UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`US ENDODONTICS, LLC,
`Petitioner
`
`v.
`
`GOLD STANDARD INSTRUMENTS, LLC
`Patent Owner
`
`CASE IPR2015-00632
`Patent 8,727,773 B2
`
`PETITIONER’S SECOND SET OF OBJECTIONS
`TO PATENT OWNER’S EXHIBITS
`
`8263461v.4
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`US ENDODONTICS, LLC,
`Petitioner
`
`v.
`
`GOLD STANDARD INSTRUMENTS, LLC
`Patent Owner
`
`CASE IPR2015-00632
`Patent 8,727,773 B2
`
`PETITIONER’S SECOND SET OF OBJECTIONS
`TO PATENT OWNER’S EXHIBITS
`
`8263461v.4
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner US Endodontics, LLC (“US
`
`Endo”) submits the following objections to Exhibits 2001 (Second Substitute),
`
`2002 (Second Substitute), 2024, 2025, 2027, 2028, 2031, 2037, 2038, 2039, 2040,
`
`2041, and 2043 submitted by Patent Owner Gold Standard Instruments, LLC
`
`(“GSI”), and any reference to or reliance on the foregoing. As required by 37
`
`C.F.R § 42.62, US Endo’s objections below apply the Federal Rules of Evidence.
`
`I.
`
`OBJECTIONS TO EXHIBITS 2001 (SECOND SUBSTITUTE), 2002
`(SECOND SUBSTITUTE), 2025 and 2037
`
`Exhibits 2001 (second substitute), 2002 (second substitute), 2025 and 2037
`
`are identified as hearing and deposition transcripts from the pending district court
`
`litigation. Exhibit 2001 (Second Substitute) is described by GSI as “(Second
`
`Substitute) Dentsply Int’l Inc. and Tulsa Dental Prods. LLC d/b/a Tulsa Dental
`
`Specialties v. US Endodontics, LLC, No. 2:14-196, Preliminary Injunction Hearing
`
`Transcript, Volume I, dated Nov. 25, 2014 (E.D. Tenn.) (Complete Hearing
`
`transcript and index).” Exhibit 2002 (Second Substitute) is described by GSI as
`
`“(Second Substitute) Dentsply Int’l Inc. and Tulsa Dental Prods. LLC d/b/a Tulsa
`
`Dental Specialties v. US Endodontics, LLC, No. 2:14-196, Preliminary Injunction
`
`Hearing Transcript, Volume II, dated Nov. 26, 2014 (E.D. Tenn.) (Complete
`
`Hearing transcript and index).” Exhibit 2025 is described by GSI as “Deposition
`
`Transcript of A. Jon Goldberg, Ph.D., dated September 30, 2014, taken in Dentsply
`
`8263461v.4
`
`1
`
`
`
`Int’l Inc. and Tulsa Dental Prods. LLC d/b/a Tulsa Dental Specialties v. US
`
`Endodontics, LLC, No. 2:14-196 (E.D. Tenn.).” Exhibit 2037 is described by GSI
`
`as “Deposition Transcript of Robert Sinclair, Ph.D., dated September 30, 2014,
`
`taken in Dentsply Int’l Inc. and Tulsa Dental Prods. LLC d/b/a Tulsa Dental
`
`Specialties v. US Endodontics, LLC, No. 2:14-196 (E.D. Tenn.).”
`
`US Endo objects to Exhibits 2001 (Second Substitute), 2002 (Second
`
`Substitute), 2025 and 2037 as irrelevant pursuant to Fed. R. Evid. 401, and
`
`therefore, inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403. The
`
`cited passages in these exhibits do not make any fact relevant to the grounds upon
`
`which trial was instituted more or less probable, and any facts that might be
`
`established based on these exhibits are of no consequence in determining the issues
`
`on which trial was instituted. Fed. R. Evid. 401. Including such citations in the
`
`record would merely lead to unfair prejudice, undue delay, confusion, and a waste
`
`of time. Fed. R. Evid. 403.
`
`Furthermore, US Endo objects to the admission of Exhibits 2001 (Second
`
`Substitute), 2002 (Second Substitute), 2025 and 2037 under Fed. R. Evid. 802 as
`
`constituting inadmissible hearsay for which no exception has been established.
`
`8263461v.4
`
`2
`
`
`
`II. OBJECTION TO EXHIBIT 2024
`
`Exhibit 2024 is described by GSI as “Kuhn et al., “Influence of Structure
`
`on Nickel-Titanium Endodontic Instruments Failure,” Journal of Endodontics,
`
`27(8), 516-20 (Aug. 2001).”
`
`US Endo objects to Exhibit 2024 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`
`US Endo also objects to this exhibit under Fed. R. Evid. 802 as constituting
`
`inadmissible hearsay for which no exception has been established.
`
`III. OBJECTION TO EXHIBIT 2027
`
`Exhibit 2027 is described by GSI as “Declaration of Neill H. Luebke,
`
`D.D.S., M.S.”
`
`US Endo objects, under Fed. R. Evid. 802, to paragraphs 37-40, 42-43, and
`
`45 of Exhibit 2027 as containing inadmissible hearsay for which GSI has not
`
`established any exception.
`
`IV. OBJECTION TO EXHIBIT 2028
`
`Exhibit 2028 is described by GSI as “Declaration of Ronald R. Lemon,
`
`D.M.D.”
`
`8263461v.4
`
`3
`
`
`
`US Endo objects, under Fed. R. Evid. 802, to paragraphs 33, 40, 48, and 49
`
`of Exhibit 2028 as containing inadmissible hearsay for which GSI has not
`
`established any exception.
`
`V.
`
`OBJECTION TO EXHIBIT 2031
`
`Exhibit 2031 is described by GSI as “Declaration of Noah Menard, with
`
`Exhibit A, DSC Test Report on EdgeFiles.”
`
`US Endo objects to Exhibit 2031 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`
`US Endo further objects to Exhibit 2031 under Fed. R. Evid. 901 for lack
`
`of authentication.
`
`VI. OBJECTION TO EXHIBIT 2038
`
`Exhibit 2038 is described by GSI as “Expert Report of Robert Sinclair,
`
`Ph.D., dated Sept. 12, 2014, in Dentsply Int’l Inc. and Tulsa Dental Prods. LLC
`
`d/b/a Tulsa Dental Specialties v. US Endodontics, LLC, No. 2:14-196 (E.D.
`
`Tenn.).”
`
`US Endo objects to Exhibit 2038 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`4
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`8263461v.4
`
`
`
`Furthermore, US Endo objects to the admission of Exhibit 2038 under Fed.
`
`R. Evid. 802 as constituting inadmissible hearsay for which GSI has not
`
`established any exception.
`
`VII. OBJECTION TO EXHIBIT 2039
`
`Exhibit 2039 is described by GSI as “Secrecy Agreement between Dr. Neill
`
`H. Luebke and Coltene/Whaledent, dated Sept. 16, 2008.”
`
`US Endo objects to Exhibit 2038 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`
`VIII. OBJECTION TO EXHIBIT 2040
`
`Exhibit 2040 is described by GSI as “Email communication from Patrick
`
`Huddie to Dr. Neill H. Luebke, dated May 20, 2010.”
`
`US Endo objects to Exhibit 2040 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`
`US Endo objects, under Fed. R. Evid. 802, to Exhibit 2040 as comprising
`
`inadmissible hearsay for which GSI has not established any exception.
`
`8263461v.4
`
`5
`
`
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`IX. OBJECTION TO EXHIBIT 2041
`
`Exhibit 2041 is described by GSI as “Product brochure for Coltene’s
`
`HyFlexCM file, downloaded from: http://www.hyflexcm.com/downloads.html
`
`(Nov. 4, 2015).”
`
`US Endo objects to Exhibit 2041 as irrelevant, under Fed. R. Evid. 401, to
`
`the grounds upon which this proceeding has been instituted, and therefore,
`
`inadmissible under Fed. R. Evid. 402 and/or Fed. R. Evid. 403.
`
`X.
`
`OBJECTION TO EXHIBIT 2043
`
`Exhibit 2043 is described by GSI as “Product information on Vortex Blue
`
`(June 11, 2014), printed from: <http://www.tulsadentalspecialties.com/defaut/
`
`endodontics_brands/Vortex_Blue.aspx> (The text cited in Plaintiff’s brief has
`
`been highlighted in yellow for ease of reference).”
`
`US Endo objects, under Fed. R. Evid. 802, to Exhibit 2043 as comprising
`
`inadmissible hearsay for which GSI has not established any exception.
`
`8263461v.4
`
`6
`
`
`
`Dated: November 11, 2015
`
`/Jeffrey S. Ginsberg /
`Jeffrey S. Ginsberg (Reg. No. 36,148)
`Lead counsel for Petitioner US Endodontics, LLC
`
`Abhishek Bapna (Reg. No. 64,049)
`Back-up counsel for Petitioner US Endodontics,
`LLC
`
`Patterson Belknap Webb & Tyler LLP
`1133 Avenue of the Americas,
`New York, NY 10036-6710
`Tel.: (212) 336-2000
`
`8263461v.4
`
`7
`
`
`
`Certificate of Service
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on November
`
`11, 2015, the foregoing Petitioner’s Second Set of Objections to Patent Owner’s
`
`Exhibits was served via electronic mail on the following counsel of record for the
`
`Patent Owner:
`
`Joseph A. Hynds
`(jhynds@rothwellfigg.com)
`R. Elizabeth Brenner-Leifer
`(ebrenner@rothwellfigg.com)
`Steven Lieberman
`(slieberman@rothwellfigg.com)
`Jason M. Nolan
`(jnolan@rothwellfigg.com)
`Derek F. Dahlgren
`(ddahlgren@rothwellfigg.com)
`ROTHWELL, FIGG, ERNST & MANBECK, P.C.
`607 14th Street, N.W., Suite 800
`Washington, DC 20005
`
`/Abhishek Bapna/
`Abhishek Bapna (Reg. No. 64,049)
`Patterson Belknap Webb & Tyler LLP
`1133 Avenue of the Americas
`New York, NY 10036-6710
`
`8263461v.4
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