UNITED STATES PATENT AND TRADEMARK OFFICE
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`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
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`Mercedes-Benz USA, LLC
`
`Petitioner
`
`
`
`v.
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`
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`AMERICAN VEHICULAR SCIENCES LLC
`
`Patent Owner
`
`
`
`Patent No. 6,772,057
`
`Issue Date: August 3, 2004
`
`Title: VEHICLE MONITORING SYSTEMS USING IMAGE PROCESSING
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED IN
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,772,057
`
`Case No. IPR2014-00646
`
`
`
`
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`______________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Mercedes-Benz USA, LLC
`
`Petitioner
`
`
`
`v.
`
`
`
`AMERICAN VEHICULAR SCIENCES LLC
`
`Patent Owner
`
`
`
`Patent No. 6,772,057
`
`Issue Date: August 3, 2004
`
`Title: VEHICLE MONITORING SYSTEMS USING IMAGE PROCESSING
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED IN
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 6,772,057
`
`Case No. IPR2014-00646
`
`
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`IPR2014-00646
`
`
`
`Pursuant to 37 C.F.R. § 42.64, Patent Owner American Vehicular Sciences
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`LLC (“AVS”) serves and submits the following objections to evidence served with
`
`Mercedes-Benz USA, LLC’s Petition for Inter Partes Review of U.S. Pat. No.
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`6,772,057 (the “‘057 patent”).
`
`AVS objects to the admissibility of Exhibits 1007, 1008, and 1010 on the
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`basis of lack of authentication, hearsay, and relevance, because Mercedes has not
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`sufficiently established that these documents are prior art “printed publication.”
`
`See Fed. R. Evid. 402, 403, 802, 901; see also Nordock Inc. v. Systems Inc., No.
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`11-C-118, 2013 U.S. Dist. LEXIS 34661, at *7 (E.D. Wis. Mar. 13, 2013)
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`(“Because insufficient evidence has been presented regarding the dates of the two
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`publications, they are not admissible as prior art and Nordock’s motion to exclude
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`‘undated’ and ‘unpublished’ references from evidence as asserted ‘prior art’
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`references is granted.”); Amini Innovation Corp. v. Anthony California, Inc., No.
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`03-8749, 2006 U.S. Dist. LEXIS 100800, at *19 (C.D. Cal. Sept. 21, 2006)
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`(“Without knowing the publication dates, the documents are not admissible as
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`prior art.”).
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`1. Komoda document (Exhibit 1007)
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`First, AVS objects to the admissibility of Norio Komoda et al., Automated
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`Vehicle/Highway System, 13th Int’l Technical Conf. on Experimental Safety
`
`Vehicles (Exhibit 1007) because Mercedes has not sufficiently established that the
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`
`
`1
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`PATENT OWNER’S PRELIMINARY RESPONSE
`IPR2014-00646
`
`
`Komoda document is prior art to the 057 patent. There is nothing on the face of
`
`the Komoda document that indicates when it became accessible to the public.
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`Moreover, Mercedes has offered no declaration or other evidence purporting to
`
`state when the Komoda document became publicly accessible within the meaning
`
`of 35 U.S.C. § 102(b).
`
`The copy of the Komoda document submitted by Mercedes appears to be
`
`undated. A cover sheet submitted with the Komoda document bears the name
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`“Univ. of MD Baltimor County,” and states, at one point and in separately-typed
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`text “1991.” But that cover page also states “13th International Technical
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`Conference on Experimental Safety Vehicles,” a reference that is undated.
`
`Mercedes has not established that the Komoda document (Exhibit 1007) is
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`prior art to the 057 patent. See DH Tech., Inc. v. Synergystex Int’l, Inc., No. 92-
`
`3307, 1994 U.S. Dist. LEXIS 5301, at *4 (N.D. Cal. Apr. 11, 1994) (“the June
`
`1989 notation on the manual’s cover does not identify the date in June 1989 on
`
`which the manual was published, or if the manual was actually published in June
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`1989”); Mannesmann Demag Corp. v. Engineered Metal Prods. Co., 605 F. Supp.
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`2d 1362, 1366-67 (D. Del. 1985) (Section 102(b) bar critical date was June 26,
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`1977; as to a printed brochure with a “6.77” date mark, the evidence did not show
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`that it was actually accessible to the public prior to the critical date); see also
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`Carella v. Starlight Archery & Pro Line Co., 804 F.2d 135, 139 (Fed. Cir. 1986)
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`
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`2
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`
`
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`(as to an advertisement mailed on a certain date, “[n]o evidence was presented as
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`PATENT OWNER’S PRELIMINARY RESPONSE
`IPR2014-00646
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`to the date of receipt of the mailer by any of the addressees.”).
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`2. Kawai document (Exhibit 1008)
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`AVS objects to the admissibility of Mitsuo Kawai, Collision Avoidance
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`Technologies, Leading Change: The Transportation Electronic Revolution,
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`Proceedings of the 1994 Int’l Congress on Transp. Electronics (Exhibit 1008)
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`because Mercedes has not sufficiently established that the Kawai document is prior
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`art to the 057 patent.
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`The cover page appended to the Kawai document by Mercedes references
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`the Proceedings of the 1994 International Congress on Transportation Electronics.
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`In the lower-right-hand corner, that cover page states “October 1994.” But
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`Mercedes has provided no evidence of when the Kawai document was actually
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`publicly accessible within the meaning of 35 U.S.C. § 102(b). As with Komoda,
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`the Kawai document itself appears to be undated. Above its title, it uses the term
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`“94C038,” with no guide as to what that might mean, and no apparent connection
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`to the cover page appended by Mercedes.
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`Mercedes has not established that the Kawai document (Exhibit 1008) is
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`prior art to the 057 patent.
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`
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`3
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`PATENT OWNER’S PRELIMINARY RESPONSE
`IPR2014-00646
`
`
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`3.
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`Suzuki document (Exhibit 1010)
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`Finally, AVS objects to the admissibility of Toshihiko Suzuki et al., Driving
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`Environment Recognition for Active Safety, Toyota Technical Review (Exhibit
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`1010). As with the Komoda and Kawai documents, Mercedes has not established
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`that the Suzuki document is prior art to the 057 patent. For example, Mercedes has
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`not established any date by which the Suzuki document was purportedly accessible
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`to the public within the meaning of 35 U.S.C. § 102(b).
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`Respectfully submitted,
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`
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`
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`
`
`/Scott P. McBride/
`Scott P. McBride
`Registration No. 42,853
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`
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`
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`DATE: November 6, 2014
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`MCANDREWS HELD & MALLOY
`500 West Madison, 34th Floor
`Chicago, IL 60661
`Telephone: (312) 775-8000
`Facsimile: (312) 775-8100
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`CUSTOMER NUMBER: 23446
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`4
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`CERTIFICATE OF SERVICE
`IPR2014-00646
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`
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`CERTIFICATE OF SERVICE
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`I hereby certify that the Patent Owner’s Objections to Evidence Submitted in
`
`Petition For Inter Partes Review Of U.S. Patent No. 6,772,057 Pursuant To 37
`
`C.F.R. § 42.107 in connection with Inter Partes Review Case IPR2014-00646 was
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`served on this 6th day of November by electronic mail to the following:
`
`Lead Counsel
`Scott W. Doyle (Reg. No. 39176)
`scott.doyle@shearman.com
`Shearman & Sterling LLP
`801 Pennsylvania Ave., NW
`Ste. 900
`Washington, DC 20004
`T: (202) 508-8000
`
`
`
`
`Back-up Counsel
`Jonathan R. DeFosse (admitted pro hac vice)
`jonathan.defosse@shearman.com
`Shearman & Sterling LLP
`801 Pennsylvania Ave., NW
`Ste. 900
`Washington, DC 20004
`T: (202) 508-8000
`
`
`
`
`
`
`/Thomas J. Wimbiscus/
`Thomas J. Wimbiscus
`Registration No. 36,059
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`i
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`MCANDREWS HELD & MALLOY
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`Telephone: 312-775-8000
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`Facsimile: 312-775-8100
`
`
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`
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`CUSTOMER NUMBER: 23446
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`Date: November 6, 2014
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