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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`PETROLEUM GEO-SERVICES INC.
`Petitioner
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`v.
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`WESTERNGECO, LLC
`Patent Owner
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`Case IPR2014-014781
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`U.S. Patent No. 7,293,520
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`PETITIONER PETROLEUM GEO-SERVICES INC.’S REPLY IN
`SUPPORT OF MOTION TO EXCLUDE
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`1 Case IPR2014-00689 is a related proceeding.
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .................................................................................... ii
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`TABLE OF AUTHORITIES .................................................................................. .. ii
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`I.
`I.
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`The Walker Declaration Does Not Comply with the Law. ............................. 1
`The Walker Declaration Does Not Comply with the Law. ........................... ..l
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`II. WG Disavows Most of Its Evidence as Not Being Offered for Its
`II. WG Disavows Most of Its Evidence as Not Being Offered for Its
`Truth. ................................................................................................................ 3
`Truth ............................................................................................................... ..3
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`III. The ION Case Materials Cited by WG Are Inadmissible Hearsay. ................ 4
`III.
`The ION Case Materials Cited by WG Are Inadmissible Hearsay ............... ..4
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`IV. WG’s Supplemental Evidence Does Not Cure PGS’s Objections. ................. 4
`IV. WG’s Supplemental Evidence Does Not Cure PGS’s Objections. ............... ..4
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`TABLE OF AUTHORITIES
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`CASES
`Consol. Rail Corp. v. Grand Trunk W. R.R. Co., 2011 WL 6004291
`(E.D. Mich. Dec. 1, 2011) ..................................................................................... 1
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`U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005) ........................................................ 4
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`OTHER AUTHORITIES
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`37 C.F.R. § 42.64(c) ................................................................................................... 1
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`Fed. R. Evid. 801(d) ................................................................................................... 4
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`Fed. R. Evid. 602 ....................................................................................................... 1
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`Fed. R. Evid. 802 ................................................................................................... 1, 4
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`WG devotes much of its brief to complaining that PGS filed a motion to
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`exclude and questioning the form of the motion. PGS’s motion, which complies
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`with 37 C.F.R. § 42.64(c), appropriately addresses the myriad improper and
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`inadmissible exhibits that WG has sought to introduce.
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`I.
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`The Walker Declaration Does Not Comply with the Law.
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`II. WG Disavows Most of Its Evidence as Not Being Offered for Its Truth.
`WG’s primary response to PGS’s well-founded hearsay objections is to
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`assert that the cited materials are not being offered for their truth but rather
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`exclusively as evidence of “praise.” Opp. at 13-14. On this basis WG disavows
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`substantive reliance on the truth of no fewer than 25 exhibits—Exhibits 2063,
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`2083, 2085, 2087, 2101-09, 2115-20, 2123, 2127-31. Opp. at 12-15. But many of
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`them are cited precisely for their truth and have nothing to do with praise.
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`materials being cited for their truth, and are thus inadmissible under Rule 802.
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` These are hearsay
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`III. The ION Case Materials Cited by WG Are Inadmissible Hearsay.
`Lumping all ION case materials together, WG responds that “PGS cannot
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`use these litigation records as a sword and then credibly argue that Patent Owner’s
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`citation to such documents for a non-hearsay purpose is improper.” Opp. at 15.
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`This is not improper—it is how the hearsay rule works. PGS’s reliance on WG’s
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`briefs and testimony from the ION case is permitted because they are WG’s
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`admissions, and thus are “not hearsay.” FRE 801(d). That does not make other
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`ION case documents admissible against PGS, who was not a party to the
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`proceedings. U.S. v. McDaniel, 398 F.3d 540, 545 (6th Cir. 2005). Nor is it an
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`answer to say that the ION jury verdict—a document that is plainly inadmissible,
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`Mot. at 11—is rendered admissible because PGS addressed it in its papers in order
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`to respond to WG’s improper reliance on it. Opp. at 15; Reply at 22.
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`IV. WG’s Supplemental Evidence Does Not Cure PGS’s Objections.
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`4
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`WG wrongly accuses PGS of “stubbornly ignoring [supplemental]
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`evidence.” Opp. at 3. Not so. PGS considered WG’s supplemental evidence and
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`withdrew some of its original objections. Compare Mot. with Paper 43. But WG’s
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`efforts to cure others through supplemental evidence were insufficient, and remain
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`so. Mot. at 13-15. The declarations of WG’s outside counsel, Exs. 2137 and 2148,
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`cannot authenticate ION and Fugro documents, Exs. 2060, 2061, 2067, 2107, and
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`2118. Being unable to swear to what they actually are, he merely attests that those
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`exhibits are trial exhibits, see Mot. at 15; Ex. 2137 ¶¶ 4, 5, 7, 24; Ex. 2148 ¶ 5,
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`which does not establish that they are what WG proffers them to be.
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` Similarly, Mr. Walker’s supplemental declaration, Ex. 2135, cannot
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`establish that various WG documents were “business records,”
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`Dated: November 4, 2015
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`Respectfully submitted,
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` /Jessamyn Berniker/
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`Jessamyn Berniker
`Reg. No. 72,328
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
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`Phone: 202-434-5474
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the above-captioned Petitioner
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`Petroleum Geo-Services Inc.’s Reply in Support of Motion to Exclude was served
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`on November 4, 2015, by delivering a copy via electronic mail upon the following
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`attorneys of record.
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`Michael L. Kiklis
`CPDocketKiklis@oblon.com
`Scott McKeown
`CPDocketMcKeown@oblon.com
`Kevin Laurence
`CPDocketLaurence@oblon.com
`Katherine Cappaert
`CPDocketCappaert@oblon.com
`Christopher Ricciuti
`CPDocketRicciuti@oblon.com
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`Oblon
`1940 Duke Street
`Alexandria, Virginia 22314
`703-413-3000
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`Respectfully submitted,
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` /Jessamyn Berniker/
`Jessamyn Berniker
`Reg. No. 72,328
`Williams & Connolly LLP
`725 Twelfth Street, N.W.
`Washington, DC 20005
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`Phone: 202-434-5474
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`Dated: November 4, 2015