Paper No. _
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION
`
`Petitioner
`
`V.
`
`DESTINATION MATERNITY CORPORATION
`
`Patent Owner
`
`Case No. IPR2013-00532
`
`Patent RE43,531
`
`Dated: September 16, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`PATENT OWNER'S OPPOSITION TO PETITIONER'S MOTION TO
`
`EXCLUDE EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`EAST\82760606.1
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TARGET CORPORATION
`
`Petitioner
`
`V.
`
`DESTINATION MATERNITY CORPORATION
`
`Patent Owner
`
`Case No. IPR2013-00532
`
`Patent RE43,531
`
`Dated: September 16, 2014
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`PATENT OWNER'S OPPOSITION TO PETITIONER'S MOTION TO
`
`EXCLUDE EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`EAST\82760606.1
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`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`INTRODUCTION ......................................................................................... 1
`
`II.
`
`ARGUIVIENT ................................................................................................. 1
`
`A.
`
`THE GREEN TESTIMONY IS ADMISSIBLE UNDER RULE
`
`702 ........................................................................................................ 1
`
`B.
`
`THE WEB SITE MATERIALS ARE ADMISSIBLE UNDER
`
`RULE 901 ............................................................................................ 9
`
`C.
`
`PETITIONER'S MOTION SHOULD BE DENIED BECAUSE
`
`IT WAS USED TO CHALLENGE THE SUFFICIENCY OF
`
`THE EVIDENCE RATHER THAN THE ADMISSIBILITY OF
`
`THE EVIDENCE .............................................................................. 11
`
`III.
`
`CONCLUSION ............................................................................................ 12
`
`EASD82760606.1
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`
`
`LIST OF EXHIBITS
`
`EXHIBIT 1007
`
`Certified file history for RE43,563
`
`EXHIBIT 1018
`
`US RE43,531 Hendrickson
`
`EXHIBIT 1078
`
`Transcript of 7-16-2014 Brookstein Deposition
`
`EXHIBIT 1 110
`
`Declaration of Vince Thomas
`
`EXHIBIT 1 114
`
`Brookstein SKUs
`
`EXHIBIT 2001
`
`October 19, 2007 blog post on The Mommy Playbook
`
`EXHIBIT 2002
`
`July 31, 2008 blog post on Mamanista!
`
`EXHIBIT 2007
`
`May 31, 2008 blog post on Everyday Becky
`
`EXHIBIT 2008
`
`July 15 , 2008 Review: Secret Fit Belly Jeans from Motherhood
`Maternity
`
`EXHIBIT 2009
`
`January 30, 2008 blog post on Pinching Your Pennies Forums
`
`EXHIBIT 2010
`
`October 28, 2008 blog post on The Shy Girl's Guide to
`Pregnancy and Parenting
`
`EXHIBIT 201 1
`
`October 3, 2008 blog post on Mamapedia
`
`EXHIBIT 2012
`
`January 2008 blog post on The Bump
`
`EXHIBIT 2013
`
`October 15, 2008 blog post on Pregnant Fashionista
`
`EXHIBIT 2014
`
`August 2008 blog post on Libby's Latest
`
`EXHIBIT 2015
`
`January 6, 2009 blog post on Keeping the Kingdom First
`
`EXHIBIT 2016
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`May 21, 2009 blog post on Pregnant Fashionista
`
`EXHIBIT 2017
`
`Declaration of David Brookstein, Sc.D.
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`EAST\82760606.1
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`-11-
`
`
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`EXHIBIT 2022
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`UNDER SEAL Declaration of Philip Green
`
`EXHIBIT 2029
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`REDACTED Declaration of Philip Green
`
`EXHIBIT 2046
`
`DMC0037084
`
`EXHIBIT 2048
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`DMC01 19452
`
`EXHIBIT 2049
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`DMC003 1 997
`
`EXHIBIT 2050
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`http://www.motherhood.com/maternity/secret-fit-belly.asp
`
`EXHIBIT 2051
`
`http://wwwmotherhood. com/Shop_Motherhood
`Maternity/SecretFitBelly-Testimonials.asp
`
`EXHIBIT 2054
`
`UNDER SEAL Supplemental Declaration of Philip Green
`(Served not filed)
`
`EXHIBIT 2055
`
`REDACTED Supplemental Declaration of Philip Green
`(Served not filed)
`
`EXHIBIT 2056
`
`UNDER SEAL Secret Fit Belly Historical Sales & GM.xls
`
`EXHIBIT 2064
`
`UNDER SEAL Figures 2 and 3 of the Green Declaration
`
`EXHIBIT 2065
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`REDACTED Figures 2 and 3 of the Green Declaration
`
`EXHIBIT 2066
`
`Exhibit A of the Green Declaration
`
`EXHIBIT 2067
`
`Exhibit B of the Green's Declaration
`
`EXHIBIT 2068
`
`UNDER SEAL Exhibit C of the Green Declaration
`
`EXHIBIT 2069
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`REDACTED Exhibit C of the Green Declaration
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`EXHIBIT 2070
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`UNDER SEAL Exhibit D of Green's Declaration
`
`EXHIBIT 2071
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`REDACTED Exhibit D of the Green Declaration
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`EAST\82760606.1
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`-iii-
`
`
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`EXHIBIT 2072
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`UNDER SEAL Exhibit D1 of the Green Declaration
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`EXHIBIT 2073
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`REDACTED Exhibit D1 of the Green Declaration
`
`EXHIBIT 2083
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`wwwdestinationmaternity.com/maternity/secret-fit—belly.asp
`
`EXHIBIT 2096
`
`Affidavit of Trudi Haaf — June 4, 2014
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`EXHIBIT 2099
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`UNDER SEAL Thomas Transcript
`
`EXHIBIT 2102
`
`Affidavit of Trudi Haaf — May 21, 2014
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`EAST\82760606.1
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`-iv-
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`
`
`TABLE OF AUTHORITIES
`
`CASES
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`Page(s)
`
`Apple Inc. v. Motorola, Inc.,
`757 F.3d 1286 (Fed. Cir. 2014) ......................................................................................... 4
`
`DataTreasury Corp. v. Wells Fargo & Co.,
`No. 2:06-cv-00072-DF, 2010 WL 3912264 (ED. TeX. Sept. 13, 2010) ................ 9
`
`Demaco Corp. v. F. Von LangsdorflLicensing Ltd,
`851 F.2d 1387 (Fed. Cir. 1988) ................................................................................. 2, 6, 7
`
`Ecoloclzem, Inc. v. Southern California Edison Co.,
`227 F.3d 1361 (Fed. Cir. 2000) ......................................................................................... 2
`
`In re Paulsen,
`30 F.3d 1475 (Fed. Cir. 1994) ............................................................................................ 9
`
`MeadWestVaco Corp. v. Rexam Beauty & Closures, Inc. ,
`731 F.3d 1258 (Fed. Cir. 2013) ......................................................................................... 9
`
`Ormco Corp. v. Align Technology, Inc.,
`463 F.3d 1299 (Fed. Cir. 2006) ..................................................................................... 8, 9
`
`Perfect IO, Inc. v. Cybernet Ventures, Inc.,
`213 F. Supp. 2d 1146 (CD. Cal. 2002) ......................................................................... 10
`
`Rambus Inc. v. Hynix Semiconductor Inc.,
`254 F.R.D. 597 (ND. Cal. 2008) ...................................................................................... 8
`
`Sanofi-Syntlzelabo v. Apotex, Inc.,
`550 F.3d 1075 (Fed. Cir. 2008) ......................................................................................... 6
`
`United States v. Vidacak,
`553 F.3d 344 (4th Cir. 2009) ............................................................................................ 10
`
`OTHER AUTHORITIES
`
`77 Fed. Reg. 48,758 (August 14, 2012) ........................................................................ 11, 12
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`EAST\82760606.1
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`
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`I.
`
`Introduction
`
`Phillip Green's expert declaration showing that all of Patent Owner's Secret
`
`Fit Belly (”SFB”) products are commercially successful is admissible under Rule
`
`702 because Dr. David Brookstein's unchallenged and unrebutted expert declaration,
`
`to which Mr. Green relied, showed that SFB products he analyzed embody
`
`dependent claims challenged on obviousness grounds, thereby establishing a nexus
`
`between the commercially successful products and the claims. As such, Mr. Green's
`
`declaration and its associated exhibits, Exs. 2022, 2029, 2054, 2055, 2064-2073
`
`(collectively, the ”Green Testimony"), are admissible.
`
`The challenged website printouts from Patent Owner's Response, Exs. 2046,
`
`2048-2051, and 2083 (collectively, the ”Website Materials”) are admissible under
`
`Rule 901 because they are true and correct copies of the identified websites.1
`
`Moreover, Petitioner's Motion to Exclude Evidence Pursuant to 37 C.F.R. §
`
`42 .64(c) (”Petitioner's Motion”) should be denied because it was impermissibly used
`
`to challenge the sufficiency, rather than the admissibility, of the evidence.
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`11. Argument
`
`A. The Green Testimony Is Admissible Under Rule 702
`
`Petitioner contends that the Green Testimony should be excluded because it
`
`1 Challenged Exhibits 2001, 2002, and 2007-2016 were filed with Patent Owner's
`
`Preliminary Response only.
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`EAST\82760606.1
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`1
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`
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`allegedly does not establish a nexus between the SFB commercial success and the
`
`claims challenged under § 103. Pet. Mot. at 1. However, Patent Owner provided a
`
`prima facie case of nexus and commercial success through Messrs. Green and
`
`Brookstein.
`
`A patentee establishes a prima facie case of nexus ”when the patentee shows
`
`both that there is commercial success, and that the thing (product or method) that is
`
`commercially successful is the invention disclosed and claimed in the patent.”
`
`Demaco Corp. v. F. Von Langsa’orflLicensing Ltd, 851 F.2d 1387, 1392 (Fed. Cir.
`
`1988); see also Ecolochem, Inc. v. Southern California Edison Co., 227 F.3d 1361,
`
`1377 (Fed. Cir. 2000)
`
`(”a presumption arises that
`
`the patented invention is
`
`commercially successful when a patentee can demonstrate commercial success,
`
`usually shown by significant sales in a relevant market, and that the successful
`
`product is the invention disclosed and claimed in the patent").
`
`Here, Patent Owner Destination Maternity established a nexus because: (1)
`
`Mr. Green showed that all SFB products are commercially successful, e.g., Green
`
`Decl., Ex. 2029, 1] 9; (2) Dr. Brookstein showed that the features of the claims
`
`challenged as obvious are embodied in the representative SFB products that he
`
`inspected, Brookstein Decl., Ex. 2017, at Ex. 2, Ex. 2076; Brookstein Dep., Ex.
`
`1078, 320:5-323:16; and (3) these claims are directed to entire garments, not
`
`components of garments, and thus have a scope coextensive with the commercial
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`EAST\82760606.1
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`2
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`
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`products.
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`Target does not proffer any evidence that, for example,
`
`there are SFB
`
`products that do not have the perimeter hem stitch foldover required by claims 15-16
`
`of the '531 Patent or claim 12 of the '563 Patent, which Target challenges under §
`
`103. Since the SFB products are all publicly available, it would not have been
`
`difficult for Target to challenge Dr. Brookstein's analysis. Yet Target does not offer
`
`even one example of a SFB product lacking the perimeter stitch. Indeed, all of the
`
`representative products embody at least one of the §-lO3-challenged-dependent
`
`claims.
`
`Patent Owner established a nexus because Mr. Green showed that all SFB
`
`products are commercially successful. Mr. Green opined as follows:
`
`Opinion 1: DMC's Secret Fit Belly bottoms practicing the
`
`patents-in-suit are commercially successful.
`
`Opinion 11: DMC's Secret Fit Belly bottoms' commercial success
`
`is due to the patented technology and not to other factors.
`
`Green Decl., Ex. 2029, 1] 9. Accordingly, Patent Owner showed that its patented
`
`SFB products are commercially successful.
`
`Target challenges Mr. Green's conclusions because he relies on the
`
`conclusions of another expert—Dr. Brookstein. Dr. Brookstein made comparisons
`
`between the challenged claims and the SFB products. There is no question that Dr.
`
`Brookstein has the technical expertise to make this analysis.
`
`And it
`
`is
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`EAST\82760606.1
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`3
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`
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`well-established that an economics expert like Mr. Green may rely on the technical
`
`analysis of another expert like Dr. Brookstein: " Experts routinely rely upon other
`
`experts hired by the party they represent for expertise outside of their field." Apple
`
`Inc. 12. Motorola. Inc, 757 F.3d 1286, 1321 (Fed. Cir. 2014).
`
`Each of the four styles that Dr. Brookstein analyzed—Styles 93480-01,
`
`96316-42, 91401—01, and 94278-10—was proven to match at
`
`least one of the
`
`challenged claims, and to be commercially successful just on its own. Brookstein
`
`Decl., Ex. 2017, at Ex. 2, Ex. 2076; Green Decl, Ex. 2022,119; Ex. 1110. This was
`
`also shown by Petitioner's expert, who found gross profits between -and
`- for the four styles. Thomas Decl, Ex.
`1 l 10, 1] 23; Ex. ll 14. Mr. Green
`
`presented the necessary financial information for the four styles in Exhibit 2056:
`
`Sales
`
`Cost
`
`Gross
`
`Gross
`
`Fiscal
`Year
`
`Style
`
`Units
`
`Margin Margin
`
`li.-\S'1'-S2760606.1
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`4
`
`
`
`
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`Over two years, the four representative products analyzed by Dr. Brookstein
`
`and Mr. Green earned nearly. in gross revenue, with gross margins between
`_, higher than non-SFB Products (only-). See Exhibit 2056,
`
`Green Decl., Ex. 2029, Ex. D-‘l, Ex. 2072.
`
`In sum, Dr. Brookstein opined that each ofchallenged claims 6, 1 1, 15, 16, 26,
`
`and 27 of US. Patent No. RE43,531 (the "'531 Patent”), and 3, 4, 11, 12, and 14 of
`
`US. Patent No. RE43,563 (the "'563 Patent"), are embodied in the representative
`
`SFB products he inspected. Brookstein Decl, Ex. 2017, at Ex. 2, Ex. 2076',
`
`Brookstein Dep., Ex.
`
`1078, 320:5-323216.
`
`As
`
`such, Dr. Brookstein tied
`
`commercially successful products to dependent patent claims at issue.
`
`Each of challenged claims 6,
`
`'1'1, 15,
`
`'16, 26, and 27 of the '53] Patent is
`
`directed to and claims an entire garment having a belly panel and a lower portion.
`
`Sec '531 Patent, EX. 1018. Likewise, each of challenged claims 3, 4, "1'1,
`
`'12, and 14
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`li_-\S'1'-827606t’16_ 1
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`5
`
`
`
`of the '563 Patent is directed to and claims an entire garment having a belly panel
`
`and a lower garment portion. See '563 Patent, Ex. 1007. Target improperly treats
`
`the element specifically recited in each dependent claim as if it stood alone as a
`
`component, but the law requires dependent claims to be treated no differently from
`
`independent claims, and requires that dependent claims must be treated as a whole.
`
`See Sanofi-Synthelabo v. Apotex, Inc, 550 F.3d 1075, 1086 (Fed. Cir. 2008) (”The
`
`determination of obviousness is made with respect to the subject matter as a whole,
`
`not separate pieces of the claim”). These challenged dependent claims encompass
`
`an entire belly panel or garment, and thus, these dependent claims are coextensive
`
`with the commercial embodiments. Accordingly, the challenged claims are not
`
`directed to components, but rather entire products, thereby showing a presumption
`
`of nexus.
`
`Even the case law Petitioner Target cited supports the admissibility of Mr.
`
`Green's analysis. For example, Demaco shows that a patentee establishes a prima
`
`facie case of nexus ”when the patentee shows both that there is commercial success,
`
`and that the thing (product or method) that is commercially successful is the
`
`invention disclosed and claimed in the patent.” Demaco, 851 F.2d at 1392.
`
`If a
`
`prima facie case is presented, ”the burden of coming forward with evidence in
`
`rebuttal shifts to the challenger, as in any civil litigation.” Id. at 1393. When a
`
`patent challenger does not fully rebut a prima facie case, ”the district court may not
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`EAST\82760606.1
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`6
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`
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`totally ignore the objective evidence.” In Demaco, the Federal Circuit found that the
`
`lower court erred by placing the burden on a patent owner to prove that commercial
`
`success ”was not due primarily to advertising or other factors such as technical
`
`service to licensees and the licensing of other products.” Demaco, 851 F.2d at 1394
`
`(emphasis in original).
`
`Here, Patent Owner proved a prima facie case of nexus via the presumption,
`
`and commercial success. Petitioner did not rebut with a declaration from its own
`
`technical expert (Ms. Frances Harder). Instead, Petitioner's economics expert—Mr.
`
`Vincent Thomas—criticized Dr. Brookstein's and Mr. Green's analysis, but did not
`
`provide his own analysis showing that SFB products were not commercially
`
`successful. He did not even try to prove that the SFB products' commercial success
`
`was due to factors other than the patented invention, but merely complained that Mr.
`
`Green could not rule out all other factors. E. g., Ex. 1110, Thomas Decl. 1] 37. Mr.
`
`Thomas admitted at deposition that he recognized that the sales of SFB products
`
`were significant, and Mr. Thomas did nothing to contradict Mr. Green's statements
`
`regarding the quantity of sales of products covered by the challenged patents' claims.
`
`Ex. 2099, Thomas Dep. at 81:25-82:13.
`
`Mr. Thomas also quibbled with Mr. Green's analysis on grounds that Dr.
`
`Brookstein and Mr. Green examined only some products, but did not provide a claim
`
`chart for all of the thousands of SFB products sold by Patent Owner Destination
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`EAST\82760606.1
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`7
`
`
`
`Maternity. See Exhibit 1110, Thomas Decl. 11 23. Yet Mr. Thomas made no effort to
`
`identify examples of SFB products that did not correspond to any of the challenged
`
`claims.
`
`In Rambus Inc. v. Hynl'x Semiconductor Inc., 254 F.R.D. 597 (ND. Cal.
`
`2008), also used by Petitioner, the court stated that commercial success evidence is
`
`admissible if it ”has any tendency, either by itself or in conjunction with other
`
`evidence, [to] permit[] the trier of fact to infer the existence of the secondary factor.”
`
`Id. at 603. The court excluded the testimony of an electrical engineer who was not
`
`qualified to opine on commercial success and performed no commercial success
`
`analysis to support his opinion. Id. at 603-05. In so doing, the court explained that
`
`the expert ”never (a) says what the claimed inventions are, (b) explains how they
`
`'greatly' increase data storage efficiency, or (c) compares the commercial success of
`
`memory devices using the claimed inventions versus the commercial success of
`
`memory devices that do not.” Id. at 603. By contrast, here, Mr. Green compared
`
`price premiums and products sales for products made according to the invention (the
`
`SFB products) with products not made according to the invention (the non-SFB
`
`products). See, e.g., Green Decl., Ex. 2029, 1111 12-18, 21, 32-33; Brookstein Decl.,
`
`Ex. 2017, 1111 10-11, 23. Accordingly, the Green Testimony is admissible under
`
`Rambus.
`
`In Ormco Corp. v. Align Technology, Inc., 463 F.3d 1299 (Fed. Cir. 2006), the
`
`EASI\82760606.1
`
`8
`
`
`
`court found that ”the evidence does not show that the commercial success was the
`
`result of claimed and novel features.”
`
`Id. at 1313. Here, Messrs. Green and
`
`Brookstein showed that the commercial success was the result of claimed and novel
`
`features by charting the claims to SFB products and explaining the commercial
`
`success of SFB products. See, e. g., Green Decl., Ex. 2029, W 9, 32-33', Brookstein
`
`Decl., Ex. 2017, Ex. 2, Ex. 2076.
`
`In DataTreasury Corp. v. Wells Fargo & C0., No. 2:06-cv-00072-DF, 2010
`
`WL 3912264, at *1, *4 (ED. Tex. Sept. 13, 2010), the patentee did not connect a
`
`successful licensing program to the challenged patent claims. Similarly, in In re
`
`Paulsen, 30 F.3d 1475, 1482 (Fed. Cir. 1994) and MeadWestVaco Corp. v. Rexam
`
`Beauty & Closures, Inc, 731 F.3d 1258, 1264—65 (Fed. Cir. 2013), the patentee did
`
`not show how commercially successful products embodied the challenged claims.
`
`Here, Dr. Brookstein provided claim charts to tie the claims to commercially
`
`successful products, and Mr. Green relied on Dr. Brookstein's analysis. See, e. g.,
`
`Green Decl., Ex. 2029, W 9, 32-33; Brookstein Decl., Ex. 2017, Ex. 2, Ex. 2076.
`
`Accordingly, the Green Testimony is admissible.
`
`B. The Website Materials Are Admissible Under Rule 901
`
`The Website Materials are admissible because Patent Owner served affidavits
`
`to authenticate the exhibits and satisfy FRE 901. Exs. 2096, 2102. ”The burden to
`
`authenticate under Rule 901 is not high — only a prima facie showing is required."
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`EAST\82760606.1
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`9
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`
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`United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009). Pages printed from the
`
`Internet may be sufficiently authenticated by a declaration claiming true and correct
`
`copies were printed by the declarant or under his direction because ”the declarations,
`
`particularly in combination with circumstantial indicia of authenticity (such as the
`
`dates and web addresses), would support .
`
`.
`
`. a belief that the documents are what
`
`[proponent] says they are.” Perfect 10, Inc. v. Cybernet Ventures, Inc. , 213 F. Supp.
`
`2d 1146 (CD. Cal. 2002).
`
`Patent Owner provided affidavits of Trudi Haaf (served on Petitioner on May
`
`21, 2014 and June 4, 2014), who has sufficient personal knowledge to authenticate
`
`the Website Materials. Exs. 2096, 2102. With respect to Exhibits 2046, 2048, and
`
`2049, the affidavit contains statements by Haaf that the exhibits are ”true and correct
`
`copies” of certain Production Documents served by Patent Owner in the co-pending
`
`district court litigation.
`
`Id. Further, Exhibits 2048 and 2049 contain dates and
`
`webpage URLs.
`
`With respect
`
`to Exhibits 2050, 2051 and 2083,
`
`the affidavit contains
`
`statements by Haaf that the exhibits are ”true and correct” copies, contains the
`
`webpage URLs, and provides that Haaf ”viewed and printed the webpage from
`
`Internet Explorer on May 19, 2014.” Exs. 2096, 2102. Haaf has sufficient personal
`
`knowledge from viewing the webpages or Production Documents to attest to the
`
`authenticity of the exhibits and that ”no alterations have been made.” Id. Therefore,
`
`EASD82760606.1
`
`10
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`
`
`the affidavits, along with circumstantial indicia of authenticity (website URLs and
`
`dates), are sufficient for authentication.
`
`Furthermore, Petitioner contends that third-party statements contained in the
`
`exhibits have not been ”authenticated.” But authenticity under Rule 901 concerns
`
`the webpage printout itself, and whether the pages are what they purport to be.
`
`Target offers nothing to suggest that the pages are not from the websites identified
`
`by the declarant, and Target does not suggest any issue with the declarant's
`
`statements. Accordingly, the Website Materials are admissible under Rule 901.
`
`C. Petitioner's Motion should be denied because it was used to
`
`challenge the sufficiency of
`admissibility of the evidence
`
`the evidence rather
`
`than the
`
`For both the Green Testimony and the Website Materials, Petitioner argued
`
`that Patent Owner did not provide adequate evidence to establish a nexus between
`
`the secondary considerations of nonobviousness and the challenged claims. E. g.,
`
`Pet. Mot. at 5, 15. Petitioner's Motion amounts to an impermissible surreply to
`
`Patent Owner's Response where Petitioner used an additional 15 pages to argue
`
`against the application of secondary considerations of nonobviousness. See Office
`
`Patent Trial Practice Guide, 77 Fed. Reg. 48,758 (August 14, 2012) (”A motion to
`
`exclude .
`
`.
`
`. may not be used to challenge the sufficiency of the evidence to prove a
`
`particular fact”). Petitioner's contention that Patent Owner provided insufficient
`
`evidence for nexus impermissibly goes to the sufficiency of the evidence, rather than
`
`EAST\82760606.1
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`1 l
`
`
`
`the admissibility of evidence under the Federal Rules of Evidence. Id. Accordingly,
`
`Petitioner's Motion should be denied.
`
`1]].
`
`Conclusion
`
`For the reasons discussed above, both the Green Testimony and the Website
`
`Materials are admissible.
`
`Dated: September 16, 2014
`
`DLA PIPER LLP (US)
`
`Respectfully submitted,
`
`sPau! Tau or
`
`
`Paul A. Taufer (USPTC) Reg. No. 35, 703)
`1650 Market Street, Suite 4900
`Philadelphia, PA 19103
`Phone: (215) 656-3385
`Facsimile: (215) 606—3 385
`pan] .tauferfldlapipercom
`Attorneys
`for Patent Owner Destination
`Matem iry Corporation
`
`EAST-827606061
`
`l 2
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6 and 42.120, the undersigned certifies that on
`
`September 16, 2014, a complete and entire copy PATENT OWNER‘S
`
`OPPOSITION TO PETITIONER'S MOTION TO EXCLUDE EVIDENCE was
`
`provided via email to the Petitioner by serving the email correSpondence address of
`
`record as follows:
`
`Norman J. Hedges
`R. Trevor Carter
`
`Daniel M. Lechleiter
`
`Faegre Baker Daniels LLP
`300 N. Meridian Street, Suite 2700
`Indianapolis, Indiana 46204—1750
`Phone: (317) 237-0300
`Fax: (317) 237-1000
`Norman .Hedgesgcfi.FaegreBDcom
`trevor.carter§(_D_.FaegreBD.com
`daniel .lechleiter((12.FaegreBD.c01n
`
`Es." Paul Tau er
`
`
`Paul A. Taufer
`
`EAST-827606061
`
`] 3
`
`
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