Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 39
`Filed: February 16, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
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`ARRIS GROUP, INC., and COX COMMUNICATIONS, INC.,
`Petitioner
`
`v.
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`C-CATION TECHNOLOGIES, LLC,
`Patent Owner
`____________________
`
`CASE IPR2015-006351
`Patent 5,563,883
`____________________
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`
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`PATENT OWNER’S SECOND SET OF OBJECTIONS
` TO PETITIONER’S EXHIBITS
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`
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`1 Cox Communications, Inc., who filed a Petition in IPR2015-01796, has been joined
`as a petitioner in this proceeding.
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`U.S. Patent No. 5,563,883
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`Paper No. 39
`Filed: February 16, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`ARRIS GROUP, INC., and COX COMMUNICATIONS, INC.,
`Petitioner
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner
`____________________
`
`CASE IPR2015-006351
`Patent 5,563,883
`____________________
`
`
`
`PATENT OWNER’S SECOND SET OF OBJECTIONS
` TO PETITIONER’S EXHIBITS
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`
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`1 Cox Communications, Inc., who filed a Petition in IPR2015-01796, has been joined
`as a petitioner in this proceeding.
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 39
`Filed: February 16, 2016
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`Table of Contents
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`I. OBJECTION TO EXHIBITS 1026-1029 ................................................................ 1
`II. OBJECTION TO EXHIBITS 1030-1031 ................................................................ 2
`III. OBJECTION TO EXHIBIT 1032 ............................................................................ 3
`IV. OBJECTION TO EXHIBITS 1033-1034 ................................................................ 4
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Cases
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`Paper No. 39
`Filed: February 16, 2016
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`Table of Authorities
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`Apple Inc. v. DSS Tech. Mgmt., Inc., IPR2015-00369, Paper 14 at 6-7
`(PTAB Aug. 12, 2015) ................................................................................................ 3
`In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) ................................................. 1, 2
`SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008) ....... 2
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` Rules
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`Fed. R. Evid. 401 ................................................................................................... 2, 3, 4
`Fed. R. Evid. 402 ................................................................................................... 2, 3, 4
`Fed. R. Evid. 403 ................................................................................................... 2, 3, 4
`Fed. R. Evid. 802 ................................................................................................... 2, 3, 4
`Fed. R. Evid. 901(a) ...................................................................................................... 3
`Fed. R. Evid. 902 ........................................................................................................... 3
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`Regulations
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`37 C.F.R § 42.62 ............................................................................................................ 1
`37 C.F.R. § 42.64(b)(1) ................................................................................................. 1
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 39
`Filed: February 16, 2016
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner C-Cation
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`Technologies, LLC (“C-Cation”) submits the following objections to Exhibits
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`1026-1034 submitted by Arris Group, Inc. (“Arris” or “Petitioner”), and any
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`reference to or reliance on the foregoing. As required by 37 C.F.R § 42.62, C-
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`Cation’s objections below apply the Federal Rules of Evidence.
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`I.
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`OBJECTION TO EXHIBITS 1026-1029
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`Exhibit 1026 is described by Petitioner as “U.S. Patent No. 5,586,150 to
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`Balasubramniam (filed Nov. 24, 1993; issued Dec. 17, 1996).” Exhibit 1027 is
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`described by Petitioner as “U.S. Patent No. 5,276,905 to Hurst et al. (filed Feb. 7,
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`1990; issued Jan. 4, 1994).” Exhibit 1028 is described by Petitioner as “U.S.
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`Patent No. 5,175,870 to Mabey et al. (filed Nov. 30, 1989; issued Dec. 29, 1992).”
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`Exhibit 1029 is described by Petitioner as “EP 0 382 309 A1 (published Aug. 16,
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`1990).” Petitioner alleges that these references either “cite” or “discuss” Exhibit
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`1005 (MPT 1327) and are evidence that Exhibit 1005 is a “printed publication.”
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`(Paper 38 at 4.)
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`To qualify as a printed publication, a document “must have been
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`sufficiently accessible to the public interested in the art.” In re Lister, 583 F.3d
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`1307, 1311 (Fed. Cir. 2009) (internal citations omitted). “A given reference is
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`‘publicly accessible’ upon a satisfactory showing that such document has been
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`disseminated or otherwise made available to the extent that persons interested
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`and ordinarily skilled in the subject matter or art exercising reasonable
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`Paper No. 39
`Filed: February 16, 2016
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`diligence, can locate it.” SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d
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`1186, 1194 (Fed. Cir. 2008) (internal citations omitted). A copyright date does
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`not establish public accessibility. See Lister, 583 F.3d at 1316-17.
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`C-Cation objects to the admission of Exhibits 1026-1029 under Fed. R. Evid.
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`802 as constituting inadmissible hearsay for which no exception has been
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`established to the extent it is offered by Petitioner to prove the truth of any matter
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`asserted therein, including, e.g., the date of alleged publication for Exhibit 1005.
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`Further, C-Cation objects to Exhibits 1026-1029 as irrelevant pursuant to
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`Fed. R. Evid. 401, and, therefore, as inadmissible under Fed. R. Evid. 402
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`and/or Fed. R. Evid. 403. In particular, Exhibits 1026-1029 are irrelevant for
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`any non-hearsay purpose.
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`II. OBJECTION TO EXHIBITS 1030-1031
`Exhibit 1030 is described by Petitioner as “Michael Paetsch, Mobile
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`Communications in the US and Europe: Regulation, Technology and Markets,
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`277-324 (1993).” Exhibit 1031 is described by Petitioner as “E.A. Edis & J.E.
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`Varrall, Newnes Telecommunications Pocket Book, 142-155 (1992).” Petitioner
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`alleges that Exhibit 1030 “discusses MPT Specifications” without referencing
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`anything specific, and further alleges that Exhibit 1031 is a “book stamped by
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Library of Congress on Oct. 19, 1992 mentioning MPT 1327 [Exhibit 1005] and
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`Paper No. 39
`Filed: February 16, 2016
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`1343 [Exhibit 1006]).” (Paper 38 at 4-5.)
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`C-Cation objects to the admission of Exhibits 1030-1031 because
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`Petitioner has not produced admissible evidence to authenticate the Exhibits as
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`required under Fed. R. Evid. 901(a) and has not produced admissible evidence
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`to establish that these Exhibits are self-authenticating under Fed. R. Evid. 902.
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` C-Cation further objects to the admission of Exhibit 1030-1031 under Fed.
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`R. Evid. 802 as constituting inadmissible hearsay for which no exception has been
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`established to the extent it is offered by Petitioner to prove the truth of any matter
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`asserted therein. See, e.g., Apple Inc. v. DSS Tech. Mgmt., Inc., IPR2015-00369,
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`Paper 14 at 6-7 (PTAB Aug. 12, 2015) (stating that a library stamp was hearsay
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`and concluding that Petitioner failed to establish that hearsay exception applied).
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`Further, C-Cation objects to Exhibits 1030-1031 as irrelevant pursuant to
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`Fed. R. Evid. 401, and, therefore, as inadmissible under Fed. R. Evid. 402
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`and/or Fed. R. Evid. 403. In particular, Exhibits 1030-1031 are irrelevant for
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`any non-hearsay purpose.
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`III. OBJECTION TO EXHIBIT 1032
`Exhibit 1032 purports to be an FCC Order, and is described by Petitioner as
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`“In the Matter of Technical Compatibility Protocol Standards for Equipment
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`Operating in the 800 MHz Public Safety Bands, 4 FCC Rcd. 3874 (F.C.C. May 1,
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`1989).” C-Cation objects to the admission of Exhibit 1032 under Fed. R. Evid.
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`Paper No. 39
`Filed: February 16, 2016
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`
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`802 as constituting inadmissible hearsay for which no exception has been
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`established to the extent it is offered by Petitioner to prove the truth of any matter
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`asserted therein.
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`Further, C-Cation objects to Exhibit 1032 as irrelevant pursuant to Fed. R.
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`Evid. 401, and, therefore, as inadmissible under Fed. R. Evid. 402 and/or Fed.
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`R. Evid. 403. In particular, Exhibit 1032 is irrelevant for any non-hearsay
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`purpose.
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`IV. OBJECTION TO EXHIBITS 1033-1034
`Exhibit 1033 is a copy of “Infringement Contentions” served by C-Cation in
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`prior litigation concerning the ’883 patent. Exhibit 1034 is entitled “Load
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`Balancing, Dynamic Channel Change, and Dynamic Bonding Change on the Cisco
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`CMTS Routers.” Petitioners rely on pages B-32 and B-51 of Exhibit 1033 and
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`page 245 of Exhibit 1034 solely for the purpose of showing an alleged
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`inconsistency between C-Cation’s position regarding “passive load balancing” and
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`C-Cation’s position regarding the MPT Specifications. (Paper 38 at 16-17.) C-
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`Cation objects to the admission Exhibits 1033 and 1034 as irrelevant under Fed. R.
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`Evid. 401, and, therefore, as inadmissible under Fed. R. Evid. 402 and/or Fed. R.
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`Evid. 403. In particular, Exhibits 1033 and 1034 are irrelevant for the purpose for
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`which they are offered because they do not show any inconsistency. In fact,
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Exhibits 1033 and 1034 show “passive load balancing” to be different in critical
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`Paper No. 39
`Filed: February 16, 2016
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`respects from the process in the MPT Specifications on which Petitioners rely,
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`among them being the fact that, unlike TSC in the MPT Specifications, the CMTS
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`determines what signaling channels are acceptable and, based on its determination,
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`dictates the specific channel that the requesting cable modem is permitted to use.
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`Respectfully submitted,
`KENYON & KENYON LLP
`
`/s/ Walter E. Hanley, Jr.
`Walter E. Hanley, Jr.
`whanley@kenyon.com
`Registration No. 28,720
`Lead Counsel for Patent Owner
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`
`Backup Counsel:
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`
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`David J. Kaplan
`djkaplan@kenyon.com
`Registration No. 57,117
`David J. Cooperberg
`dcooperberg@kenyon.com
`Registration No. 63,250
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`
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`5
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`Date: February 16, 2016
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 39
`Filed: February 16, 2016
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`Certificate of Service
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`SECOND SET OF OBJECTIONS TO PETITIONER’S EXHIBITS was served via
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`e-mail on February 16, 2016, in its entirety on the following:
`
`LEAD COUNSEL
`FOR ARRIS GROUP, INC.
`
`Andrew R. Sommer
`asommer@winston.com
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, D.C. 20006-3817
`T: (202) 282-5000
`F: (202) 282-5100
`
`BACKUP COUNSEL
`FOR ARRIS GROUP, INC.
`
`Jonathan E. Retsky
`jretsky@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`T: (312) 558-3791
`F: (312) 558-5700
`
`
`LEAD COUNSEL
`FOR COX COMMUNICATIONS, INC.
`
`Mitchell G. Stockwell (Reg. #39,389)
`mstockwell@kilpatricktownsend.com
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta , GA 30309-4528 USA
`Telephone: (404) 815-6500
`Fax: (404) 541-3403
`
`BACKUP COUNSEL
`FOR COX COMMUNICATIONS, INC.
`
`
`Michael J. Turton (Reg. #40,852)
`mturton@kilpatricktownsend.com
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta , GA 30309-4528 USA
`Telephone: (404) 815-6500
`Fax: (404) 541-3403
`
`
`/s/ Walter E. Hanley, Jr.
`
`Walter E. Hanley, Jr. (Reg. #28,720)
`Lead Counsel for Patent Owner
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
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