By: Daniel W. McDonald
`
`Robert A. Kalinsky
`
`Thomas J. Leach
`Merchant & Gould P.C.
`Counsel for Patent Owner
`P.O. Box 2903
`Minneapolis, Minnesota 55402-0903
`Telephone: (612) 332-5300
`Email: stephensonipr@merchantgould.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GAME SHOW NETWORK, LLC AND WORLDWINNER.COM
`Petitioners
`
`v.
`
`JOHN H. STEPHENSON
`Patent Owner
`____________
`
`Case IPR2013-00289
`Patent 6,174,237
`____________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE SUBMITTED
`BY GAME SHOW NETWORK, LLC AND WORLDWINNER.COM
`UNDER 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`
`
`Robert A. Kalinsky
`
`Thomas J. Leach
`Merchant & Gould P.C.
`Counsel for Patent Owner
`P.O. Box 2903
`Minneapolis, Minnesota 55402-0903
`Telephone: (612) 332-5300
`Email: stephensonipr@merchantgould.com
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GAME SHOW NETWORK, LLC AND WORLDWINNER.COM
`Petitioners
`
`v.
`
`JOHN H. STEPHENSON
`Patent Owner
`____________
`
`Case IPR2013-00289
`Patent 6,174,237
`____________
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE SUBMITTED
`BY GAME SHOW NETWORK, LLC AND WORLDWINNER.COM
`UNDER 37 C.F.R. § 42.64
`
`
`
`
`
`
`
`
`
`
`Case IPR2013-00289
`Patent No. 6,174,237
`
`Pursuant to 37 C.F.R. § 42.64, Patent Owner John H. Stephenson
`
`(“Stephenson”) moves to exclude Exhibits 1011, 1012, 1013, 1014 and 1021
`
`submitted with Petitioner’s Reply under Federal Rules of Evidence 401 and 403.
`
`Those exhibits each relate to a lawsuit ended by a default judgment, and are
`
`irrelevant because a default judgment says nothing about the facts or law of the
`
`case. By introducing those exhibits, Petitioner seeks to resurrect issues never
`
`litigated in a long-dead case against an entity that appears to no longer exist. That
`
`case is unrelated to the current action or the associated litigation. Stephenson
`
`originally entered the objection to this evidence in Paper 38, submitted April 28,
`
`2014. For at least the reasons detailed below, the Board should exclude each of
`
`Exhibits 1011-14 and 1021.
`
`I.
`
`Because Stephenson did not admit or provide any construction of
`any term in the Stephenson v. MVP lawsuit, and because
`Petitioner misrepresents that lawsuit, the contents of any related
`Exhibits and Johnson Declaration should be excluded as
`irrelevant
`
`In contrast to Petitioner’s assertion, Stephenson never “admitted” or
`
`“conceded” any claim construction for the ‘237 patent. Specifically, Stephenson
`
`did not state or imply whether the claims require head-to-head competition with a
`
`computer. See Reply at 13. Petitioner’s assumptions regarding documents from
`
`Stephenson’s prior lawsuit are unsupported, rendering admission of those
`
`
`
`1
`
`
`
`documents improper under the Federal Rules of Evidence 401 and 403 as
`
`irrelevant and/or a mischaracterization of the evidence.
`
`The statements in the complaint (Ex. 1012) provide no evidence to support
`
`Petitioner’s proposed claim construction in the instant proceeding.
`
`Petitioner’s reply fails to mention the procedural posture of the MVP
`
`lawsuit, which is dispositive on this issue. MVP never responded to Stephenson’s
`
`complaint. After multiple, futile attempts to reach out to MVP, the District Court
`
`entered a default judgment without claim construction or discovery.
`
`Under Federal Circuit law, the case was never “actually litigated.” See, e.g.,
`
`Lee ex rel. Lee v. United States, 124 F.3d 1291, 1295 (Fed. Cir. 1997). The Court
`
`never made any findings of fact. Stephenson never made any statements about
`
`whether or not the claims required head-to-head competition with a computer. For
`
`Petitioners to extrapolate any “admission” or “concession” by Stephenson from the
`
`MVP default judgment is improper. Therefore, the Board should exclude Exhibits
`
`1012-1014 as irrelevant to claim construction, or any other matter in this
`
`proceeding.
`
`A default judgment cannot be used to apply issue preclusion (collateral
`
`estoppel) because the issues are not actually litigated. Lee, 124 F.3d at 1295
`
`(rejecting Lee’s argument that the U.S. was estopped from litigating the issue of
`
`negligence when a district court had entered default judgment). Stephenson should
`
`
`
`2
`
`
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`not be precluded from making any argument in the instant proceeding as no
`
`argument was actually litigated for estoppel purposes in the MVP lawsuit.
`
`II. The Johnson Declaration Should be Excluded for the Same
`Reasons and Because it is Deficient on its Face
`
`As shown above, exhibits 1011-1014 and 1021 should be excluded because
`
`they provide no insight into the correct interpretation of the claims and say nothing
`
`regarding whether those claims are invalid. Petitioner also relies on the related
`
`declaration of an individual, Mr. Johnson, who did not indicate which version of
`
`the game he played, or that he had personal knowledge of every mode or version of
`
`the game(s) at issue in the lawsuit. See Exhibits 1011 and 1021. Petitioner uses this
`
`declaration to summarily decree that a particular product, apparently now defunct,
`
`lacked a certain feature in all of its embodiments. Reply, 13. Johnson’s statements
`
`should be excluded for the same reasons as the litigation documents. The default
`
`judgment indicates nothing relevant to claim construction, and thus the operation
`
`of any product at issue in that lawsuit is similarly irrelevant. Moreover, Johnson’s
`
`statements are irrelevant and unreliable because on their face they do not purport to
`
`describe all functionality or versions of the product at issue in the MVP lawsuit.
`
`Therefore, the declaration should also be excluded under Rules 401 and 403.
`
`III. Conclusion
`
`Stephenson never actually litigated the instant claims in the lawsuit against
`
`MVP, never made any claim constructions, and never admitted anything about the
`
`
`
`3
`
`
`
`claims’ requirements. Any use of the documents regarding that lawsuit are
`
`irrelevant and should be excluded under Rules 401 and 403. The Johnson
`
`Declaration should also be excluded under Rules 401 and 403 as premised on the
`
`same defective estoppel position, and further because the Johnson declaration on
`
`its face does not profess to even address all embodiments of the product at issue in
`
`the MVP lawsuit. Any miniscule relevance of these materials is outweighed by
`
`their creation of confusion and prejudice. Accordingly, Stephenson respectfully
`
`requests the Board grant its Motion to Exclude Exhibits 1011-1014 and 1021.
`
`
`
`
`
`Respectfully submitted,
`
`Date: May 27, 2014
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/Daniel W. McDonald/
`Daniel W. McDonald, Reg. No. 32,044
`Attorneys for Patent Owner Stephenson
`
`
`
`
`
`4
`
`
`
`CERTIFICATE OF SERVICE
`
`
`The undersigned hereby certifies that a copy of the foregoing PATENT
`OWNER’S MOTION TO EXCLUDE EVIDENCE SUBMITTED BY GAME
`SHOW NETWORK, LLC AND WORLDWINNER.COM UNDER 37 C.F.R. §
`42.64 was served on May 27, 2014 by filing the document(s) through the Patent
`Review Processing System and delivering a copy via electronic mail at
`BoxGSN@knobbe.com. Petitioners have agreed to accept service electronically.
`
`Respectfully submitted,
`MERCHANT & GOULD P.C.
`P.O. Box 2903
`Minneapolis, Minnesota 55402-0903
`(612) 332-5300
`
`
`/Daniel W. McDonald/
`Name: Daniel W. McDonald
`Reg. No.: 32,044
`
`
`
`
`
`
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`1
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`Date: May 27, 2014
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