UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`
`
`
`
`EASTMAN KODAK COMPANY, AGFA CORPORATION, ESKO SOFTWARE
`BVBA, and HEIDELBERG, USA
`
`Petitioners,
`
`v.
`
`CTP INNOVATIONS, LLC
`
`Patent Owner.
`______________
`
`Case IPR2014-00789
`
`Patent 6,738,155
`
`____________
`
`
`
`PETITIONERS’ OPPOSITION TO PATENT OWNER’S FIRST MOTION
`TO EXCLUDE (PAPER 18) AND PATENT OWNER’S UNAUTHORIZED
`SECOND MOTION TO EXCLUDE EVIDENCE (PAPER 25)
`
`
`
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`
`
`
`
`EASTMAN KODAK COMPANY, AGFA CORPORATION, ESKO SOFTWARE
`BVBA, and HEIDELBERG, USA
`
`Petitioners,
`
`v.
`
`CTP INNOVATIONS, LLC
`
`Patent Owner.
`______________
`
`Case IPR2014-00789
`
`Patent 6,738,155
`
`____________
`
`
`
`PETITIONERS’ OPPOSITION TO PATENT OWNER’S FIRST MOTION
`TO EXCLUDE (PAPER 18) AND PATENT OWNER’S UNAUTHORIZED
`SECOND MOTION TO EXCLUDE EVIDENCE (PAPER 25)
`
`
`
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`Case IPR2014-00789
`Petitioners’ Opposition to First and Second Motions to Exclude
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`INTRODUCTION
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`I.
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`Patent Owner feigns prejudice in its unauthorized Second Motion to
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`Exclude; however, any alleged “prejudice” is entirely of Patent Owner’s own
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`making. For months now, Patent Owner has buried its head in the sand and
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`ignored Petitioners’ supplemental evidence, served on April 16th. This evidence,
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`now of record, was responsive to Patent Owner’s First Motion to Exclude and the
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`contemporaneous objections explicitly recited therein. Petitioners’ supplemental
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`evidence rendered these objections (baseless as they were) moot. That is, despite
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`Petitioners offering dates for the depositions of Messrs. Jahn and Suetens during
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`Patent Owner’s discovery period, Patent Owner has refused to take the deposition
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`of these declarants. (Ex. 1027.) Instead, Patent Owner clings to untenable and
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`incorrect evidentiary theories in a back-door attempt to secure further briefing on
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`the merits.
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`Petitioners have filed the declarations of Messrs. Jahn and Suetens (Exs.
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`1023 and 1024, respectively) as appropriate Reply exhibits in response to Patent
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`Owner’s untimely first motion to exclude (Paper 18) as well as the duplicate
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`argument regarding Apogee raised in Patent Owner’s Response (see Paper 19 at
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`46). Still, Patent Owner refused the offered depositions of Messrs. Jahn and
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`Suetens without explanation.
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`1
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`Petitioners’ Opposition to First and Second Motions to Exclude
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`Now, without authorization, and vastly exceeding the cumulative 15-page
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`total for motions to exclude evidence, Patent Owner files an unauthorized Second
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`Motion to Exclude the declarations that it has heretofore ignored. Because Patent
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`Owner’s arguments plainly go to the weight of what is proper evidence of record,
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`its motion to exclude should be denied.
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`II. EXHIBITS 1023 AND 1024 ARE PROPER SUPPLEMENTAL
`EVIDENCE AS WELL AS PROPER REPLY EXHIBITS
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`In its opening papers, Petitioners provided the declaration of Johan Suetens
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`establishing that Apogee was distributed to the public via Agfa sales personnel in
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`the normal course of business shortly after a press briefing held on March 17,
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`1998, but no later than May 28, 1998. (Ex. 1022 at ¶¶ 8, 11.) On April 2, 2015,
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`Patent Owner simultaneously objected to Mr. Suetens declaration and the Apogee
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`exhibit (Exhibits 1022 and 1007, respectively) under 37 C.F.R. § 42.64(b)(1), and
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`prematurely moved to exclude the same on authentication grounds for allegedly
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`failing to establish public accessibility of Apogee. (See Paper 18.)
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`Now, as if to signal impropriety on the part of Petitioners, Patent Owner
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`incredibly alleges that “Petitioners chose to treat the First Motion to Exclude as
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`objections to Apogee and Mr. Suetens’ Declaration” (Paper 25 at 1, emphasis
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`added), but Patent Owner similarly relies upon its First Motion as “timely stat[ing]
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`its objections to Exh. 1007 and 1022.” (Paper 25 at 2.) It is Patent Owner, not
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`2
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`Petitioners, that engages in a “Trojan-horse” attempt to attack the sufficiency of
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`Petitioners’ evidence under the guise of multiple motions to exclude.
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`In response to Patent Owner’s April 2nd objections, as Rule 42.64(b)(2)
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`allows, Petitioners served the Declaration of Mr. Jahn and the Supplemental
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`Declaration of Mr. Suetens as supplemental evidence on April 16, 2015 (Exs. 1023
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`and 1024), which rendered Patent Owner’s first motion to exclude moot. On April
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`22, 2015, almost two months before the due date for motions for observations
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`regarding cross-examination of a witness (June 11, 2015), Petitioners offered Mr.
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`Jahn for deposition between May 12 and May 15, and Mr. Suetens for deposition
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`on May 6. (Ex. 1026.) After repeated attempts to coordinate the depositions of
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`Messrs. Jahn and Suetens, CTP informed Petitioners on May 1, 2015 that they
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`believed they could not depose Messrs. Jahn and Suetens until their declarations
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`were filed in these proceedings. (Ex. 1027.) Accordingly, in an effort to progress
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`discovery that was otherwise being stymied by CTP, Petitioners filed its Reply in
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`IPR2014-00791 on May 8, 2015 (almost a month before the June 1 due date), and
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`attached the declarations of Messrs. Jahn and Suetens. Still, CTP refused to take
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`the deposition of these declarants and continued to ignore this evidence.
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`Despite CTP affirmatively burying its head in the sand, the declarations of
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`Messrs. Jahn and Suetens (Exs. 1023 and 1024) remain both proper supplemental
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`evidence and proper Reply evidence. First, Exhibits 1023 and 1024 are
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`3
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`Petitioners’ Opposition to First and Second Motions to Exclude
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`supplemental evidence and not, as Patent Owner alleges, supplemental
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`information. As explained by the Board:
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`The difference is that supplemental evidence—served in response to an
`evidentiary objection and filed in response to a motion to exclude—is
`offered solely to support admissibility of the originally filed evidence and to
`defeat a motion to exclude that evidence, and not to support any argument
`on the merits (i.e., regarding the patentability or unpatentability of a claim).
`Supplemental information, on the other hand, is evidence a party intends to
`support an argument on the merits.
`See, e.g., Handi-Quilter, Inc. v. Bernina Int’l AG, IPR2013-00364, Paper 30 at 2
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`(PTAB June 12, 2014).
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`
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`Here, the Declaration of Mr. Jahn and the Supplemental Declaration of Mr.
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`Suetens are offered solely to support the admissibility of Apogee (Ex. 1007), are
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`not offered to further support “any argument on the merits (i.e., regarding the
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`patentability or unpatentability of a claim)” in view of Apogee and, therefore, are
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`proper supplemental evidence. Tellingly, CTP characterizes its objection to
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`Apogee as purely evidentiary based on alleged “authentication issues with regard
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`to the Apogee reference – namely, that it was disseminated or otherwise made
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`publicly available.” (Ex. 2018 at 5.) The Declaration of Mr. Jahn and the
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`Supplemental Declaration of Mr. Suetens are offered solely in response to this
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`evidentiary objection.
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`Moreover, in a case directly analogous to the present situation, and decided
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`
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`after Handi-Quilter, the Board found admissible, as supplemental evidence,
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`declaration testimony that corroborated the public accessibility of an alleged
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`anticipatory prior art reference. See Toyota Motor Corp. v. Am. Vehicular Sci.
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`LLC, IPR2013-00417, Paper 78 at 12-13 (PTAB January 7, 2015).1 In Toyota, trial
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`was instituted against claim 9 of the challenged patent in view of the “Fry”
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`1 Palo Alto v. Juniper, IPR2013-00369, Paper 37 (PTAB Feb. 5, 2014), cited by
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`Patent Owner (Paper 25 at 10), was decided before the Board’s decisions in both
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`Handi-Quilter and Toyota Motor Corp. Moreover, Palo Alto does not relate to
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`responsive, supplemental evidence under Rule 42.64(b)(2), as is the case here.
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`Patent Owner’s reliance on Mitsubishi Plastics v. Celgard, IPR2014-00524, Paper
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`30 at 3, 6 (PTAB Nov. 28, 2014) is similarly misplaced. There, the Board denied
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`Petitioners request to submit supplemental information because Petitioner
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`attempted to add two new expert declarations (submitted in related proceedings
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`challenging the same claims) that would, as conceded by Petitioner, bolster the
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`evidence originally submitted in its Petition. Id. Here, Petitioners are not
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`“seek[ing], effectively, to change the evidence it relied upon in making its original
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`challenge” and, therefore, the holding of Mitsubishi Plastics does not apply. Id.
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`Decisions on supplemental evidence are simply inapposite.
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`5
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`reference. Id. at 6. The patent owner challenged whether Fry was accessible prior
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`to the priority date of the challenged patent. Id. In support of its assertion that Fry
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`was publicly accessible Toyota, the petitioner, offered supplemental evidence
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`including the “Broadhurst Affidavit.” Id. at 8. Patent Owner filed a motion to
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`exclude this evidence. Id.
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`
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`The Broadhurst Affidavit included Ms. Broadhurst’s testimony that based on
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`her “position as ‘Library and Archive Assistant’ for iMechE, she testifies on behalf
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`of iMechE and verifies the date of publication of Fry … as of January 1995.” Id. at
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`12. The patent owner alleged that the aforementioned portions of the Broadhurst
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`Affidavit should be excluded; however, the Board found that:
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`Our rules provide for testimony by way of affidavit. 37 C.F.R. § 42.53(a).
`Ms. Broadhurst’s testimony was produced following the cited procedure.
`Cross examination of that testimony is routine discovery and may be taken
`by deposition. 37 C.F.R. § 42.51(b)(1)(ii); 37 C.F.R. § 42.53(b)(2). Cross
`examination of supplemental evidence, like the Broadhurst Affidavit, is
`governed by 37 C.F.R. § 42.53(d)(2). AVS elected not to cross examine Ms.
`Broadhurst, as it could have. Had it done so, AVS might have developed
`specific deficiencies in the testimony. On this record, and under our
`procedures, we find the testimony admissible.
`Id. at 12-13 (emphasis added). Thus, in Toyota, the Board made explicitly clear
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`that testimony by way of affidavit is proper supplemental evidence in response to
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`an evidentiary objection attacking the alleged public accessibility of prior art.
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`Similarly, the Board found that cross examination of supplemental evidence is
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`perfectly acceptable under its rules and, if a party fails to take advantage of this
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`procedure, it does so at its own peril. Id.
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`
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`Here, just as in Toyota, Patent Owner moved to exclude Apogee based upon
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`an alleged evidentiary deficiency; namely, that Petitioners did not provide
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`sufficient evidence to show that Apogee was publicly disseminated. In response to
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`Patent Owner’s objection, Petitioners served Patent Owner with the Declaration of
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`Mr. Jahn and the Supplemental Declaration of Mr. Suetens, which responded to
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`Patent Owner’s evidentiary objection. Then, to ensure that Patent Owner had
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`sufficient time to depose Messrs. Jahn and Suetens before the due date for motions
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`for observations on cross-examination, Petitioners immediately made its witnesses
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`available for deposition. (Ex. 1026.) That Patent Owner elected not to cross
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`examine Messrs. Jahn and Suetens is a prejudice of its own making.
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`
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`Accordingly, Exhibits 1023 and 1024 are proper and admissible
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`supplemental evidence. Patent Owner’s arguments regarding these declarations in
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`its Second Motion to Exclude amount to nothing more than an attack on the
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`sufficiency of Petitioners evidence, which the Board is fully capable of weighing.
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`See, e.g., BioMarin Pharma. Inc. v. Genzyme Therapeutic Prods. Ltd. P’Ship.,
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`IPR2013-00537, Paper 79 at 24-25 (PTAB Feb. 23, 2015) (“Patent Owner fails to
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`identify … why we would be unable to weigh this evidence without prejudice or
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`confusion…. Patent Owner’s objections go more to the weight … rather than to []
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`admissibility. A motion to exclude is not the proper vehicle to challenge the
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`sufficiency of evidence…. Moreover, we note that there is a strong public policy
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`for making all information filed in an administrative proceeding available to the
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`public, ….”); Kyocera Corp. v. Softview LLC, IPR2013-00004, Paper No. 53 at 33
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`(PTAB March 27, 2014); Conopco, Inc. v. The Procter & Gamble Co., IPR2013-
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`00505, Paper 69 at 29-30 (PTAB Feb. 10, 2015).
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`At their core, Patent Owner’s “objections” (Ex. 2018 at 4) take issue with
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`the concept of supplemental evidence which, as explained by the panel in Toyota
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`Motor Corp., is entirely unremarkable as far as PTAB practice is concerned.
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`IPR2013-00417, Paper 78 at 12-13. Because the Board’s rules have operated
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`exactly as intended—allowing Petitioners’ to moot unwarranted evidentiary
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`objections via supplemental evidence before party and Board resources are
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`wasted—Patent Owner is left arguing details of Messrs. Jahn and Suetens
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`declarations, which is an obvious, and inappropriate, merit-based attack. Similarly,
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`as Patent Owner’s arguments regarding the Declaration of Mr. Jahn and the
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`Supplemental Declaration of Mr. Suetens simply go to the weight of the evidence,
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`Patent Owner’s motion fails to (and simply cannot) identify relevant objections of
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`record in this regard. See 37 C.F.R. 42.64(c) (a “motion [to exclude] must identify
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`the objections in the record in order and must explain the objections.”)
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`8
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`Moreover, because Patent Owner’s first Motion to Exclude was filed,
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`prematurely, mid-trial, before supplemental evidence was served, Exhibits 1023
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`and 1024 were filed, appropriately, as Reply exhibits. See, e.g., Brookwood Co.
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`Inc. v. Nextex Applications, Inc., IPR2014-00412, Paper 19 at 5 (PTAB Sept. 24,
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`2014) (recognizing that petitioner evidence served in response to an evidentiary
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`objection may later be filed via petitioner’s reply and/or in opposition to a motion
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`to exclude). Specifically, the Declaration of Mr. Jahn and the Supplemental
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`Declaration of Mr. Suetens are directly responsive to the duplicate argument raised
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`in Patent Owner’s Response that Apogee has allegedly not been authenticated as
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`prior art. (Paper 19 at 46.) Thus, Exhibits 1023 and 1024 were properly filed with
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`Petitioners’ Reply as responsive to that argument. Patent Owner’s unauthorized
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`Second Motion to Exclude should be denied.
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`III. APOGEE WAS PUBLICLY AVAILABLE
`Petitioners have presented overwhelming evidence showing that Apogee
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`was published prior to the earliest effective filing date of the ‘155 patent. In its
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`opening papers, Petitioners established, by a preponderance of the evidence (see 37
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`C.F.R. § 42.1(d)), that at least 76,030 of copies of the Apogee publication (Ex.
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`1007) were printed and, ultimately, distributed to the public prior to the earliest
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`priority date of the ‘155 patent. (See Ex. 1022 at pp. 3-4, 21.) Specifically,
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`Petitioners provided the declaration of Johan Suetens establishing that Apogee was
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`9
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`distributed to the public via Agfa sales personnel in the normal course of business
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`shortly after a press briefing held on March 17, 1998, but no later than May 28,
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`1998. (Id. at ¶¶ 8, 11.)
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`As described above, in response to Patent Owner’s First Motion to Exclude
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`and simultaneous objections, Petitioners served the Supplemental Declaration of
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`Johan Suetens (Ex. 1024). There, Mr. Suetens explains exactly how Agfa’s
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`Enterprise Management System works and how Agfa monitored the dissemination
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`of brochures and other documents like Apogee (Ex. 1007) during the regular
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`course of business. Contrary to Patent Owner’s arguments (Paper 25 at 11), each
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`statement contained on pages 1-4 of Mr. Suetens first declaration (Ex. 1022) were
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`made with his full knowledge. Rather, during his deposition, Mr. Suetens was
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`unable to identify some of the data fields of Agfa’s Enterprise Management
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`System that he had not previously considered when writing his first declaration.
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`Thereafter, at the time of writing his supplemental declaration (Ex. 1024), Mr.
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`Suetens was able to testify regarding the meaning of those fields based upon his
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`current, first-hand knowledge. Moreover, the attachments to Mr. Suetens’
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`supplemental declaration are Agfa business records. (Ex. 1024 at ¶¶ 3-8.)
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`In particular, Agfa’s Enterprise Management System logged requests from
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`Agfa’s regional offices for copies of brochures and other documents (see Ex. 1024
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`at ¶¶ 6, 10-11, Attachment E), and then logged the date when the ordered
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`10
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`brochures were printed and delivered to Agfa’s warehouses (see Ex. 1024 at ¶¶ 6,
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`12, Attachment F). Following this, and once the document request was prepared
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`and fulfilled, Agfa’s accounting department would invoice the requesting
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`individual for the ordered document/brochures. (See Ex. 1024 at ¶¶ 7-8, 14,
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`Attachment H.)
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`Between May 15, 1998 and August 13, 1998, Agfa Belgium received
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`714,320 copies of Apogee (Ex. 1007). Specifically, 44,014 copies were received
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`on May 15, 1998; 492,926 copies were received on June 10, 1998; 101,350 copies
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`were received on July 3, 1998; and 76,030 copies were received on August 13,
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`1998. (See Ex. 1024 at ¶ 13.) Attachment H to Mr. Suetens supplemental
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`declaration also shows that individuals working for Agfa USA were invoiced for
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`the Apogee brochure (Ex. 1007) throughout 1998. By way of example, an invoice
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`for 1,000 Apogee brochures was sent to a Mr. Morrisey on May 26, 1998; an
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`invoice for 2,500 Apogee brochures was sent to a Mr. Ross on June 11, 1998; and
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`an invoice for 400 Apogee brochures was sent to a Mr. Jahn on August 11, 1998.
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`Thus, the supplemental declaration of Mr. Suetens clearly corroborates
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`Petitioners’ original assertion—that hundreds of thousands of copies of Apogee
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`were printed, received by Agfa, and then distributed to Agfa’s sales personnel for
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`distribution to the public throughout 1998. Patent Owner’s arguments in its
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`Second Motion to Exclude simply go to the weight of this evidence.
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`Second, in response to Patent Owner’s authentication objections, Petitioners
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`served the Declaration of Michael Jahn (Ex. 1023). As an initial matter, Mr. Jahn
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`corroborated Mr. Suetens original statements regarding the public accessibility of
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`Apogee by distribution at seminars and conferences through Agfa sales personnel.
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`(Paper 25 at 5-7.) Mr. Jahn worked for Agfa from August 1997 to September 2001
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`and, during that time, he assisted in the product management and development of
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`the Agfa Apogee product. This included Mr. Jahn giving numerous presentations
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`and seminars throughout the world on Agfa’s products, including Apogee. (Ex.
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`1023 at ¶¶ 5, 9-11.) Apogee (Ex. 1007) was one of the brochures that Mr. Jahn
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`handed to conference/seminar attendees after they visited Agfa’s presentation
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`booth. (Ex. 1023 at ¶¶ 9, 11.) Not only did Mr. Jahn distribute hard-copies of
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`Apogee to conference/seminar attendees throughout 1998 and thereafter, he also
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`directed attendees to his website (www.jahn.org), where an earlier version of
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`Apogee was available for download (the “March Apogee Brochure”). (Ex. 1023 at
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`¶¶ 12, 14.)
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`More specifically, Mr. Jahn testified that he uploaded the March Apogee
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`Brochure to his website sometime in March 1998; that his website was freely
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`accessible to the public; and that it was his practice to direct conference attendees
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`to his website to download Agfa literature, such as Apogee. (Ex. 1023 at ¶¶ 18-
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`21.) Mr. Jahn’s declaration also includes an affidavit from Christopher Butler of
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`the Internet Archive, attaching a true and correct copy of Mr. Jahn’s website as it
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`existed on January 25, 1999 to corroborate his specific assertions. (Ex. 1023 at ¶
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`13.) Patent Owner’s argument that Mr. Jahn’s declaration should be excluded
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`because it only shows that the March Apogee Brochure was displayed via Mr.
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`Jahn’s website in 2001 should be ignored. (Paper 25 at 15). Such a statement can
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`only be made by outright ignoring Mr. Jahn’s sworn statement that he personally
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`uploaded the document to his website in March 1998. (Ex. 1023 at ¶¶ 17-19.)
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`Similarly, as can be seen from the Internet Archive’s records (see Ex. 1023
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`Attachment C at pp. 1-7), the March Apogee Brochure was freely available on
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`jahn.org by January 25, 1999, at the latest, which is the first Wayback Machine
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`capture of Mr. Jahn’s website. (Ex. 1023 at ¶¶ 15-17, Attachment C at p. 7 (“Agfa
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`Apogee” link).) Again, Patent Owner’s argument that the Internet Archive’s
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`records should be excluded can only be made after turning a blind eye to the
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`Archives’ authenticated records showing a link to “Agfa Apogee” on Mr. Jahn’s
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`website from Jan. 25, 1999, as well as Mr. Jahn’s sworn testimony. Such a
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`blinkered analysis of Petitioners’ evidence cannot form a basis for a motion to
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`exclude.
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`Mr. Jahn also explained that the differences between the March Apogee
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`Brochure and the Apogee exhibit (Ex. 1007) are marketing, rather than technical
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`edits, and that “the architecture and functionality of Apogee did not change in any
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`significant way, if at all,” between versions of the brochure. (Ex. 1023 at ¶¶ 22-
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`28.) To be clear, Petitioners are not relying on the March Apogee Brochure as a
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`new piece of prior art as alleged by Patent Owner (Paper 25 at 13), but simply as
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`another piece of corroboratory evidence to refute Patent Owner’s unfounded
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`argument that Petitioners have failed to establish that Ex. 1007 was publicly
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`disseminated. The import of the March Apogee Brochure is clear—that the
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`Apogee platform was a key piece of software sold and marketing by Agfa, further
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`corroborating the accessibility of the specific brochure (Ex. 1007) cited by
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`Petitioners in their opening papers. As with Mr. Suetens, Patent Owner’s
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`arguments regarding Mr. Jahn’s declaration simply go to its weight, rather than its
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`admissibility.
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`Not only have Petitioners’ established, by a preponderance of the evidence
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`(see 35 U.S.C. § 316(e)), that Apogee was publicly accessible before the priority
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`date of the ‘155 patent (July 30, 1999), Petitioners have established that Apogee
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`was publicly accessible by clear and convincing evidence.
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`IV. CONCLUSION
`For at least the foregoing reasons, Patent Owner’s objection to Petitioners’
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`evidence, First Motion to Exclude (Paper 18), and unauthorized Second Motion to
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`Exclude (Paper 25), should be denied as moot. Additionally, Patent Owner’s
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`Second Motion should be expunged from the record as improper briefing on the
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`merits.
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`Dated: June 16, 2015
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`Respectfully submitted,
`
`Oblon, McClelland, Maier &
`Neustadt, LLP
`
`
`
`
`/Scott A. McKeown/
`Scott A. McKeown (Reg. No. 42,866)
`Attorney for Petitioners
`EASTMAN KODAK COMPANY,
`AGFA CORPORATION, ESKO
`SOFTWARE BVBA, and
`HEIDELBERG, USA
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`15
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies service of
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`PETITIONERS’ OPPOSITION TO PATENT OWNER’S FIRST MOTION
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`TO EXCLUDE (PAPER 18) AND PATENT OWNER’S UNAUTHORIZED
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`SECOND MOTION TO EXCLUDE EVIDENCE (PAPER 25) on the counsel
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`of record for the Patent Owner by delivering a copy via electronic means to the
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`following address:
`
`W. Edward Ramage
`L. Clint Crosby
`BAKER, DONELSON, BEARMAN, CALDWELL
`& BERKOWITZ, P.C.
`eramage@bakerdonelson.com
`ccrosby@bakerdonelson.com
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`
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`Dated: June 16, 2015
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`/Scott A. McKeown/
`Scott A. McKeown (Reg. No. 42,866)
`Attorney for Petitioners
`EASTMAN KODAK COMPANY,
`AGFA CORPORATION, ESKO
`SOFTWARE BVBA, and
`HEIDELBERG, USA
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