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
`____________
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`
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE CITED BY PETITIONER
`
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`1 Case IPR2015-00852 has been joined with this proceeding.
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`
`
`____________
`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 REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE CITED BY PETITIONER
`
`
`1 Case IPR2015-00852 has been joined with this proceeding.
`
`
`
`
`
`
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`Patent Owner respectfully submits this Reply in support of its Motion to
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`Exclude (Paper 38, “Motion” or “Mot.”). Petitioners’ Opposition (Paper 42, “Pet.
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`Opp.”) does not refute the substance of Patent Owner’s objections that Petitioners’
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`Reply mischaracterizes Dr. Levy’s testimony; in fact, the Opposition actually
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`confirms it. Therefore, Patent Owner respectfully requests that the objections be
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`sustained under FRE 403 or that additional testimony be considered under FRE
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`106.
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`A. The Opposition Confirms the Mischaracterizations in the Reply
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`In the Motion, Patent Owner objected to Petitioners’ mischaracterization of
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`two separate instances of Dr. Levy’s testimony. First, Patent Owner objected to
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`Petitioners’ citation to Ex. 1025 at 129:16-17 for the proposition that “[t]he
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`channel number serves as a representation of a host in the map because it is
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`‘sufficient to identify a host for the purposes of the mapping.’” Paper 33 (“Reply”)
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`at 13 (emphasis added); see also id. at 14-15. As pointed out in the Motion, the
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`cited testimony “made no reference to channels” and was referring to SCSI IDs,
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`not channel numbers. Mot. at 1-2, 4. Patent Owner also pointed out that
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`Petitioners’ characterization of the cited testimony was directly contradicted by Dr.
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`Levy’s other testimony. Mot. at 4-6 (citing Ex. 1025 at 129:18-24; 126:13-127:20;
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`218:7-16). Faced with the indisputable record, Petitioners now concede, contrary
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`to the characterizations in the Reply, that “there is no dispute” that Dr. Levy was
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`referring to SCSI IDs in the cited testimony. Pet. Opp. at 9. Since this testimony
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`1
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`was undeniably directed to SCSI IDs, not channel numbers, the testimony has no
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`probative value with respect to channel numbers. As such, Patent Owner’s
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`objection under FRE 403 should be sustained because the relevance of the
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`testimony is outweighed by the danger of unfair prejudice; or, in the alternative,
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`additional testimony of Dr. Levy should be considered under FRE 106, as
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`requested in the Motion.
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`Second, Patent Owner objected to Petitioners’ citation to the testimony at
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`Ex. 1025 at 112:16-25 as establishing that AL_PA addresses “will change.” Mot. at
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`7 (citing Reply at 5). As pointed out by Patent Owner, however, Dr. Levy
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`indicated that it was simply a possibility that the numbers may change, not that
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`they will change. See Motion at 7-8. Petitioners now concede that Dr. Levy was
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`“clear that an AL_PA . . . may change” not that the AL_PAs will change. Pet.
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`Opp. at 11 (emphasis added). Accordingly, Petitioners misleading citation to Dr.
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`Levy’s testimony at 112:16-25 should be excluded under FRE 403 or the testimony
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`should only be considered in conjunction with the surrounding context and relevant
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`re-direct testimony, as requested in the Motion.
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`B. Petitioners’ Alternative Relevance Ground is Meritless
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`Unable to defend their mischaracterization of Dr. Levy’s testimony,
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`Petitioners argue that the testimony is still relevant, not to establish the
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`propositions for which it was initially cited, but because it is allegedly inconsistent
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`with Patent Owner’s interpretation of the “map” limitation. Pet. Opp. at 10 (“Dr.
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`2
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`Levy’s testimony . . . highlights that Patent Owner’s desired claim interpretation is
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`improper.”), 12 (same). Petitioners reprise their strawman argument from the
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`Reply that Patent Owner’s interpretation of the “map” limitation allegedly requires
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`identifying a host in the map with a perpetual, unchanging identifier that
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`intrinsically identifies a particular host and excludes identifiers such as SCSI ID
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`and AL_PA. Pet. Opp. at 9 n.2, 11; Reply at 4. Patent Owner has never
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`maintained that the identifier in the map has to perpetually identify a host in the
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`manner asserted by Petitioners, so this assertion of relevance is without merit.
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`Moreover, Dr. Levy explained that to “identify precisely to which host
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`[specified storage is] allocated merely means distinguish one host from another on
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`the bus.” Mot. at 4 (citing Ex. 1025 at 129:22-24). Dr. Levy distinguished the use
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`of SCSI IDs from the “switching cables” example on which Petitioners’ argument
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`is based – an example that actually included channels rather than SCSI IDs or
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`AL_PAs in the map – explaining that “there can’t be more than one host with the
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`same SCSI ID on a SCSI bus. Therefore, the SCSI ID is, in fact, adequate to
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`distinguish a host on a SCSI bus, whereas in the CRD-5500, there is no SCSI ID or
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`host identification mapped.” Motion at 4-5 (citing Ex. 1025 at 126:13-127:20). Dr.
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`Levy also explained that an AL_PA identifies a particular host on a Fibre Channel
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`loop and can thus be used to distinguish hosts on a Fibre Channel loop. Ex. 1025 at
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`109:10-16.
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`3
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`Petitioners’ argument that the objected-to testimony is somehow relevant to
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`an unsupported attorney argument does not outweigh the prejudice of the
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`mischaracterizations. Accordingly, Patent Owner requests that the objections
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`under FRE 403 be sustained or additional contextual testimony and relevant re-
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`direct testimony be considered under FRE 106, as requested in the Motion.
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`C. Petitioners’ Procedural Attacks are Meritless
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`Failing to refute the substance of Patent Owner’s objections, Petitioners
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`lodge several procedural complaints. Petitioners argue that FRE 106 and FRE 403
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`are not applicable to inter partes review. Pet. Opp. at 5-7. As an initial matter, the
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`Board has explicitly found FRE 106 applicable in inter partes review:
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`The context of a witnesses’ statements “ought in fairness” be
`considered “contemporaneously” when evaluating a witness’s
`testimony. It would be helpful to the Board to have context-providing
`statements identified by the adverse party, and we see little value in
`deferring such identification to the oral hearing . . . .
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`Zhongshan Broad Ocean Motor Co. v. Nidec Motor Corp., IPR2014-01121, Paper
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`42 at 3 (Sept. 10, 2015) (quoting FRE 106). With respect to FRE 403, the fact that
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`the dangers under Rule 403 for a jury trial differ from those in an inter partes
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`review proceeding is something for the Board to consider and not a blanket
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`prohibition against 403 objections. See, e.g., Neste Oil Oyj v. Reg Synthetic Fuels,
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`LLC, IPR2013-00578, Paper 53 at 10 (PTAB Mar. 12, 2015) (cited by Pet. Opp. at
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`4
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`6). Thus, both FRE 106 and 403 are proper because the Federal Rules of Evidence
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`generally apply to an inter partes review. 37 C.F.R. § 42.62.
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`Petitioners’ argument that Patent Owner’s objections address the weight of
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`the evidence and not the admissibility is completely misplaced. See Pet. Opp. at 7.
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`A determination under FRE 403 explicitly requires a court to weigh the probative
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`value of evidence. FRE 403 (“The court may exclude relevant evidence if its
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`probative value is substantially outweighed by a danger of . . . .”). Thus,
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`addressing the probative value of the evidence is not a defect—it is a requirement.
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`As discussed above, the objectionable testimony has little or no probative value for
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`the reason for which it was proffered and should, therefore, be excluded.
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`Petitioners also argue that Patent Owner did not make the FRE 403
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`objections during the deposition. Pet. Opp. at 5. However, the FRE 403 objections
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`could not be made during the deposition because Petitioner had not yet
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`mischaracterized the testimony.
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`Moreover, contrary to Petitioners’ assertions, Patent Owner’s Motion to
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`Exclude is not an improper sur-reply because it discusses specific evidence and
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`why that evidence should be excluded pursuant to Rule 403. An improper sur-
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`reply would have attempted to discuss the parties’ arguments. E.g., Pet. Opp. at 9
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`(“an attempt to obscure this important point”), 10 (“muddle the important issues”),
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`11 (“the key issue here”). In contrast, Patent Owner’s motion to exclude only
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`addressed the evidence that was unfairly mischaracterized by Petitioners.
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`Respectfully submitted,
`SPRINKLE IP LAW GROUP
`
` John L. Adair /
`
` /
`
`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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`6
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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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`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
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`By:
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`
` /John L. Adair /
`John L. Adair
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