`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`Yamaha Corporation of America
`Petitioner
`
`v.
`
`Black Hills Media, LLC
`Patent Owner
`
`
`Patent No. 8,050,652
`Issue Date: November 1, 2011
`Title: METHOD AND DEVICE FOR AN INTERNET RADIO CAPABLE OF
`OBTAINING PLAYLIST CONTENT FROM A CONTENT SERVER
`_______________
`
`Inter Partes Review No. IPR2013-00594
`____________________________________________________________
`
`DECLARATION OF DAVID L. FEHRMAN IN SUPPORT OF
`PETITIONER YAMAHA CORPORATION OF AMERICA’S
`OPPOSITION TO PATENT OWNER’S MOTION TO EXCLUDE
`
`
`
`
`la-1265167
`
`Yamaha Exhibit 1023 Page 1
`
`
`
`IPR2013-00594
`
`
`
`
`393032805800
`
`I, David L. Fehrman, declare as follows:
`
`1.
`
`I am a partner at the law firm of Morrison & Foerster LLP, counsel
`
`for Petitioner Yamaha Corporation of America (“Yamaha”) in Case Nos. IPR2013-
`
`00593 (“the 593 IPR”), IPR2013-00594 (“the 594 IPR”), IPR2013-00597 (“the
`
`597 IPR”), and IPR2013-00598 (“the 598 IPR”) (collectively, “the IPRs”). I am
`
`lead counsel for Yamaha in the IPRs. I have personal knowledge of the facts set
`
`forth below, and if called as a witness could and would competently testify thereto.
`
`2.
`
`On August 12, 2014, Yamaha filed its Replies to the Responses filed
`
`by Patent Owner Black Hills Media LLC in each of the IPRs. Yamaha submitted
`
`certain exhibits in support of the IPRs, including the following Reply exhibits:
`
`Exhibit No.
`
`Description
`
`May 24, 2011 Declaration of Dr. Gareth Loy in
`
`597 IPR Ex. 1016
`
`MonkeyMedia, Inc. v. Apple, Inc., Case No. 1:10cv319 (E.D.
`
`598 IPR Ex. 1020
`
`Tex.), re-filed on July 25, 2014, with discussion of POOSITA
`
`in ¶ 27 [referenced herein as “Loy Declaration”]
`
`Declaration of Ivan Zatkovich, filed as Exhibit 2013 in
`
`593 IPR Ex. 1022
`
`CBM2013-00004 on June 5, 2013, with discussion of
`
`594 IPR Ex. 1020
`
`POSITA in ¶ 8 [referenced herein as “Zatkovich
`
`Declaration”]
`
`la-1265167
`
`1
`
`Yamaha Exhibit 1023 Page 2
`
`
`
`IPR2013-00594
`
`
`
`
`393032805800
`
`3.
`
`On July 28, 2014, Yamaha took the deposition of Dr. Gareth Loy,
`
`who is Patent Owner’s expert declarant in the 597 IPR and the 598 IPR. Prior to
`
`the July 28, 2014 deposition of Dr. Loy, Yamaha and its counsel were not aware of
`
`the statement contained in the Loy Declaration whereby “at least” was used in
`
`defining a “POOSITA.”
`
`4.
`
`On July 29, 2014, Yamaha took the deposition of Ivan Zatkovich, who
`
`is Patent Owner’s expert declarant in the 593 IPR and the 594 IPR. Prior to the
`
`July 29, 2014 deposition of Mr. Zatkovich, Yamaha and its counsel were not aware
`
`of the statement contained in the Zatkovich Declaration whereby “at least” was
`
`used in defining a “POSITA.”
`
`5.
`
`Following the above-referenced July 28-29, 2014 depositions of Dr.
`
`Loy and Mr. Zatkovich, I investigated and discovered the statements contained in
`
`the Loy Declaration and the Zatkovich Declaration utilizing “at least” language in
`
`defining the level of ordinary skill in the art in those matters. I made this discovery
`
`during the process of preparing and finalizing Yamaha’s Replies in the IPRs,
`
`which were filed on August 12, 2014.
`
`I declare under penalty of perjury that the foregoing is true and correct to the
`
`best of my knowledge and recollection.
`
`Dated: September 26, 2014
`
`
`
`
`
`/s/ David L. Fehrman
`David L. Fehrman
`
`
`
`la-1265167
`
`2
`
`Yamaha Exhibit 1023 Page 3
`
`
`
`IPR2013-00594
`
`
`
`
`393032805800
`
`
`
`Certificate of Service (37 C.F.R. § 42.6(e)(4))
`
`I hereby certify that the attached “Declaration of David L. Fehrman in
`
`Support of Petitioner Yamaha Corporation of America’s Opposition to Patent
`
`Owner’s Motion to Exclude” was served on the below date on the Patent Owner
`
`via e-mail (by consent) to the following counsel of record for the Patent Owner:
`
`Thomas Engellenner (engellennert@pepperlaw.com)
`Reza Mollaaghababa (mollaaghababar@pepperlaw.com)
`PEPPER HAMILTON LLP
`125 High Street
`19th Floor, High Street Tower
`Boston, MA 02110
`
`Theodosios Thomas (ted.thomas@sceneralabs.com)
`BLACK HILLS MEDIA, LLC
`5400 Trinity Road, Suite 303
`Raleigh, NC 27607
`
`Christopher Horgan (chris.horgan@concerttechonology.com)
`Concert Technology
`1438 Dahlia Loop
`San Jose, CA 95126
`
`
`
`Dated: September 26, 2014
`
`__/Mehran Arjomand/____
`Mehran Arjomand
`
`
`
`la-1265167
`
`3
`
`Yamaha Exhibit 1023 Page 4
`
`
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