UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`TOYOTA MOTOR CORPORATION
`Petitioner
`
`
`
`v.
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`
`
`
`Patent Number: 8,036,788
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`
`
`
`
`
`
`
`
`Case IPR2013-00417
`
`_________________________________________________________________
`
`
`
`PATENT OWNER AVS’S OPPOSITION TO MOTION TO EXPUNGE EXS.
`2035-2041
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`TOYOTA MOTOR CORPORATION
`Petitioner
`
`
`
`v.
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`Patent Owner
`
`
`
`Patent Number: 8,036,788
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`
`
`
`
`
`
`
`
`Case IPR2013-00417
`
`_________________________________________________________________
`
`
`
`PATENT OWNER AVS’S OPPOSITION TO MOTION TO EXPUNGE EXS.
`2035-2041
`
`
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`TABLE OF CONTENTS
`
`
`
`TABLE OF CONTENTS ........................................................................................... i
`
`I.
`
`TOYOTA’S OPPOSITION ARGUED THAT THE INDEX PAGE
`(EX. 1012) IS A BUSINESS RECORD OF IME .......................................... 2
`
`II.
`
`TOYOTA MISCHARACTERIZES BROADHURST’S AFFIDAVIT ......... 3
`
`III. OTHER RULES OF EVIDENCE PERMIT THE BOARD TO
`CONSIDER EXS. 2035-41 ............................................................................ 5
`
`
`
`
`
`
`
`i
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`
`AVS’s Reply properly (1) responds to arguments raised in Toyota’s
`
`
`
`opposition, mischaracterizing Toyota’s proffered affidavit and exhibits, and (2)
`
`relied on appropriate evidence to support the positions asserted” in AVS’s reply.
`
`Toyota’s proffered documents include (1) the Broadhurst affidavit, (2) the
`
`first page of Exhibit 1005 (a Cover Page dated June 3, 2013 from current
`
`publisher’s (Sage Publications) website) and the last page of Exhibit 1005 (a 2013-
`
`printed Abstract appearing separately from the Fry article on the current Sage
`
`website (“Sage Abstract”)), both of which were “appended to the Fry reference”
`
`(Paper 55 at 10), and (3) Exhibit 1012 (a printout of an index on Sage’s website,
`
`bearing dates of 2012 and 2013, and a print date of “2/3/2014” (“Sage Index”)).
`
`In July, AVS submitted 12 recipient date-stamped copies of the Fry article
`
`(previously withheld by Toyota), all dated 3-4 months after the critical date and 8-
`
`9 months after Toyota alleges Fry was published. (Paper 45.) In opposing AVS’
`
`motion to exclude, Toyota mischaracterized the Broadhurst affidavit and Toyota’s
`
`exhibits. The affidavit does not state, as Toyota asserts, that the Institution of
`
`Mechanical Engineers (“IME”) assigned each of the dates on the Sage Internet
`
`documents (Exs. 1005 (including the Cover Page and Abstract), 1012) printed in
`
`2013-14, or that the IME maintains all of the Sage webpages related to Fry
`
`(including the Sage Index (Ex. 1012)) on the Sage Internet website in the normal
`
`
`
`1
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`course of IME’s business. AVS was entitled to reply by exposing Toyota’s
`
`mischaracterizations. Now desperate, Toyota also raised new substantive
`
`arguments (§102(a)), speculating that (1) Mr. Fry “could have” received and
`
`“disseminat[ed]” copies of the Fry article (Paper 55 at 7), though its compensated
`
`declarant—Mr. Fry–declares no such thing, (2) the Fry article could have been
`
`distributed outside of the F1 issue (id. at 2), although Toyota’s basis for a January
`
`1995 publication is Fry’s inclusion the F1 issue (id. at 2, 4, 5; Ex. 1013 ¶ 3; Ex.
`
`1014 ¶ 7), and (3) the Fry article “could have been distributed directly to
`
`subscribers, bypassing the library and date-stamping route” (Paper 55 at 7 & n.1),
`
`although unsupported by Toyota’s affiant.
`
`Moreover, the Board can review any evidence bearing on whether a party is
`
`pursuing demonstrably false positions—i.e., to prevent a fraud on the Board.
`
`I.
`
`TOYOTA’S OPPOSITION ARGUED THAT THE INDEX PAGE (EX.
`1012) IS A BUSINESS RECORD OF IME
`
` Toyota now argues that the Sage Index (Ex. 1012) is an admissible business
`
`record of IME. (Paper 55 at 11 (“(Ex. 1012) ... these webpages are … ‘business
`
`records’ ….”).) But Broadhurst made no such statement. Nor would one assume
`
`so. On its face, the Sage Index identifies “Journal Citation Reports” and/or
`
`“Thomson Reuters” in 2012/2013—not IME in 1995—as the “Source.” (Ex. 1012
`
`at 1, 4, 6 (upper-right corner).) This alone “indicate[s] a lack of trustworthiness.”
`
`(Contra Paper 55 at 11.) (The identification of Thomsom Reuters as the “Source”
`
`
`
`2
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`similarly appears on the webpage cited by Toyota as the Sage Index but, oddly,
`
`this text does not appear in Toyota’s printout of that page. (Compare Ex. 1005 at
`
`13 with http://pif.sagepub.com/content/209/1/1.abstract (last accessed 8/11/14)).)
`
`In response, AVS submitted Exhibits 2036-2041. As Toyota now contends
`
`that the business record date of “January 1995” applies for all “F1” articles in Ex.
`
`1012, it must accept that the abstracts hyperlinked in Ex. 1012 are also IME
`
`business records. Like the Sage Abstract (Ex. 1005 at 13), which is hyperlinked
`
`from Ex. 1012 (at the “Abstract” under Fry article at 2, 4), Exhibits 2036-2041 are
`
`similarly hyperlinked from Ex. 1012.) Exhibits 2036-2041 are abstracts for the
`
`other six articles in the F1 issue in 1995. They have substantially identical web
`
`addresses to Ex. 1005. (Compare Exs. 2036-2041 (lower-left corner) with Ex. 1005
`
`at 13.) Those six exhibits show dates of acceptance for publication into the F1
`
`issue one to three months after Toyota alleges that the F1 issue was published.
`
`(See Exs. 2036-2041.) AVS therefore responded to the issues raised by Toyota.
`
`II. TOYOTA MISCHARACTERIZES BROADHURST’S AFFIDAVIT
`
`Toyota’s Opposition mischaracterizes Broadhurst’s affidavit, arguing that
`
`IME maintains, in the ordinary course of its business and on the Sage Website, all
`
`of the records relating to the publication date of Fry (including, specifically, the
`
`Cover Page and Sage Abstract) that appear on Sage’s website. (See Paper 55 at
`
`10-11; see also id. at 10 (relying on U.S. v. Moore, 923 F.2d 910 (1st Cir. 1991)).
`
`
`
`3
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`Toyota also asserts that the Broadhurst “affidavit establishes that the date
`
`information shown on Sage webpages [specifically defined to include the Cover
`
`Page and Sage Abstract] are part of the business records of the iMECHe under
`
`FRE 803(6) ....” (Id. at 10 (citing affidavit “generally”) (all emphases added).)
`
`But Broadhurst did not state that IME assigned the dates in Sage’s Cover
`
`Page and Abstract. AVS relied on that lack of evidence. (Paper 51 at 15 (arguing
`
`hearsay).) Broadhurst also does not state that IME maintained Sage website in the
`
`normal course of business. Instead, she stated that “[t]he [IME]…records are
`
`maintained as part of the ordinary course of business of the Institution of
`
`Mechanical Engineers.” (Ex. 1014 ¶ 4.) As to Sage, all Broadhurst said was: “I
`
`have reviewed, on Sage Publications’ website, the Institution of Mechanical
`
`Engineers’ records relating to the Fry article” (i.e., that the Sage website
`
`purportedly hosted an IME document on the Internet in 2013). (Ex. 1014 ¶ 5.) She
`
`did not say that the Cover Page and Sage Abstract of Ex. 1005—pages Toyota
`
`admits that were merely “appended” to the front and back of Fry (Paper 55 at
`
`10)—were part of any IME records she “reviewed” in connection with paragraph 5
`
`of her affidavit. Nor did she state that all of the Fry-related documents on Sage’s
`
`website are IME’s business records—or that the IME assigned dates thereto. And
`
`Toyota recognized the difference between copies of the journal article (e.g., pages
`
`2-12 of Ex. 1005, published by third-party MEPL) versus webpages created years
`
`
`
`4
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`later by Sage. (See id. (“iMECHe’s original records are currently stored on
`
`Sage[’s] computer”).) (Similarly, AVS’s reference to Broadhurst’s “vague and
`
`conclusory statements” (Mot. at 4) does not mean that AVS mis-reads Broadhurst
`
`to rely on anything beyond the original Fry article (Ex. 1005 at 2-12).)
`
`In response to Toyota’s mischaracterizations, AVS submitted Ex. 2035,
`
`which shows that the asserted business record on Sage’s website state that the “Jan
`
`1, 1995” date was assigned by Sage, not IME, and is not a date of availability to
`
`the public—but rather an internal date of Sage. (Ex. 2035, #6 (“This is the date an
`
`article was published to the SAGE Journal platform.”) (hyperlink embedded into
`
`the “What’s This?” question under “Jan 1, 1995” in Ex. 1005 at 1.).) (Assuming
`
`Toyota’s mischaracterizations (and the Cover Page is an IME business record), the
`
`hyperlinked document is also a business record.) And Sage was not the publisher
`
`of Fry in 1995 (Ex. 1013 ¶ 3), so the date means nothing.
`
`III. OTHER RULES OF EVIDENCE PERMIT THE BOARD TO
`CONSIDER EXS. 2035-41
`
`For authentication, Rule 901 requires only a showing that a document is
`
`what it purports to be (e.g., from the document itself, hyperlinks between the
`
`parties’ exhibits, and substantial identically of appearance/web addresses for Ex.
`
`2035 and Ex. 1005 at 1, and between Exs. 2036-2041 and the Sage Abstract (Ex.
`
`1005 at 13) and Ex. 1012. Also, under Rule 104(a), the Board is “not bound by the
`
`rules of evidence,” and may consider these Exhibits in deciding to exclude Fry.
`
`
`
`5
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`
`
`
`
`Respectfully submitted,
`
`
`
`By:/Thomas J. Wimbiscus/
`Thomas J. Wimbiscus
`Reg. No. 36,059
`Attorney for Patent Owner,
`American Vehicular Sciences LLC
`
`
`
`Dated: August 11, 2014
`
`
`
`
`
`
`
`
`
`
`
`
`McANDREWS, HELD & MALLOY, LTD.
`500 West Madison St., 34th Floor
`Chicago, IL 60661
`Telephone: (312) 775-8000
`
`
`
`6
`
`
`
`Patent Owner’s Opposition to Toyota’s Motion to Expunge
`IPR2013-00417
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that Patent Owner’s Opposition to Toyota’s Motion to
`
`
`
`Expunge in connection with Inter Partes Review Case IPR2013-00417 was served
`
`on this 11th day of August by electronic mail to the following:
`
`
`A. Antony Pfeffer
`apfeffer@kenyon.com
`Thomas R. Makin
`tmakin@kenyon.com
`Matt Berkowitz
`mberkowitz@kenyon.com
`ptab@kenyon.com
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Tel: 212-425-7200
`
`
`
`MCANDREWS HELD & MALLOY, LTD.
`
`
`
`
`
`
`
`Telephone: 312-775-8000
`
`
`
`Facsimile: 312-775-8100
`
`
`
`
`/Thomas J. Wimbiscus/
`Thomas J. Wimbiscus
`Registration No. 36,059
`
`
`
`
`
`
`CUSTOMER NUMBER: 23446
`
`Date: August 11, 2014
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
