UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`NORMAN INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`HUNTER DOUGLAS INC.
`Patent Owner
`
`
`
`
`
`CASE IPR2014-01175
`Patent No. 6,968,884
`
`
`
`
`
`Before LINDA M. GAUDETTE, JAMES P. CALVE, and
`HYUN J. JUNG, Administrative Patent Judges
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`September 14, 2015
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`NORMAN INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`HUNTER DOUGLAS INC.
`Patent Owner
`
`
`
`
`
`CASE IPR2014-01175
`Patent No. 6,968,884
`
`
`
`
`
`Before LINDA M. GAUDETTE, JAMES P. CALVE, and
`HYUN J. JUNG, Administrative Patent Judges
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`September 14, 2015
`
`
`
`
`
`TABLE OF CONTENTS
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`Page
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`I.
`II.
`
`OVERVIEW OF THE MOTION ................................................................... 1
`EXHIBIT 2001 SHOULD BE EXCLUDED FOR FAILURE TO
`MEET THE REQUIREMENTS OF FRE 702 ............................................... 1
`A. Mr. Corey Is Not Qualified As An Expert ........................................... 2
`B. Mr. Corey Cannot Provide an Unbiased Opinion ................................ 4
`III. CONCLUSION ............................................................................................... 5
`
`
`
`-i-
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`
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`
`
`EXHIBIT LIST
`
`Brief Description
`U.S. Patent No. 6,968,884 B2 (“the 884 Patent”)
`
`
`Norman
`Exhibit #
`1001
`
`1002
`
`Japanese Patent Application Publication S54-38648 (“Tachikawa”)
`
`Pages 1-4: English Translation
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`Pages 5-8: Original Japanese Publication
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`Page 9: Translator Certification
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`1003
`
`U.S. Patent No. 3,327,765 (“Strahm”)
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`1004
`
`Great Britain Patent No. 1,174,127 (“Skidmore”)
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`1005
`
`U.S. Patent No. 1,870,532 (“Schuetz”)
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`1006
`
`U.S. Patent No. 2,390,826 (“Cohn”)
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`1007
`
`U.S. Patent No. 6,056,036 (“Todd”)
`
`1008
`
`U.S. Patent No. 6,293,329 (“Toti”)
`
`
`
`1009
`
`Declaration of Lawrence E. Carlson in Support of Petition for Inter
`
`Partes Review of U.S. Patent No. 6,968,884B2 (“Carlson Declaration
`
`on 884 Patent”)
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`
`
`
`
`-ii-
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`
`
`Norman
`Exhibit #
`1010
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`
`
`Brief Description
`Declaration of Patrick E. Foley in Support of Petition for Inter Partes
`
`Review of U.S. Patent No. 6,968,884B2 (“Foley Declaration on 884
`
`Patent”)
`
`1011
`
`Proof Of Service on July 16, 2013 of Summons in Civil Action No.
`
`1:13-cv-01412-MSK-MJW (D. COLO.) (“Proof of Service”)
`
`1012
`
`Declaration Of Sara Hare (“Hare Declaration”)
`
`1013
`
`Declaration of Lawrence E. Carlson in Support of Petitioner’s Reply to
`
`Patent Owner’s Response of May 4, 2015
`
`1014
`
`Petitioner’s Objections to Patent Owner’s Evidence Submitted After
`
`Institution of a Trial under 37 C.F.R. § 42.64(b)(1) as served on Patent
`
`Owner on May 11, 2015
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`
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`-iii-
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`
`I.
`
`OVERVIEW OF THE MOTION
`
`Pursuant to 37 C.F.R. § 42.64(c) and the Scheduling Order of February 10,
`
`2015 (Paper 8), Petitioner moves to exclude Exhibit 2001 as inadmissible. In the
`
`alternative, Petitioner requests that the Board give no weight to this exhibit for at
`
`least the reasons stated herein. In particular, Petitioner moves to exclude Exhibit
`
`2001 (“Declaration of John A. Corey”) as inadmissible under Federal Rule of
`
`Evidence (“FRE”) 702.
`
`Prior to this motion, Petitioner timely objected to Exhibit 2001 on May 11,
`
`2015, within five business days of service of the evidence presented with the
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`Patent Owner’s Response (Paper 9), which was filed on May 4, 2015. (See Exhibit
`
`1014; 37 C.F.R. § 42.64(b)(1).) An updated exhibit list is concurrently filed
`
`herewith.
`
`II. EXHIBIT 2001 SHOULD BE EXCLUDED FOR FAILURE TO MEET
`THE REQUIREMENTS OF FRE 702
`
`Exhibit 2001 should be excluded under FRE 702. First, Exhibit 2001 is
`
`inadmissible under FRE 702 because Patent Owner has not qualified Mr. Corey as
`
`an expert in the relevant field of art of the ’884 patent. In addition, Mr. Corey’s
`
`testimony is unreliable and biased in view of Mr. Corey’s longstanding
`
`employment with Comfortex Window Fashions, a subsidiary of Patent Owner
`
`Hunter Douglas Inc. In the alternative, the Board should give no weight, or
`
`diminished weight, to Exhibit 2001.
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`-1-
`
`
`
`
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`A. Mr. Corey Is Not Qualified As An Expert
`FRE 702 permits expert testimony if the witness is qualified as an expert by
`
`knowledge, skill, experience,
`
`training, or education, and
`
`that specialized
`
`knowledge will help the trier of fact understand the evidence or determine a fact in
`
`issue. But neither Mr. Corey’s declaration nor his curriculum vitae in Exhibit 2001
`
`demonstrate that Mr. Corey is qualified as an expert in the relevant field of art for
`
`the ’884 patent. Instead, Exhibit 2001 merely presents vague, conclusory, and self-
`
`serving assertions that fall short of the requirements of FRE 702. (See, e.g., Ex.
`
`2001 at ¶¶ 10, 26, 28.) A close read of Mr. Corey’s own description of his
`
`knowledge and experience in his declaration and curriculum vitae reveals that he
`
`has no specialized knowledge, skill, experience, training, or education in the use of
`
`spring motors and brakes in mechanical and component design or the claimed
`
`invention of the ’884 patent:
`
`Since at least 1985, I have been an active inventor and engineer
`
`in the window coverings industry, associated with Comfortex
`
`Window Fashions (“Comfortex”) and for many years have
`
`served as Director of Research and Development
`
`for
`
`Comfortex. During my tenure there, I have provided guidance
`
`and support for product development, including the invention of
`
`the double-depth cellular window coverings and key
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`- 2 -
`
`
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`manufacturing equipment that formed the basis for the creation
`
`of Comfortex as a manufacturing concern. I also have
`
`consulted as an expert witness, including providing a patent
`
`infringement analysis in the field of window coverings. Since
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`at least 1987, I have led the technical development of primary
`
`products, including but not limited to, equipment used for
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`double cell and 3-D fabric venetian window shade products and
`
`their manufacture including, but not limited to, the world’s
`
`fastest and widest pleater, a unique helical textile lap-laminator,
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`integration of a unique 2-sided, registered printing line, and
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`certain curing systems.
`
`(Ex. 2001 at ¶ 10; see id., Attach. A at 2 (describing experience with fabric
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`products instead of mechanical products).)
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`Accordingly, Exhibit 2001 is inadmissible because Patent Owner fails to
`
`establish or explain why Mr. Corey is qualified to testify regarding the field of
`
`invention or the alleged validity of the ’884 patent. Mr. Corey’s declaration in
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`Exhibit 2001 is therefore not helpful to the trier of fact and should be excluded or
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`given no weight.
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`- 3 -
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`
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`B. Mr. Corey Cannot Provide an Unbiased Opinion
`FRE 702 permits expert testimony if the witness has reliably applied the
`
`principles and methods to the facts of the case. But Mr. Corey’s longstanding
`
`employment with Comfortex Window Fashions, a subsidiary of Hunter Douglas
`
`Inc., precludes an unbiased evaluation of the facts of this matter. Mr. Corey has
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`been employed by Comfortex Window Fashions since at least 1985. (Ex. 2001 at
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`¶ 10.) But, as explained in Mr. Corey’s curriculum vitae, Comfortex Window
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`Fashions has been owned by Hunter Douglas Inc. since 2000:
`
`Since 2000, Comfortex has been owned by HunterDouglas, and
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`I have consulted with Comfortex on new product development
`
`throughout that period. Comfortex paid me royalties on an
`
`invention. I have also provided expert witness testimony in
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`other cases in which HunterDouglas was a participant.
`
`(Ex. 2001, Attach. A at 1.)
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`Hunter Douglas Inc. is the Patent Owner in this proceeding. In view of Mr.
`
`Corey’s longstanding relationship with Patent Owner, Mr. Corey’s declaration in
`
`Exhibit 2001 is unreliable and should be excluded or at least given no weight or
`
`diminished weight.
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`- 4 -
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`
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`III. CONCLUSION
`For the reasons set forth above, Exhibit 2001 should be excluded or given no
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`
`weight.
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`This motion is timely filed on September 14, 2015, Due Date 4 set by the
`
`Board in the Scheduling Order (Paper 8).
`
`
`
`Dated: September 14, 2015
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`norman-hd-ipr@perkinscoie.com
`
`
`
`
`
`Respectfully submitted,
`
`/Bing Ai/
`Lead Counsel Bing Ai, Reg. No. 43,312
`Backup Counsel Kourtney Mueller Merrill,
`Reg. No. 58,195
`
`Attorneys for Norman International, Inc.
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`- 5 -
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Motion to Exclude Evidence
`
`
`CERTIFICATE OF SERVICE
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`
`
`The undersigned certifies
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`that complete copies of PETITIONER’S
`
`MOTION TO EXCLUDE EVIDENCE and EXHIBIT 1014 were served this 14th
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`day of September, 2015 by electronic mail as agreed upon by the parties on the
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`Patent Owner via its attorneys of record:
`
`KILPATRICK TOWNSEND & STOCKTON LLP
`Kristopher L. Reed (kreed@kilpatricktownsend.com)
`Darin Gibby (dgibby@kilpatricktownsend.com)
`Frederick L. Whitmer (FWhitmer@kilpatricktownsend.com)
`HD-Norman-IPR@kilpatricktownsend.com
`1400 Wewatta Street, Suite 600
`Denver, Colorado 80202
`
`
`Respectfully submitted,
`
`
`
`/Bing Ai/
`Lead Counsel Bing Ai, Reg. No. 43,312
`
`Backup Counsel Kourtney Mueller Merrill,
`Reg. No. 58,195
`
`Attorneys for Norman International, Inc.
`
`Dated: September 14, 2015
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`norman-hd-ipr@perkinscoie.com
`
`
`
`
`- 6 -
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