`___________________________
`
`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 IPR2014-00790
`Patent 6,611,349
`___________________________
`
`PATENT OWNER’S REPLY TO OPPOSITION TO MOTIONS TO
`EXCLUDE
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`CTP Innovations, LLC (“Patent Owner”), respectfully submits this Reply to
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`Petitioners' Opposition to Motions to Exclude (Paper 35).
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`1.
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`Petitioners Have Treated the First Motion to Exclude As Objections.
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`The document filed as a Motion to Exclude on April 2, 2015 (Paper 18) (the
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`“April 2nd Motion”), resulted from John Suetens' deposition in which his
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`testimony substantially undercut and refuted his declaration (Ex. 1023) that was
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`submitted with the original and corrected petitions. His testimony also called into
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`question whether the Apogee reference (Ex. 1008) was actually published prior to
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`the earliest effective filing date of the subject patent.
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`Petitioners elected to treat the April 2nd Motion as a timely submitted
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`Notice of Objections on the record. Petitioners’ Reply Brief (Paper 29) at 16-17.
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`According to Petitioners, Patent Owner’s objection provided Petitioners the
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`opportunity to submit “supplemental evidence.” This led to the submission of the
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`Declaration of Michael Jahn (Ex. 1024), and the Supplemental Declaration of
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`Johan Suetens (Ex. 1025). Among other objections, Patent Owner objected to
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`these declarations as comprising “supplemental information,” not “supplemental
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`evidence,” and the filing of these declarations led to the Motion to Exclude filed on
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`June 11, 2015 (Paper 31) (the “June 11th Motion”).
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`Because Petitioners have treated the April 2d Motion as a timely submitted
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`notice of objections, Patent Owner has done the same when filing the June 11th
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`Motion. Petitioners cannot have it both ways: if the April 2d Motion is treated as
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`a notice of objections permitting Petitioners to submit alleged “supplemental
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`evidence,” then the June 11th Motion cannot be objected to as being beyond page
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`limits or otherwise improperly filed. To the extent the April 2 Motion is
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`considered to be only objections, the June 11th Motion should be considered as
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`Patent Owner's sole motion to exclude, and includes all of the grounds for
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`excluding all four of the exhibits in question (Ex. 1008, 1023, 1024, 1025).
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`2.
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`Toyota Motor Corp. Supports Patent Owner.
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`Petitioners rely upon Toyota Motor Corp. v. Am. Vehicular Sci. LLC,
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`IPR2013-00417, Paper 78 (PTAB Jan. 7, 2015), for the position that a declaration
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`submitted in response to an objection to the lack of publication date is
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`supplemental evidence instead of supplemental information. However, Toyota
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`Motor Corp. actually supports the opposite conclusion:
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`We note that although there are evidentiary issues relating to Fry, the
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`question of whether Fry constitutes prior art is not itself an evidentiary
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`issue. Rather, it is part of the substantive case that Toyota must prove.
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`Id. at 6 n.1. Thus, a declaration submitted in response to an objection to the lack
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`of publication date goes to the merits of the case, and must, by definition, be
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`supplemental information.
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`The patent owner in Toyota Motor Corp. did not object on the basis of the
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`distinction between supplemental evidence and supplemental information. Instead,
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`the patent owner only objected on the bases of relevance and hearsay.
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`Accordingly, at best, Petitioners cite to pure dicta and, at worst, misrepresent
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`Toyota Motor Corp. as addressing an issue not actually raised in that case. Here,
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`Patent Owner specifically objected on the basis of the distinction between
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`supplemental information and supplemental evidence.
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`3
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`3.
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`Petitioners Have Revealed Their “Trojan Horse” Theory
`Admissibility.
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`for
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`Petitioners’ reliance on the March Apogee Brochure confirms their “Trojan
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`Horse” position on invalidity. Faced with the fact that they cannot prove that
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`Apogee was publicly available at the critical time, Petitioners attempt to include
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`the March Apogee Brochure to show “that the Apogee platform was a key piece of
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`software sold and [sic] marketing by Agfa.” Paper 35 at 14. It is Petitioners’
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`burden to show that Apogee qualifies as a prior art “printed publication.” Whether
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`an underlying technology, such as “the Apogee platform,” existed is irrelevant to a
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`determination of whether a document is a “printed publication” for purposes of
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`unpatentability in this proceeding. See A.R.M., Inc. v. Cottingham Agencies LTD,
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`IPR2014-00671, Paper 10, at 7-8.
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`4. Whether Patent Owner Elected to Take Additional Depositions is
`Irrelevant.
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`Petitioners make much ado over Patent Owner’s decision not to take the
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`additional depositions of Messrs. Jahn and Suetens. Nothing in the any rule of this
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`Board requires a patent owner to take a deposition prior to making an objection or
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`prior to filing a motion to exclude. Patent Owner has asserted that the declarations
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`at issue are deficient on their face as being supplemental information improperly
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`submitted as supplemental evidence (among other reasons), and taking depositions
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`to discover additional deficiencies or grounds were, in Patent Owner’s opinion,
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`unnecessary. This Board should not give more weight to a declarant’s testimony
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`simply because a party chooses not to cross-examine such testimony, especially
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`when there are fatal evidentiary flaws apparent in the declaration itself.
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`Dated: June 23, 2015
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`Respectfully submitted,
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`BAKER, DONELSON, BEARMAN,
`CALDWELL & BERKOWITZ, P.C.
`
`
`
`/W. Edward Ramage/
`W. Edward Ramage, Reg. No. 50,810
`BAKER, DONELSON, BEARMAN,
`CALDWELL & BERKOWITZ, P.C.
`Baker Donelson Center
`211 Commerce Street, Suite 800
`Nashville, Tennessee 37201
`Tel: (615) 726-5771
`Fax: (615) 744-5771
`Email: eramage@bakerdonelson.com
`
`for Patent Owner CTP
`Counsel
`Innovations, LLC
`
`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that, on June 23, 2015, the foregoing
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`Motion to Exclude (including attachments thereto) was served in its entirety via
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`U.S. Express Mail, postage prepaid, and electronic mail upon the following:
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`
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`Scott A. McKeown
`OBLON, SPIVAK, MCCLELLAND,
`MAIER & NEUSTADT, LLP.
`1940 Duke Street
`Alexandria, VA 22314
`Tel: (703) 412-6297
`Fax: (703) 413-2220
`Email: cpdocketmckeown@oblon.com
` cpdocketkiklis@oblon.com
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`
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`
`
`/W. Edward Ramage/
`W. Edward Ramage, Reg. No. 50,810
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