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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
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`BROADCOM CORPORATION
`Petitioner
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`v.
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`WI-FI ONE, LLC
`Patent Owner
`____________________
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`Case IPR2013-00601
`Patent 6,772,215
`____________________
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`Case IPR2013-00601
`Patent 6,772,215
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`In accordance with 37 C.F.R. § 42.64, Patent Owner moves to exclude
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`certain evidence as described in detail below. Pursuant to 37 C.F.R. § 42.64,
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`Patent Owner timely served its objections to the exhibits below on Broadcom on
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`October 7, 2014. See Exhibit No. 2023.
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`I.
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` Exhibit 1010.
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`Exhibit 1010 is an excerpt from a document allegedly dated April 1999, and
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`entitled “TIA/EIA Interim Standard; Data Service Options for Wideband Spread
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`Spectrum Systems,” TIA/EIA/IS-707-A (Revision of TIA/EIA/IS-707). Broadcom
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`alleges that this document is “contemporaneous evidence of how a person of
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`ordinary skill in the art would understand Seo’s disclosure of the circumstances in
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`which certain fields exist and those circumstances in which they do not exist.”
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`(Paper No. 49, n3 at 9.) Not so. This exhibit should be excluded for multiple
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`reasons.
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`First, Exhibit 1010 is dated April 1999, which postdates both the December
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`31, 1998 filing date of Seo (Exhibit 1002) and the August 20, 1998 filing date of
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`the Korean priority application to Seo. Broadcom has not shown how Exhibit
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`1010, which is dated 4-8 months after Seo, is contemporaneous evidence of how
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`one of ordinary skill in the art would interpret Seo. Furthermore, any probative
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`value of Exhibit 1010 is substantially outweighed by a danger of unfair prejudice
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`and confusing the issues. FED. R. EVID. 403. Second, Broadcom has not shown
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`MOTION TO EXCLUDE EVIDENCE
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`2
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`Case IPR2013-00601
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`Patent 6,772,215
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`why Exhibit 1010 could not have been included in its petition, and therefore
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`Broadcom waived the right to base its invalidity position on Exhibit 1010. Third,
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`Exhibit 1010 does not respond to any argument raised by Patent Owner in its
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`response. 37 C.F.R. § 42.23(b). Instead, Broadcom has lain behind the log and
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`sprung Exhibit 1010 on the Patent Owner in its reply, precluding the Patent Owner
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`from meaningfully responding to this exhibit. Fourth, Exhibit 1010 is not relevant
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`to any issue in this case, is not helpful to the Board, and wastes judicial resources.
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`FED. R. EVID. 401, 403. Fifth, Exhibit 1010 has not been authenticated, and
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`Broadcom has not put forth any evidence linking Exhibit 1010 to the February
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`1998 version of IS-707.2 referenced in Seo (Exhibit 1002). FED. R. EVID. 901.
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`Indeed, the April 1999 date of Exhibit 1010 evidences that Exhibit 1010 does not
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`reflect the February 1998 version of IS-707.2. Finally, Exhibit 1010 is
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`inadmissible hearsay since Broadcom is attempting to prove the truth of the matter
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`asserted in Exhibit 1010, including its alleged publication date. FED. R. EVID. 801,
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`802. See e.g., Hilgraeve, Inc. v. Symantec Corp., 271 F. Supp. 2d 964, 974-75
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`(E.D. Mich. 2003) (noting that copyright dates and other dates on a document are
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`hearsay when offered to prove the truth of the matter asserted, such as that the
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`document was publicly available as of that date). Accordingly, Exhibit 1010
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`should be stricken.
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`MOTION TO EXCLUDE EVIDENCE
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`Case IPR2013-00601
`Patent 6,772,215
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`II.
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`¶ 7 of Exhibit 1013.
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`In ¶ 7 of his rebuttal expert declaration (Exhibit 1013), Dr. Bims opines as to
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`his understanding of the disclosure of Seo (Exhibit 1002). For the same reasons
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`above as to Exhibit 1010, ¶ 7 of Exhibit 1013 should be stricken. Specifically, by
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`choosing not to include Exhibit 1010 in his opening declaration, Dr. Bims waived
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`any testimony concerning this exhibit in his reply declaration, and therefore this
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`testimony does not respond to an argument raised in Patent Owner’s response.
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`Furthermore because Exhibit 1010 is inadmissible, this testimony is not relevant to
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`any issue in the case, is not helpful to the Board, and waste judicial resources.
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`Accordingly, this testimony should be stricken.
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`MOTION TO EXCLUDE EVIDENCE
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`4
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`LEE & HAYES PLLC
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` /Peter J. Ayers/
`Peter J. Ayers, Reg. No. 38,374
`John Shumaker, Reg. No. 52,223
`LEE & HAYES, PLLC
`13809 Research Blvd., Suite 405
`Austin, TX 78750
`Phone: (512) 605-8162
`Fax: (509) 944-4693
`peter@leehayes.com
`jshumaker@leehayes.com
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`J. Christopher Lynch, Reg. No. 34,216
`LEE & HAYES, PLLC
`601 W. Riverside Ave., Suite 1400
`Spokane, WA 99201
`Telephone: 509.324.9256
`Fax: 509.323.8979
`chris@leehayes.com
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`Counsel for Patent Owner
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`Case IPR2013-00601
`Patent 6,772,215
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`MOTION TO EXCLUDE EVIDENCE
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`5
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`Case IPR2013-00601
`Patent 6,772,215
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on November 12, 2014 the foregoing
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE was served on Lead
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`and Back-up Counsel for Broadcom Corporation by sending the same via
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`electronic mail to the address provided by Broadcom:
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`Dominic E. Massa, Lead Counsel
`Michael A. Diener, Back-up Counsel
`Wilmer Cutler Pickering Hale and Dorr, LLP
`60 State Street
`Boston, MA 02109
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`LEE & HAYES PLLC
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` /Peter J. Ayers/
`Peter J. Ayers
`Reg. No. 38,374
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`MOTION TO EXCLUDE EVIDENCE
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`6
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