UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., QUANTUM CORP.,
`AND ORACLE CORP.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-015441
`Patent No. 7,051,147
`____________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`CITED BY PETITIONERS
`
`
`1 Case IPR2015-00852 has been joined with this proceeding.
`
`
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., QUANTUM CORP.,
`AND ORACLE CORP.,
`Petitioners,
`v.
`CROSSROADS SYSTEMS, INC.
`Patent Owner.
`____________
`Case IPR2014-015441
`Patent No. 7,051,147
`____________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`CITED BY PETITIONERS
`
`
`1 Case IPR2015-00852 has been joined with this proceeding.
`
`
`
`
`
`I.
`
`INTRODUCTION
`Patent Owner respectfully requests that certain evidence relied on by
`
`Petitioners be excluded pursuant to 37 C.F.R. § 42.64(c). Specifically, Patent Owner
`
`moves to exclude certain portions of Exhibit 1025, the deposition transcript of Patent
`
`Owner’s expert witness Dr. John Levy, Ph.D. Patent Owner’s objections to questions
`
`at the deposition were made on the record during the deposition. Petitioners’
`
`mischaracterizations of Dr. Levy’s testimony fully reveal why the questions were
`
`objectionable. In addition, or in the alternative, because Petitioners repeatedly
`
`mischaracterize Dr. Levy’s deposition testimony, Patent Owner requests that the
`
`Board consider additional portions of Dr. Levy’s testimony pursuant to the Rule of
`
`Completeness (FRE 106), because
`
`this
`
`testimony contradicts Petitioners’
`
`mischaracterizations.
`
`II.
`
`PETITIONERS MISCHARACTERIZE THE TESTIMONY OF
`PATENT OWNER’S WITNESS DR. LEVY
`Petitioners rely on certain testimony of Patent Owner’s expert witness, Dr.
`
`John Levy, Ph.D., which should be excluded because it was obtained pursuant to
`
`objectionable questioning and, further, mischaracterizes his testimony.
`
`A. Objection #1
`
`Petitioners cite Ex. 1025 at 129:16-17 for the proposition that “[t]he channel
`
`number serves as a representation of a host in the map because it is ‘sufficient to
`
`identify a host for the purposes of the mapping.’” Paper 33 (“Reply”) at 13.
`
`
`
`
`1
`
`
`
`
`
`Petitioners also cite this testimony on pages 14-15 of the Reply for the proposition
`
`that, “Like the SCSI ID and AL_PA identifiers in the map of the ’147 Patent, the
`
`channel number is ‘sufficient to identify a host for the purposes of the mapping.’”
`
`Petitioners have cherry picked the phrase “sufficient to identify a host for the
`
`purposes of the mapping” completely out of context, and are using the quoted phrase
`
`to support their assertions which are directly contradicted by Dr. Levy’s actual
`
`testimony. As such, Patent Owner moves that this testimony be excluded pursuant
`
`to FRE 403, as the relevance of this phrase devoid of the actual context—or even the
`
`full sentence—is substantially outweighed by a danger of unfair prejudice or
`
`misleading the trier of fact.
`
`Petitioners grossly mischaracterize the cited testimony, which made no
`
`reference to channels or “channel numbers” and defined “purposes of the mapping”
`
`in a manner completely inconsistent with Petitioners’ usage in their reply. When
`
`read in context, the meaning of the phrase is clear:
`
`Q. (BY MR. GAUDET) And is that because of the
`correlation between the SCSI ID and the host?
`
`A. What I said -- and I will be happy to repeat it -- in the --
`where there's multiple hosts on the SCSI bus attached to a storage
`router, the storage router may use SCSI ID as a representation of a
`host. That would prevent one host access from being confused with
`another host's access.
`
`
`
`
`
`2
`
`
`
`
`
`
`
`Q. So it represents the host, but it doesn't exactly identify the
`host, correct?
`
`MR. HALL: Objection; form.
`
`A. I think we're playing semantic games with that question.
`
`Q. (BY MR. GAUDET) Okay. So is there a difference
`between a representation and an exact identification?
`
`A. We haven't come to agreement about what an exact
`identification would be, and so I don't know how to answer that.
`
`Q. Okay. If you look at paragraph 36 of the 1226
`Declaration, in the second-to-last sentence in your reviewing the
`Board's construction of, "mapping," you say, "I understand the
`construction of this term to mean allocation to a specific device."
`And then it goes on to say, "The map must identify
`precisely." What does it mean -- is there a difference between
`identifying precisely and representing?
`
`A. Well, I am not quite sure about the question. But in the
`example I gave with our two hosts on the SCSI bus and the
`storage router, the SCSI ID is representing a host in each case, and
`that's precisely which host -- it's sufficient to identify a host for the
`purpose of the mapping.
`
`Q. Okay. Is -- I mean, is there a difference between sufficient
`to identify a host for purposes of the mapping and identify precisely
`to which host the specified storage has been allocated?
`
`
`
`3
`
`
`
`
`
`A. Identify precisely to which host are allocated merely
`means distinguish one host from another on the bus. So they
`mean the same thing in this context.
`
`Ex. 1025 at 128:8-129:24 (emphasis added). Of the above passage, Petitioners limit
`
`their citation to the underlined sentence. Petitioners’ isolated citation completely
`
`mischaracterizes Dr. Levy’s testimony. Specifically, Dr. Levy’s testimony was
`
`limited to the role of a SCSI ID in his example “with [] two hosts on the SCSI bus
`
`and the storage router.” Id. at 129:13-16. Moreover, Dr. Levy explained that
`
`“sufficient to identify a host for purposes of the mapping” means “distinguish one
`
`host from another on the bus.” Id. at 129:18-24. It is only by pulling the quoted
`
`phrase completely out of context that Petitioners can possibly use it to support their
`
`position—a position that is completely contrary to Dr. Levy’s testimony, both in that
`
`very answer as well as consistently throughout his deposition. For example, earlier
`
`in his deposition, Dr. Levy testified as follows:
`
`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.
`
`
`4
`
`
`
`
`
`
`
`Q. Now, it's the case that any channel -- any host attached to,
`for example, the slot on a SCSI bus that -- that has a given SCSI ID
`will get access to the same thing; is that correct?
`
`MR. HALL: Objection; form.
`
`A. I am sorry. I didn't follow that.
`
`Q. (BY MR. GAUDET) Sure. It's the case that in the SCSI
`bus embodiment of figure 3 where the hosts are attached by a SCSI
`bus, any host that presents itself with a given SCSI ID number will
`have access to the same storage no matter if that's Matt's computer
`or Bill's computer or someone else's computer; isn't that true?
`. . . .
`
`A. Well, the statement is misleading because you say any
`host that has a given SCSI ID. But there can't be more than one
`host with the same SCSI ID on a SCSI bus. Therefore, the SCSI
`ID is, in fact, adequate to distinguish a host on a SCSI bus,
`whereas in the CRD-5500, there is no SCSI ID or host
`identification mapped.
`
`Ex. 1025 at 126:13-127:20 (errata incorporated in brackets) (emphasis added). Levy
`
`also testified:
`
`Q. Okay. So in that situation, even if Matt's computer sends
`the CRD-5500 either a SCSI ID or an AL_PA address, does the
`CRD-5500 use that information to limit Matt's access to the
`storage?
`
`A. There's no evidence in the CRD-5500 manual or data
`sheet that any identification of a host is used in the channel
`
`
`5
`
`
`
`
`
`
`
`mapping of the CRD-5500. Therefore, there's no distinction
`between the hosts on the channel --
`
`Q. Okay.
`
`A. -- for the sake of access control.
`
`Ex 1025 at 204:1-10 (emphasis added) (re-direct testimony). And again:
`
`Q. The CRD-5500, you're familiar with the map there,
`correct?
`
`MR. HALL: Objection; form.
`
`A. The host channel mapping?
`
`Q. (BY MR. GAUDET) Correct.
`
`A. Yes.
`
`Q. And that is certainly a map that includes a host, right?
`
`MR. HALL: Objection; form.
`
`A. No.
`
`Ex 1025 at 218:7-16 (re-cross testimony).
`
`Because of Petitioners’ misleading citation of Dr. Levy’s testimony, the
`
`testimony at 129:16-17 should be excluded pursuant to FRE 403. As an alternative
`
`to exclusion, the Board should consider the citation to 129:16-17 only with its
`
`surrounding context and relevant re-direct testimony, including but not limited to at
`
`least 128:8-129:24 (referenced above), pursuant to FRE 106.
`
`
`
`
`
`6
`
`
`
`
`
`B. Objection #2
`
`Petitioners cite Ex. 1025 at 112:16-25 as establishing that Dr. Levy testified
`
`that AL_PA addresses “‘will change, either after power cycle or
`
`loop
`
`reconfiguration.’” Reply at 5 (quoting Ex. 1001, the ’147 Patent, at 8:9-10)
`
`(emphasis added). The cited testimony is as follows:
`
`A. . . . Of course it could have a different AL_PA on the
`same bus if you were to stop and reconfigure the bus.
`
`Q. (BY MR. GAUDET) Okay. And explain what you mean
`by that.
`
`A. Well, when you power up the system, you have to assign
`these addresses. And so you could power down the system and
`start over, and depending on how the AL_PAs were assigned,
`they may come up with different assignments.
`
`Ex. 1025 at 112:16-25 (emphasis added). Petitioners have mischaracterized Dr.
`
`Levy’s testimony, which clearly indicates that it is merely possible that the numbers
`
`could change. As Dr. Levy went on to explain in response to the next question:
`
`Q. (BY MR. GAUDET) And then when the system is
`powered down, the AL_PAs on the bus in effect disappear, and new
`AL_PAs are assigned when the system is powered back up?.
`
`A. It’s possible. I think probably there’s other ways to do it,
`as well, to keep track of them.
`
`Ex. 1025 at 113:1-9; see also 134:21-137:11 (“Individual ports are allowed to
`
`arbitrate for a known user-defined address. So there may be a way to set up the host
`
`
`
`
`7
`
`
`
`
`
`such that they always ask for a given user-defined user [sic].”). And, on redirect,
`
`Dr. Levy further testified that “there are mechanisms by which the Fibre Channel
`
`addresses can be maintained, or a host can request a particular Fibre Channel
`
`address.” Ex. 1025 at 195:4-196:1; see also 192:19-198:19. Because of Petitioners’
`
`misleading citation of Dr. Levy’s testimony, the testimony at 112:16-25 should be
`
`excluded under FRE 403. As an alternative to exclusion, Patent Owner requests that
`
`the citation to 112:16-25 only be considered in conjunction with its surrounding
`
`context and relevant re-direct testimony, including but not limited to at least Ex.
`
`1025 at 113:1-9; 134:21-137:11; 192:19-198:19 (referenced above), pursuant to
`
`FRE 106.
`
`Similarly, Petitioners selectively quote only a portion of a sentence from the
`
`patent specification to further give the impression that the change in numbers is
`
`automatic. Reply at 5 (quoting Ex. 1001 at 8:9-10). However, as with Dr. Levy’s
`
`testimony, when the entire sentence and the surrounding context is read, it is clear
`
`that Petitioners’ assertion is false. See Ex. 1001 at 8:9-10 (“Various scenarios exist
`
`where the AL-PA of a device will change, either after power cycle or loop
`
`reconfiguration.”) (emphasis added to unquoted portion of sentence); see also 8:3-
`
`5(“Individual ports are allowed to arbitrate for a known, user defined address.”);
`
`8:17-18(“FC ports can be required to have specific addresses assigned.”)
`
`
`
`
`
`8
`
`
`
`
`
`III. CONCLUSION
`For the foregoing reasons, Patent Owner respectfully requests that the Board
`
`grant this motion and exclude the evidence set forth above. In the alternative to
`
`excluding the referenced portions of Dr. Levy’s deposition testimony, the Board
`
`should consider the additional portions of Dr. Levy’s testimony pursuant to the Rule
`
`of Completeness in FRE 106.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`/James H. Hall/
`James H. Hall
`Reg. No. 66,317
`Counsel for Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: September 22, 2015
`
`
`
`
`
`
`
`
`
`
`
`9
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies service of a copy of this Motion to Exclude on
`
`September 22, 2015 on counsel for Petitioners by e-mail (pursuant to agreement) at
`
`the below e-mail addresses:
`
`David L. McCombs – david.mccombs.ipr@haynesboone.com
`Andrew S. Ehmke – andy.ehmke.ipr@haynesboone.com
`Scott T. Jarratt – scott.jarratt.ipr@haynesboone.com
`Phillip B. Philbin – Phillip.Philbin.IPR@haynesboone.com
`Gregory P. Huh – Gregory.Huh.IPR@haynesboone.com
`Haynes and Boone, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`
`Greg Gardella - cpdocketgardella@oblon.com
`Scott McKeown - cpdocketmckeown@oblon.com
`Oblon, LLP
`1940 Duke Street
`Alexandria, VA 22314
`
`
`
`
`By: /James H. Hall/
`James H. Hall
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`10
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
