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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`PETROLEUM GEO-SERVICES INC.
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`Petitioner,
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`v.
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`WESTERNGECO LLC
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`Patent Owner.
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`____________
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`Case IPR2014-01478
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`U.S. Patent No. 7,293,520
`____________
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`PATENT OWNER’S OPPOSITION TO PETITIONER
`PETROLEUM GEO-SERVICES INC.’S MOTION TO EXCLUDE
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`IPR2014-01478
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION ........................................................................................... 1
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`PGS’S MOTION IGNORES WESTERNGECO’S SUPPLEMENTAL
`EVIDENCE ..................................................................................................... 3
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`III. PGS’S MOTION FAILS TO COMPLY WITH THE ESTABLISHED
`REQUIREMENTS FOR MOTIONS TO EXCLUDE .................................... 3
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`IV. TO THE EXTENT THEY ARE COMPREHENSIBLE, PGS’S
`OBJECTIONS ARE WITHOUT MERIT ....................................................... 6
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`A.
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`PGS’s Arguments To Exclude Mr. Walker’s Declaration Are
`Baseless And, At Best, Improperly Directed To Weight ...................... 6
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`1.
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`2.
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`PGS’s Arguments Are Not Directed to Admissibility ................ 6
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`PGS’s Evidentiary Analysis Is Not Supported By The Facts
`Or Law ...................................................................................... 11
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`B.
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`PGS’s Objections To The ION Litigation Documents Also Fail ........ 14
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`i
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`IPR2014-01478
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`I.
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`INTRODUCTION
`Once again, Petroleum Geo-Services Inc. (“PGS”) ignores the Board’s
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`explicit instructions regarding the proper use of motions to exclude just like it did
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`in IPR2014-00689. PGS’s motion to exclude improperly attacks the weight of the
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`evidence, amounting to an impermissible sur-reply, and thus disregards the
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`Board’s admonition that “motions to exclude are extraordinary remedies” and
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`“issues of admissibility of evidence [should be considered], in light of the Board’s
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`experience and diligence in applying appropriate weight to evidence, before filing
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`any motion to exclude evidence.” Paper 27 at 4 (emphasis added). For this reason
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`alone, the Board should deny PGS’s motion in its entirety and, in fact, should
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`strike PGS’s improper, merit-based arguments that go to the weight of
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`WesternGeco LLC’s (“Patent Owner” or “WG”) evidence. See Marvell
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`Semiconductor, Inc. v. Intellectual Ventures I LLC, IPR2014-00552, Paper 65 at 2-
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`3 (PTAB Aug. 13, 2015) (expunging “what amounts to surreply testimony on the
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`merits as part of a motion to exclude.”).
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`PGS’s motion is a waste of time, and appears calculated to distract WG as
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`the parties prepare for the Oral Hearing in this matter and sundry proceedings in
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`parallel disputes. To the extent any legitimate issues existed, WG long-ago served
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`supplemental evidence to resolve them. PGS’s continued arguing ignores that
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`evidence and implausibly seeks to exclude nearly all of WG’s underlying exhibits.
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`IPR2014-01478
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`PGS’s motion is procedurally, substantively, and logically defective and,
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`accordingly, must fail.
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`PGS’s incomprehensible laundry list of scattershot objections and tortured
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`maze of conclusory, vague arguments is procedurally defective because it did not
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`identify, inter alia, where each objection was originally made and did not explain
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`each objection with specificity. PGS’s apparent shifting of the burden onto the
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`Board and WG to navigate PGS’s bloated argumentation to decipher how it relates
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`to the 38 exhibits PGS seeks to exclude is impermissible. As PGS failed to carry
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`its burden of succinctly identifying what was legitimately disputed and why, its
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`motion can be denied on that basis alone.
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`Substantively, PGS’s arguments fare no better. PGS largely argues the
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`weight of the evidence—which has no proper place in a motion to exclude. PGS’s
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`few statements that touch on admissibility fail to justify exclusion. For example,
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`PGS complains that various documents are hearsay, yet it ignores that those
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`documents are not offered for the truth of the matter asserted but rather to show,
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`inter alia, secondary considerations and the relationship between PGS and ION
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`Geophysical S.A.R.L. (“ION”), as discussed below. PGS’s motion is simply an
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`attempt to avoid the merits of WG’s unrebutted and compelling evidence of
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`patentability and nonobviousness, and an attempt to distract the Board and WG.
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`Accordingly, the Board should deny PGS the extraordinary relief it demands.
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`2
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`IPR2014-01478
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`II. PGS’S MOTION IGNORES WESTERNGECO’S SUPPLEMENTAL
`EVIDENCE
`PGS’s motion serves only to waste this Board’s and WG’s time and
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`resources. The bulk of PGS’s arguments have nothing to do with admissibility,
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`and the few that touch on that issue were mooted by WG’s supplemental evidence
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`that addressed PGS’s purported objections. As Rule 42.64(b)(2) allows, WG
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`served PGS with supplemental evidence on August 28, 2015 responsive to many of
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`the exhibits PGS now seeks to exclude. See Ex. 2161. For example, PGS
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`complains that Ex. 2107 lacks authentication, while willfully ignoring the
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`authentication provided by Ex. 2148.1 Similarly, PGS complains that Exs. 2103-
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`2105 and 2116 should be excluded as hearsay, yet Exs. 2149-2153 and 2155 cure
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`any possible hearsay deficiencies. The Board expects that supplemental evidence
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`will render many objections moot and motions to exclude unnecessary. Handi-
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`Quilter, Inc. v. Bernina Int’l AG, IPR2013-00364, Paper 30 at 3 (PTAB June 12,
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`2014). By stubbornly ignoring that evidence and plowing ahead with an omnibus
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`motion to exclude, PGS has fallen far short of the Board’s stated expectations.
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`III. PGS’S MOTION FAILS TO COMPLY WITH THE ESTABLISHED
`REQUIREMENTS FOR MOTIONS TO EXCLUDE
`The Board’s requirement that a motion to exclude “must identify the
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`1 PGS also complains that Exs. 2060, 2061, 2067, and 2118 have not been
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`authenticated even though Ex. 2137 authenticates these exhibits.
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`objections in the record in order and must explain the objections” is clear. 37
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`C.F.R. § 42.64(c). Additionally, the Office Patent Trial Practice (“OPTP”) Guide
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`offers four criteria to follow: “[a] motion to exclude evidence must: (a) [i]dentify
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`where in the record the objection originally was made; (b) [i]dentify where in the
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`record the evidence sought to be excluded was relied upon by an opponent; (c)
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`[a]ddress objections to exhibits in numerical order; and (d) [e]xplain each
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`objection.” OPTP Guide, 77 Fed. Reg. 48756, 48767 (Aug. 14, 2012). For the
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`rare situation where a legitimate evidentiary dispute is raised, these rules ensure
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`that it will be clearly and approachably presented to the non-movant and to the
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`Board. PGS’s motion fails to meet these requirements.
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`In order to cram its kitchen-sink approach within the page limits, PGS
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`crafted a table so convoluted that PGS had to provide a decryption key for a reader
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`to even begin to understand it. But PGS cannot fairly demand that WG and the
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`Board translate PGS’s submissions before they can be read. And, in any event, the
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`table merely groups the exhibits into five broad categories of objections, without
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`any sufficient explanation as to why each exhibit should be excluded. See Mot. at
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`1. Even if the table were decrypted, it fails to contain any arguments or rationale
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`in support of the stated bases for exclusion. See Mot. at 1. This does not even
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`come close to satisfying the Board’s rules.
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`The text of PGS’s motion fares no better. PGS makes overly broad, blanket
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`statements followed by a laundry list of citations without any explanation as to
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`why the cited exhibits should be excluded. In particular, PGS provides conclusory
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`statements that broad categories of exhibits (see, e.g., Mot. at 11-13) should be
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`excluded without identifying the portion of the exhibit that is allegedly
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`objectionable, or why the exhibit should be excluded. The paragraph-long string
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`cites contained within these pages are unclear, unwieldy, and incomprehensible.
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`See, e.g., Mot. at 12-13. The burden “should not be placed on the Board [or WG]
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`to sort through the entirety of each exhibit and determine which portion of the
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`exhibit [PGS] believes to be [objectionable].” EMC Corp. v. PersonalWeb Techs.,
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`LLC, IPR2013-00086, Paper 66 at 35 (PTAB May 15, 2014). As in EMC, PGS’s
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`scattershot approach fails to adequately “explain [its] objections” (see 37 C.F.R. §
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`42.64(c)) and, accordingly, should be denied.
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`PGS’s motion merely feigns compliance with the requirement that it identify
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`its objections in the record, simply stating that PGS “timely objected to each of
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`these exhibits, on the grounds identified [in its chart on page 1].” Mot. at 1. As
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`noted above, this chart provides no specific information about PGS’s objections, or
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`where in the record PGS previously objected to the evidence. Instead, PGS forces
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`this Board, as well as WG, to navigate over fifty pages of its objections to attempt
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`to decipher what specific portion of each exhibit PGS alleges to be objectionable,
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`and ostensibly why PGS is moving to exclude. See Paper 43. This is improper
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`under Rule 42.64(c).
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`IV. TO THE EXTENT THEY ARE COMPREHENSIBLE, PGS’S
`OBJECTIONS ARE WITHOUT MERIT
`A.
`PGS’s Arguments To Exclude Mr. Walker’s Declaration Are
`Baseless And, At Best, Improperly Directed To Weight
`PGS’s arguments regarding the Walker Declaration and its cited exhibits are
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`almost entirely directed to weight and not admissibility. The few evidentiary bases
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`on which PGS attempts to rely simply lack merit.
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`1.
`PGS’s Arguments Are Not Directed to Admissibility
`Instead of providing an exhibit-by-exhibit analysis of the evidence to be
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`excluded, PGS uses its motion as an unauthorized sur-reply to attack the weighty,
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`and unrebutted, evidence of secondary considerations established by WG’s
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`declarant, Mr. Robin Walker. The OPTP guide prohibits this very tactic: a motion
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`to exclude “may not be used to challenge the sufficiency of the evidence to prove a
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`particular fact.” OPTP Guide, 77 Fed. Reg. at 48767. Ignoring the Board’s
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`guidelines and the well-established precedent that the Board is a “non-jury tribunal
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`with administrative expertise” that “is well-positioned to determine and assign
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`appropriate weight to evidence presented,” PGS nevertheless burdens the Board
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`with misplaced arguments concerning the weight of the Walker Declaration and
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`exhibits cited therein. See Gnosis S.P.A v. S. Ala. Med. Sci. Found., IPR2013-
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`00118, Paper 64 at 43 (PTAB Jun. 20, 2014) (arguments addressing the weight of
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`evidence are improper in a motion to exclude); see also BioMarin Pharma. Inc. v.
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`Genzyme Therapeutic Prods. Ltd. P’Ship., IPR2013-00537, Paper 79 at 24-25
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`(PTAB Feb. 23, 2015). For this reason alone, the Board should deny PGS’s
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`motion in its entirety.
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`Rather than addressing admissibility, PGS spends numerous pages attacking
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`the sufficiency of Mr. Walker’s declaration and testimony to prove secondary
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`considerations. “Contending that the evidence is inadequate for a determination of
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`nexus, however, is not sufficient to establish the impropriety of the evidence, much
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`less the inadmissibility of the evidence under the Federal Rules of Evidence.”
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`Smith & Nephew, Inc. v. Convatec Techs., Inc., IPR2013-00097, Paper 90 at 58
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`(PTAB May 29, 2014).
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`Moreover, PGS’s argument that Mr. Walker’s declaration is irrelevant
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`because Mr. Walker did not analyze the claims at issue in this proceeding
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`demonstrates a fundamental misunderstanding of patent law. At his deposition,
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`Mr. Walker testified that he analyzed the patent’s independent claims, which
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`include each of the three control modes—feather angle, turn control, and streamer
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`separation— recited as part of the Markush group in claims 1 and 18, and mapped
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`each of those claimed control modes onto Q-Marine. Ex. 2099, ¶ 19; Ex. 1119 at
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`84-22-86:7, 191:18-192:6. The claims at issue here depend from these
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`independent claims and each address a single mode of the group listed in the
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`independent claims—for example, claims 3, 5, 20, and 22 cover various aspects of
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`the claimed feather angle mode while claims 13-17 and 30-34 cover various
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`aspects of the claimed streamer separation mode of claims 1 and 18. PGS’s
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`argument thus conveniently ignores the patent law maxim that if the independent
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`claims are patentable, so are the dependent claims. See In re Fine, 837 F.2d 1071,
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`1076 (Fed. Cir. 1988) (“Dependent claims are nonobvious under section 103 if the
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`independent claims from which they depend are nonobvious”); see also
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`MPEP§2143.03. In any event, the Board need not sift through PGS’s arguments,
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`which go to evidentiary weight, at most, and have no place in a motion to exclude.
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`PGS also twists Mr. Walker’s testimony in an effort to undermine his
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`credibility and reliability. Even a cursory read of the record, however, reveals the
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`egregious nature of PGS’s distortions of Mr. Walker’s testimony. For example,
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`PGS attempts to attack Mr. Walker’s credibility by referencing his alleged failure
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`to revise his declaration in this proceeding from the declaration submitted in
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`IPR2014-00689 (“the ’689 IPR Declaration”). This argument is meritless because
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`the ’689 IPR Declaration was not deficient and not in need of “correcting.” For
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`instance, PGS points to Mr. Walker’s inclusion of quotation marks around
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`statements Mr. Walker recounted from memory in the instant declaration even
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`though PGS objected to these quotes in Mr. Walker’s ’689 IPR Declaration. But,
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`as Mr. Walker testified, he didn’t need to update the quotes because “[he] was
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`comfortable at the time the various quotations were verbatim” and “saw no need to
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`IPR2014-01478
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`change anything.” Ex. 1119, 163:21 – 164:9; 165:18-22.
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`PGS also cites to Mr. Walker’s declaration’s continued reliance on the
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`Offshore Technology article as somehow showing that Mr. Walker’s current
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`declaration is flawed. PGS supports this argument by misreading Mr. Walker’s
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`first deposition in order to somehow claim that Mr. Walker “admitted that WG
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`‘very likely’ contributed to the substance of [the exhibit].” However, in his first
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`deposition, Mr. Walker repeatedly stated that he “can’t say” and “can’t confirm”
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`whether WG contributed to that Offshore Technology magazine article touting Q-
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`Marine. Ex. 1114 at 93-96. And, when forced by PGS’s counsel to speculate, Mr.
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`Walker commented that any communication by WG offering input would have
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`been made “in the hope that [Offshore Technology] would accept it,” which is
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`entirely consistent with Mr. Walker’s trial testimony in the ION litigation
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`regarding WG’s lack of control over the content of this third-party publication. Ex.
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`1114 at 95. In any event, whether WG may have had input into the contents of a
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`third-party publication is entirely irrelevant to admissibility. At most, this
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`argument goes to weight, and thus should be ignored.
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`Similarly, PGS mischaracterizes Mr. Walker’s testimony that WG was able
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`to charge a 40% premium for Q-Marine in an attempt to show that Mr. Walker’s
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`declaration is somehow flawed. But PGS’s strained reading ignores the basic and
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`undisputed point of that testimony: customers were willing to pay a premium for
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`WG’s revolutionary lateral steering technology. Ex. 2099 at ¶¶ 50, 53-55. There
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`is also nothing “deceptive” about this 40% figure as PGS alleges. Mot. at 10. A
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`simple reading of the exact deposition pages cited by PGS reveals that because Q-
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`Marine allowed the survey to be completed in less time, some customers paid less
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`overall for a complete survey, but that WG still charged an approximately 40%
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`higher per kilometer rate as compared to conventional systems. Ex. 1115 at 410-
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`411. Whether PGS refutes the veracity of Mr. Walker’s 40% assertion simply goes
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`to evidentiary weight, not exclusion, and should be ignored.
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`Moreover, PGS’s bold assertion that Mr. Walker “still did not review the
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`underlying documents or correct, check, or otherwise reconsider the content of his
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`original statement” is contradicted by the testimony PGS cites for this proposition:
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`Q . . . How would you refer to what you did in terms of taking the
`declaration that you were deposed on in the first deposition . . .
`relative to the declaration you have submitted for this proceeding? . . .
`A. There were additional questions that were deemed relevant, and I
`added additional sections related to that . . . And there may have been
`one or two additional comments I made in the context of concerns
`you’d expressed in the first round of depositions.
`See Ex. 1119 at 127:6 – 128:4.
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`Similarly, Mr. Walker made clear during his deposition that although he may
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`have finalized his declaration while traveling to his mother-in-law’s house to tend
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`to her while on her death bed, he instructed his attorney’s to complete/include
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`10
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`certain new citations and exhibits in his declaration at his direction. Ex. 1119 at
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`158:8-159:21, 178:10-181:5. Importantly, as with the ’689 IPR Declaration, Mr.
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`Walker reviewed his declaration and confirmed its accuracy before signing it. Ex.
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`1114 at 23:24 – 24:3; Ex. 1119 at 157:9-11, 159:10-21; Ex. 2099 at ¶¶ 56-57.
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`PGS’s apparent attempt to use the difficult circumstances under which Mr. Walker
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`finalized his declaration marks a new low for PGS.
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`Despite PGS’s vigorous and repeated attacks against Mr. Walker’s
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`credibility during deposition, Mr. Walker has consistently and rightfully stood
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`behind his declaration and the veracity of the assertions therein. See e.g., Ex. 1119
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`163:21 – 164:9; 172:3 – 173:12. Once again, PGS’s arguments go to evidentiary
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`weight (at best), and should be ignored. Mr. Walker was under no obligation to
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`revise his declaration to attempt to satisfy PGS’s manufactured and baseless
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`complaints. PGS’s arguments to the contrary are baseless. Mr. Walker’s ’689 IPR
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`Declaration was proper, as is his declaration here.
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`2.
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`PGS’s Evidentiary Analysis Is Not Supported By The Facts
`Or Law
`PGS’s complaints that Mr. Walker’s declaration is based on his memory and
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`includes hearsay and materials outside his personal knowledge have no basis in
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`either fact or law. As an initial matter, Mr. Walker is a fact witness, and thus,
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`PGS’s arguments regarding Mr. Walker’s declaration and his reliance on his
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`memory versus actual documents are irrelevant. Under Fed. R. Evid. 701(a), Mr.
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`IPR2014-01478
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`Walker is supposed to testify based on his perception. It is therefore completely
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`appropriate for Mr. Walker to testify from his memory. Moreover, there is simply
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`no corroboration requirement for secondary considerations, even though Mr.
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`Walker provides plenty. All that is required is for the patentee to come “forward
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`with evidence sufficient to constitute a prima facie case of the requisite nexus,”
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`which WG has more than done here. See Demaco Corp. v. F. Von Langsdorff
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`Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988).
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`Moreover, Mr. Walker prepared his declaration based on his personal
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`knowledge and understanding, as his declaration makes abundantly clear. See e.g.,
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`Ex. 2099 at ¶¶ 16, 20, 24, 51. For example, Mr. Walker explains his
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`“understanding” of WG’s damages expert’s (Mr. Sims’) testimony in the ION
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`litigation with respect to the breakdown of the entire cost of a seismic survey. Ex.
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`2099 at ¶¶ 20, 24. Mr. Walker’s declaration simply cites Mr. Sims’ testimony and
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`demonstratives (Ex. 2106; 2123) to show that Mr. Sims provided testimony on
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`damages related to those issues, not for the truth of Mr. Sims’ testimony or the
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`accuracy of his demonstratives.
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`Even PGS concedes that Mr. Walker testifies to events he observed first-
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`hand. Mot. at 4. Thus, PGS’s argument that Mr. Walker’s quotes are not directly
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`supported in the cited evidence is flat wrong. Even still, the additional cited
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`documents were provided to further support Mr. Walker’s recounting of the
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`various conversations he had with industry executives, which Mr. Walker testified
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`were “verbatim quotes” from those conversations. Ex. 1119 at 162:5 – 164:24. In
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`fact, when PGS sprung an ad hoc memory test on Mr. Walker during his
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`deposition to see if he could remember the quotes verbatim, he passed with flying
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`colors. Ex. 1119 at 173:13-174:20. The notion that Mr. Walker’s memory may
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`not be perfect (according to PGS) goes to evidentiary weight, not admissibility.
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`Additionally, PGS’s robotic application of the hearsay rule to broad swaths
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`of Mr. Walker’s declaration and cited exhibits—including customer and industry
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`praise of Q-Marine; ION and Fugro documents lauding their commercial
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`embodiments of the patented invention; and other portions of the record from the
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`ION litigation—is misguided because those documents are not being offered for
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`the truth of the matter asserted. Fed. R. Evid. 801(c); see also EMC Corp., Paper
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`66 at 32 (finding a document “offered simply as evidence of what it described, not
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`for proving the truth of the matters addressed in the document” was not hearsay);
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`see also Fed. R. Evid. 801(c) 1997 Adv. Comm. Note (“If the significance of an
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`offered statement lies solely in the fact that it was made, no issue is raised as to the
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`truth of anything asserted, and the statement is not hearsay.”).
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`WG proffers the evidence at issue to support secondary considerations
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`factors that turn on public recognition of the claimed invention, such as praise from
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`others, and it is the existence of that recognition and praise from the public and
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`customers that is relevant. Courts routinely admit such evidence for this legitimate
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`non-hearsay use. See, e.g., Hynix Semiconductor Inc. v. Rambus Inc., No. C-00-
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`20905 RMW, 2009 WL 112834, at *14 (N.D. Cal. Jan. 16, 2009), aff’d, 645 F.3d
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`1336 (Fed. Cir. 2011) (finding an article did not constitute hearsay because it was
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`not admitted for its truth but for industry praise from others); In re Shuman, 361
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`F.2d 1008, 1012-13 (C.C.P.A. 1966). PGS does not even attempt to address this
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`well-established precedent, which is fatal to PGS’s motion.
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`B.
`PGS’s Objections To The ION Litigation Documents Also Fail
`PGS’s attempt to exclude the ION litigation jury verdict, testimony from the
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`ION litigation; and “other materials from the ION case” as constituting hearsay
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`once again ignores that these documents are being offered for non-hearsay
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`purposes. As discussed in detail above, WG is relying on the majority of the
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`documents that PGS wrongly alleges constitute impermissible hearsay to support
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`WG’s secondary considerations argument, which is a non-hearsay use as it is the
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`existence of the praise and not the veracity of the statements that matter. See e.g.,
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`Hynix Semiconductor, 2009 WL 112834, at *14. See e.g., Exs. 2101-05, 2107-09,
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`2115-2120, 2123, and 2127-2131. And, the remainder of the exhibits PGS seeks to
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`exclude are either not being relied upon for the truth of the matter asserted or are
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`admissible as business records under Fed. R. Evid. 803(6). See e.g., Exs. 2060,
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`2061, 2063, 2067, 2083, 2085, 2087, 2096, and 2097. For example, WG is relying
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`on documents that PGS alleges are hearsay to show PGS’s and ION’s relationship
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`with respect to the patents-at-issue, and not for the truth of the information
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`contained in the exhibits. See e.g., Exs. 2060, 2061, 2067, 2096, and 2097.
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`Moreover, PGS itself has failed to provide any explanation as to why the
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`documents it seeks to exclude constitute hearsay. Instead, PGS makes sweeping
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`allegations regarding wholesale categories of documents without providing any
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`specificity as to why the documents allegedly constitute hearsay, much less any
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`genuine analysis showing that a hearsay exception would not apply. Worse still,
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`PGS ignores its own reliance on over a dozen court pleadings from the ION
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`litigation including the jury verdict and other non-party statements to which PGS
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`now objects. See, e.g., Exs. 1013-1016, 1019-1024, 1063, 1106, 1124, 1126, and
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`1130. PGS cannot use these litigation records as a sword and then credibly argue
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`that Patent Owner’s citation to such documents for a non-hearsay purpose is
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`improper. PGS’s unsupported objections are both procedurally and substantively
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`deficient. Under the proper analysis discussed above, the cited documents at issue
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`are admissible. Accordingly, PGS’s motion to exclude should be denied.
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`Dated: October 28, 2015
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`Respectfully submitted,
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`Oblon, McClelland, Maier & Neustadt, LLP
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`/Michael L. Kiklis/
`Michael L. Kiklis (Reg. No. 38,939)
`Attorney for Patent Owner
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`WESTERNGECO L.L.C.
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`15
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`IPR2014-01478
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`Customer Number
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`Tel. (703) 413-3000
`Fax. (703) 413-2220
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`16
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`IPR2014-01478
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies service of
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`PATENT OWNER’S OPPOSITION TO PETITIONER PETROLEUM GEO-
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`SERVICES INC.’S MOTION TO EXCLUDE AND EXHIBITS FILED
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`THEREWITH on the counsel of record for the Petitioner by filing this document
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`through the Patent Review Processing System as well as by delivering a copy via
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`electronic mail to the following addresses:
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`David Berl
`dberl@wc.com
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`Jessamyn Berniker
`jberniker@wc.com
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`Thomas S. Fletcher
`tfletcher@wc.com
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`Christopher Suarez
`csuarez@wc.com
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`/Michael L. Kiklis/
`Michael L. Kiklis (Reg. No. 38,939)
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`Dated: October 28, 2015
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`17