UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`NORMAN INTERNATIONAL, INC.
`Petitioner
`
`v.
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`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 REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`October 5, 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 REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`October 5, 2015
`
`
`
`
`
`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`
`PATENT OWNER DID NOT DEMONSTRATE THAT EXHIBIT
`2001 IS ADMISSIBLE ................................................................................... 1
`A.
`Patent Owner Failed to Meet the Requirements of FRE 702 ............... 1
`CONCLUSION ............................................................................................... 3
`
`
`-i-
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`
`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
`
`Pages 5-8: Original Japanese Publication
`
`Page 9: Translator Certification
`
`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
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`U.S. Patent No. 6,056,036 (“Todd”)
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`1008
`
`U.S. Patent No. 6,293,329 (“Toti”)
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`
`
`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”)
`
`
`
`
`
`-ii-
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`
`
`
`
`Norman
`Exhibit #
`1010
`
`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`
`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
`
`1015
`
`Affidavit of Douglas L. Sawyer in support of Petitioner Norman
`
`International, Inc.'s Unopposed Motion for Pro Hac Vice Admission
`
`under 37 C.F.R. §42.10(c)
`
`
`
`-iii-
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`Pursuant to the Scheduling Order of February 10, 2015 (Paper 8), Petitioner
`
`timely submits its reply to Patent Owner’s Opposition to Petitioner’s Motion to
`
`Exclude (Paper 22).
`
`I.
`
`PATENT OWNER DID NOT DEMONSTRATE THAT EXHIBIT 2001
`IS ADMISSIBLE
`A.
`The party attempting to introduce an expert’s testimony into evidence has
`
`Patent Owner Failed to Meet the Requirements of FRE 702
`
`the burden of proving admissibility under Federal Rule of Evidence 702 by a
`
`preponderance of the evidence. See Fed. R. Evid. 702, Advisory Committee Notes
`
`for 2000 Amendments (citing Bourjaily v. United States, 483 U.S. 171, 175, 178–
`
`79 (1987)). Patent Owner has failed to demonstrate that the testimony in Exhibit
`
`2001 provides an expert opinion pursuant to FRE 702. Instead, Patent Owner rests
`
`on its assumption that Mr. Corey is a person of ordinary skill in the art. See Paper
`
`22 at 2-3.
`
`Patent Owner did not demonstrate Mr. Corey’s scientific, technical, or other
`
`specialized knowledge. The testimony in Exhibit 2001 and the arguments in Patent
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`Owner’s papers only contain vague and conclusory statements that presume Mr.
`
`Corey’s expertise. But a review of Mr. Corey’s testimony reveals that Mr. Corey
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`fails to identify any experience with or knowledge of the art at issue in this review.
`
`Ex. 2001 at ¶¶ 10, 26, 28 (describing background as a supervisor and technical
`
`
`
`-1-
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`leader in fabrics associated with window coverings). Instead, Mr. Corey’s own
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`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
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`design or the claimed invention of the ’884 patent. Patent Owner is responsible for
`
`qualifying its proffered expert under FRE 702. It failed to do so.
`
`Petitioner further challenges Patent Owner’s claim that Mr. Corey is
`
`qualified as a person of ordinary skill in the art. Mr. Corey’s own definition
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`requires “at least three (3) years of experience in the window covering industry,
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`and more specifically, in the development of ‘hard’ window coverings and their
`
`components.” Ex. 2001 at ¶ 26 (emphasis added). Mr. Corey writes, without
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`explanation or elaboration, that “I have significant experience with ‘hard’ window
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`treatment components,” but this assertion is contradicted by his own curriculum
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`vitae, which only describes experience in fabric window coverings—experience
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`excluded under his own definition of a person of ordinary skill in the art.1 Ex.
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`2001 at ¶ 28; Attach. A at 2 (describing “fabric venetian” products).
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`
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`1. Mr. Corey’s testimony also fails to meet the FRE 702 standard because it is
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`unreliable in view of Mr. Corey’s longstanding employment with Patent Owner’s
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`subsidiary. See Ex. 2001 at ¶ 10; Attach. A at 1. Patent Owner relies on a non-
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`- 2 -
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`
`II. CONCLUSION
`For the reasons set forth in the Motion and above, Patent Owner’s Exhibit
`
`2001 should be excluded as inadmissible, or at the least should be given no weight
`
`in this proceeding.
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`
`
`Dated: October 5, 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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`precedential decision made in IPR2013-00323, but in that trial, the expert-
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`employee was not compensated beyond his regular salary. See Polaris Wireless,
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`IPR2013-00323, Paper 48 at 5, Ex. 1005 at ¶¶ 3-6. The same cannot be said for
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`Mr. Corey, who is being paid $225 per hour in addition to unspecified royalties
`
`and salary. Ex. 2001 at ¶ 12, Attach. A at 1-2.
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`- 3 -
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`
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`CASE IPR2014-01175 (Patent 6,968,884)
`Petitioner’s Reply in Support of Motion to Exclude
`
`
`CERTIFICATE OF SERVICE
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`
`
`The undersigned certifies that complete copies of PETITIONER’S REPLY
`
`TO PATENT OWNER’S OPPOSITION TO PETITIONER’S MOTION TO
`
`EXCLUDE EVIDENCE were served this 5th day of October, 2015 by electronic
`
`mail as agreed upon by the parties on the 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: October 5, 2015
`
`
`
`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`norman-hd-ipr@perkinscoie.com
`
`
`
`
`- 4 -
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