UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________________________________________________
`
`ZHONGSHAN BROAD OCEAN MOTOR CO., LTD.;
`BROAD OCEAN MOTOR LLC; and
`BROAD OCEAN TECHNOLOGIES, LLC
`
`Petitioners
`
`v.
`
`NIDEC MOTOR CORPORATION
`
`Patent Owner
`
`U.S. Patent No. 7,626,349
`Case No. IPR2014-01121
`
`PETITIONERS’ RESPONSE TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
`
`HOU 1810683v.1
`
`ATTORNEYS EYES ONLY - REDACTED VERSION
`
`
`___________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________________________________________________
`
`ZHONGSHAN BROAD OCEAN MOTOR CO., LTD.;
`BROAD OCEAN MOTOR LLC; and
`BROAD OCEAN TECHNOLOGIES, LLC
`
`Petitioners
`
`v.
`
`NIDEC MOTOR CORPORATION
`
`Patent Owner
`
`U.S. Patent No. 7,626,349
`Case No. IPR2014-01121
`
`PETITIONERS’ RESPONSE TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
`
`HOU 1810683v.1
`
`ATTORNEYS EYES ONLY - REDACTED VERSION
`
`
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS
`
`:—1
`
`I.
`II.
`
`INTRODUCTION ....................................................................................... .. 1
`
`NIDEC’S MOTION SHOULD BE DENIED BECAUSE IT
`
`FAILED TO FOLLOW THE DEADLINES UNDER 37
`
`INTRODUCTION .........................................................................................1
`NIDEC’S MOTION SHOULD BE DENIED BECAUSE IT
`FAILED TO FOLLOW THE DEADLINES UNDER 37
`C.F.R. 42.64(b)(1)...........................................................................................1
`C.F.R. 42.64(b)(1)......................................................................................... ..1
`III. EXHIBITS 1034 AND 1035 ..........................................................................3
`IV. TESTIMONY SURROUNDING EXHIBITS 1034 AND
`1035. ................................................................................................................5
`PATENT OWNER’ATTEMPTED USE OF THE SAME
`OBJECTED TO EVIDENCE IN ITS MOTION FOR
`OBSERVATIONS MOOTS ITS ATEMPTS TO EXCLUDE
`THEM HERE.................................................................................................5
`
`THEM HERE ............................................................................................... ..5
`
`III.
`
`EXHIBITS 1034 AND 1035 ........................................................................ ..3
`
`IV.
`
`TESTIMONY SURROUNDING EXHIBITS 1034 AND
`
`1035. .............................................................................................................. "5
`
`V.
`
`PATENT OWNER’ATTEMPTED USE OF THE SAME
`
`OBJECTED TO EVIDENCE IN ITS MOTION FOR
`
`OBSERVATIONS MOOTS ITS ATEMPTS TO EXCLUDE
`
`i
`
`
`
`CASES
`
`Index of Authorities
`
`Page(s)
`
`Air Land Forwarders, Inc. v. United States,
`172 F.3d 1338 (Fed. Circ. 1999)................................................................................ 4
`
`Brawuer v. Allstate Indem. Co.,
`591 F.3d 984 (8th Cir. 2010)...................................................................................... 4
`
`OTHER AUTHORITIES
`
`37 C.F.R. 42.64(b)(1).................................................................................................... 1, 2
`
`77 Fed. Reg. 48765, 48767 (Aug. 14, 2012).................................................................. 2
`
`Fed. R. Evid. 803(b).......................................................................................................... 4
`
`ii
`
`
`
`I.
`
`INTRODUCTION
`
`Pursuant to the Board’s January 21, 2015 Scheduling Order (Paper 21),
`
`Petitioners Zhongshan Broad Ocean Motor Co., Ltd. Broad Ocean Motor LLC, and
`
`Broad Ocean Technologies, LLC (collectively, “Broad Ocean” or “Petitioners”)
`
`provide the following Response to Patent Owner’s Motion to Exclude Evidence.
`
`First, Patent Owner’s Motion is procedurally defective because Nidec failed
`
`to file the underlying objections to Broad Ocean’s evidence with the Board on
`
`August 21, 2015, as required by 37 C.F.R. 42.64(b)(1). Second, even assuming
`
`Nidec’s Motion is properly before this Board,
`
`its objections should not be
`
`sustained because in view of the testimony by Mr. Hu, the objected-to Exhibits
`
`qualify as business records. Moreover, Nidec is now attempting to bolster its case
`
`by referring to the same objected-to testimony and exhibits in its motion for
`
`observations and as much has waived any such objections.
`
`II.
`
`NIDEC’S MOTION SHOULD BE DENIED BECAUSE IT FAILED TO
`FOLLOW THE DEADLINES UNDER 37 C.F.R. 42.64(b)(1)
`
`Effective May 19, 2015, 37 C.F.R. 42.64(b)(1) requires, inter alia:
`
`(1) Objection. Any objection to evidence submitted
`during a preliminary proceeding must be filed within ten
`business days of the institution of the trial. Once a trial
`has been instituted, any objection must be filed within
`five business days of service of evidence to which the
`objection is directed.
`
`1
`
`
`
`The prior version of 37 C.F.R. 42.64(b)(1) only required a party to serve
`
`objections to evidence, which meant that such objections were not in the record of
`
`the proceedings. According to the Office Patent Trial Practice Guide, a motion to
`
`exclude required the movant to “[i]dentify where in the record the objection
`
`originally was made.” See Office Patent Trial Practice Guide, 77 Fed. Reg. 48765,
`
`48767 (Aug. 14, 2012). Accordingly, on May 19, 2015, the Patent Trial and
`
`Appeal Board, in a Final Rule-making decision, amended 37 C.F.R. 42.64(b)(1) to
`
`replace the word “served” with “filed” to reconcile the need to have objections in
`
`the record as a prerequisite for a motion to exclude based on the same objection.
`
`Broad Ocean filed its Reply on August 21, 2015 accompanied by several
`
`exhibits to which Nidec later objected. Nidec however only served those
`
`objections on August 28, 2015, in violation of 37 C.F.R. 42.64(b)(1). Nidec
`
`recently attempted to cure its mistake by belatedly filing the Objections as Exhibit
`
`2029 on September 21, 2015, almost one month after it was originally due. But
`
`Nidec should not be allowed to circumvent the Rules. If anything, it should have
`
`asked for permission from the Panel to file its objections after the fact, which it
`
`failed to do as well. Nidec’s motion should therefore be denied because it failed to
`
`file its objections on a timely basis.
`
`2
`
`
`
`III. EXHIBITS 1034 AND 1035
`
`In the event the Board allows Nidec’s motion to proceed, Broad Ocean will
`
`show that the objected to Exhibits and testimony should be admitted.
`
`Exhibits 1034 and 1035 are third-party documents known as
`
`.
`
`Patent Owner has claimed that Exhibits 1034 and 1035 are inadmissible
`
`hearsay and that they do not qualify under the business records exception.
`
`However, in what has now been commonly called the “Adapted Business
`
`Record Rule,” courts have allowed the admission of third-party created business
`
`records so long as that third-party business record was incorporated into the
`
`business seeking to admit this record, the business relied upon the record, and there
`
`exists circumstances indicating the document’s trustworthiness.
`
`In fact, every
`
`circuit that has decided this issue has held that such third-party records can be
`
`admissible even if there is no declarant from the third-party (unlike the present
`
`situation, Mr. Hu worked at Goodman
`
`.
`
`3
`
`
`
`In 2010, the Eight Circuit joined other circuits allowing the admission of
`
`records created by third parties in Brawuer v. Allstate Indem. Co., 591 F.3d 984
`
`(8th Cir. 2010). This opinion provides a good survey of the decisions of other
`
`circuits including the Federal Circuit (Air Land Forwarders, Inc. v. United States,
`
`172 F.3d 1338 (Fed. Circ. 1999)) on the admissibility of these sorts of records.
`
`In the present case, the Goodman documents qualify for admission under
`
`this hearsay exception. First, Mr. Hu testified that he relied upon these documents
`
`in preparing bids to be sent to Goodman in order to qualify these motors for
`
`Goodman’s possible purchase. Ex.1020, Hu Decl. ¶¶ 4, 6.
`
`Second,
`
`these
`
`documents have now become integrated into Broad Ocean’s records. Third, Mr.
`
`Hu has laid the basic foundation that these are the business records of Broad
`
`Ocean.
`
`Id. Finally, there is evidence strongly indicating that these reports are
`
`trustworthy and reliable because Mr. Hu himself was present when they were
`
`prepared by other Goodman employees, and he himself had access to and used
`
`them in his job responsibilities at Goodman. Id.
`
`In summary, Exhibits 1034 and 1035 are admissible under the business
`
`records exception of Fed. R. Evid. 803(b) because they have satisfied that Rule’s
`
`requirements.
`
`4
`
`
`
`IV. TESTIMONY SURROUNDING EXHIBITS 1034 AND 1035.
`
`Since the exhibits are admissible, any testimony by Mr. Hu concerning these
`
`documents, e.g., Paragraphs 4-6 of the Exhibit 1020, is likewise admissible. By
`
`failing to brief its other objections to Mr. Hu’s declaration, see Exhibit 2029, Nidec
`
`has effectively waived those objections to this evidence.
`
`Accordingly, Nidec’s objections to the Hu declaration paragraphs 4-6 should
`
`all be overruled.
`
`V.
`
`PATENT OWNER’ATTEMPTED USE OF THE SAME OBJECTED
`TO EVIDENCE IN ITS MOTION FOR OBSERVATIONS MOOTS
`ITS ATEMPTS TO EXCLUDE THEM HERE
`
`Remarkably, Patent Owner cites to the same Exhibits and testimony in its
`
`Motion for Observation on Cross-Examination of Ge Hu that it is attempting to
`
`exclude in its Motion to Exclude. See Patent Owner’s Motion for Observations,
`
`Motion 46, Observations 7-24, pages 4-14. Patent Owner however cannot have it
`
`both ways, it must either withdraw its objections to this evidence or expunge its
`
`citations to the same evidence in its Motion for Observations that it is attempting to
`
`exclude at the same time.
`
`Dated: September 25, 2015
`
`Respectfully submitted,
`
`/s/ Steven F. Meyer
`Steven F. Meyer (Reg. No. 35,613)
`Charles S. Baker (pro hac vice)
`LOCKE LORD LLP
`Three World Financial Center
`New York, New York 10281-2101
`
`5
`
`
`
`Certificate of Service
`
`Pursuant to 37 C.F.R. §42.6(e) and 37 C.F.R. §42.105(b), the undersigned
`hereby certifies that on September 25, 2015, a complete and entire copy of the
`foregoing PETITIONERS’ RESPONSE TO PATENT OWNER’S MOTION
`TO EXCLUDE EVIDENCE was electronically served in its entirety on the
`Patent
`Owner
`of
`record
`(as
`agreed
`upon
`by
`counsel)
`at
`sbrown@hoveywilliams.com, mwalters@hoveywilliams.com,
`and litigation@
`hoveywilliams.com.
`
`the undersigned certifies that on September 25, 2015, a
`Additionally,
`complete and entire copy of the foregoing PETITIONERS’ RESPONSE TO
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE was
`electronically served on the Patent Owner’s below-listed counsel of record at
`jschwent@thompsoncoburn.com,
`djinkins@thompsoncoburn.com,
`and
`litigation Nidec Motor
`the
`syoo@thompsoncoburn.com,
`in
`co-pending
`Corporation
`v. Broad Ocean Motor LLC et
`al., Civil Action No.
`4:13-CV-01895-JCH (E.D. Mo.), as agreed upon by the parties.
`
`Dated: September 25, 2015
`
`/s/ Charles S. Baker
`Steven F. Meyer (Reg. No. 35,613)
`Charles S. Baker (pro hac vice)
`LOCKE LORD LLP
`Three World Financial Center
`New York, New York 10281-2101
`
`Attorneys for Petitioners Zhongshan
`Broad Ocean Motor Co., Ltd.;
`Broad Ocean Motor LLC; and
`Broad Ocean Technologies, LLC
`
`HOU 1810683v.1
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