regarding the Wikipedia entry
`
`(SONY-1042), which Petitioner contends is a printout of a Wikipedia history archive.
`
`And, contrary to Petitioners contention, the law is clear that a printout of an internet
`
`archive must be authenticated by a person with knowledge – not an attorney or an
`
`expert. See Specht v. Google Inc., 758 F. Supp.2d 570, 580 (N.D. Ill. 2010) (not
`
`considering Internet printouts because they were not properly authenticated by an
`
`officer or employee of the Internet company); Audi AG v. Shokan Coachworks,
`
`Inc., 592 F.Supp.2d 246, 278 (N.D.N.Y. 2008) (indicating that pages from Internet
`
`archive search results can be submitted into evidence only by authentication of a
`
`"knowledgeable employee" of the Internet Archive); St. Luke's Cataract Laser
`
`Inst., P.A. v. Sanderson, No. 06-CV-223, 2006 WL 1320242, at *2 (M.D. Fla. May
`
`12, 2006) ("Plaintiff must provide the Court with a statement or affidavit from an
`
`Internet Archive representative with personal knowledge of the contents of the
`
`Internet Archive website.") (emphasis in original). Therefore, the Wikipedia entry
`
`(SONY-1042) should also be excluded because it is not properly authenticated.
`
`The Wikipedia entry (SONY-1042) is also untimely and should be excluded
`
`under 37 CFR § 42.23(b) and 37 CFR § 42.123. Petitioner in its Opposition (Paper
`
`3
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`51 at 10) argues that SONY-1042 is not untimely because it is “singularly targeted
`
`at Prof. Essa’s testimony, because Prof. Essa relied on the definition of
`
`‘stereoscopy’ in YRD-2003, which links the reader to SONY-1042.” But, this
`
`argument has no bearing on timeliness since Dr. Essa did not rely on the Wikipedia
`
`entry. Thus, SONY-1042 should also be excluded as untimely.
`
`III. Passages of exhibit SONY-1043 Should be Excluded
`Passages of Dr. Essa’s deposition testimony (SONY-1043 at 52:8- 72:11)
`
`should be excluded as outside the scope of direct testimony since Dr. Essa’s
`
`declaration did not provide testimony regarding the Wikipedia entry (SONY-
`
`1042). See 37 C.F.R. § 42.64(a) and § 42.53(d)(5)(D)(ii). And, Petitioner’s
`
`argument in its Opposition (Paper 51 at 10) that the Wikipedia entry is relevant
`
`fails since the question is not one of relevance but one of scope. To illustrate,
`
`potentially thousands of books, articles, or journals may be relevant to stereoscopic
`
`imaging, but only those documents relied upon in a declaration are within the
`
`scope of direct testimony. Thus, passages of Dr. Essa’s deposition (SONY-1043 at
`
`52:8-72:11) should be excluded as outside the scope of direct testimony.
`
`IV. Exhibit SONY-1044 Should be Excluded
`The second declaration of Dr. Trevor Darrell (SONY-1044) is untimely and
`
`should be excluded under 37 CFR § 42.23(b) and 37 CFR § 42.123. The testimony
`
`of Dr. Darrell at ¶¶ 27-28 of SONY-1044 regarding the term “stereoscopic
`
`viewing” as used in the Asahi reference (SONY-1006) directly pertains to and
`4
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`supports arguments that were first raised by Petitioner. See Paper 1 at 33. Indeed,
`
`Petitioner made the term “stereoscopic viewing,” as allegedly disclosed in the
`
`Asahi reference (SONY-1006), a central issue by specifically seeking out,
`
`obtaining, and relying upon a translation that included the term “stereoscopic
`
`viewing.” (Compare YRD-2012 and SONY-1006 at ¶ [0035].) And even now, at
`
`this late stage in the proceeding, the accuracy of these translations is in question.
`
`Moreover, Petitioner’s contention in its Opposition (Paper 51 at 11) that
`
`there was “no reason for Petitioner to provide testimony from Prof. Darrell”
`
`because the term is used in accordance with its ordinary is contradicted by
`
`Petitioner’s own expert, who testified that the term stereoscopic is a “very broad
`
`term” that can have multiple meanings. See YRD-2008 at 26:9-16. As such,
`
`Petitioner understood full well that the ordinary meaning was not applicable here.
`
`Therefore, Dr. Darrell’s testimony in exhibit SONY-1044 should be excluded as
`
`untimely, since it addresses issues first raised in the Petition.
`
`V.
`
`CONCLUSION
`For the foregoing reasons, Patent Owner’s Motion to Exclude should be
`
`granted.
`
`Dated: June 3, 2014
`
`Respectfully submitted,
`
`/David L. McCombs/
`David L. McCombs
`Registration No. 32,271
`HAYNES AND BOONE, LLP
`
`5
`
`
`
`Patent Owner’s Reply in Support of Motion to Exclude
`IPR2013-00219 (Patent 7,477,284)
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`SONY CORPORATION
`Petitioner
`v.
`Patent of YISSUM RESEARCH DEVELOPMENT COMPANY OF THE
`HEBREW UNIVERSITY OF JERUSALEM
`Patent Owner
`___________________
`Case IPR2013-00219 (SCM)3
`Patent 7,477,284
`Title: SYSTEM AND METHOD FOR CAPTURING AND VIEWING
`STEREOSCOPIC PANORAMIC IMAGES
`_____________________
`
`CERTIFICATE OF SERVICE
`The undersigned certifies, in accordance with 37 C.F.R. § 42.205, that
`service was made on the Petitioner as detailed below.
`
`Date of service June 3, 2014
`Manner of service Electronic Mail: (Sony-HumanEyes@kenyon.com);
`Walter Hanley (whanley@kenyon.com); and
`Michelle Carniaux (mcarniaux@kenyon.com)
`
`Documents served PATENT OWNER’S REPLY IN SUPPORT OF
`MOTION TO EXCLUDE
`
`Persons served Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`
`/David L. McCombs/
`David L. McCombs
`Registration No. 32,271
`
`3 The IPR2013-00327 proceeding has been joined with this proceeding.
`
`6
`
`
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