UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`Cisco Systems, Inc.
`Petitioner
`
`v.
`
`Capella Photonics, Inc.
`Patent Owner
`
`
`Patent No. RE42,368
`Filing Date: June 15, 2010
`Reissue Date: May 17, 2011
`
`Title: RECONFIGURABLE OPTICAL ADD-DROP MULTIPLEXERS WITH
`SERVO CONTROL AND DYNAMIC SPECTRAL POWER MANAGEMENT
`CAPABILITIES
`
`
`
`Inter Partes Review No. 2014-01166
`
`PETITIONER'S OBJECTIONS TO PATENT OWNER'S EVIDENCE
`SUBMITTED AFTER INSTITUTION OF A TRIAL UNDER 37 C.F.R.
`§ 42.64(b)(1)
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`Cisco Systems, Inc.
`Petitioner
`
`v.
`
`Capella Photonics, Inc.
`Patent Owner
`
`
`Patent No. RE42,368
`Filing Date: June 15, 2010
`Reissue Date: May 17, 2011
`
`Title: RECONFIGURABLE OPTICAL ADD-DROP MULTIPLEXERS WITH
`SERVO CONTROL AND DYNAMIC SPECTRAL POWER MANAGEMENT
`CAPABILITIES
`
`
`
`Inter Partes Review No. 2014-01166
`
`PETITIONER'S OBJECTIONS TO PATENT OWNER'S EVIDENCE
`SUBMITTED AFTER INSTITUTION OF A TRIAL UNDER 37 C.F.R.
`§ 42.64(b)(1)
`
`
`
`
`
`
`
`Case No. 2014-01166
`Atty. Docket No. CSCO-001/00US [034855.2014] (RE42,368)
`Petitioner’s Objections to Patent Owner’s Evidence
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Cisco Systems, Inc.
`
`("Petitioner") hereby objects to the following evidence submitted by Patent Owner
`
`Capella Photonics, Inc. ("Patent Owner") with the Patent Owner's Response under
`
`37 C.F.R. § 42.120 (Paper 19):
`
`1. Exhibits 2006, 2009, 2011, 2018 and 2024 are objected to because they are
`
`not authenticated as required by FRE 901 and Patent Owner has not
`
`established that they are self-authenticating under FRE 902. Because Patent
`
`Owner relies on these exhibits for the truth of the matters therein, these
`
`exhibits are further objected to as hearsay under FRE 801 and 802, and
`
`Patent Owner has not established that any of the exceptions to FRE 802
`
`apply. For example, Patent Owner has not established whether particular
`
`declarants were employees of Petitioner or if their statements were made on
`
`a matter within the scope of their employment.
`
`2. Exhibits 2006, 2009, 2011 and 2020 are also objected to because they are
`
`incomplete copies. Exhibit 2006 is missing multiple pictures and other
`
`information. See Ex. 2006 at 1. Exhibit 2009 contains only 7 pages of what
`
`appears to be a 91-page document. See Ex. 2009 at 5. Exhibit 2011
`
`contains only 10 pages of what appears to be a 132-page document. See Ex.
`
`
`
`
`
`
`
`Case No. 2014-01166
`Atty. Docket No. CSCO-001/00US [034855.2014] (RE42,368)
`Petitioner’s Objections to Patent Owner’s Evidence
`
`
`2011 at 10. Exhibit 2020 contains only 41 pages of what appears to be a
`
`371-page document. See Ex. 2020 at 24.
`
`3. Exhibits 2009, 2019, 2020, 2023 and 2025 are objected to because they are
`
`irrelevant and are not admissible under FRE 401. These exhibits are not
`
`contemporaneous with the filing dates of the patents, and the exhibits have
`
`no probative value regarding the theories for which Patent Owner relies on
`
`these documents. For example, Exhibits 2006, 2009, and 2018 discuss
`
`products for which Patent Owner has not shown any relevance to this
`
`proceeding. Patent Owner has not shown that these products practice the
`
`claims of the ‘368 patent that are at issue in this proceeding.
`
`4. Paragraphs 47, 53, 64, 66, 124, 147 and 158 of Exhibit 2004 are objected to
`
`because the declaration does not establish that these paragraphs are based
`
`on sufficient facts or data or are the product of reliable principals and
`
`methods. The declaration does not set forth the facts or data relied upon in
`
`reaching the opinions in conclusions therein. For example, these paragraphs
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`are entirely conclusory without any supporting facts, analysis, or
`
`methodology set forth. Further, the statements in ¶¶ 53, 64, 66, 124, 147
`
`and 158 are objected to on the basis that the declarant has not established he
`
`has personal knowledge of the statements recited therein as required by
`
`
`
`
`
`
`Case No. 2014-01166
`Atty. Docket No. CSCO-001/00US [034855.2014] (RE42,368)
`Petitioner’s Objections to Patent Owner’s Evidence
`
`
`FRE 602 and 701. Petitioner also objects to these statements to the extent
`
`the
`
`statements
`
`rely upon unreliable documents,
`
`including
`
`the
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`unauthenticated hearsay documents identified in paragraph 1, above.
`
`These objections have been timely made and served within five business days
`
`of service of the evidence to which the objections are directed.
`
`
`Dated: May 13, 2015
`
`COOLEY LLP
`ATTN: Wayne O. Stacy
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (720) 566-4000
`Fax: (202) 842-7899
`
`
`
`
`
`
`By:
`
`
`
`
`
`Respectfully submitted,
`COOLEY LLP
`
`/ Matthew J. Leary /
`Matthew J. Leary
`Reg. No. 58,593
`Back-up Counsel
`
`
`
`
`
`
`
`Case No. 2014-01166
`Atty. Docket No. CSCO-001/00US [034855.2014] (RE42,368)
`Petitioner’s Objections to Patent Owner’s Evidence
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. §§ 42.6(e) and 42.105(b), the undersigned certifies
`
`that on May 13, 2015, a complete and entire electronic copy of this Petitioner’s
`
`Objections to Patent Owner’s Evidence Submitted After Institution of a Trial
`
`Under 37 C.F.R. § 42.64(b)(1) for Inter Partes Review No. 2014-01166, was
`
`served electronically via email in its entirety on the following counsel of record for
`
`Patent Owners:
`
`Robert Greene Sterne (Lead Counsel)
`Jon E. Wright (Backup Counsel)
`Jason D. Eisenberg (Backup Counsel)
`Nicholas J. Nowak (Backup Counsel)
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N. W.
`Washington, D.C. 20005
`E-mails:
`rsterne-PTAB@skgf.com
`jwright-PTAB@skgf.com
`jasone-PTAB@skgf.com
`nnowak-PTAB@skgf.com
`
`
`By: / Matthew J. Leary /
`
`Matthew J. Leary
`
`Reg. No. 58,593
`
`Back-up Counsel
`
`
`
`
`
`
`
`
`
`
`116687468 v2
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`
`
`
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