UNITED STATES PATENT AND TRADEMARK OFFICE
`
`IPR2014-01175
`U.S. Patent No. 6,968,884
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`NORMAN INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`HUNTER DOUGLAS, INC.
`Patent Owner
`
`
`Case No. IPR2014-01175
`U.S. Patent No. 6,968,884
`
`
`
`
`
`
`
`
`
`
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`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION
`TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`
`
`September 28, 2015
`
`
`
`IPR2014-01175
`U.S. Patent No. 6,968,884
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`NORMAN INTERNATIONAL, INC.
`Petitioner
`
`v.
`
`HUNTER DOUGLAS, INC.
`Patent Owner
`
`
`Case No. IPR2014-01175
`U.S. Patent No. 6,968,884
`
`
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION
`TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`
`
`
`
`September 28, 2015
`
`
`
`IPR2014-01175
`U.S. Patent No. 6,968,884
`
`
`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................. 1
`I.
`II. RELEVANT PROCEDURAL HISTORY ......................................................... 1
`III. LEGAL STANDARD ........................................................................................ 1
`IV. ARGUMENT ..................................................................................................... 2
`A. Exhibit 2001 Should Not Be Excluded. .................................................... 2
`1. Mr. Corey’s Specialized Knowledge Qualifies Him as an Expert
`Pursuant to FRE 702. .................................................................................... 2
`2. Mr. Corey’s Opinion is Reliable. .......................................................... 4
`V. CONCLUSION .................................................................................................. 5
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`I.
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`INTRODUCTION
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`IPR2014-01175
`U.S. Patent No. 6,968,884
`
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`Patent Owner Hunter Douglas, Inc. (“Patent Owner”) hereby opposes
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`Petitioner’s motion to exclude evidence.
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`II. RELEVANT PROCEDURAL HISTORY
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`On July 16, 2014, Petitioner filed its second Petition for inter partes review
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`of United States Patent No. 6,968,884 (the “‘884 Patent”).1 (Paper 1.) Patent
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`Owner filed its Response on May 4, 2015. (Paper 9.) With its Response, Patent
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`Owner also filed, inter alia, Exhibit 2001. On May 11, 2015, Petitioner served its
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`objections to certain evidence submitted by Patent Owner. (Exhibit 1014.)
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`III. LEGAL STANDARD
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`Pursuant to 37 C.F.R. § 42.64, “[a] motion to exclude must be filed to
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`preserve any objection. The motion must identify the objections in the record in
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`order and must explain the objections.” Moreover, “[t]he moving party has the
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`burden of proof to establish that it is entitled to the requested relief.” 37 C.F.R. §
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`42.20(c). As such a motion to exclude must:
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`(a) identify where the objection originally was made;
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`(b) identify where in the record the evidence sought to be excluded was
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`relied upon by an opponent;
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`1 Petitioner’s first petition for inter partes review of the ‘884 Patent was denied in
`its entirety by the Board. See IPR2014-00276, Paper 2 and Paper 11.
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`- 1 -
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`
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`(c) address objections to exhibits in numerical order; and
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`IPR2014-01175
`U.S. Patent No. 6,968,884
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`(d) explain each objection.
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`77 Fed. Reg. 48,765, 48,767 (Aug. 14, 2012).
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`IV. ARGUMENT
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`A. Exhibit 2001 Should Not Be Excluded.
`Petitioner contends that Exhibit 2001 (the expert declaration of Mr. John
`
`Corey) is inadmissible under FRE 702 for two reasons. Neither of Petitioner’s
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`reasons has any merit.
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`1. Mr. Corey’s Specialized Knowledge Qualifies Him as an
`Expert Pursuant to FRE 702.
`
`According to FRE 702, an expert witness is one who “is qualified as an
`
`expert by knowledge, skill, experience, training, or education.” Petitioner alleges
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`that “Patent Owner fails to establish or explain why Mr. Corey is qualified to
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`testify regarding the field of invention or the alleged invalidity of the ‘884 patent.”
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`(Paper 37 at 2-4.) Yet Petitioner does not and cannot dispute that Mr. Corey’s
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`background and experience qualify him, at a minimum, as a “person of ordinary
`
`skill in the art” under the ‘884 Patent under Petitioner’s own definition. (See
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`Exhibit 1009 at ¶ 34 (“[A] person having ordinary skill in the art would have an
`
`associate’s degree or a bachelor’s degree in mechanical engineering or a related
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`field involving mechanical design coursework and a few years of working
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`- 2 -
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`
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`experience in the area of mechanical design.”) Mr. Corey’s knowledge, skill, and
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`IPR2014-01175
`U.S. Patent No. 6,968,884
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`experience go well beyond Petitioner’s own definition of a person of ordinary skill
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`in the art, and do, in fact qualify Mr. Corey as an expert in the field of window
`
`coverings and mechanical design. Indeed, in critiquing Mr. Corey’s qualification
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`as an expert, Petitioner omits any mention of Mr. Corey’s curriculum vitae,
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`attached as Attachment A to Exhibit 2001. This Attachment details Mr. Corey’s
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`extensive experience with mechanical design in the field of window coverings, and
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`accordingly, controverts Petitioner’s baseless allegation that Mr. Corey is not
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`qualified to testify as an expert.
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`Moreover, even if Petitioner’s criticisms had any merit (which they do not),
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`these arguments go to the weight and sufficiency of Mr. Corey’s testimonial
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`evidence, rather than its admissibility, and as such are inappropriate for a motion to
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`exclude. See e.g., Smith & Nephew, Inc. v. ConvaTec Tech., Inc., IPR2013-00097,
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`Paper 90 at 58-60 (PTAB May 29, 2014) (denying a motion to exclude expert
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`testimony on the same grounds proposed by Petitioner); see also Liquid Dynamics
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`Corp. v. Vaughan Co., 449 F.3d 1209, 1221 (Fed. Cir. 2006) (citing Quiet Tech.
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`DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1344-45 (11th Cir. 2003); In
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`re TMI Litig., 193 F.3d 613, 692 (3d. Cir. 1999) (“So long as the expert’s
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`testimony rests upon ‘good grounds,’ it should be tested by the adversary
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`process—competing expert testimony and active cross-examination …”) (internal
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`- 3 -
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`
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`citations omitted), Wilmington v. J.I. Case Co., 793 F.2d 909, 920 (8th Cir. 1986)
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`IPR2014-01175
`U.S. Patent No. 6,968,884
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`(“Virtually all the inadequacies in the expert’s testimony urged here by [the
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`defendant] were brought out forcefully at trial…. These matters go to the weight of
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`the expert’s testimony rather than to its admissibility.”). Petitioner failed to cross-
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`examine Mr. Corey during its designated discovery period, and its ex post efforts to
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`seek exclusion of Mr. Corey’s declaration are an improper remedy for such failure.
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`2. Mr. Corey’s Opinion is Reliable.
`Petitioner asserts that Exhibit 2001 is unreliable “[i]n view of Mr. Corey’s
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`longstanding relationship with Patent Owner” and should be excluded. (Paper 16 at
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`4.) Petitioner understandably cites no authority and provides no explanation as to
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`why Mr. Corey’s purported “longstanding relationship” would render part or all of
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`his opinion to be unreliable. (Id.)
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`This omission is not surprising: the PTAB has held that an allegation of
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`purported bias based on an expert’s relationship with a party is not a ground to
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`exclude the evidence. The Board is entirely capable of determining the appropriate
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`weight to be afforded to an expert’s declaration. See Polaris Wireless, Inc. v.
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`Trueposition, Inc., IPR2013-00323, Paper 62 at 39, 41-42 (PTAB Nov. 3, 2014)
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`(finding that a movant’s attempt to exclude an expert’s declaration because he is
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`“an officer with significant stock options and other interests in [a party]” is
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`misplaced). Petitioner’s attempt to exclude Mr. Corey’s declaration due to an
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`- 4 -
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`
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`alleged bias similarly is misplaced and should be denied.
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`IPR2014-01175
`U.S. Patent No. 6,968,884
`
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`V. CONCLUSION
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`For the foregoing reasons, Petitioner’s motion should be denied and Exhibit
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`2001 should neither be excluded nor given diminished weight.
`
`
`Date: September 28, 2015
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`Respectfully submitted,
`
`By: s/ Kristopher L. Reed
`Kristopher L. Reed
`Registration No. 58694
`Lead Counsel for Patent Owner
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`- 5 -
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`IPR2014-01175
`U.S. Patent No. 6,968,884
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that copies of this PATENT
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`OWNER’S OPPOSITION TO PETITIONER’S MOTION TO EXCLUDE
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`PURSUANT TO 37 C.F.R. § 42.64(c) was served September 28, 2015 via
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`electronic service on the following:
`
`Bing Ai
`Perkins Coie LLP
`11988 El Camino Real, Suite 350
`San Diego, California 92130
`Email: ai@perkinscoie.com
`norman-hd-ipr@perkinscoie.com
`
`
`
`Dated: September 28, 2015
`
`Kourtney Mueller Merrill
`Douglas Sawyer
`Perkins Coie LLP
`1900 16th St., Suite 1400
`Denver, CO 80202
`Email: kmerrill@perkinscoie.com
`dsawyer@perkinscoie.com
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`Respectfully submitted,
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`
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`By: s/ Kristopher L. Reed
`Kristopher L. Reed
`Reg. No. 58694
`Kilpatrick Townsend & Stockton LLP
`1400 Wewatta Street, Suite 600
`Denver, Colorado 80202
`Tel: (303) 571-4000
`Fax: (303) 571-4321
`kreed@kilpatricktownsend.com
`Lead Counsel for Patent Owner
`
`
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`67728668V.1
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