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 No. 8,036,788
`
`Issue Date: October 11, 2011
`
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`____________
`
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE
`AND EXPUNGE EX2035-EX2041
`Case No. IPR2013-00417
`
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`TOYOTA MOTOR CORPORATION
`
`Petitioner,
`
`
`v.
`
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`
`Patent Owner.
`
`
`
`Patent No. 8,036,788
`
`Issue Date: October 11, 2011
`
`Title: VEHICLE DIAGNOSTIC OR PROGNOSTIC MESSAGE
`TRANSMISSION SYSTEMS AND METHODS
`
`____________
`
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO STRIKE
`AND EXPUNGE EX2035-EX2041
`Case No. IPR2013-00417
`
`
`
`
`
`Toyota’s Motion (Paper 66) requests the Board eliminate from the record seven
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`new hyperlink print-out exhibits that AVS included with its reply brief in support of
`
`its Motion to Exclude (Paper 58). AVS’ Opposition (Paper 67) provides no
`
`justification for AVS’ inclusion of that new evidence. Rather, it merely serves as a
`
`vehicle for AVS to introduce more new, substantive arguments regarding the accuracy
`
`of the dates on Sage Publications’ website and the truthfulness of Ms. Broadhurst and
`
`Mr. Fry. AVS’ arguments and newly proffered exhibits should have been presented in
`
`AVS’ Response to Toyota’s Petition, or, at the latest, in AVS’ Motion to Exclude, not
`
`in AVS’ Reply on its Motion to Exclude, or in AVS’ Opposition brief here.
`
`I. MS. BROADHURST’S AFFIDAVIT IS CLEAR
`During the August 7, 2014 teleconference, AVS tried to suggest that its new
`
`exhibits were somehow responsive to allegedly new arguments made by Toyota in its
`
`opposition to AVS’s motion to exclude. However, as Toyota explained in its motion
`
`to strike, the points AVS tries to characterize as new are all set forth in the Broadhurst
`
`Affidavit that AVS has had since February. (Paper 66 at 3-4).
`
`Even though Toyota relied on verbatim quotes from the Broadhurst Affidavit
`
`in its opposition to AVS’ motion to exclude, AVS insists Toyota “mischaracterized”
`
`the affidavit, because it is not worded in the exact way AVS would like. (Paper 67 at
`
`3-4). For example, AVS argues that the affidavit did not state that “IME assigned the
`
`dates in Sage’s cover page and abstract,” that “IME maintained [the] Sage website in
`
`the normal course of business,” or that “all of the Fry-related documents on Sage’s
`
`1
`
`
`
`website are IME’s business records.” (Id. at 4). But AVS’s insistence on exactly what
`
`the Broadhurst Affidavit does not state is pedantic and beside the point. The affidavit
`
`does state that the IME “maintains records of the dates on which the articles it
`
`published were received, accepted for publication and eventually published,” that
`
`“these records are maintained as part of the ordinary course of business of the
`
`[IME],” and that these IME records were reviewed “on Sage Publications’ website.”
`
`(Ex. 1014, ¶¶ 4 and 5). This is more than sufficient to establish that the IME records
`
`on the Sage website are IME business records, and that they include the dates on
`
`which articles are received, accepted and published.
`
`The fact that the affidavit does not separately address Ex. 1012 is also beside
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`the point. It attaches Ex. 1005, including the dated cover and abstract pages. If AVS
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`wanted to challenge the testimony or exhibits, it should have deposed Ms. Broadhurst
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`months ago when Toyota could collect additional evidence to respond.
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`II. TOYOTA’S OTHER ARGUMENTS ARE NOT NEW
`In its reply on petition, Toyota stated that it was relying on the “records
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`maintained on the website of Sage Publications,” the Broadhurst affidavit, and the Fry
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`declaration showing that “the Fry article was published before June 7, 1995,” although
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`“it has not been able to confirm that fact by locating physical copies with a recipient-
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`stamped date prior to that date.” (Paper 37 at 3-4.) Pursuant to agreement, Toyota
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`provided AVS with 12 date-stamped copies of the F1 issue that contains Fry, and the
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`copies were submitted with a joint identifying statement. (Paper 41 at 6-7.)
`
`2
`
`
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`Not satisfied with the joint submission, AVS then filed a motion to exclude
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`that extensively cited the 12 copies in support of a speculative argument that the only
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`way the Fry article became publicly available was as part of a bound journal received
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`and stamped in libraries in England in early September 1995 and libraries in the US
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`thereafter. (See Paper 51 at 7.) Toyota responded that this speculation is unsupported
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`by the record, including AVS’s own exhibits, which show a variety of ways Fry may
`
`have become publicly available. This includes dissemination of “25 free offprints” to
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`authors, and copies provided directly to subscribers. (See Paper 55 at 2, 7.) This,
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`coupled with the undisputed fact that the Fry article was submitted in November
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`1993 and accepted in December 1994, undermines AVS’s speculation, and is
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`consistent both with the Broadhurst Affidavit and Fry’s recollection that the article
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`itself was published in January 1995. (Ex. 1013 at ¶ 5; Compare id. at ¶ 3). This was
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`not a “new” argument—it responded to erroneous speculation in AVS’s motion to
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`exclude. And, it was not premised on any “new” exhibits—it cited the very exhibits
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`that AVS referenced. It does not justify AVS’s attempts to now introduce more new
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`evidence (particularly since the evidence does not even relate to the Fry article itself).
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`III. CONCLUSION
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`AVS’ brief provides no justification for the new evidence in AVS’s reply. The
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`Board should grant Toyota’s motion.
`
`
`
`
`
`3
`
`
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`
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`
`
`
`_/A. Antony Pfeffer/___________
`A. Antony Pfeffer (Reg. No. 43,857)
`
`Thomas R. Makin
`Matt Berkowitz (Reg. No. 57,215)
`K. Patrick Herman
`Back-Up Counsel for Petitioner
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Tel: 212-425-7200
`Fax. 212-425-5288
`
`
`
`
`Dated: August 12, 2014
`
`
`
`
`
`
`A. Antony Pfeffer
`Lead Counsel for Petitioner
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Tel: 212-425-7200
`Fax. 212-425-5288
`
`
`
`
`
`
`
`
`
`4
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`
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby confirms that the foregoing PETITIONER’S REPLY
`
`IN SUPPORT OF ITS MOTION TO STRIKE AND EXPUNGE EX2035-EX2041
`
`was served on August 12, 2014 via e-mail upon the following counsel of record for
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`Patent Owner:
`
`
`
`
`
`
`
`
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`
`
`
`
`
`
`
`
`
`
`
`Thomas J. Wimbiscus
`Scott P. McBride
`Stephanie F. Samz
`twimbiscus@mcandrews-ip.com
`smcbride@mcandrews-ip.com
`ssamz@mcandrews-ip.com
`AVS-IPR@mcandrews-ip.com
`MCANDREWS HELD & MALLOY, LTD.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`
`
`_/A. Antony Pfeffer/____________
`A. Antony Pfeffer (Reg. No. 43,857)
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`Tel: 212-425-7200
`Fax: 212-425-5288
`
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`5
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