Paper No. 52
`Filed: September 3, 2014
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`__________________
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`Filed: September 3, 2014
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`
`
`TARGET CORPORATION
`Petitioner
`
`v.
`
`DESTINATION MATERNITY CORPORATION
`Patent Owner
`
`__________________
`
`Case IPR2013-00533
`Patent No. RE43,531 E
`__________________
`
`
`Before JENNIFER S. BISK, MICHAEL J. FITZPATRICK, and
`MITCHELL G. WEATHERLY, Administrative Patent Judges.
`
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`
`
`
`I.
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`II.
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`TABLE OF CONTENTS
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`STATEMENT OF RELIEF REQUESTED .................................................... 1
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`PETITIONER’S OBJECTIONS ...................................................................... 2
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`A.
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`B.
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`Target Timely Objected to the Green Testimony Under Rule
`702 ......................................................................................................... 2
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`Target Timely Objected to the Website Materials Under Rule
`901 ......................................................................................................... 2
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`III. ARGUMENT ................................................................................................... 2
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`A.
`
`B.
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`The Green Testimony Should Be Excluded from Evidence
`Because It Is Unreliable Under Rule 702 .............................................. 2
`
`The Website Materials Should Be Excluded from Evidence
`Because They Cannot Be Authenticated Under Rule 901 .................. 11
`
`IV. CONCLUSION .............................................................................................. 15
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`I.
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`STATEMENT OF RELIEF REQUESTED
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`Petitioner Target Corporation (“Target” or “Petitioner”) seeks the following
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`relief with this Motion to Exclude Evidence Pursuant to 37 C.F.R. § 42.64(c):
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`(1)
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`Philip Green, a testifying expert for Patent Owner Destination
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`Maternity Corporation (“DMC” or “Patent Owner”), opines that DMC’s Secret Fit
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`Belly (“SFB”) products have been “commercially successful.” However, there is
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`no support in Green’s declaration for a nexus between the purported commercial
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`success, on the one hand, and, on the other hand, the merits of the claims subject to
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`obviousness rejections in this proceeding. As such, pursuant to Rule 702 of the
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`Federal Rules of Evidence, Target respectfully requests that the Board exclude
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`from evidence Green’s declaration and its associated exhibits, Exs. 2022, 2029,
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`2054, 2055, 2064-2073 (collectively, the “Green Testimony”).
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`(2)
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`In support of its arguments that various claims at issue should not be
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`found invalid as obvious pursuant to 35 U.S.C. § 103, DMC has filed in this
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`proceeding several website printouts, Exs. 2001, 2002, 2007-2016, 2046, 2048-
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`2051, and 2083 (collectively, the “Website Materials”), containing statements by
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`mostly unidentified—and most likely unidentifiable—third parties, purportedly
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`“show[ing] praise” for the “claimed features” of DMC’s SFB products. (See Paper
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`7, at 34.) Because none of the Website Materials can be authenticated, Target
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`respectfully requests that the Board exclude them as evidence under Rule 901.
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`II.
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`PETITIONER’S OBJECTIONS
`A. Target Timely Objected to the Green Testimony Under Rule 702
`DMC served Exs. 2022 and 2029 on May 5, 2014, and it served Exs. 2054,
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`2055, 2064-2073 on May 23, 2014. On May 12 and June 2, 2014, respectively,
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`pursuant to 37 C.F.R. § 42.64(b)(1), Target timely served objections to each of
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`those exhibits on Rule 702 grounds, among others.
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`Target Timely Objected to the Website Materials Under Rule 901
`
`B.
`DMC served Exs. 2001, 2002, and 2007-2016 on December 4, 2013, and it
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`served Exs. 2048-2051 and 2083 on May 23, 2014. On March 3 and June 2, 2014,
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`respectively, pursuant to 37 C.F.R. § 42.64(b)(1), Target timely served objections
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`to each of those exhibits on Rule 901 grounds, among others.
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`III. ARGUMENT
`A. The Green Testimony Should Be Excluded from Evidence
`Because It Is Unreliable Under Rule 702
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`The Federal Rules of Evidence, including Rule 702, apply in this
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`proceeding. See 37 C.F.R. § 42.62; Sundance, Inc. v. Demonte Fabricating Ltd.,
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`550 F.3d 1356, 1360 (Fed. Cir. 2008). Rule 702 precludes expert testimony unless
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`it “will help the trier of fact to understand the evidence or to determine a fact in
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`issue,” “is based on sufficient facts or data,” “is the product of reliable principles
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`and methods,” and “the expert has reliably applied the principles and methods to
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`the facts of the case.” FED. R. EVID. 702.
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`Rule 702 serves “a ‘gatekeeping role,’ the objective of which is to ensure
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`that expert testimony admitted into evidence is both reliable and relevant.”
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`Sundance, 550 F.3d at 1360 (quoting Daubert v. Merrill Dow Pharms., Inc., 509
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`U.S. 579, 597 (1993)). Thus, the Board, “acting as a gatekeeper, may exclude
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`evidence if it is based upon unreliable principles or methods, or legally insufficient
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`facts and data.” Apple Inc. v. Motorola, Inc., Nos. 2012-1548, 2012-1549, 2014
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`WL 1646435, at *19 (Fed. Cir. Apr. 25, 2014). “Daubert requires the [Board to]
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`ensure that any scientific testimony ‘is not only relevant, but reliable.’” i4i Ltd.
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`P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010). Expert testimony
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`that is not “‘sufficiently tied to the facts of the case that it will aid . . . in resolving
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`a factual dispute’” “is not relevant and, ergo, non-helpful.” Daubert, 509 U.S. at
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`591 (quoting United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)). The
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`proponent of expert testimony must demonstrate its “reliability by a preponderance
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`of the evidence.” In re TMI Litig., 193 F.3d 613, 705-06 (3d Cir. 1999).
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`Obviousness, including any proffered secondary considerations, must be
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`analyzed on a claim-by-claim basis. MeadWestVaco Corp. v. Rexam Beauty &
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`Closures, Inc., 731 F.3d 1258, 1264–65 (Fed. Cir. 2013). “Evidence of
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`commercial success, or other secondary considerations, is only significant if there
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`is a nexus between the claimed invention and the commercial success.” Ormco
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`Corp. v. Align Tech., Inc., 463 F.3d 1299, 1311–12 (Fed. Cir. 2006). “A prima
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`facie case of nexus is generally made out when the patentee shows both that there
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`is commercial success, and that the thing (product or method) that is commercially
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`successful is the invention disclosed and claimed in the patent.” Demaco Corp. v.
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`F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988) (emphasis
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`added). “If the product does not read on the claim, there can be no relevance of the
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`product’s commercial success to whether the claim is obvious or not.” Rambus,
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`Inc. v. Hynix Semiconductor, 254 F.R.D. 597, 602 (N.D. Cal. 2008). For example,
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`if commercial success evidence relates only to an independent claim rejected for
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`anticipation that underlies a dependent claim rejected for obviousness, there is no
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`nexus to the dependent claim. In re Paulsen, 30 F.3d 1475, 1482 (Fed. Cir. 1994).
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`Although the Federal Circuit has not yet addressed how an expert’s failure to
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`show a nexus impacts his ability to offer testimony under Rule 702, at least one
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`district court has. In DataTreasury Corp. v. Wells Fargo & Co., No. 2:06-cv-
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`00072-DF, 2010 WL 3912264, at *1, *4 (E.D. Tex. Sept. 13, 2010), the court
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`excluded, under Rule 702, the “commercial success” testimony of “Plaintiff’s
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`economic expert,” because “Plaintiff fail[ed] to show support in [the expert’s]
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`report for a nexus between industry success and licenses on one hand and the
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`merits of the claimed inventions on the other.” Thus, in order for an expert’s
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`testimony on commercial success to comport with Rule 702, the expert must have
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`a reliable basis for understanding that each of the product(s) whose success is in
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`question actually embodies “the invention[s] disclosed and claimed” in the claims
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`at issue, Demaco, 851 F.2d at 1392; DataTreasury, 2010 WL 3912264, at *2-*4;
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`see also Ormco, 463 F.3d at 1311-12 (“[I]f the commercial success is due to an
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`unclaimed feature of the device, the commercial success is irrelevant.”).
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`The Green Testimony on commercial success is unreliable under Rule 702
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`because it contains no support for, and instead merely assumes, a nexus between
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`the purported commercial success, on the one hand, and, on the other hand, the
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`merits of the claims subject to obviousness rejections in this proceeding and the
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`three related proceedings in which DMC offers the Green Testimony. Only certain
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`claims of the patents-at-issue1 are subject to obviousness rejections in the four
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`proceedings; in particular, dependent claims 3, 4, and 12-14 of the ’563 Patent,2
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`(IPR2013-00530, Paper 13, at 22; IPR2013-00531, Paper 10, at 29), and dependent
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`claims 6, 11, 15, 16, 26, and 27 of the ’531 Patent, (IPR2013-00532, Paper 10, at
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`23; IPR2013-00533, Paper 11, at 25) (collectively, the “§ 103-Rejected Claims”).
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`Any purported evidence of commercial success, is relevant, if at all, only to those
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`claims. See, e.g., Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
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`The Green Testimony is devoid of any analysis whatsoever of how Green’s
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`1 U.S. Patent Nos. RE43,531 (“’531 Patent”) and RE43,563 (“’563 Patent”).
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`2 Claim 3 of the ’563 Patent is also subject to an anticipation rejection.
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`(IPR2013-00530, Paper 13, at 22.)
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`findings that DMC’s SFB products have been “commercially successful” relate, in
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`any way, to the elements of the § 103-Rejected Claims. Green’s report mentions
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`§ 103-Rejected Claims—“dependent claims”—briefly, in only two paragraphs:
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`• I also understand that obviousness was instituted for dependent claims
`only, and that DMC’s Secret Fit Belly bottoms practice those
`instituted dependent claims.
`• I further understand from Dr. Brookstein that Secret Fit Belly bottoms
`likewise embody many of the dependent claims of the patents-in-suit,
`including all that are subject to these proceedings. I also understand
`that only dependent claims are being reviewed for obviousness.
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`(Ex. 2022, ¶¶ 12, 24.) And even these two statements are inconsistent, in that one
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`implies a belief that the SFB products practice all of the § 103-Rejected Claims,
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`(see id. ¶ 12), and the other implies a belief that the SFB products practice only
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`some—“many”—of the § 103-Rejected Claims, (see id. ¶ 24). Green’s deposition
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`testimony is equally inconsistent. (Compare Ex. 1079, at 51:15-22 (SFB products
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`practice all claims-at-issue), with id. at 101:10-102:6, 107:11-108:5 (less than all).)
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`Green’s report makes clear that he obtained his understanding of whether
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`and to what extent the SFB products he analyzed are covered by claims of the
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`patents-at-issue from DMC’s technical expert, Dr. David Brookstein. (Ex. 2022,
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`¶¶ 12, 24 & n.24.) During his deposition, Green acknowledged that Brookstein “is
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`the technical expert,” (Ex. 1079, at 175:9-17; see also id. at 119:22-120:7); that “I
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`am not the technical expert here so my opinion on what things practice is sort of,
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`you know, not as relevant as Dr. Brookstein’s,” (id. at 104:25-125:17); and that his
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`“analysis is basically relying on Dr. Brookstein for . . . technical advice,” (id. at
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`59:9-19; see also id. at 44:14-45:3, 57:21-58:11, 99:9-21, 104:8-24). Further,
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`Green repeatedly testified—no fewer than 11 times—that “I am not the technical
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`expert here.” (Id. 51:15-22; see also id. at 48:15-21, 57:8-20, 95:2-15, 96:17-
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`97:23, 97:24-98:9, 99:4-21, 104:25-105:17, 108:6-22, 181:13-23, 231:2-15.)
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`Regardless, since Green is not qualified as a person of ordinary skill in the art, he
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`cannot, under Rule 702, offer testimony on technical issues, such as whether any
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`claims-at-issue read on SFB products. Sundance, 550 F.3d at 1360-65.
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`Green offers an opinion regarding commercial success based on aggregated
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`sales data, (Ex. 1079, at 102:20-25), for
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` different SFB products or SKUs
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`(stock keeping units), (Ex. 1110, ¶ 23, at 17 & n.40). However, Brookstein only
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`analyzed four of those products—four out of
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`—to determine
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`whether and to what extent they may embody any of the claims-at-issue. (Ex.
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`2076.) Brookstein found that the four SFB products he analyzed were neither all
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`covered by (a) the same § 103-Rejected Claims nor (b) all of the § 103-Rejected
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`Claims. (See id. at 3.) Brookstein offered nothing to indicate (a) that those four
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`products are “representative” of the remaining
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` SFB products Green analyzed
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`or constitute a statistically meaningful “sample” thereof, or (b) that it would be
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`appropriate to extrapolate his findings as to those four SFB products to the other
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`—and this is not surprising, given that Brookstein’s findings varied across
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`even just the four products he analyzed, (Ex. 2076).
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`Further, other than what is included in his declaration, Brookstein said, he
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`did not discuss anything with Green about SFB products. (Ex. 1078, at 50:18-
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`51:3.) Green, for his part, did not even “know the number of products that
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`[Brookstein] analyzed. What he describes in his report is what he analyzed.” (Ex.
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`1079, at 104:8-24.) Green testified that each SKU “is indicative of a product that,
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`at least to my knowledge, is differentiable from some other product in a significant
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`of way [sic] that they account for it separately.” (Ex. 1079, at 106:11-18.) But
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`when asked whether Brookstein looked at all of those SKUs “[t]o determine
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`whether they fall within claims of the patents,” Green responded “I don’t know
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`exactly all of the analysis that Dr. Brookstein did.” (Id. at 107:11-108:5.)
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`Brookstein testified that he did not review any other DMC products “to the same
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`extent [he] looked at the four that were in [his] claim charts,” and he did not have
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`any input on the selection of those products, but, instead, he “just received them
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`from counsel.” (Ex. 1078, at 44:3-45:14, 101:18-102:7.) Green also neither
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`selected, nor offered input on, the products Brookstein analyzed. (Ex. 1079, at
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`112:23-113:16.) At best, therefore, Green had a basis for understanding that four
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`SFB products out of
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`, if any, are variously covered by § 103-Rejected Claims.
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`Yet, without any basis for doing so, Green extrapolated Brookstein’s results from
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`the four SKUs assessed by Brookstein to the entire population of SFB SKUs.
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`Even so, Green did not actually analyze whether any elements unique to the
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`§ 103-Rejected Claims impact or even relate to the alleged commercial success of
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`the SFB products. (Ex. 1079, at 56:15-24, 69:3-14, 78:4-79:25 (pockets), 61:13-
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`25, 63:5-64:9, 69:15-70:13, 80:10-81:9 (sewn zipperless fly), 70:14-72:16, 81:10-
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`82:25 (top edge margin of the belly panel is folded over and sewn or knitted to the
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`inside of the belly panel fabric), 72:21-75:14, 83:2-86:9 (double layer tubular
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`structure), 87:4-88:13 (partial waistband extending across the backside of the lower
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`edge of the belly panel), 92:21-94:10 (perimeter hem stitch on the upper edge of
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`the belly panel).) The one element of a § 103-Rejected Claim that Green claimed
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`to have separately analyzed—though, by his own admission, no such analysis
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`appears in his report,3 (id. at 77:3-78:2, 89:16-92:1)—relates to SFB products that
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`are
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`, but, he testified,
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`
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` (id. at 50:6-52:17).
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`Accordingly, the unreliability of the Green Testimony is revealed in at least
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`three ways. First, Green had no basis for understanding that any more than four of
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`the
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` SFB products he analyzed are covered by any of the § 103-Rejected
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`Claims. Second, even as to the four SFB products Brookstein analyzed, Green did
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`3 Green testified that all of his opinions in this proceeding appear in his report or
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`its exhibits. (Ex. 1079, at 77:24-78:2.)
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`nothing to assess whether and to what extent the purported commercial success he
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`found was related to any element of any § 103-Rejected Claim that Brookstein
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`found to cover those products. Third, with respect to the remaining
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` SFB
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`products whose sales data he analyzed, Green did nothing to assess whether and to
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`what extent the purported commercial success he finds was related to any element
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`of any § 103-Rejected Claim; indeed, given the limited scope of Brookstein’s
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`analysis, Green simply could not have done so.
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`These discrepancies show that Green’s entire analysis relies on the
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`unsupported and analytically flawed assumption that each of the
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` SFB
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`products whose sales data he analyzed is not only covered by one or more of the
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`§ 103-Rejected Claims but that the elements of those (unspecified) claims
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`somehow drove the purported commercial success of the SFB products. Green’s
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`opinion on commercial success is, in essence, based solely on the assumption that a
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`nexus exists, although without regard to any particular § 103-Rejected Claim.
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`Even if, arguendo, a nexus could be presumed here, as a matter of both logic and
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`common sense it would still need to be related to a specific claim whose
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`obviousness is in question, see Demaco, 851 F.2d at 1392; Paulsen, 30 F.3d at
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`1482, yet the Green testimony fails even to do that. As such, the Green Testimony
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`must be excluded because it is neither “based on sufficient facts or data” nor “the
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`product of reliable principles and methods.” FED. R. EVID. 702(b), (c); Apple, 2014
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`WL 1646435, at *19. Moreover, the very fact that Green’s analysis fails to
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`associate the commercial success he finds with any particular element of a § 103-
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`Rejected Claim found in any particular SFB product underscores the unreliability
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`and, thus, irrelevance of the Green Testimony under Rule 702. See Daubert, 509
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`U.S. at 591. Such testimony will not “help the trier of fact to understand the
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`evidence or to determine a fact in issue.” Id.; FED. R. EVID. 702(a). Therefore,
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`lacking any plausible support for a nexus, the Green Testimony must be excluded
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`under Rule 702. See DataTreasury, 2010 WL 3912264, at *1-*4.
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`Finally, even if the Board does not exclude the Green Testimony, the Board
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`should not accord it any weight in this proceeding. See Arlington Indus., Inc. v.
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`Bridgeport Fittings, Inc., Nos. 2013-1400, 2013-1401, 2014 WL 4251552, at *6-*7
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`(Fed. Cir. Aug. 29, 2014) (affirming the Board’s rejection of purported commercial
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`success “evidence for lack of a demonstrated nexus to the claimed invention”).
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`B.
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`The Website Materials Should Be Excluded from Evidence
`Because They Cannot Be Authenticated Under Rule 901
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`The Website Materials should be excluded as evidence because neither they,
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`nor the third-party statements they contain, can be authenticated as required by
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`Rule 901.4 “Rule 901[] requires that before evidence is admitted, its proponent
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`4 The Website Materials, and the statements they contain, are also inadmissible
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`hearsay, see FED. R. EVID. 802, to the extent DMC attempts to offer them in this
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`must produce evidence ‘sufficient to support a finding that it is what it purports to
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`be.’” United States v. Bansal, 663 F.3d 634, 667 (3d Cir. 2011); Heveafil Sdn.
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`Bhd. v. United States, 58 Fed. Appx. 843, 848 (Fed. Cir. 2003). This rule applies
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`equally to “information from the internet.” Victaulic Co. v. Tieman, 499 F.3d 227,
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`236 (3d Cir. 2007). Indeed, “[p]rintouts from a web site do not bear the indicia of
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`reliability demanded for other self-authenticating documents under Fed. R. Evid.
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`902. To be authenticated, some statement or affidavit from someone with
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`knowledge is required . . . .” Id. (quotations omitted); Heveafil, 58 Fed. Appx. at
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`848. “Testimony of a witness with personal knowledge is sufficient.” Bansal, 663
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`F.3d at 667; FED. R. EVID. 901(b)(1). For example, in Bansal,
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`[t]o authenticate that [a] screen-shot [from the Internet Archive’s
`Wayback Machine website database] was what it purported to be, the
`government called a witness to testify about how the Wayback
`Machine website works and how reliable its contents are. The witness
`also compared the screenshots with previously authenticated and
`admitted images from Bansal’s website and concluded, based upon
`her personal knowledge, that the screenshots were authentic.
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`663 F.3d at 667-68. Such personal knowledge is important, because “a company’s
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`proceeding “to prove the truth of [any] matter asserted in the statement[s],” see
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`FED. R. EVID. 801(c). None of the exceptions to Rule 802 apply here. See FED.
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`R. EVID. 803, 804, 807.
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`website is a marketing tool. Often, marketing material is full of imprecise puffery
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`that no one should take at face value.” Victaulic, 499 F.3d at 236.
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`In contrast to Bansal, DMC has not provided testimony from anyone with
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`personal knowledge sufficient to authenticate either the Website Materials
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`themselves or the statements they contain, which purportedly “show praise” for the
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`“claimed features” of DMC’s SFB products. (See Paper 7, at 34.) The Website
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`Materials are printouts of websites and, with few exceptions, contain statements by
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`unidentified—and most likely unidentifiable—third parties. Indeed, most of those
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`statements are not attributed to an identified author, (Exs. 2002, 2013, 2016, 2046),
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`or are attributed solely to authors who are identified, if at all, only by first name—
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`e.g., “Rita,” (Exs. 2010, 2015, 2049-2051, 2083)—initials—e.g., “K.F.,” (Ex.
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`2011)—or an anonymous screen name—e.g., “DsnyMom,” (Exs. 2001, 2009,
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`2012, 2014). In one case, the statements in question are attributed to an individual
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`who apparently is or was an officer of DMC.5 (Ex. 2048.) In only two cases, the
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`statements’ reputed authors are identified by both first and last name. (Exs. 2007,
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`2008.) And while the majority of the Website Materials appear to originate from
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`third-party websites, certain of them—Exs. 2046, 2049-2051, and 2083—appear to
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`5 “Such . . . self-referential commendation fall[s] well short of demonstrating true
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`industry praise.” Bayer Healthcare Pharms., Inc. v. Watson Pharms., Inc., 713
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`F.3d 1369, 1377 (Fed. Cir. 2013).
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`originate from DMC websites (the “DMC Website Materials”).
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`What all of the Website Materials have in common, however, is that DMC
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`has not proffered anyone with personal knowledge of their origins and contents, let
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`alone the accuracy, reliability, or trustworthiness thereof, who could authenticate
`
`either the Website Materials themselves or the third-party statements they
`
`contain—such as, for example, the statements’ respective authors. See Bansal, 663
`
`F.3d at 667-68; Heveafil, 58 Fed. Appx. at 848 (“[A] proper foundation for the
`
`reliability and trustworthiness of an item” is “required for authentication.”).
`
`With respect to the non-DMC Website Materials, DMC has not proffered
`
`any witness having personal knowledge of, and DMC itself “has no personal
`
`knowledge of[,] who maintains the website[s], who authored the documents, or the
`
`accuracy of their contents.” See Wady v. Provident Life & Accident Ins. Co. of
`
`Am., 216 F. Supp. 2d 1060, 1064-65 (C.D. Cal. 2002) (finding various website
`
`printouts inadmissible due to lack of authentication under Rule 901). Therefore,
`
`Exs. 2001, 2002, 2007-2016, and 2048 must be excluded under Rule 901.
`
`With respect to the DMC Website Materials, DMC has not offered the
`
`testimony of a DMC officer, IT employee, or website administrator, for example,
`
`who might have personal knowledge with respect to the websites, let alone anyone
`
`who might have personal knowledge of the third-party statements they contain.
`
`Instead, DMC served a declaration of Trudi Haaf, a paralegal for DMC’s counsel,
`
`US.54787032.01
`
`-14-
`
`
`
`
`
`purporting to authenticate Exs. 2046, 2049-2051, and 2083, among others (the
`
`“Haaf Declaration”). But nothing in the Haaf Declaration indicates that Ms. Haaf
`
`has any personal knowledge whatsoever regarding the origins or contents of either
`
`the DMC Website Materials or the third-party statements they contain, let alone
`
`sufficient personal knowledge to testify to their accuracy, reliability, or
`
`trustworthiness (which, in any event, she has not done). Even assuming, arguendo,
`
`that the Haaf Declaration is somehow sufficient to authenticate certain Website
`
`Materials, it still fails to authenticate the third-party statements therein. Thus, Exs.
`
`2046, 2049-2051, and 2083 also must be excluded under Rule 901.
`
`Finally, even if the Board does not exclude the Website Materials, the Board
`
`should not accord them any weight in this proceeding, as DMC has failed to link
`
`the statements they contain with any of the § 103-Rejected Claims. See Geo. M.
`
`Martin Co. v. Alliance Mach. Sys. Int’l LLC, 618 F.3d 1294, 1305 (Fed. Cir. 2010)
`
`(“Industry praise must also be linked to the patented invention.”).
`
`IV. CONCLUSION
`
`
`
`The Board should exclude the Green Testimony and the Website Materials.
`
`Dated: September 3, 2014
`
`By:
`
`
`
`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
`
`US.54787032.01
`
`-15-
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), I hereby certify that I caused a true and
`correct copy of the foregoing Petitioner’s Motion to Exclude Evidence Pursuant to
`37 C.F.R. § 42.64(c) to be served via e-mail, as a PDF file attachment, on
`September 3, 2014, on the following:
`
`Paul A. Taufer
`Michael L. Burns
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market St., Ste. 4900
`Philadelphia, PA 19103-7300
`Telephone: (215) 656-3385
`Facsimile:
`(215) 606-3385
`Paul.Taufer@dlapiper.com
`Michael.Burns@dlapiper.com
`
`Stuart E. Pollack
`DLA PIPER LLP (US)
`1251 Avenue of the Americas
`27th Floor
`New York, NY 10020-1104
`Telephone: (212) 335-4964
`Facsimile:
`(212) 884-8464
`Stuart.Pollack@dlapiper.com
`
`
`Dated: September 3, 2014
`
`
`
`/s/ Norman J. Hedges
`Norman J. Hedges (Reg. No. 44,151)
`FAEGRE BAKER DANIELS LLP
`300 N. Meridian St., Ste. 2700
`Indianapolis, IN 46204-1750
`Telephone: 317-237-0300
`Facsimile: 317-237-1000
`Norman.Hedges@FaegreBD.com
`
`By:
`
`US.54787032.01
`
`
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