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`BEFORE THE PATENT TRIAL AND APPEAL BOARD IN THE UNITED
`STATES PATENT AND TRADEMARK OFFICE
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`Trial No.:
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`IPR 2014-00059
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`In re:
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`U.S. Patent No. 6,415,280
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`Patent Owners:
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`Petitioner:
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`PersonalWeb Technologies, LLC & Level 3 Communications
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`Rackspace US, Inc. and Rackspace Hosting, Inc.
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`Inventors:
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`David A. Farber and Ronald D. Lachman
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`* * * * * * * * * * *
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`October 22, 2014
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`PATENT OWNER’S MOTION TO EXCLUDE
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`2418227
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`Patent Owner’s Motion to Exclude
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`IPR2014-00059
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`The parties have filed a joint motion to terminate this proceeding in its
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`entirety as to all parties. Because that motion has not yet been ruled upon, PO has
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`filed this motion to exclude on this due date for doing so. If the Board grants the
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`parties’ joint motion to terminate this proceeding in its entirety as to all parties, this
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`motion should be moot.
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`A. LANGER (EX. 1004) AND OTHER DOCUMENTS RELIED
`UPON BY PETITIONER SHOULD BE EXCLUDED AS
`UNAUTHENTICED AND/OR INADMISSIBLE HEARSAY
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`Petitioner relies on Langer. Petitioner contends that Langer is a printed
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`publication that published prior to the April 11, 1995 effective filing date of the
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`patent at issue. PO properly objected to Langer and the other documents identified
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`herein as unauthenticated and as inadmissible hearsay, in a timely manner, via its
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`objections that were filed and served on April 29, 2014 (Paper 12). The Federal
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`Rules of Evidence (FRE) apply to the current proceedings. 37 C.F.R. § 42.62.
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`Section XV in patent owner’s response is incorporated herein by reference.
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`FRE 901 requires parties to authenticate documents. Langer was allegedly
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`first printed off the Internet in 2003 based on the “7/29/2003” date in the lower-
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`right corner of the Langer document filed by EMC (Ex. 2008 [Reddy Dep. Ex. 1];
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`and Reddy Dep. 20-23 [Ex. 2019]). There is no evidence authenticating Langer
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`(Ex. 1004 or Ex. 2008) as having been in existence prior to the April 11, 1995
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`effective filing date of the patent.
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`Patent Owner’s Motion to Exclude
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`IPR2014-00059
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`No witness of record has personal knowledge of Langer existing prior to
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`April 11, 1995, and electronic data such as Langer is inherently untrustworthy
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`because it can be manipulated from virtually any location at any time. Novak v.
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`Tucows, Inc., No. 06-CV-1909 (JFB) (ARL), 2007 U.S. Dist. LEXIS 21269, *17-
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`18 (E.D.N.Y. Mar. 26, 2007); St. Luke’s Cataract and Laser Institute v. Sanderson,
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`2006 WL 1320242, *2 (M.D. Fla. 2006) (excluding documents obtained via the
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`Internet and explaining that “web-sites are not self-authenticating); Wady v.
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`Provident Life and Accident Insur. Co. of Am., 216 F.Supp.2d 1060, 1064-65 (C.D.
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`Calif. 2002) (excluding computer documents as unauthenticated - “anyone can put
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`anything on the Internet . . . any evidence procured off the Internet is adequate for
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`almost nothing”); and St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d
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`773, 774-75 (S.D. Tex. 1999) (the “Web provides no way of verifying the
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`authenticity . . .”, that there is a “presumption that the information he discovered
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`on the Internet is inherently untrustworthy.”) And Langer is not self-
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`authenticating.
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`Petitioner has not authenticated Langer as having existed prior to the critical
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`date (April 11, 1995). When Langer was printed off the internet in 2003, it was
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`obtained from the Google Groups site which did not even come into existence until
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`the early 2000s (well after the critical date). (Reddy Dep. 18 [Ex. 2019].) The first
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`time petitioner’s witness saw Langer was 2013, and he has no personal knowledge
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`of Langer prior to that. (Reddy Dep. 18-20, 32-33 [Ex. 2019].) There is no
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`evidence of Langer having been in existence or being publicly accessible prior to
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`IPR2014-00059
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`the April 11, 1995 effective filing date of the patent. There is no evidence of
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`anyone seeing or receiving Langer prior to its apparent printing on July 29, 2003
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`from “groups.google.com . . .” The July 29, 2003 date is well after the critical
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`date. Whether a document could have been accessed and printed some seven or
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`more years after the critical date is of no moment. The fact that Langer was
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`inexplicably missing the Usenet “path” header (required by the standard) in the
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`EMC IPR raises further suspicions about the document, especially where the path
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`header mysteriously showed up somehow between 2003 and 2013 as evidenced by
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`its existence on Ex. 1007 which was printed off the Internet in 2013. (Reddy Dep.
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`21, 24-29 [Ex. 2019]) If a Usenet document lacks a path header (the earliest
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`known version of Langer from 2003 lacks a path header; Ex. 2008), this indicates
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`that the document was never sent. (Reddy Dep. 27, 29 [Ex. 2019].) Moreover,
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`even if Langer was provided to “alt.sources.d” or “comp.archives” (there is no
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`evidence that it was), this does not mean it qualifies as a “printed publication” for
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`the reasons described by the Federal Circuit. In SRI Int’l, the court explained that a
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`document posted on an open site was not a “printed publication” because it was
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`not catalogued or indexed in a meaningful way and there was no evidence that a
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`customary search would have uncovered it prior to the critical date. SRI Int’l, 511
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`F.3d at 1195-98.
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`IPR2014-00059
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`Petitioner has not established that Langer existed prior to April 11, 1995.
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`No witness has personal knowledge of Langer’s alleged existence prior to April 11,
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`1995. There is no declaration from any author of Langer as to when it was created.
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`And there is no testimony from any witness having personal knowledge of having
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`reviewed or received Langer prior to April 11, 1995. Petitioner provides attorney
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`argument to support its allegations. It is well established that attorney argument is
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`neither evidence nor a substitute for evidence.
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`Similarly, Exs. 1009 (Reid) and 1010 (Reid) should be excluded because
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`they have not been authenticated as required by Federal Rule of Evidence (FRE)
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`901. And these documents are not self-authenticating. See also the reasons
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`regarding non-authentication discussed above and in Novak v. Tucows, Inc., No.
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`06-CV-1909 (JFB) (ARL), 2007 U.S. Dist. LEXIS 21269, *17-18 (E.D.N.Y. Mar.
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`26, 2007).
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`FRE 801 defines hearsay, and FRE 802 makes hearsay inadmissible. Dates
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`in Langer, or any other information that purports to date Langer, are inadmissible
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`hearsay not subject to any hearsay exception. Tucows, 2007 U.S. Dist. LEXIS
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`21269, *14-16 (excluding printouts from the Internet as inadmissible hearsay);
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`Hilgraeve, Inc. v. Symantec Corp., 271 F.Supp.2d 964, 974-75 (E.D. Mich. 2003)
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`(explaining that copyright dates and other dates imprinted 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 accessible as of that date); and St. Clair, 76 F.Supp.2d at
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`774-75 (“any evidence procured off the Internet is adequate for almost nothing,
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`IPR2014-00059
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`even under the most liberal interpretation of the hearsay exception rules found in
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`F.R.E. 807.”) Furthermore, the entireties of Langer are hearsay to the extent that
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`petitioner contends that any statements therein were made prior to the critical date.
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`The entire documents of Petitioner’s Exhibits 1004 (Langer), 1009 (Reid),
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`1010 (Reid), 1011 (Quarterman), and 1012 (Todino), including but not limited to
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`information relating to dates and alleged posting information if any, are hearsay
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`under FRE 801 and inadmissible under FRE 802-807. See also the reasons
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`discussed in St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773 (S.D.
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`Tex. 1999); and Novak v. Tucows, Inc., No. 06-CV-1909 (JFB) (ARL), 2007 U.S.
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`Dist. LEXIS 21269, *15-16 (E.D.N.Y. Mar. 26, 2007).
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`Petitioner has failed to meet its burden of properly authenticating Langer
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`under the FRE, and has failed to establish that Langer is a prior art “printed
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`publication.” 37 C.F.R. §42.1(d). Langer should be excluded at least for failing to
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`be properly authenticated under FRE 901-902, and/or because dates and any other
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`information thereon purporting to date them are inadmissible hearsay not subject to
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`any hearsay exception.
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`B. REDDY’S TESTIMONY REGARDING DATES AND
`ALLEGED PUBLICATION OF LANGER SHOULD BE
`EXCLUDED
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`Petitioner relies on testimony by Dr. Reddy. However, as explained above,
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`petitioner’s witnesses Reddy that he never saw Langer or any of the other
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`documents identified above prior to April 11, 1995. (Reddy Dep. 15-33 [Ex.
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`IPR2014-00059
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`2019].) Indeed, no witness has personal knowledge of any alleged existence of
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`Langer prior to April 11, 1995. All statements by Dr. Reddy regarding alleged
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`dates of Langer and the other documents identified above, and whether these
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`documents are printed publications and/or qualify as prior art, should be excluded
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`as hearsay under FRE 801 and inadmissible under FRE 802-807, lacking
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`foundation, lacking personal knowledge, and representing improper testimony
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`under FRE 702.
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`C. “NAME” LANGUAGE IN WOODHILL’S CLAIMS IS NOT
`PRIOR ART AND SHOULD BE EXCLUDED
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`The claims (including the “name” language in the claims) of Woodhill (Ex.
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`1003), and all statements submitted by petitioner citing to or relying upon the
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`same, are objected to and should be excluded as irrelevant, prejudicial, confusing,
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`lacking foundation, and beyond the scope of this IPR. The relied-upon “name”
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`subject matter in the claims of Woodhill is not “prior art” to the ‘280 patent and
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`has not been shown to be “prior art” to the ‘280 patent. See e.g., Federal Rules of
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`Evidence (FRE) 401, 402, 403, 702, 703. Woodhill was “filed” before April 11,
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`1995 (the effective filing date of the ‘280 patent), but was not published until after
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`April 11, 1995. Any material added to Woodhill after April 11, 1995 (e.g.,
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`including the information in the claims of Woodhill, such as the “name” recitations
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`in the claims of Woodhill in connection with binary object identifier(s)) cannot be
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`Patent Owner’s Motion to Exclude
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`relied upon in this IPR and is not prior art. This subject matter was added to the
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`IPR2014-00059
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`claims in Woodhill after April 11, 1995 and is not described in Woodhill’s
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`originally filed specification, and thus is not prior art to the ‘280 patent.
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`While Woodhill mentions names in its claims (e.g., Woodhill at col. 22:3-9;
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`col. 22:35-50; col. 22:67 to col. 23:2; col. 23:10-19; and col. 24:24-39), this is not
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`“prior art” to the challenged claims. (Dewar Decl. at ¶ 64 [Ex. 2012].) The
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`“name” language in Woodhill’s issued claims is not “prior art” to the challenged
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`claims. The subject matter added to Woodhill on January 5, 1996 (including the
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`“name” language in Woodhill’s claims) was added after the April 11, 1995
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`effective filing date of the ‘280 patent, was not in Woodhill’s originally-filed
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`specification, and is not “prior art” to the challenged claims of the ‘280 patent (see
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`prosecution history of Woodhill at Ex. 2007).
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`PO properly objected to this language in Woodhill, in a timely manner, via
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`its objections that were filed and served on April 29, 2014 (Paper 12).
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`NIXON & VANDERHYE P.C.
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`By: /Joseph A. Rhoa/
`Joseph A. Rhoa, Reg. No. 37,515
`Counsel for Patent Owner PersonalWeb
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`IPR2014-00059
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`CERTIFICATE OF SERVICE
`I hereby certify service of the foregoing Patent Owner’s Motion to Exclude
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`to the following lead counsel for petitioner on October 22, 2014 via email (per
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`agreement between the parties):
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`J. Andrew Lowes
`HAYNES & BOONE, LLP
`2323 Victory Avenue, Ste. 700
`Dallas, TX 75219
` (andrew.lowes.ipr@haynesboone.com)
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`By: /Joseph A. Rhoa/
`Joseph A. Rhoa
`Reg. No. 37,515
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`2418227
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