Paper No. ____
`
`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 7,051,147
`___________________
`
`CONSOLIDATED PETITIONERS’ OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE
`
`1 Case IPR2015-00852 has been joined with this proceeding
`
`
`
`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 7,051,147
`___________________
`
`CONSOLIDATED PETITIONERS’ OPPOSITION TO
`PATENT OWNER’S MOTION TO EXCLUDE
`
`1 Case IPR2015-00852 has been joined with this proceeding
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`Introduction ..................................................................................................... 1
`
`II. Statement of Relief Requested ......................................................................... 1
`
`III. Reasons Why Patent Owner’s Motion to Exclude Should Be Denied .............. 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Summary of Reasons ......................................................................... 1
`
`The Motion Fails Because Patent Owner Did Not Object to The
`Evidence Sought to be Excluded ......................................................... 1
`
`FRE 403 and The Rule of Completeness (FRE 106) are Inapplicable
`to the Present Proceeding................................................................... 5
`
`The Motion to Exclude Addresses the Weight of the Evidence, Not
`the Admissibility................................................................................ 7
`
`Patent Owner’s Allegations of Mischaracterization are Baseless ....... 8
`
`IV. Conclusion......................................................................................................12
`
`i
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Neste Oil Oyj v. Reg Synthetic Fuels, LLC.,
`IPR2013-00578, Paper 53 (PTAB 2013)…………………….…………………......6
`
`Stryker v. Karl Storz Endoscopy-America, Inc.,
`IPR2015-00677, Paper 13 (PTAB 2015)…………………………………...………6
`
`Liberty Mutual Insurance Co. v. Progressive Casualty Insurance Co.,
`CBM2012-00002, Paper 66 (PTAB 2014)…………….………………………...7, 8
`
`Hayward Industries, Inc. v. Pentair Water Pool and Spa, Inc.,
`IPR2013-00285, Paper 31 (PTAB 2014)……………………………..…………….7
`
`Avaya Inc., v. Network-1 Security Solutions, Inc.,
`IPR2013-00071, Paper 75 (PTAB 2013)……………………………………..…….7
`
`Bloomberg, Inc., et. al. v. Markets-Alert Pty Ltd.,
`CBM2013-00005, Paper 56 (PTAB 2013)………………………….……………...8
`
`Rules
`
`37 C.F.R. § 42.23…………………………………………………………………...1
`
`37 C.F.R. § 42.64……………………………………………………………...1, 2, 5
`
`i
`
`
`
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`I.
`Introduction
`Patent Owner filed a Motion to Exclude on September 22, 2015 (“Motion,”
`
`IPR2014-01544
`U.S. Patent No. 7,051,147
`
`Paper 38). Petitioners submit this opposition under 37 C.F.R. § 42.23. As
`
`explained below, Patent Owner’s Motion should be denied because it is
`
`procedurally deficient and is an improper sur-reply to Petitioners’ Reply Brief.
`
`II.
`
`Statement of Relief Requested
`Petitioners request that Patent Owner’s Motion to Exclude be denied.
`
`III. Reasons Why Patent Owner’s Motion to Exclude Should Be Denied
`A.
`Summary of Reasons
`The Motion should be denied because it is procedurally deficient.
`
`Specifically, the Motion (i) relies on evidence objections that do not exist in the
`
`record, (ii) cites to inapplicable rules in the Rules of Federal Evidence, and (iii)
`
`addresses the weight of the evidence rather than the admissibility of the evidence.
`
`Further, even if the Board reaches the substance of the Motion, Patent Owner’s
`
`allegations of testimony mischaracterization are baseless.
`
`B.
`
`The Motion Fails Because Patent Owner Did Not Object to The
`Evidence Sought to be Excluded
`Patent Owner moves to exclude portions of Exhibit 1025—the deposition
`
`transcript of its own expert witness—under Rule 403 of the Federal Rules of
`
`Evidence (FRE 403). Motion at 6 and 8. Patent Owner’s Motion, however, fails to
`
`meet the procedural requirements of 37 C.F.R. § 42.64.
`
`1
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`Under 37 C.F.R. § 42.64(a), a party wishing to challenge the admissibility of
`
`deposition evidence must object to the evidence “during the deposition.” The
`
`objecting party preserves the objection by filing a motion to exclude the evidence.
`
`37 C.F.R. § 42.64(c). The motion to exclude “must identify the objections in the
`
`record in order and must explain the objections.” Id. Patent Owner’s Motion fails
`
`to meet each of these requirements.
`
`In more detail, Patent Owner cites to FRE 403 in an attempt to exclude two
`
`portions of the deposition transcript contained in Exhibit 1025—lines 129:16-17
`
`(Objection #1) and lines 112:16-25 (Objection #2). Motion at 2, 6, 8. The Motion
`
`fails, however, to identify any objection under FRE 403 in the record, as required
`
`by 37 C.F.R. § 42.64(c). Instead, the Motion includes a generic statement that
`
`“Patent Owner’s objections to questions at the deposition were made on the record
`
`during the deposition.” Motion at 1. This statement rings hollow because Patent
`
`Owner did not actually object to the testimony sought to be excluded.
`
`In that regard, the portions of the deposition transcript quoted in the Motion
`
`reveal that Patent Owner did not object under FRE 403 during the deposition to the
`
`testimony sought to be excluded or to the question that prompted the testimony
`
`sought to be excluded. The relevant portions of the deposition transcript are
`
`provided below, with the evidence sought to be excluded underlined:
`
`8
`
`Q. (BY MR. GAUDET) And is that because of the
`
`2
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`9
`correlation between the SCSI ID and the host?
`10
`A. What I said -- and I will be happy to repeat
`11
`it -- in the -- where there's multiple hosts on the
`12
`SCSI bus attached to a storage router, the storage
`13
`router may use SCSI ID as a representation of a host.
`14
`That would prevent one host access from being confused
`15
`with another host's access.
`16
`Q. So it represents the host, but it doesn't
`17
`exactly identify the host, correct?
`18
`MR. HALL: Objection; form.
`19
`A. I think we're playing semantic games with that
`20
`question.
`21
`Q. (BY MR. GAUDET) Okay. So is there a
`22
`difference between a representation and an exact
`23
`identification?
`24
`A. We haven't come to agreement about what an
`25
`exact identification would be, and so I don't know how
`1
`to answer that.
`2
`Q. Okay. If you look at paragraph 36 of the
`3
`1226 Declaration, in the second-to-last sentence in your
`4
`reviewing the Board's construction of, "mapping," you
`5
`say, "I understand the construction of this term to mean
`6
`allocation to a specific device."
`7
`And then it goes on to say, "The map must
`8
`identify precisely."
`9
`What does it mean -- is there a
`10
`difference between identifying precisely and
`
`3
`
`
`
`IPR2014-01544
`U.S. Patent No. 7,051,147
`
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`11
`representing?
`12
`A. Well, I am not quite sure about the question.
`13
`But in the example I gave with our two
`14
`hosts on the SCSI bus and the storage router, the
`15
`SCSI ID is representing a host in each case, and that's
`16
`precisely which host -- it's sufficient to identify a
`17
`host for the purpose of the mapping.
`18
`Q. Okay. Is -- I mean, is there a difference
`19
`between sufficient to identify a host for purposes of
`20
`the mapping and identify precisely to which host the
`21
`specified storage has been allocated?
`22
`A. Identify precisely to which host are allocated
`23
`merely means distinguish one host from another on the
`24
`bus. So they mean the same thing in this context.
`CQ-1025, 128:8-129:24 (emphasis added).
`
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`
`Q. (BY MR. GAUDET) Is that at least possible,
`that it's no longer AL_PA 1 on the other bus?
`A. Yes.
`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
`
`4
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`24
`were assigned, they may come up with different
`25
`assignments.
`CQ-1025, 112:13-25 (emphasis added).
`The above portions of the deposition transcript reveal that Patent Owner
`
`made no objections at all—much less any objections under FRE 403—to the
`
`testimony at lines 129:16-17 and 112:16-25 or to the questions that prompted the
`
`testimony. To the extent Patent Owner made various objections to “form” to other
`
`questions in the deposition, such objections do not support the exclusion of the
`
`testimony at issue here. Accordingly, by failing to object to the admissibility of the
`
`testimony at lines 129:16-17 and 112:16-25 “during the deposition,” as required by
`
`37 C.F.R. § 42.64(a), Patent Owner has waived its right to exclude such evidence.
`
`Moreover, to the extent Patent Owner attempts to correct these procedural
`
`deficiencies in a reply to this opposition or in a new motion to exclude, Petitioners
`
`respectfully submit such efforts would also fail. A motion to exclude simply
`
`preserves an objection to evidence—it is ineffective if no previous objection has
`
`been made. See 37 C.F.R. § 42.64(c). Accordingly, Patent Owner cannot now cure
`
`its failure to object to the testimony at issue during the deposition. For at least this
`
`reason, Patent Owner’s Motion to Exclude should be denied.
`
`C.
`
`FRE 403 and The Rule of Completeness (FRE 106) are
`Inapplicable to the Present Proceeding
`The two Rules of Federal Evidence cited by the Patent Owner—FRE 403
`
`and FRE 106—are inapplicable to the present inter partes review proceeding.
`
`5
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`First, the Board has ruled that FRE 403 has little, if any, applicability to inter
`
`partes reviews: “Proceedings before the Board are not jury trials; in the absence of
`
`a jury, the risk of unfair prejudice against which Rule 403 guards is diminished, if
`
`not eliminated entirely.” Neste Oil Oyj v. Reg Synthetic Fuels, LLC., IPR2013-
`
`00578, Paper 53 at 10 (PTAB 2013). The Board in this proceeding, like the Board
`
`in Neste Oil, “is capable of hearing relevant evidence and weighing its probative
`
`value.” Id. at 11. Because FRE 403 is the sole basis for Patent Owner’s objections,
`
`the Motion should fail.
`
`Patent Owner additionally invokes the Rule of Completeness (FRE 106) in
`
`the event its objections under FRE 403 fail. Motion at 1, 6, 8. The Rule of
`
`Completeness, however, is inapplicable to the portions of the deposition transcript
`
`at issue because the entire deposition transcript is already part of the record. See
`
`Stryker v. Karl Storz Endoscopy-America, Inc., IPR2015-00677, Paper 13 at 2-3
`
`(PTAB 2015) (invoking FRE 106 to find that deposition transcript pages not
`
`already in the record “should be in the record for completeness”). Exhibit 1025
`
`contains the entirety of Dr. Levy’s deposition testimony, including both portions
`
`objected to by Patent Owner, as well as the surrounding context and re-direct
`
`testimony. As such, the record is complete as-is and FRE 106 is inapplicable. In
`
`any event, Petitioners encourage the Board to review and consider all of the
`
`6
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`testimony provided by Dr. Levy during his deposition as captured in Exhibit 1025,
`
`as it highlights the inaccuracies in Patent Owner’s Response.
`
`D.
`
`The Motion to Exclude Addresses the Weight of the Evidence, Not
`the Admissibility
`Patent Owner’s two objections in its Motion to Exclude are based
`
`exclusively on allegations that Petitioners’ Reply mischaracterized the testimony at
`
`issue. Motion at 6 (“Because of Petitioners’ misleading citation of Dr. Levy’s
`
`testimony, the testimony at 129:16-17 should be excluded pursuant to FRE 403.”);
`
`see also id. at 8 (“Because of Petitioners’ misleading citation of Dr. Levy’s
`
`testimony, the testimony at 112:16-25 should be excluded under FRE 403.”).
`
`Because Patent Owner’s arguments focus exclusively on how the evidence is used
`
`rather than the admissibility of the evidence, the Motion is simply an unauthorized
`
`sur-reply to Petitioners’ Reply.
`
`The Board has repeatedly held that a “Motion to Exclude is not an
`
`opportunity to file a sur-reply.” Liberty Mutual Insurance Co. v. Progressive
`
`Casualty Insurance Co., CBM2012-00002, Paper 66 at 62 (PTAB 2014); see also
`
`Hayward Industries, Inc. v. Pentair Water Pool and Spa, Inc., IPR2013-00285,
`
`Paper 31 at 3 (PTAB 2014). In particular, parties “may only raise issues related to
`
`the admissibility of evidence” in a motion to exclude. Avaya Inc., v. Network-1
`
`Security Solutions, Inc., IPR2013-00071, Paper 75 at 4 (PTAB 2013). “[I]ssues
`
`related to credibility and the weight of the evidence should be raised in responses
`
`7
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`and replies.” Bloomberg, Inc., et. al. v. Markets-Alert Pty Ltd., CBM2013-00005,
`
`Paper 56 at 5 (PTAB 2013). Here, Patent Owner’s arguments regarding the
`
`testimony at lines 129:16-17 and 112:16-25 in Exhibit 1025 go not toward the
`
`admissibility of such testimony but toward the alleged weight when “read in
`
`context.” Motion at 2. For example, Patent Owner argues, with respect to lines
`
`129:16-17, that “[i]t is only by pulling the quoted phrase completely out of context
`
`that Petitioners can possibly use it to support their position.” Motion at 4. Patent
`
`Owner’s real issue is not whether lines 129:16-17 should be part of the record, but
`
`whether these lines support Petitioners’ position—an issue unquestionably related
`
`to the weight of the evidence. Patent Owner’s arguments related to the testimony at
`
`lines 112:16-25 follow suit. See Motion at 8 (“when the entire sentence and the
`
`surrounding context is read, it is clear that Petitioners’ assertion is false”).
`
`Accordingly, Patent Owner’s Motion to Exclude is nothing more than an attempt to
`
`present substantive arguments in response to Petitioner’s Reply, and, as such,
`
`should be denied. Moreover, such a denial would not prejudice Patent Owner
`
`because “[t]he Board, sitting as a non-jury tribunal with administrative expertise, is
`
`well-positioned to determine and assign appropriate weight to the evidence
`
`presented in this trial.” CBM2012-00002, Paper 66 at 70.
`
`E.
`
`Patent Owner’s Allegations of Mischaracterization are Baseless
`
`8
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`Even ignoring the procedural deficiencies of Patent Owner’s Motion to
`
`Exclude, the Motion is without merit because Patent Owner’s allegations are
`
`baseless. Patent Owner’s allegations are merely an attempt to divert attention
`
`away from the actual teachings of the ’147 Patent.
`
`First, with respect to Objection #1, Patent Owner alleges that Petitioners
`
`“cherry picked” and mischaracterized Dr. Levy’s testimony that a SCSI ID is
`
`“sufficient to identify a host for the purposes of the mapping.” Motion at 2
`
`(quoting CQ-1025 at 129:16-17). There is no dispute that this direct quotation from
`
`Dr. Levy’s deposition confirms that a SCSI ID may be used in the mapping of the
`
`’147 Patent. See also CQ-1025, 128:12-13 (“the storage router may use SCSI ID as
`
`a representation of a host.”). Patent Owner’s focus on the specific manner in which
`
`this testimony is utilized is an attempt to obscure this important point. The fact that
`
`Dr. Levy testified that a SCSI ID can be used as a representation of a host in the
`
`mapping of the ’147 Patent is highly relevant in and of itself because Patent
`
`Owner’s desired interpretation of the “map” limitation would exclude the use of a
`
`SCSI ID.2 As explained by Dr. Levy during his deposition, a SCSI ID is a
`
`2 Patent Owner’s interpretation requires that a host identifier in the map be so
`
`“precise” that it intrinsically identifies a particular host regardless of changes in
`
`physical cabling. See, e.g., Resp. at 8, 20-21 (asserting that the map must
`
`9
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`temporary intermediary identifier that may represent a different host before and
`
`after a cabling reconfiguration. CQ-1025, 113:10-12 (“you may have to reassign
`
`SCSI IDs when you reconfigure the system”). As such, even though a SCSI ID
`
`does not intrinsically identify a particular host regardless of changes in physical
`
`cabling (as required by Patent Owner’s interpretation), it is still “sufficient” to
`
`represent a host in the mapping of the ’147 Patent. Accordingly, Petitioners’ Reply
`
`does not mischaracterize Dr. Levy’s testimony—it simply highlights that Patent
`
`Owner’s desired claim interpretation is improper.
`
`Second, with respect to Objection #2 in the Motion, Patent Owner again
`
`attempts to muddle the important issues by alleging that Petitioners have
`
`mischaracterized Dr. Levy’s testimony. In this case, Patent Owner asserts that
`
`Petitioners have mischaracterized testimony about whether an AL_PA address can
`
`change in order to “give the impression that the change in numbers is automatic.”
`
`Motion at 7-8. According to Patent Owner, Dr. Levy testified that it was merely
`
`possible for the AL_PA numbers to change. Id. at 7. A cursory review of the
`
`Petitioners’ Reply demonstrates that Petitioners did not mischaracterize Dr. Levy’s
`
`testimony:
`
`distinguish between “Host #1” and “Host #2” if the “administrator physically
`
`switched the cables”).
`
`10
`
`
`
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`
`IPR2014-01544
`U.S. Patent No. 7,051,147
`
`Reply at 5 (annotated).
`
`In any case, the key issue here is not whether an AL_PA address will change
`
`automatically or will only possibly change, but whether an AL_PA address can
`
`change at all. The ’147 Patent and Dr. Levy are both clear that an AL_PA is not
`
`permanently associated with a host and may change after a power cycle or
`
`reconfiguration. CQ-1001, 7:64-65, CQ-1025, 112:16-25, 196:3-4. And, because
`
`an AL_PA may change after reconfiguration, it is outside of Patent Owner’s own
`
`interpretation of the “map” limitation, which requires that a host identifier
`
`intrinsically identify a particular host regardless of physical reconfiguration. See,
`
`11
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`e.g., Resp. at 8, 20-21. Accordingly, Petitioners’ Reply does not mischaracterize
`
`Dr. Levy’s testimony—it simply highlights that Patent Owner’s desired claim
`
`interpretation is improper.
`
`IV. Conclusion
`For at least the foregoing reasons, Petitioners respectfully request that the
`
`Board deny Patent Owner’s Motion to Exclude.
`
`Date: October 6, 2015
`
`Respectfully submitted,
`
`By: /David L. McCombs/
`David L. McCombs (Reg. No. 32,271)
`Haynes and Boone, LLP
`Counsel for Petitioners Cisco Systems, Inc.
`and Quantum Corp.
`
`12
`
`
`
`IPR2014-01544
`Consolidated Petitioners’ Opposition
`to Patent Owner’s Motion to Exclude
`U.S. Patent No. 7,051,147
`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
`
`service was made on Patent Owner and Oracle Corp. as detailed below.
`
`Date of service October 6, 2015
`
`Manner of service Electronic Mail
`
`Documents served Consolidated Petitioners’ Opposition to Patent Owner’s
`Motion to Exclude
`
`Persons served Steven R. Sprinkle
`Russell Wong
`John L. Adair
`James Hall
`Keith Rutherford
`
`Sprinkle IP Law Group
`ATTN: Crossroads IPR
`1301 W. 25th Street, Suite 408, Austin, TX 78705
`
`crossroadsipr@sprinklelaw.com
`CrossroadsIPR@blankrome.com
`
`Greg Gardella (Lead Counsel for Oracle Corp.)
`cpdocketgardella@oblon.com
`Oblon
`1940 Duke Street, Alexandria, VA 22314
`
`/David L. McCombs/
`David L. McCombs (Reg. No. 32,271)
`Haynes and Boone, LLP
`Counsel for Petitioners Cisco Systems, Inc.
`and Quantum Corp.
`
`13
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