`Entered: April 2, 2015
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`Trials@uspto.gov
`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`SkyHawke Technologies, LLC,
`Petitioner,
`
`v.
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`L&H Concepts, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00437
`Patent 5,779,566
`
`
`
`Before JAMES T. MOORE, Administrative Patent Judge.
`
`
`DECISION
`Objection to Evidence
`37 C.F.R. § 42.64
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`On March 30, 2015 Patent Owner filed a Motion to Exclude (Paper
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`
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`26). The Motion to Exclude seeks to exclude Exhibit 1012, the declaration
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`of the Petitioner’s witness, Dr. Carl Gutwin. Paper 26, 1. The Motion to
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`Exclude alleges that Dr. Gutwin’s opinion is not reliable, and seeks to
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`exclude on the basis of Rule 702 of the Federal Rules of Evidence. Id.
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`1
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`
`
`Case IPR2014-00437
`Patent 5,779,566
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`On April 1, 2015 a conference call was requested by Petitioner for the
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`
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`purpose of requesting expungement of the motion. No conference call is
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`necessary. No response to the motion is authorized.
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` For an objection to evidence submitted during a preliminary
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`proceeding, an objection must be served within ten business days of the
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`institution of the proceeding. 37 C.F.R. § 42.64(a). A motion to exclude
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`must identify the objections in the record. 37 C.F.R. § 42.64(c).
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`
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`The Decision instituting this proceeding was filed August 21, 2014.
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`As a consequence, any objection to Exhibit 1012 should have been served
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`before September 5, 2014, almost seven months ago. There is no indication
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`in the Motion to Exclude where the Patent Owner complied with the
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`mandatory requirement of 37 C.F.R. § 42.64(c).
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`The Deposition of Dr. Gutwin, Ex. 2015, was taken November 14,
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`2014 and covers over 270 pages. In those pages there appear to be an
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`astonishing number – 244– of pro forma objections. The vast majority are
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`from Mr. Fisher and merely state “Objection, form” or “Objection, scope.”
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`Mr. Morris has only a few “Objection, nonresponsive” to his credit. We are
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`not pointed to any particular one of this surfeit of objections as being the
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`basis for the instant Motion to Exclude. Nor are we pointed to any objection
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`served after the deposition within the required 5 days. 37 C.F.R. §
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`42.64(b)(1).
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`
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`If the first line of the Motion to Exclude is accurate “[u]nder 37
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`C.F.R. § 42.64(c), Patent Owner objects and moves to exclude
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`Exhibit 1012…” then the initial objection at this date is also untimely.
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`The Motion to Exclude is therefore DENIED.
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`Case IPR2014-00437
`Patent 5,779,566
`
`
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`PETITIONER:
`
`Thomas Fisher
`cpdocketfisher@oblon.com
`
`Scott McKeown
`cpdocketmckeown@oblon.com
`
`Christopher Ricciuti
`cpdocketricciuti@oblon.com
`
`Alexander Englehart
`cpdocketenglehart@oblon.com
`
`PATENT OWNER:
`
`David Hoffman
`hoffman@fr.com
`
`Matthew Wernli
`wernli@fr.com
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