UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ORACLE CORPORATION, NETAPP INC. and
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-01207
`Patent No. 7,051,147
`____________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`CITED BY PETITIONERS
`
`
`
`
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ORACLE CORPORATION, NETAPP INC. and
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-01207
`Patent No. 7,051,147
`____________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`CITED BY PETITIONERS
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`Patent Owner respectfully requests that certain evidence relied on by Petitioners
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`be excluded pursuant to 37 C.F.R. § 42.64(c). Patent Owner objected to various
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`exhibits on either February 17, 2015 (Attachment A), February 18, 2015 (Attachment
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`B) or August 28, 2015 (Paper 47). Patent Owner’s objections to deposition testimony
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`were made in the record during deposition. In addition or in the alternative, because
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`Petitioners repeatedly mischaracterize the deposition testimony of Patent Owner’s
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`expert Dr. Levy and declarant John Middleton, Patent Owner further requests that the
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`Board consider additional portions of these deponents’ testimony pursuant to the Rule
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`of Completeness (FRE 106).
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`I. PETITIONERS MISCHARACTERIZE THE TESTIMONY OF
`DR. LEVY
`Petitioners rely on certain testimony by Dr. John Levy, Ph.D., Patent Owner’s
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`expert, which should be excluded because it was obtained pursuant to objectionable
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`questioning and/or mischaracterizes his testimony.
`A. Objection #1
`Petitioners cite Ex.1218 at 56:19-57:24 for the proposition that “a host channel
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`ID (a Fibre Channel ID in the CRD combined system) is sufficient to identify the host
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`device within the meaning of the claims of the ‘147 patent where there is only a single
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`host on each host or fibre channel.” Paper 45 (“Reply”) at 3. The subject testimony is
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`as follows:
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`Q. So my question was directed to the device, not the storage
`address or partition within the storage device. . . . So my question is,
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`1
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`where there is only a single SCSI bus attached to the storage router, is
`the SCSI ID sufficient to identify the storage device within the
`meaning of the claims of the '147 patent?
`MR. HALL: Objection; form.
`A. And so you mean to identify the device in the map, the claim
`map?
`Q. Correct.
`A. Well, given that an entire storage device is what needs to be
`represented in the map and that there is only one SCSI bus and that
`SCSI IDs are unique on that SCSI bus, which they must be, then in
`that case a SCSI ID could be sufficient to identify the mapped storage.
`Q. Okay. So let's discuss the parallel concept on the fibre channel
`side. In the circumstance where there is only a single host device
`on a fibre channel, is the fibre channel ID sufficient to identify the
`host device?
`MR. HALL: Objection; form.
`* * *
`A. Well, on the host side of the map, all that's required in the map
`is an identifier sufficient to distinguish between multiple hosts on the
`first transport medium. So a fibre channel ID of some kind would be
`one example of something that could distinguish between such hosts.
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`Ex. 1218, 56:14-57:24 (emphasis added). Patent Owner’s counsel’s form objection is
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`included above; as Petitioners’ changing interpretations of the phrase demonstrate, the
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`use of “fibre channel ID” is vague. The term appears nowhere in the record but here
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`and Petitioners’ reply; it does not appear to have been used in the Petition or
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`supporting declaration.
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`2
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`Petitioners first indicated that “fibre channel ID” was an analog to “SCSI ID.”
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`Earlier in the deposition, SCSI ID was used to refer to the ID of a device on a SCSI
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`bus (e.g., the SCSI ID of a storage device) used to distinguish the device from other
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`devices on the SCSI bus, as opposed to identifying the bus itself.
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`A. . . . . Well, let's see. We -- I need to clarify what is meant by
`"the SCSI IDs of the storage devices." Are we talking about the -- the
`SCSI ID on the SCSI bus of the storage -- storage devices? Is that
`correct?
`Q. Correct. It's the same SCSI ID, I believe, that you testified about
`in your previous deposition.
`A. Well, we had a lot of testimony about SCSI IDs on a SCSI bus,
`yes. Right.
`Q. And I'm using the term "SCSI ID" in that same sense.
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`Ex 1218, 54:5-16. See also, Ex. 1232 at 127:14-20 (A. . . . “there can’t be more than
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`one host with the same SCSI ID on a SCSI bus. Therefore, the SCSI ID is, in fact,
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`adequate to distinguish a host on the SCSI bus.”)1
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`After discussing SCSI IDs, Petitioners’ counsel stated “let’s discuss the parallel
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`concept on the fibre channel side” indicating that “fibre channel ID” was somehow
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`analogous to SCSI ID. See Ex. 1218 at 57:8-12. Clearly this is what Dr. Levy
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`understood, testifying that “fibre channel ID” refers to an identifier that can be used to
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`1 The parties agreed that this testimony could be cited in the present proceeding.
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`Ex. 1218, 7:9-21.
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`3
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`distinguish between multiple hosts on the first transport medium. Id., 57:19-24.
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`Petitioners’ reply appears to reinterpret “fibre channel ID” to refer to, or be
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`analogous to, a “host channel ID”. Reply at 3 (referring to “a host channel ID (a Fibre
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`Channel ID in the CRD combined system)”). To the extent Petitioners are attempting
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`to conflate “fibre channel ID” as used in the cited question with the internal identity of
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`a CRD-5500 host channel (i.e., the slot number), such an interpretation demonstrates
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`the vagueness of the question and is, further, contrary to both Dr. Levy’s testimony in
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`the cited passage (Ex. 2018, 57:19-22) and Petitioners’ explicit acknowledgement that
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`a fibre channel ID refers to the ID of a host device, not a channel ID:
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`Q. In the example where the control unit bridges between a fibre
`channel device interface and a SCSI disk, the fibre channel would
`output its own ID, in particular an FC ID. Is that right?
`A. I think you probably meant to say the fibre channel host. Is
`that correct?
`Q. (BY MR. GARDELLA) Yes.
`A. In the interactions between a host and a target on fibre channel,
`the host identifies both itself and the target in the frame.
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`Ex 1218, 67:22-68:8 (emphasis added) (objection omitted). This cited passage shows
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`that fibre channels per se do not have identifiers, and counsel agreed. Petitioners’
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`shifting interpretations of “fibre channel ID” show the ambiguity of the term. Because
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`Ex. 1218, 56:19-57:24 is vague and ambiguous and is being mischaracterized in a
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`prejudicial manner contrary to the record, it should be excluded under FRE 403.
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`Petitioners’ attempt to use Dr. Levy’s testimony on “fibre channel ID” to
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`4
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`support that a “host channel ID in the CRD-5500” identifies a host is directly contrary
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`to Dr. Levy’s testimony on the channel IDs of the CRD-5500. For example, in his
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`earlier deposition, Dr. Levy testified that a channel identification in a CRD-5500 is
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`not a host identification:
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`Q. Okay. Now, why is it relevant that the swapping of cables
`caused the storage accessible by a host to change? What bearing
`does that have on the mapping limitation?
`A. Well, because Dr. Hospodor seems to be claiming --
`asserting that channel identification is the same as a host
`identification. And, yet, that's not true because the -- the only
`mapping performed by a CRD-5500 is [channel to] storage, not
`[host to] storage. In fact, any host and every host connected to a
`single channel has access to exactly the same storage.
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`Ex. 1232 at 126:8-19 (emphasis added).
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`If the cited testimony is not excluded, Patent Owner requests that, pursuant to
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`FRE 106, the Board consider the record as a whole and in particular the additional
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`testimony of Dr. Levy at Ex. 1218, 54:5-16, 67:22-68:8, discussed above, 94:15-22
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`(“Well, I don’t agree in the sense that the host interface ID only identifies the host
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`interface and not the host”), 93:9-15 (“[T]he interface identifier only identifies the
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`interface.”), and 92:14-20 (“[T]he host interface ID does not identify the host”); and
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`Ex. 1232 at 126:8-19, 127:14-20.
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`5
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`B. Objection #2
`Petitioners cite Ex. 1218 at 93:20-96:4 for the proposition that Bergsten
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`“sufficiently identifies host devices because there is only a single host device attached
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`to each ‘host interface,’” which, according to Petitioners, Dr. Levy allegedly
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`conceded. Reply at 18-19. The cited passage, however, includes multiple
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`objectionable questions, which objections were made on the record:
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`Q. So in this particular use case or embodiment, I believe we're in
`agreement that there is a single host attached to each host interface
`within each storage controller. Is that correct?
`A. Yes.
`Q. So in that circumstance, identifying a host interface is
`sufficient to identify for routing purposes a particular host?
`MR. HALL: Objection; form.
`Q. (BY MR. GARDELLA) Do you agree with that?
`A. I'm thinking about it.
`MR. HALL: Same objection.
`A. I'm just trying to understand what "for routing purposes"
`means in that context. It's certainly clear that knowing the interface
`through which a command is received does tell the controller which
`interface to send a response to that command back on, and if there is
`only one host on that interface, then that would be sent to the
`appropriate host.
`Q. (BY MR. GARDELLA) So is your answer that in this use
`case, identifying host interface is sufficient to identify the single host
`that is attached to the host interface?
`MR. HALL: Objection; form.
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`6
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`A. Well, I don't agree in the sense that the host interface ID only
`identifies the host interface and not the host.
`Q. (BY MR. GARDELLA) Given that there is only a single host
`identified to each host interface, why, again, for routing purposes, is
`it not sufficient to identify the host interface?
`A. Well, if by "routing purposes" you mean to be sure that the
`response to a command goes back to the correct host, then
`responding on this correct interface would be responding to the
`correct host.
`Q. Okay. So in that context and for that purpose, it would be
`sufficient to identify the host interface?
`A. Well --
`MR. HALL: Objection; form.
`A. -- I still disagree with identifying the host because it doesn't
`actually identify the host.
`Q. (BY MR. GARDELLA) But you would agree that the host
`interface ID is sufficient to ensure in this embodiment that
`transmissions are sent to the proper hosts?
`MR. HALL: Objection; form.
`A. Well, as in the CRD-5500 where there is a channel identifier,
`this interface ID does get the response sent back on the proper
`interface. And when there's only a single host present, that would be
`the host that is indicated.
`Q. (BY MR. GARDELLA) So is your answer, yes, in this use
`case or embodiment, identifying the host interface is sufficient to
`ensure that the host gets the appropriate message transmissions?
`MR. HALL: Objection; asked and answered.
`A. I guess so.
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`7
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`Ex. 1218 at 93:20-96:4. Patent Owner objected to the questions referenced above
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`because, inter alia, “routing purposes” was vague and confusing. Dr. Levy, himself,
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`expressed confusion at the use of this phrase. Id. at 94:8-9. Thus, the testimony cited
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`by Petitioners at 93:25-94:14 should be excluded under FRE 403.
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`Petitioners’ subsequent characterization of Dr. Levy’s testimony in response to
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`these questions establishes the vagueness of “routing purposes.” Specifically, Dr.
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`Levy discussed routing messages to the proper interface, which does not require
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`identifying what may be attached to that interface. However, Petitioners use this
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`testimony to allege that Levy conceded that, in a single host embodiment, the interface
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`ID is sufficient to identify a host, despite Dr. Levy’s clear testimony—within the
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`quoted passage—that the host interface does not identify the host. Id. at 94:20-22,
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`95:11-12. Moreover, the vagueness of the questions is illustrated by the fact that the
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`entire quoted passage was in the context of the Bergsten reference. Petitioners’ reply
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`appears to characterize Dr. Levy’s testimony as relating to the claimed invention;
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`however, Dr. Levy was testifying regarding the “routing purposes” of Bergsten. Thus,
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`the question is vague to the extent that “for routing purposes” has some significance
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`beyond merely the Bergsten reference. For the above reasons, the testimony at 93:25-
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`94:14 cited by Petitioners should be excluded.
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`Furthermore, Petitioners’ question at 95:13-16 is also vague and ambiguous. It
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`is unclear what was meant by “the host interface ID is sufficient to ensure in this
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`embodiment that transmissions are sent to the proper hosts” because, in the prior
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`8
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`examples there were not multiple hosts per host interface ID. See Ex. 1218, 93:20-24.
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`In addition, it is not clear what “sufficient” means. Dr. Levy had just stated that “Well,
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`as in the CRD-5500 there is a channel identifier, this interface identifier does get the
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`response sent back on the proper interface.” Id. at 95:18-20. However, Dr. Levy
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`makes clear in the rest of his testimony that he does not concede that the host interface
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`ID is sufficient to identify a host. Id. at 94:20-22, 95:11-12.
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`The final question in the cited passage is also vague and ambiguous because it
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`is unclear what is meant by “in this use case or embodiment the host interface ID is
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`sufficient . . . .” It is unclear whether the “use case or embodiment” is referring to the
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`CRD-5500 just referenced or something else. Moreover, it unclear what is meant by
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`“sufficient to ensure.” As Dr. Levy had just answered, the host interface ID would get
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`the response back to the proper interface.
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`Moreover, Petitioners mischaracterize Dr. Levy’s testimony. Dr. Levy had
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`already been asked on multiple occasions variations of the question of whether the
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`“interface ID” is sufficient to identify the host when there is a single host attached to
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`an interface; Dr. Levy consistently answered that it was not. See e.g. Ex. 1218 at 92:8-
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`20 (“[Dr. Levy]: In the examples . . . there is a single host connected to a particular
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`interface. Q. And in that situation, the host interface ID is sufficient to uniquely
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`identify the host. Correct? A. I don’t know because the host interface ID does not
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`identify the host.”); see also id. at 93:9-15 (“Q. So in this embodiment, identifying the
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`host interface identifies inferentially or implicitly the host. Correct? ... A. Well, as this
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`9
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`paragraph explains, because there can be multiple paths to the same host, the interface
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`identifier only identifies the interface -- the interface.”); 94:15:22, 95:7-12.
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`Furthermore, during redirect, Dr. Levy further described the use of host
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`interface IDs (Ex. 1219, 205:2-206:15), explaining that the host interface ID only
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`identifies the particular interface in the storage controller of Bergsten, not the SCSI ID
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`of the host attached to the SCSI bus. See Ex. 1219 at 205:21-206:11 (“Q. So . . . you
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`have the host with SCSI ID 7. I’d like you to assume an administrator or someone
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`unplugs the host from the bus and attaches another host to the bus so that it’s using the
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`same interface as the -- prior host. This host is using SCSI ID 6, a different SCSI ID.
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`Would a request from the new host have the same host interface ID applied to it? A.
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`The host interface ID is only identifying the particular attachment or interface or SCSI
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`interface card, if you like, in the storage controller and not the host or host ID attached
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`to somewhere else on the bus. And so it would have only the ID of the host interface,
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`not the host itself.”) (objections omitted).
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`Dr. Levy repeatedly explained that the host interface ID was not sufficient to
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`identify a host, even in the situation in which only one host was attached to an
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`interface. The fact that Dr. Levy finally gave a soundbite answer close enough for
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`Petitioners to use (which still fails to actually state that the host interface ID is
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`sufficient to identify the host), after multiple failed attempts by Petitioners to procure
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`the desired response, does not reflect a change in Dr. Levy’s opinion. Rather, it shows
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`that Petitioners are twisting the answers to their increasingly vague attempts to ask the
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`10
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`same question. Because Ex. 1218, 93:20-96:4 is vague and ambiguous and is being
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`used in a prejudicial manner contrary to the record, it should be excluded under FRE
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`403.
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`If the cited testimony is not excluded, then Patent Owner requests that, pursuant
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`to FRE 106, the Board consider the record as a whole and in particular, in light of Dr.
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`Levy’s consistent testimony in the above cited passage that the host interface does not
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`identify the host, the additional consistent testimony of Dr. Levy at Ex. 1218, 92:8-20,
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`93:9-15 and Ex. 1219, 205:2-206:15.
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`II. PETITIONERS MISCHARACTERIZE THE TESTIMONY OF
`JOHN MIDDLETON
`Petitioners mischaracterize the testimony of John Middleton via selective
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`citation. First, Petitioners state that Middleton testified that he “knew of no technical
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`obstacle that would have prevented development and testing of the access control
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`feature on a testbed during the critical period.” Reply at 11-12 (citing Ex. 1220 at 54,
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`58-59, 63-65). Patent Owner objected as to foundation (63:24-64:2) because
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`Middleton explained that he was not capable of answering such questions as they
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`relate to the software (i.e., access controls), because his expertise was in hardware. Ex.
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`1220 at 46:14-47:14; 52:3-15, 53:12-20. Middleton further testified (on cross, re-
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`direct, and re-cross) that Crossroads could not have tested access controls, under any
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`conditions, until Verrazano was completed. Id. at 52:3-12, 106:13-107:15, 108:5-15,
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`113:7-14, and 115:14-17 (“Q. (BY MR. GARDELLA) Could the access controls . . .
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`have been simulated completely in software? A. Completely, no.”).
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`11
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`Petitioners also mischaracterize Middleton’s testimony (70:16-72:22) to the
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`effect that Crossroads’ “could have built the access controls into the Verrazano/4100
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`bridge but chose not to do so for business reasons, i.e., because incorporation of
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`access controls would delay the commercial launch of the product.” Reply at 12-14.
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`Patent Owner objected on the record because Middleton’s testimony was based purely
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`on speculation; he merely agreed that certain of Petitioners’ theories were possibly
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`true. Moreover, Petitioners’ theory overlooks Middleton’s additional testimony that
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`the Verrazano bridge—without access controls—was sold as Crossroads 4100 bridge
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`only after the critical period was over. Ex. 1220 at 71:9-12; Ex. 2305 ¶ 2; Ex. 2043
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`¶ 3. If access controls would have delayed the commercial launch, it still would have
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`occurred after the critical period ended. This testimony is thus irrelevant to diligence
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`and should be excluded under FRE 401, 402.
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`III. THE BOARD SHOULD EXCLUDE EXHIBITS 1224, 1225 AND 1226
`Exhibits 1224 and 1225 consist of a Crossroads’ preliminary infringement
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`contentions and accompanying claims chart filed by Crossroads in prior litigation
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`prior to discovery. Ex. 1224 at 1. Exhibit 1226 is a user guide for “Diligent
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`Technologies ProtecTIER for REO 9500D.” Patent Owner timely objected. Paper 47.
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`Exhibit 1224, the “Concise Statement of Infringement”, discusses the Overland REO
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`9500D, but makes no reference to the ProtecTIER software from Diligent. See e.g.,
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`Ex. 1225. Petitioners’ arguments characterize the infringement contentions without
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`supporting evidence. Petitioners also provide no evidence that the accused Overland
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`12
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`9500D actually operated in the manner described in Ex. 1226. Exhibit 1226 should
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`therefore be excluded as irrelevant under FRE 401, 402. As Ex. 1226 is the only
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`proffered explanation for the relevance of Exhibits 1224 and 1225, they should also be
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`excluded under FRE 401, 402.
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`In regards to Ex. 1226, Petitioners also make the unsupported assertion that
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`“‘the FC ports’ referenced in the infringement contentions correspond to each FC
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`adapter card in the back of the Overland appliance.” Reply at 4 (citing Ex. 1226 at 7,
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`16, 19, 47, 85, 106, 108). This is nothing more than attorney argument with no
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`supporting evidence. None of the cited portions of Ex. 1226 reference an “FC adapter
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`card.” Therefore, the cited portions are irrelevant to the reason for which they are
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`being cited and should be excluded under FRE 401, 402.
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`Petitioners argue that “the accused Overland system is identical to the proposed
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`combination in that the mapping is between remote storage devices and an FC adapter
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`card port or channel, which is in turn connected to a single host device.” Reply at 4-5.
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`Again, Petitioners provide only attorney argument with no supporting evidence (e.g.,
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`either in the manual or by someone with firsthand knowledge of how the Overland
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`9500D itself operated). Moreover, in the configuration of the ProtectTIER device
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`cited (Reply at 4), a single backup server connects to all ports and can access all of the
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`LUNs. For the foregoing reasons, Ex. 1226 should be excluded as irrelevant under
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`FRE 401, 402.
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`Even if considered relevant, Exhibits 1224-26 should be excluded under FRE
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`13
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`403 because their probative value is substantially outweighed by a danger of unfair
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`prejudice. Given that Petitioners waited until their reply to bring this argument and
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`these exhibits, have brought forth no expert testimony to analyze them, and Patent
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`Owner has no opportunity to respond with its own expert testimony, Petitioners’
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`conclusory and one-sided analysis is unfairly prejudicial and misleads the Board.
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`IV. THE BOARD SHOULD EXCLUDE EXHIBIT 1009
`Petitioners cite Crossroads’ preliminary infringement contentions (Ex. 1009)
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`and rely on “Patent Owner’s assertion in litigation,” to argue that certain limitations
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`fall under the broadest reasonable interpretation standard that is applied in PTAB
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`proceedings. Pet. at 20-51 (passim). Patent Owner objected to Exhibit 1009.
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`Attachs. A, B. It is improper to construe claims with respect to accused
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`instrumentalities. NeoMagic Corp. v. Trident Microsystems, Inc., 287 F.3d 1062,
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`1074 (Fed. Cir. 2002); see also E.I. du Pont de Nemours and Co. v. Monsanto Tech.
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`LLC, IPR2014-00332, Paper 16 at 6-7 (PTAB July 11, 2014). Moreover, those
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`contentions “[were] preliminary as Crossroads [had] received no discovery from
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`Oracle.” Ex. 1009 at 2 n.2. “[P]reliminary infringement contentions are too tenuous to
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`be relevant to the Board’s application of the broadest reasonable construction
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`standard.” Mentor Graphics Corp. v. Synopsis, Inc., IPR2014-00287, Paper 17 at 3
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`(PTAB Aug. 1, 2014). Accordingly, the Board should exclude Ex. 1009 as irrelevant.
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`V. THE BOARD SHOULD EXCLUDE EXHIBIT 1008
`Petitioners rely on JP Patent Application Publication No. Hei 5[1993]-181609
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`14
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`to support one of their alleged grounds of unpatentability. Pet. at 5 (citing Ex. 1008).
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`37 C.F.R. § 42.63(b) states that “[w]hen a party relies on a [foreign language]
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`document . . ., a translation of the document into English and an affidavit attesting to
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`the accuracy of the translation must be filed with the document.” (emphasis added).
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`Patent Owner objected to Ex. 1008. Attachs. A, B. Because Ex. 1008, as filed with
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`the Petition, did not contain an affidavit, it is not admissible and should be excluded.
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`37 C.F.R. §§ 42.61(a), 42.63(b).
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`On July 30, 2014, Petitioners filed, without authorization, a “substitute” exhibit
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`1008 (“1008v2”). The certificate within Ex. 1008v2 was signed by Susan Andrus,
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`marketing manager of TranslateMedia. Ex 1008v2 at 11. There is no evidence to
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`suggest that Ms. Andrus could personally attest to the accuracy of the translation nor
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`did she. Moreover, the certificate did not contain any perjury warning. Accordingly,
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`the certificate is not an affidavit as required by 37 C.F.R. § 42.63(b). Because Ex.
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`1008v2 was filed without authorization and is defective, it is not the operative exhibit
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`in this proceeding and should be excluded or given zero weight.
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`On March 6, 2015, Petitioners served a third version of Ex. 1008 (“1008v3”)
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`containing a certificate of translation dated February 19, 2015. Rule 37 C.F.R. §
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`42.63, however, “is unequivocal and requires . . . that a certificate of translation ‘must
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`be filed with’ the Petition.” Zhongshan Broad Ocean Motor Co., Ltd. v. Nidec Motor
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`Corp., IPR2014-01121, Paper 25 at 5 (PTAB Feb. 24, 2015). Therefore, even if filed,
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`Ex. 1008v3 could not cure the defect in the original Ex. 1008. See, id.
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`15
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`Respectfully submitted,
`SPRINKLE IP LAW GROUP
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` John L. Adair /
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`John L. Adair
`Reg. No. 48,828
`Counsel for Patent Owner
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`Dated: September 22, 2015
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`1301 W. 25th Street
`Suite 408
`Austin, Texas 78705
`Tel. (512) 637-9220
`Fax. (512) 371-9088
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`16
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`ATTACHMENT
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`ATTACHMENT
`A
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`A
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`ORACLE CORPORATION, NETAPP INC. and
`HUAWEI TECHNOLOGIES CO., LTD.
`Petitioner,
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`v.
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`CROSSROADS SYSTEMS, INC.
`Patent Owner
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`____________
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`Case IPR2014-01197
`Patent 6,425,035
`____________
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE SERVED IN
`PRELIMINARY PROCEEDING PURSUANT TO 37 CFR § 42.64(B)(1)
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`Pursuant to 37 C.F.R. § 42.64, Patent Owners submit the following objections to
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`certain evidence relied upon by Petitioner in the Petition.
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`I.
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`Objections to Exhibits Containing Grounds of Unpatentability
`Rejected by the Board
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`Patent Owner objects to the following exhibits because they relate to or
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`comprise grounds of unpatentability which were rejected by the Board and upon
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`which trial was not instituted: 1003, 1004, 1006.
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`II. Objections to Exhibits Never Cited or Explained in the Petition
`Patent Owner objects to those exhibits filed with the Petition that are not cited
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`to in the Petition, and/or for which Petitioner fails to explain the relevance of the
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`evidence to the challenge raised. Thus, they are irrelevant under FRE 401, 402, and
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`37 CFR § 42.104(b)(5). Patent Owner specifically identifies the following exhibits:
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`1011–1023, 1027–1031, and 1033.
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`Furthermore, although Petitioner cites to Ex. 1009, Patent Owner objects to
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`this Exhibit as irrelevant under FRE 401, as it is neither prior art nor does it contain
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`any relevant admissions.
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`III. Objections to Admissibility of Certain Dates
`Patent Owner objects to Exhibit 1003 and 1004 under FRE 401, 402, 802, and
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`901. Specifically, the revision dates and copyright dates in each are not evidence
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`that the document was revised or publically available on any particular date. The
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`1
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`apparent date contained in the URL of Exhibit 1004 is likewise inadmissible to show
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`the date of public availability. These dates are also inadmissible hearsay regarding
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`the date the documents were last revised or publically available, to the extent
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`Petitioner relies on these dates to prove the date of last revision, public availability,
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`or the like.
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`IV. Objections to Lack of Authentication
`Petitioner has not produced evidence sufficient to authenticate the following
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`exhibits under FRE 901: 1003, 1004, 1005, and 1027.
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`Exhibit 1037, the declaration of Ms. Ullagaddi, is insufficient to authenticate
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`the referenced exhibits because it is not based on personal knowledge. Exhibit 1037
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`is itself objectionable under FRE 701, to the extent offered as lay testimony, because
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`the testimony regarding the operation of the Internet Archive is outside the
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`qualification of a lay witness. To the extent that Ms. Ullagaddi is offered as an expert
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`witness, Ex. 1037 is objectionable under FRE 702 because she is not qualified as an
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`expert on the Internet Archive or related technology.
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`V. Objection to Form of Evidence Under 37 CFR § 42.63(b)
`Petitioner relies on Exhibit 1008, a Japanese language patent application and
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`purported English translation, as a basis for at least one ground of unpatentability.
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`Petitioner failed to file with the exhibit an affidavit attesting to the accuracy of the
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`translation as required by 37 CFR § 42.63(b). Petitioner then filed, without
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`2
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`explanation and without permission from the Board, a “substitute” Exhibit 1008, one
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`week later. Paper 5. Accordingly, Exhibit 1008 fails to comply with § 42.63(b) and
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`should be excluded under 37 CFR. § 42.61(a). See Zhongshan Broad Ocean Motor
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`Co. v. Nidec Motor Corp., IPR2013-01123 Paper 20 (PTAB Jan. 21, 2015).
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`The improperly substituted Exhibit 1008 also fails to comply with the
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`requirements of 37 CFR § 42.63(b), which requires an affidavit attesting to the
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`accuracy of the translation. The translation company’s certification does not do so,
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`but includes a statement from the company’s marketing manager (who is not the
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`same person that translated the document and who provides no evidence that they
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`are competent in the Japanese language) that “we” certify that the translation
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`“conforms essentially to the original Japanese language.” It is not clear what
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`“conforms essentially” means, but it does not state that the translation is accurate.
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`Moreover, under 37 CFR § 42.2, an affidavit or declaration must meet the
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`requirements of 37 CFR § 1.68, which requires the inclusion of certain language and
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`requires signature under penalty of perjury. Accordingly, Patent Owner objects to
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`the substituted Ex. 1008 for the foregoing reasons.
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`VI. Hearsay Objections
`Patent Owner objects to the following exhibits as inadmissible hearsay under
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`FRE 802, not within any exception: 1004 (statements regarding the design of the
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`CRD-5500); 1027 (statements regarding the operation of the SP-8BFC); and 1028
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`3
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`(statements regarding the status of Fibre Channel). For example, Exhibit 1004
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`includes the inadmissible hearsay statement by an unknown declarant that “CMD’s
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`advanced ‘Viper’ RAID architecture and ASICs were designed to support
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`tomorrow’s high speed serial interfaces.”
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`VII. Objections to Exhibits 1010
`Patent Owner objects to the admissibility of all testimony in Exhibit 1010 that
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`relies on inadmissible evidence as described above, including, for example, Exhibits
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`1004, 1027, and 1028. Patent Owner further objects to certain testimony in Exhibit
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`1010 for the following reasons:
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`(1) The declarant’s opinion regarding the qualifications of one skilled in the
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`art (¶¶ 14-15) lacks any explanation of the underlying facts or data on
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`which the opinion is based and is thus entitled to no weight under 37 CFR
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`§ 42.65(a). Moreover the testimony is inadmissible under FRE 702
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`because it includes no explanation of the principles and methods applied,
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`or the manner in which they were applied, to the facts of the case.
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`(2) The following testimony fails to disclose the underlying facts or data on
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`which the opinion is based as required by 37 CFR § 42.65:
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`a. ¶ 22 (“these virtual local network storage regions are variously known
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`in the art as virtual or logical partitions, virtual or logical disks, storage
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`volumes or logical units”)
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`4
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`b. ¶ 23 (“[a] large number of prior-art systems . . . ”) (citing two examples)
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`c. ¶ 24
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`d. ¶ 27 (“storage access over Fibre Channel involves use of a ‘Native
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`Low-Level Block Protocol”); additionally, ¶ 27 relies on Ex. 1009
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`(itself irrelevant) as the basis for an opinion related to how the claim
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`terms have been interpreted by Patent Owner in its infringement
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`contentions, which is irrelevant under FRE 401 and 402;
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`e. ¶ 96 (“the tree structure is beneficial only in enhancing performance
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`when identifying alternate locations on alternate storage controllers . . .
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`)”;
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`f. ¶ 151 (this testimony is also objectionable under FRE 702 because it
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`includes no explanation of the principles and methods applied, or the
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`manner in which they were applied, to the facts of the case)
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`(3) The following testimony is irrelevant as it not directed to any grounds upon
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`which trial was requested and/or instituted: ¶¶ 24-25, 29-35, 39-89, 93-
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`143, 198-200;
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`(4) The following testimony is objected to under 37 CFR § 42.104 because the
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`proffered opinion is based on prior art or publications which have not been
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`instituted as grounds of unpatentability:
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