throbber
Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 43
`Filed: March 21, 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.,
`Petitioners
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner
`____________________
`
`CASE IPR2015-006351
`Patent 5,563,883
`____________________
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE
`EVIDENCE UNDER 37 C.F.R. § 42.62(c)
`
`
`
`
` 1
`
` Cox Communications, Inc., who filed a Petition in IPR2015-01796, has been
`joined as a petitioner in this proceeding.
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`

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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 43
`Filed: March 21, 2016
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`Table of Contents
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`I.
`
`INTRODUCTION ................................................................................................... 1
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`II. ARGUMENT ........................................................................................................... 1
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`A. Exhibits 1005-1007 Should Be Excluded as Evidence of the Truth of Their
`Contents Under Fed. R. Evid. 802 ..................................................................... 1
`
`B. Exhibit 1010 Should Be Excluded Under Fed. R. Evid. 802 ................................ 3
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`C. Exhibit 1014 Should Be Excluded Under Fed. R. Evid. 401 and 802 .................. 4
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`D. Exhibit 1015 Should Be Excluded Under Fed. R. Evid. 802 and 901(a) .............. 6
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`E. Exhibits 1018 and 1019 Should Be Excluded Under Fed. R. Evid. 401 .............. 7
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`F. Exhibits 1026-1029 and 1032 Should Be Excluded Under Fed. R. Evid. 401 ..... 8
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`G. Exhibits 1030 and 1031 Should Be Excluded Under Fed. R. Evid. 401 and
`901(a) ................................................................................................................ 10
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`H. Exhibits 1033 and 1034 Should Be Excluded Under Fed. R. Evid. 401 ............ 12
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`III. CONCLUSION ....................................................................................................... 15
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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. 43
`Filed: March 21, 2016
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`Table of Authorities
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`Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773 (S.D. Tex. 1999) ....... 7
`
`Dartez v. Fibreboard Corp., 765 F.2d 456 (5th Cir.1985) ....................................2, 4
`
`Hickok v. G.D. Searle & Co., 496 F.2d 444 (10th Cir.1974) .................................... 6
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`United States v. El-Mezain, 664 F.3d 467 (5th Cir. 2011) ....................................2, 4
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`United States v. Jackson, 208 F.3d 633 (7th Cir. 2000) ............................................ 7
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`Whitted v. General Motors Corporation, 58 F.3d 1200 (7th Cir. 1995) ................. 11
`
`Rules
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`Fed. R. Evid. 401 ............................................................................................. passim
`
`Fed. R. Evid. 801 .......................................................................................... 2, 3, 6, 7
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`Fed. R. Evid. 802 .......................................................................................... 1, 3, 4, 6
`
`Fed. R. Evid. 803 ...................................................................................................2, 4
`
`Fed. R. Evid. 901(a) .................................................................................. 6, 7, 10, 12
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`Fed. R. Evid. 901(b) ........................................................................................ 2, 4, 10
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`Fed. R. Evid. 902 ....................................................................................................... 7
`
`Regulations
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`37 C.F.R. § 42.62(a) ................................................................................................... 1
`
`37 C.F.R. § 42.64(c) ................................................................................................... 1
`
` Patents
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`U.S. Patent 5,563,883 ......................................................................................... 7, 12
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`ii
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`

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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`I.
`
`INTRODUCTION
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`
`
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`Paper No. 43
`Filed: March 21, 2016
`
`Pursuant to 37 C.F.R. § 42.64(c), Patent Owner C-Cation Technologies,
`
`LLC (“C-Cation”) moves to exclude Exhibits 1005-1007, 1010, 1014, 1015,
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`1018-1019 and 1026-1034 submitted and relied upon by Arris Group, Inc. and
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`Cox Communications, Inc. (collectively “Petitioners”).
`
`II. ARGUMENT
`The admissibility of exhibits submitted in a PTAB proceeding is
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`governed by the Federal Rules of Evidence. 37 C.F.R. § 42.62(a) (“the Federal
`
`Rules of Evidence shall apply to a proceeding”).
`
`A. Exhibits 1005-1007 Should Be Excluded as Evidence of the
`Truth of Their Contents Under Fed. R. Evid. 802
`
`Exhibits 1005-1007 should be excluded as evidence of the truth of their
`
`contents because the statements in them on which Petitioners rely constitute
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`inadmissible hearsay under Fed. R. Evid. 802. C-Cation timely objected on this
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`ground in “Patent Owner’s First Set of Objections to Petitioner’s Exhibits”
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`(“PO First Objections”). Paper No. 22 at 1-3.
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`Exhibits 1005-1007, which are the alleged prior art documents in this
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`IPR, each contain the words “First published 1988,” followed by the words
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`“Revised and reprinted” and a date in 1991. Petitioners rely on these statements
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`to support their position that Exhibits 1005-1007 were made publicly accessible
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`between 1991 and 1992, and therefore, rely on them for their truth. Petition at
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`1
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`16-17. Accordingly, these statements constitute hearsay. See FED. R. EVID.
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`Paper No. 43
`Filed: March 21, 2016
`
`
`
`
`801(c).
`
`No hearsay exception applies. For example, the public records exception
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`of Fed. R. Evid. 803(8) does not apply as Petitioners have failed to establish any
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`information “about the circumstances under which the documents were created,
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`the duty of the authors to prepare such documents, the procedures and methods
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`used to reach the stated conclusions, and … the identities of the authors.” See,
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`e.g., United States v. El-Mezain, 664 F.3d 467, 499 (5th Cir. 2011), as revised
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`(Dec. 27, 2011). Similarly, the ancient documents exception, Fed. R. Evid.
`
`803(16), does not apply as this exception requires that authenticity be
`
`established under Fed. R. Evid. 901(b)(8), which Petitioners have failed to do.
`
`Among other things, Fed. R. Evid. 901(b)(8) requires that the proponent
`
`produce evidence that the document “was in a place where, if authentic, it
`
`would likely be.” However, Petitioners have not produced any evidence of
`
`where Exhibits 1005-1007 were located. Therefore, Exhibits 1005-1007 have
`
`not been authenticated under this sub-paragraph of rule 901. See, e.g., Dartez v.
`
`Fibreboard Corp., 765 F.2d 456, 464 (5th Cir.1985) (finding that the court did
`
`not abuse discretion in excluding meeting minutes when plaintiff failed to
`
`demonstrate the source of the minutes).
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`2
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 43
`Filed: March 21, 2016
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`Accordingly, Exhibits 1005-1007 should be excluded as evidence of the
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`truth of their contents under Fed. R. Evid. 802.
`
` Exhibit 1010 Should Be Excluded Under Fed. R. Evid. 802
`
`B.
`Exhibit 1010 should be excluded because the statements contained in it
`
`on which Petitioners rely constitute inadmissible hearsay under Fed. R. Evid.
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`802. C-Cation timely objected on this ground. See PO First Objections at 4.
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`Petitioners claim that Exhibit 1010 is the “1991-1992 Annual Report of
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`The RA,” i.e., “Radiocommunications Agency,” and rely on certain statements
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`therein. For example, Petitioners rely on the statement that “the
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`Radiocommunications Agency is an Executive Agency of the Department of
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`Trade and Industry.” Exhibit 1010 at 1; Petition at 16. Petitioners also rely on a
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`heading stating “MPT Specifications Published between 1 April 1991 – 31
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`March 1992,” followed by a list that includes “MPT 1327,” “MPT 1343,” and
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`“MPT 1347” as evidence that Exhibits 1005-1007 were publicly accessible
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`sometime between 1991 and 1992. Exhibit 1010 at 35; Petition at 17. These
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`statements are relied on by the Petitioners for the truth of the matter asserted,
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`and, therefore, constitute hearsay. See FED. R. EVID. 801(c).
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`No hearsay exception applies. For example, the public records exception
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`of Fed. R. Evid. 803(8) does not apply as Petitioners have failed to establish any
`
`information “about the circumstances under which the documents were created,
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`3
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`the duty of the authors to prepare such documents, the procedures and methods
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`Paper No. 43
`Filed: March 21, 2016
`
`
`
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`used to reach the stated conclusions, and . . . the identities of the authors.” See,
`
`e.g., United States v. El-Mezain, 664 F.3d at 499. Similarly, the ancient
`
`documents exception, Fed. R. Evid. 803(16), does not apply as this exception
`
`requires that authenticity be established under Fed. R. Evid. 901(b)(8), which
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`Petitioners have failed to do. Among other things, Fed. R. Evid. 901(b)(8)
`
`requires that the proponent produce evidence that the document “was in a place
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`where, if authentic, it would likely be.” However, Petitioners have not
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`produced any evidence of where Exhibit 1010 was located. Therefore, Exhibit
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`1010 has not been authenticated under this sub-paragraph of rule 901. See, e.g.,
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`Dartez, 765 F.2d at 464.
`
`Accordingly, Exhibit 1010 should be excluded under Fed. R. Evid. 802.
`
`C. Exhibit 1014 Should Be Excluded Under Fed. R. Evid. 401 and
`802
`
`Exhibit 1014 should be excluded because it is irrelevant and contains
`
`inadmissible hearsay. C-Cation timely objected on these grounds. See PO First
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`Objections at 4-5.
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`Exhibit 1014 appears to be an excerpt from a book entitled “Emerging
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`Public Safety Wireless Communications Systems” and bearing a copyright date
`
`of 2002. Petitioners rely on Exhibit 1014 to support the following statement:
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`“First published in 1988 by the U.K. Department of Trade and Industry (‘DTI’),
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`4
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`the MPT Specifications would come to be administered by The
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`Paper No. 43
`Filed: March 21, 2016
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`Radiocommunications Agency (‘The RA’) by 1992.” Petition at 16. Exhibit
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`1014 contains the assertion that “the MPT 1327 related standards for analog
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`trunking” were “first published in 1988.” Exhibit 1014 at 3. Exhibit 1014 lists
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`“MPT 1327,” “MPT 1343” and “MPT 1347,” followed by a short description,
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`but without any other identifying information. Id.
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`Exhibits 1005-1007, which are the alleged prior art in this IPR, each
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`contain the words “First published 1988” followed by the words “Revised and
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`reprinted” and a date in 1991. Petitioners contend, as noted above, that the
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`“MPT Specifications” were first published in 1988, but that Exhibits 1005-
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`1007, the documents on which Petitioners rely as constituting the prior art, were
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`published between 1991 and 1992. Petition at 17; Reply at 4. The MPT
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`Specifications allegedly published in 1988 are not in evidence, and therefore the
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`contents of them and how their contents compare with Exhibits 1005-1007 is
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`not before the Board.
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`“Evidence is relevant if . . . it has any tendency to make a fact more or
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`less probable than it would be without the evidence.” FED. R. EVID. 401(a).
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`Exhibit 1014 is irrelevant because, even assuming for argument’s sake, the truth
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`of the assertion contained in it—that “the MPT 1327 related standards for
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`analog trunking” were “first published in 1988”—that assertion does not tend to
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`make it more probable that Exhibits 1005-1007 were published before the
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`Paper No. 43
`Filed: March 21, 2016
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`critical date. Exhibit 1014 simply does not refer to any specific version of the
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`“MPT Specifications.”
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`Moreover, Petitioners rely on the statement in Exhibit 1014 for the truth
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`of the matter asserted, and, therefore, it constitutes hearsay. FED. R. EVID.
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`801(c). It is well established that books “are not freely admissible in evidence
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`to prove the substantive or testimonial facts stated therein, since they are subject
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`to the hearsay rule.” See Hickok v. G.D. Searle & Co., 496 F.2d 444, 446 (10th
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`Cir.1974). Exhibit 1014 does not fall under any one of the hearsay exceptions.
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`Therefore, Exhibit 1014 should be excluded under Fed. R. Evid. 401 and
`
`802.
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`D. Exhibit 1015 Should Be Excluded Under Fed. R. Evid. 802 and
`901(a)
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`Exhibit 1015 should be excluded because it contains inadmissible hearsay
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`and because it has not been properly authenticated under Fed. R. Evid. 901(a).
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`C-Cation timely objected on these grounds. See PO First Objections at 5-6.
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`Exhibit 1015 is described by Petitioners as “Radiocommunications Agency
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`Home Page (last visited 1/28/2015).” Petition at 2. Petitioners rely on Exhibit
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`1015 to prove that “[t]he RA [Radiocommunications Agency] is an Executive
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`Agency of DTI [U.K. Department of Trade and Industry].” To properly
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`authenticate an item of evidence, “the proponent must produce evidence sufficient
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`to support a finding that the item is what the proponent claims it to be.” FED. R.
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`Paper No. 43
`Filed: March 21, 2016
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`
`
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`EVID. 901(a). Petitioners have not provided any evidence to authenticate Exhibit
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`1015. Nor have Petitioners established that Exhibit 1015 is self-authenticating
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`under Fed. R. Evid. 902.
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`Exhibit 1015 is being offered to prove the truth of a statement that appears in
`
`it, and, therefore, constitutes hearsay. FED. R. EVID. 801(c)(2). No hearsay
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`exception applies. See, e,g., United States v. Jackson, 208 F.3d 633, 637 (7th Cir.
`
`2000) (finding web postings from the Internet to be inadmissible hearsay); St.
`
`Clairv. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999)
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`(“[A]ny evidence procured off the Internet is adequate for almost nothing, even
`
`under the most liberal interpretation of the hearsay exception rules . . . .”).
`
`Therefore, Exhibit 1015 should be excluded under Fed. R. Evid. 802 and
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`901(a).
`
`E. Exhibits 1018 and 1019 Should Be Excluded Under Fed. R.
`Evid. 401
`
`Exhibits 1018 and 1019 should be excluded for lack of relevance under
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`Fed. R. Evid. 401. C-Cation timely objected on this ground. See PO First
`
`Objections at 7.
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`Each of the Exhibits 1018 and 1019 is relied upon in the Petition to prove
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`that “[b]efore the ’883 Patent’s critical date, those skilled in the art referred to
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`MPT 1327, 1343, and 1347 as ‘associated documents’ as well.” Petition at 18.
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`As noted previously, Petitioners contend that MPT 1327, 1343 and 1347 were
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`Paper No. 43
`Filed: March 21, 2016
`
`
`
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`first published in 1988, but that Exhibits 1005-1007, the actual documents on
`
`which Petitioners rely as constituting the prior art, were published between
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`1991 and 1992. Petition at 17; Reply at 4. The versions of MPT 1327, 1343
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`and 1347 allegedly published in 1988 are not in evidence, and therefore the
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`contents of them and how their contents compare with Exhibits 1005-1007 is
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`not before the Board.
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`Neither Exhibit 1018 nor Exhibit 1019 identifies the version of MPT
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`1327, 1343 and 1347 to which it refers. See, e.g., Ex. 1018 at 4 (“MPT 1327
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`(and associated documents MPT 1343 and MPT 1347)”); Ex. 1019 at 4 (“MPT
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`1327 . . . MPT 1343”). Therefore, Exhibits 1018 and 1019 are irrelevant as they
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`do not tend to make it more probable that the alleged prior art documents
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`(Exhibits 1005-1007), as opposed to the 1988 version not in evidence, were
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`referred to before the critical date as associated documents. Therefore, Exhibits
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`1018 and 1019 should be excluded under Fed. R. Evid. 401.
`
`F.
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`Exhibits 1026-1029 and 1032 Should Be Excluded Under Fed. R.
`Evid. 401
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`Exhibits 1026-1029 and 1032 should be excluded as irrelevant under Fed.
`
`R. Evid. 401 because they do not tend to make the fact they are offered to prove
`
`more probable. C-Cation timely objected on this ground in “Patent Owner’s
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`8
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Second Set of Objections to Petitioner’s Exhibits” (“PO Second Objections”).
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`Paper No. 43
`Filed: March 21, 2016
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`
`
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`Paper No. 39 at 1-2, 3-4.
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`Exhibits 1026-1028 are U.S. Patents, Exhibit 1029 is a European patent
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`application, and Exhibit 1032 is a Federal Communications Commission
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`Record. Petitioners rely on each of Exhibits 1026-1029 and 1032 as evidence
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`of public accessibility of the “MPT Specifications.” See Reply at 4-5.
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`Petitioners state that Exhibits 1026-1029 and 1032 show that those skilled in the
`
`art were aware of “MPT 1327” in particular. Id.
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`As noted previously, Petitioners contend that MPT 1327, 1343 and 1347
`
`were first published in 1988, but contend that Exhibits 1005-1007, the actual
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`documents on which Petitioners rely as constituting the prior art, were
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`published between 1991 and 1992. Petition at 17; Reply at 4. The versions of
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`MPT 1327, 1343 and 1347 that allegedly were published in 1988 are not in
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`evidence, and therefore the contents of them and how their contents compare
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`with Exhibits 1005-1007 is not before the Board.
`
`Each of Exhibits 1026-1029 and 1032 refers to a 1988 edition of the MPT
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`1327, not the version of MPT 1327 that is offered in evidence as prior art, i.e.,
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`Exhibit 1005. See Ex. 1026 at 2 (“MPT 1327 . . . Jan., 1988 …”); Ex. 1027 at 4
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`(“MPT l327 . . . 1988”); Ex. 1028 at 4 (“MPT 1327 . . . 1988.”); Ex. 1029 at 3
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`(“MPT 1327 . . . 1988”); Ex. 1032 at 1 (stating a release date of May 1, 1989,
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`9
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`which was before the alleged publication date in 1991-1992 of Exhibit 1005)
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`Paper No. 43
`Filed: March 21, 2016
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`
`
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`(all emphasis added). Even if each of Exhibits 1026-1029 and 1032 suggested
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`awareness by those skilled in the art of a 1988 version of the MPT 1327, the
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`1988 version is not in evidence and is not relied upon as the prior art.
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`Therefore, because Exhibits 1026-1029 and 1032 do not tend to make
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`more probable what they are offered to prove—that Exhibit 1005 was publicly
`
`accessible—these exhibits should be excluded under Fed. R. Evid. 401.
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`G. Exhibits 1030 and 1031 Should Be Excluded Under Fed. R. Evid.
`401 and 901(a)
`
`Exhibits 1030 and 1031 should be excluded because they are not properly
`
`authenticated and because they are irrelevant under Fed. R. Evid. 401. C-
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`Cation timely objected on these grounds. See PO Second Objections at 2-3.
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`Exhibit 1030 purports to be excerpts from a book entitled “Mobile
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`Communications in the US and Europe: Regulation, Technology and Markets”
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`and Exhibit 1031 purports to be excerpts from a book entitled “Newnes
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`Telecommunications Pocket Book.” “To satisfy the requirement of
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`authenticating or identifying an item of evidence, the proponent must produce
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`evidence sufficient to support a finding that the item is what the proponent
`
`claims it is.” FED. R. EVID. 901(a). As an example, testimony of a witness with
`
`knowledge of the item to be authenticated can satisfy the requirement. FED. R.
`
`EVID. 901(b)(1). Petitioners have not provided any evidence to establish the
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`10
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`authenticity of Exhibits 1030 and 1031, and these exhibits are not self-
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`Paper No. 43
`Filed: March 21, 2016
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`authenticating. See, e.g., Whitted v. General Motors Corporation, 58 F.3d
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`1200, 1204 (7th Cir. 1995) (stating that the district court did not abuse its
`
`discretion when it refused to admit a car manual into evidence for lack of
`
`authenticity).
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`Moreover, each of the Exhibits 1030 and 1031 is relied upon as alleged
`
`evidence of public accessibility of the “MPT Specifications.” See Reply at 4-5.
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`Petitioners state that Exhibits 1030 and 1031 assertedly show that those skilled
`
`in the art were aware of the “MPT Specifications.” Id.
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`As noted previously, Petitioners contend that MPT 1327, 1343 and 1347
`
`were first published in 1988, but that Exhibits 1005-1007, the documents on
`
`which Petitioners rely as the prior art, were published between 1991 and 1992.
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`Petition at 17; Reply at 4. The versions of MPT 1327, 1343 and 1347 that
`
`allegedly were published in 1988 are not in evidence, and therefore the contents
`
`of them and how their contents compare with Exhibits 1005-1007 is not before
`
`the Board.
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`Each of Exhibits 1030 and 1031 includes references to “MPT 1327” or
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`“MPT 1343” without any other identifying information. See, e.g., Ex. 1030 at
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`26 (“MPT 1327 Protocol”); Ex. 1031 at 8 (“MPT 1327 . . . and MPT 1343”).
`
`That is, Exhibits 1030 and 1031 do not specify whether “MPT 1327” and “MPT
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`1343” are the versions that Petitioners contend were published sometime in
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`Paper No. 43
`Filed: March 21, 2016
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`
`
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`1991-1992 or are the versions, not in evidence and of unknown content, that
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`Petitioners contend were published in 1988. Therefore, Exhibits 1030 and 1031
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`do not tend to prove that any of Exhibits 1005-1007 was publicly accessible.
`
`Therefore, Exhibits 1030 and 1031 should be excluded under Fed. R.
`
`Evid. 901(a) and 401.
`
`H. Exhibits 1033 and 1034 Should Be Excluded Under Fed. R. Evid.
`401
`
`Exhibits 1033 and 1034 should be excluded as irrelevant because they do
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`not tend to make the fact they are offered to prove more probable. C-Cation
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`timely objected on this ground. See PO Second Objections at 4-5.
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`Exhibit 1033 is a copy of “Infringement Contentions” served by C-Cation
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`in the stayed district court litigation against Petitioner Arris and others
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`concerning the ’883 Patent. Exhibit 1034 is entitled “Load Balancing, Dynamic
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`Channel Change, and Dynamic Bonding Change on the Cisco CMTS Routers.”
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`Petitioners rely on pages B-32 and B-51 of Exhibit 1033 and page 245 of
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`Exhibit 1034 to show an alleged inconsistency between C-Cation’s position in
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`the litigation that “passive load balancing” performed by the Cisco CMTS
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`Router infringes claim 1 and C-Cation’s position in this IPR that Petitioners
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`have failed to show that the alleged central controller, i.e., the TSC, in the MPT
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`Specifications does not reassign radio units to a different channel. Reply at 16-
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`U.S. Patent No. 5,563,883
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`17. Exhibits 1033 and 1034 are irrelevant because they do not show any
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`Paper No. 43
`Filed: March 21, 2016
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`
`
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`inconsistency in C-Cation’s positions.
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`Petitioners argue in this IPR that the TSC reassigns a radio unit to a
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`different control channel by accepting or denying a request for registration from
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`the radio unit.2 Petition at 44-45; Reply at 19-20. C-Cation argues that
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`Petitioners have failed to show that the TSC’s grant or denial of a registration
`
`request depends on the control channel on which it is received. Response at 40.
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`Exhibits 1033 and 1034 show that “passive load balancing” performed by the
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`Cisco CMTS Router differs from the TSC’s grant or denial of a registration
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`request in at least this critical respect. Exhibit 1033 quotes a Cisco publication
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`which states: “The Cisco CMTS can use the load-balancing groups for static,
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`passive and dynamic load balancing of both upstream and downstream
`
`channels.” Exhibit 1033 at B-32, 51 (emphasis added); Reply at 19-20. Exhibit
`
`1033 further quotes the Cisco publication that constitutes Exhibit 1034, which
`
`
` 2
`
` Petitioner’s argument is limited to the subset of radio units that are not already
`
`registered. Petitioners do not dispute that radio units that are already registered
`
`reassign themselves to different channels (“the TSC does not need to be
`
`involved”). Reply at 23.
`
`13
`
`

`
`Case IPR2015-00635
`U.S. Patent No. 5,563,883
`
`states: “In all cases, the load balancing is done by moving cable modems from
`
`Paper No. 43
`Filed: March 21, 2016
`
`
`
`
`the interface with the higher load interface to an interface with a lower load . . .
`
`. For static and passive load balancing the Cisco CMTS moves cable modems
`
`only when they register or reregister.” Exhibit 1033 at B-32, B-51 (emphasis
`
`added); Exhibit 1034 at 245; Reply at 19-20. Exhibit 1034 defines “passive
`
`load balancing,” performed by the Cisco CMTS, as “Load balancing that is
`
`done at the time a cable modem registers by ignoring a cable modem’s ranging
`
`request (RNG-REQ) message until it uses the correct target channels.” Exhibit
`
`1034 at 289 (emphasis added). Therefore, unlike the TSC in the MPT
`
`Specifications, the Cisco CMTS’s response (or not) to a ranging request
`
`depends on the channel on which it is received. Indeed, Petitioners quote Dr.
`
`Heegard’s testimony to the effect that in passive load balancing, the central
`
`controller would “refuse to acknowledge transmission from the remote
`
`terminal” until the remote terminal “hit[s] on a channel that was acceptable.”
`
`Exhibit 1022 at 141-143 (emphasis added); Reply at 19.
`
`Therefore, since there is no inconsistency between C-Cation’s position
`
`regarding “passive load balancing” and C-Cation’s position regarding the “MPT
`
`Specifications,” Exhibits 1033 and 1034 are irrelevant for the purpose for which
`
`they are offered, and should be excluded.
`
`14
`
`

`
`Case IPR2015-00635
`U.S. Patent No. 5,563,883
`
`III. CONCLUSION
`For the reasons stated above, the Board should exclude Exhibits 1005-
`
`Paper No. 43
`Filed: March 21, 2016
`
`
`
`
`1007, 1010, 1014, 1015, 1018-1019 and 1026-1034.
`
`Respectfully submitted,
`KENYON & KENYON LLP
`
`
`
`/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:
`
`
`
`Sheila Mortazavi
`smortazavi@kenyon.com
`Reg. No. 43,343
`
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`
`
`15
`
`Date: March 21, 2016
`
`
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`

`
`Case IPR2015-00635
`U.S. Patent No. 5,563,883
`
`
`
`
`
`Paper No. 43
`Filed: March 21, 2016
`
`Certificate of Service
`
`
`
`The undersigned hereby certifies that the foregoing PATENT OWNER’S
`
`MOTION TO EXCLUDE EVIDENCE UNDER 37 C.F.R. § 42.62(c) was served
`
`via e-mail on March 21, 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
`
`
`/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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