From:
`
`Sent:
`To:
`Cc:
`
`Subject:
`
`Mr. Ramage/Miller,
`
`Scott McKeown
`
`Wednesday, April 22, 2015 4:06 PM
`'Miller, Samuel'; Christopher Ricciuti
`CP Docket McKeown; CP Docket Kiklis; Crosby, Clint; Ramage, W. Edward; Gibbs, Sharon
`
`RE: Depositions
`
`Thank you for your letter of April 20, 2015. As your letter expresses considerable confusion as to PTAB trial
`practice, as well as to the content of our April 16, 2015 communication, please allow me to clarify.
`
`Petitioners’ email communication of April 16th was captioned “Supplemental Evidence.” Likewise, the cover
`sheet for each proceeding references Rule 42.64(b)(2). This rule provides that supplemental evidence may be
`served within 10 days of an objection. As such our 4/ 16, communication is clearly not a petitioner response,
`supplemental information, or an opposition to your motion to exclude. It is supplemental evidence, which is
`plainly permissible under the cited rule —and entirely unremarkable as far as PTAB trial practice is
`concerned. Further, for a motion to exclude to be proper under Rule 42.64(c), it must “identify the objections in
`the record in order and must explain the objections.” As you explain at great length in your “Motion to
`Exclude,” you did not object to Mr. Suetens’ declaration and the Apogee exhibit before April
`2nd. Accordingly, for your “Motion to Exclude” to be proper under the PTAB’S rules, which Petitioners do not
`concede, your 4/2 filing would have to contemporaneously be considered an objection to evidence, thereby
`triggering Petitioners’ right to submit supplemental evidence under Rule 42.64(b)(2).
`
`You argue that petitioners’ supplemental evidence is a violation of Board rules, yet you have not cited any
`PTAB rule for this assertion. On the other hand, petitioners have cited to the Rule 42.64(b)(2). It seems your
`argument is against this rule, not any improper conduct of petitioners.
`
`Further, your complaints pertaining to “due process” evince a fundamental misunderstanding of PTAB practice
`and procedure. Not only is patentee discovery not “closed” you have a second period of discovery that has yet
`to even begin. That is, patentees are accorded two separate discovery periods in IPR to account for information
`in petitioner replies. “Once the time for taking discovery in the trial has ended, the parties will be authorized to
`file motions to exclude evidence believed to be inadmissible.” Oflice Patent Trial Practice Guide, 77 Fed. Reg.
`483156, 48758 (Aug. 14, 2012). Motions to exclude are authorized at the close of trial, Due Date 4, which is June
`11 .
`
`On this last point, as stipulated changes to the schedule have left you with a limited second discovery period,
`Mr. Suetens and Mr. Jahn will be made available early, as a professional courtesy, as follows:
`
`Suetens: May 6th
`Jahn: May 12-15th
`
`Please advise as to your intention in this regard.
`
`Scott
`
`From: Miller, Samuel [mailto:SamuelMiller@bakerdonelson.com]
`Sent: Monday, April 20, 2015 5:20 PM
`To: Scott McKeown; Christopher Ricciuti
`
`1
`
`PETITIONERS EX. 1027, p. 1
`Kodak V. CTP
`
`|PR2014-00791
`
`PETITIONERS Ex. 1027, p. 1
`Kodak v. CTP
`IPR2014-00791
`
`

`

`Cc: CP Docket McKeown; CP Docket Kiklis; Crosby, Clint; Ramage, W. Edward; Gibbs, Sharon
`Subject: RE: Depositions
`
`Please see correspondence attached.
`
`Samuel F. Miller
`
`Shareholder and Co-Chair - Intellectual Property and Technology Litigation
`Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
`
`Baker Donelson Center, Suite 800
`211 Commerce Street
`
`Nashville, TN 37201
`Direct: 615.726.5594 (Nashville)
`Fax: 615.744.5594 (Nashville)
`Alt. Direct: 901.577.2175 (Memphis)
`Alt. Fax: 901.577.4227 (Memphis)
`Email: smiller@bakerdonelson.com
`www.bakerdonelson.com| bakerdonelsoncom |
`
`Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
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`
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`
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`
`2
`
`PETITIONERS EX. 1027, p. 2
`Kodak V. CTP
`
`|PR2014-00791
`
`PETITIONERS Ex. 1027, p. 2
`Kodak v. CTP
`IPR2014-00791
`
`