UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`ORACLE CORPORATION and NETAPP INC.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-01209
`Patent No. 7,051,147
`____________
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE CITED BY PETITIONERS
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`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ORACLE CORPORATION and NETAPP INC.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-01209
`Patent No. 7,051,147
`____________
`
`
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE CITED BY PETITIONERS
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`Patent Owner respectfully submits this Reply in support of its Motion to
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`Exclude (Paper 60, “Motion” or Mot.”).
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`A. Ex 1218: Levy Testimony (93:20-96:4): Petitioners cite Ex. 1218 at 93:20-96:4
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`for the proposition that Bergsten “sufficiently identifies hosts devices because there is
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`only a single host attached to each ‘host interface,’” which according to Petitioners,
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`Dr. Levy allegedly conceded. Paper 44 (“Reply”) at 14. Patent Owner objected
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`because inter alia “for routing purposes” was vague and confusing. Mot. at 3-4.
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`Petitioners attempt to address Patent Owner’s objection with respect to the use of “for
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`routing purposes” by arguing that the phrase was clarified. Paper 65 (“Opp.”) at 1-2.
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`However, Patent Owner would point out that Petitioners’ clarification does not
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`actually support the initial proposition for which the objectionable testimony was cited
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`in the Reply. That is, Dr. Levy does not say that a host interface ID identifies the host,
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`only that “responding on that interface would be responding to the correct host”. Ex.
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`1218 at 95:5-6. Petitioners do not dispute Patent Owner’s observation that Dr. Levy
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`discussed routing of messages to the proper interface, which does not require
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`identifying what may be attached to the interface. Mot. at 4
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`Turning to Petitioners’ assertions with respect to Ex. 1218 at 95:13-22,
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`Petitioners do not actually address Patent Owner’s objections to this testimony, but
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`simply assert that the “witness did not have any difficulty in responding to the
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`question.” Opp. at 2. The issue is not whether the deponent had difficulty in answering
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`the question but, rather, whether the questions are vague (Mot. at 4-5) and, further,
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`1
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`whether Petitioners mischaracterized Dr. Levy’s testimony (Mot. at 5-7), neither of
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`which is addressed by Petitioners. In any case, Dr. Levy explicitly denied the very
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`statement that Petitioners claim he supports. Ex. 1218 at 92:17-20 (Dr. Levy
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`explaining that “the host interface ID does not identify the host”). See also Mot. at 5-
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`6 (citing Ex. 1218 at 92:8-20; 93:9-15, 94:15-22, 95:7-12).
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`As such, Patent Owner respectfully requests that the objection to the testimony
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`at Ex. 1218, 93:20-96:4 be sustained or additional testimony considered under FRE
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`106, as requested in the Motion. See Zhongshan Broad Ocean Motor Co., Ltd., et al.
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`v. Nidec Motor Corp., IPR2014-01121, Paper 42 at 3 (Sept. 10, 2015) (citing FRE
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`106).
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`B. Ex 1220: Middleton Testimony: Petitioners’ Opposition simply reiterates
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`Petitioners’ mischaracterizations of Middleton’s testimony from the Reply. While Mr.
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`Middleton agreed that he could not “testify as to any specific technical reason” (54:6-
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`9), he provided multiple reasons Crossroads could not test its software. See e.g., Ex.
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`1220 at 106:13-107:15. Mr. Middleton repeatedly confirmed that Crossroads could not
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`have tested the access controls, under any conditions, until Verrazano was complete.
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`See Mot. at 7 (citing Ex. 1220 at 52:3-12, 106:13-107:15, 108:5-15, 113:7-14 ,115:14-
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`17). The testimony should be excluded for the reasons set forth in the Motion at 3-6.
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`C. Ex. 1009, 1224, 1225, 1226: In response to these objections, Petitioners note that
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`a district court’s claim construction order or an expert declaration regarding claim
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`construction may be relevant to the broadest reasonable interpretation. Opp. at 7.
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`2
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`This argument is inapposite because exhibits 1009, 1224, 1225, and 1226 are neither.
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`Exhibits 1009, 1224 and 1225 are preliminary infringement statements and should be
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`excluded for the reasons set forth in the Motion at 6-7.
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`Further, with respect to Exhibit 1226, Petitioners have completely failed to
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`establish the relevance of the user guide for the ProtecTIER software from Diligent
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`Technologies (not Overland). Instead, Petitioners unhelpfully “note” that Patent
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`Owner did not contest “that the accused Overland 9500D actually operated in the
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`manner described.” Opp. at 7. Disregarding the fact that there is no competent
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`evidence to actually contest (or that Patent Owner even has a mechanism for
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`contesting, as Petitioners chose not to provide an expert declaration), the real issue is
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`the relevance of this software guide. How this software (never referenced in the
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`preliminary infringement contentions) may have operated is simply irrelevant; and,
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`thus, Exhibit 1226 should be excluded for the reasons set forth in the Motion at 12-14.
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`D. Ex. 1008: Petitioners assert that Patent Owner “objects to [Ex. 1008] on the basis
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`that the translation certificate was not initially made under the penalty of perjury,”
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`implying that a translation certificate—albeit a defective one—had been properly
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`filed. Opp. at 8. The issue is that the Petition was filed without a translation certificate
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`at all. Mot. at 11. Then, after failing to comply with the rules, Petitioners attempted
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`an end-run around them by filing, without authorization, a substitute Ex. 1008 on July
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`30, 2014. Id. The translation certificate that accompanied the improperly filed
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`“substitute” Ex. 1008 was fatally defective. Id.
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`3
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`Petitioners cite Metrics, Inc. v. Senju Pharm, for the proposition that the “Board
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`found that a party may cure an objection to the certificate of translation by serving
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`supplemental evidence” Opp. at 8-9 (citing Metrics, Inc. v. Senju Pharm, IPR2014-
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`01041, Paper 19 at 19-20) (PTAB Feb. 19, 2015) (emphasis added). This is incorrect.
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`Metrics merely lays out the objection procedure, but notes that the issue would
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`ultimately be resolved at the Final Written Decision. Id. at 20. Metrics settled before
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`the Board actually ruled on whether the party could cure the objection. Metrics,
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`IPR2014-01041, Paper 39.
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`Petitioners try to divert attention from their noncompliance by attempting to
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`shift the burden to Patent Owner, claiming that Patent Owner failed to show prejudice
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`or inaccuracies in the translation. Opp. at 9-10. This overlooks that the Petitioners—
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`who first failed to comply with rules regarding filing a translation certificate with the
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`Petition and then attempted to inappropriately file a defective translation certificate
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`without permission—“[have] not demonstrated an extraordinary situation such that
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`wavier of a rule is justified.” See Square, Inc. v REM Holdings 3, LLC, IPR2014-
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`00312, Paper 58 at 36 (PTAB Jul. 7, 2015). In fact, the Board has found that
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`situations like the present case – where a Petitioner attempts to fix an initial failure to
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`file a translation certificate by submitting a later obtained certificate – do not warrant a
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`waiver of the rules. According to the Board, compliance with 37 C.F.R. § 42.63(b) is
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`mandatory and requires that an affidavit of translation be filed with the petition.
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`Zhongshan, IPR2014-01121, Paper 25 at 5 (PTAB Feb. 24, 2015). “The distinction
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`4
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`between correction of an already filed, but defective, attesting affidavit and an attempt
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`to file a new later-obtained attesting affidavit is fundamental.” Id. at 5. As in
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`Zhongshan, the Board should exclude Petitioners’ late acquired affidavit (Ex. 1238).
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`Id.; see also id. at 7 (“[W]e are not persuaded that waiving the requirement under §
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`42.63(b) would be a prudent exercise of our discretion under these facts.”).
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`Respectfully submitted,
`SPRINKLE IP LAW GROUP
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` John L. Adair /
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` /
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`John L. Adair
`Reg. No. 48,828
`Counsel for Patent Owner
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`Dated: October 13, 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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`5
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`CERTIFICATE OF SERVICE
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`The undersigned certifies service of a copy of Patent Owner’s Reply in
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`Support of its Motion to Exclude on October 13, 2015 on counsel for Petitioners by
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`e-mail (pursuant to agreement) at the below e-mail addresses:
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`Greg Gardella
`cpdocketgardella@oblon.com
`Scott McKeown
`cpdocketmckeown@oblon.com
`Oblon Spivak
`1940 Duke Street
`Alexandria, VA 22314
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`By:
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` /John L. Adair /
`John L. Adair
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