Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 47
`Filed: April 4, 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 OPPOSITION TO PETITIONERS’
`MOTION TO EXCLUDE EVIDENCE
`
`
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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. 47
`Filed: April 4, 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
`____________________
`
`
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`PATENT OWNER’S OPPOSITION TO PETITIONERS’
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`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. 47
`Filed: April 4, 2016
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`Table of Contents
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`I.
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`INTRODUCTION ................................................................................................... 1
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`II. LEGAL STANDARD ............................................................................................. 1
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`III. ARGUMENT ........................................................................................................... 1
`
`A. Exhibit 2028 is Not Hearsay Because It Is Not Offered For the Truth of the
`Matter Asserted .................................................................................................. 1
`
`B. Mr. Lipoff Can Be Properly Impeached by His Prior Inconsistent Statement
`in Exhibit 2028 ................................................................................................... 3
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`C. Exhibit 2028 Cannot Be Excluded Under Fed. R. Evid. 106 ................................ 6
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`IV. CONCLUSION ......................................................................................................... 8
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`Cases
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`Paper No. 47
`Filed: April 4, 2016
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`Table of Authorities
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`Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ............................................... 6
`
`Gong v. Hirsch, 913 F.2d 1269 (7th Cir. 1990) .....................................................5, 6
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`Regan-Touhy v. Walgreen Co., 526 F.3d 641 (10th Cir. 2008) ................................. 2
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`Rush v. Illinois Cent. R.R. Co., 399 F.3d 705 (6th Cir. 2005) ................................... 5
`
`United States v. Bao, 189 F.3d 860 (9th Cir. 1999) ................................................... 2
`
`United States v. Graham, 858 F.2d 986 (5th Cir.1988) ............................................. 2
`
`United States v. Loya-Medina, 552 F. App'x 805 (10th Cir. 2014) ........................... 6
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`United States v. Webber, 255 F.3d 523 (8th Cir. 2001) ............................................. 7
`
`United States v. Young, 86 F.3d 944 (9th Cir. 1996) ................................................. 5
`
`Wammock v. Celotex Corp., 793 F.2d 1518 (11th Cir. 1986) ...............................4, 5
`
`Rules
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`FED. R. EVID. 106 ....................................................................................................... 6
`
`FED. R. EVID. 613(b) .................................................................................................. 4
`
`Fed. R. Evid. 801(c) ...............................................................................................2, 5
`
`Treatises
`
`28 CHARLES ALLEN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND
`PROCEDURE § 6205 (2d ed.) .................................................................................... 5
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`CHARLES T. MCCORMICK, ET AL., MCCORMICK ON EVIDENCE § 37 (7th ed., 2013) 6
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`Regulations
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`Paper No. 47
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`37 C.F.R. § 42.20(c) ................................................................................................... 1
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`37 C.F.R. § 42.62(a) ................................................................................................... 1
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`Case IPR2015-00635
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`Paper No. 47
`Filed: April 4, 2016
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`Patent Owner’s Updated Exhibit List
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`Exhibit #
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`C-Cation 2001
`
`C-Cation 2002
`
`Exhibit Description
`
`C-Cation Technologies, LLC’s Proposed Discovery
`Request to Arris Group, Inc.
`
`Complaint, C-Cation Tech., LLC v. Comcast Corp., No
`2:11-cv-00030 (filed Jan. 21, 2011), D.I. 1.
`
`C-Cation 2003
`
`FORM 10-K for the fiscal year ended December 31,
`2013 of Arris Group, Inc.
`
`C-Cation 2004
`
`C-Cation 2005
`
`C-Cation 2006
`
`Scheduling and Discovery Order, C-Cation Tech., LLC v.
`Comcast Corp., No 2:11-cv-00030 (filed Oct. 3, 2012),
`D.I. 145.
`
`Defendant Comcast Cable’s Supplemental Intial
`Disclosures Pursuant to Fed. R. Civ. P. 26(a)(1), C-
`Cation Tech., LLC v. Comcast Corp., No 2:11-cv-00030.
`
`“Arris Acquires Motorola Home: Creates Premier Video
`Delivery and Broadband Technology Company” (April 17,
`2013), available at
`http://ir.arrisi.com/phoenix.zhtml?c=87823&p=irol-
`newsArticle&ID=1807670.
`
`C-Cation 2007
`
`“Corporate Terms and Conditions of Sale,” March 2012,
`available as of July 7, 2014 at
`http://moto.arrisi.com/_docs/EULA_Warranty.pdf.
`
`C-Cation 2008
`
`Transcript of June 26, 2014 Conference Call, IPR2014-
`00746.
`
`C-Cation 2009
`
`C-Cation 2010
`
`Expert Report of Stuart Lipoff Regarding the Invalidity
`of U.S. Patent No. 5,563,883, C-Cation Tech., LLC v.
`Comcast Corp., No. 2:11-cv-30, dated August 16, 2013.
`
`C-Cation’s First Amended Complaint, C-Cation Tech.,
`LLC v. Comcast Corp., No. 2:11-cv-30, dated April 5,
`2011.
`
`iv
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`Exhibit #
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`C-Cation 2011
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`C-Cation 2012
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`
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`Paper No. 47
`Filed: April 4, 2016
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`Exhibit Description
`Stipulation of Dismissal, C-Cation Tech., LLC v.
`Comcast Corp., No. 2:11-cv-30, dated January 21, 2014.
`
`C-Cation’s Complaint, C-Cation Tech, LLC v. Time
`Warner Cable, Inc., et al., No. 2:14-cv-59, dated
`February 4, 2014.
`
`C-Cation 2013
`
`2003 Agreement between Arris and Comcast.
`
`C-Cation 2014
`
`C-Cation Tech’s Infringement Contentions Against
`Comcast, C-Cation Tech., LLC v. Comcast Corp., No.
`2:11-cv-30, dated December 2, 2011.
`
`C-Cation 2015
`
`2009 Agreement between Arris and Comcast.
`
`C-Cation 2016
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`2005 Amendment extending 2003 Agreement between
`Arris and Comcast.
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`C-Cation 2017
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`2007 Amendment extending 2003 Agreement between
`Arris and Comcast.
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`C-Cation 2018
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`Arris Group Inc.’s Form 10-K annual report for the fiscal
`year ended December 31, 2009.
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`C-Cation 2019
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`Arris’s Schedule of Redacted Documents and Documents
`Withheld from Production, dated March 6, 2015.
`
`C-Cation 2020
`
`C-Cation 2021
`
`Claim Construction Memorandum and Order, C-Cation
`Tech, LLC v. Time Warner Cable, Inc., et al., No. 2:14-
`cv-59, dated April 20, 2015.
`
`Reporter’s Transcript of Claim Construction Hearing, C-
`Cation Tech, LLC v. Time Warner Cable, Inc., et al., No.
`2:14-cv-59, dated February 18, 2015.
`
`C-Cation 2022
`
`Transcript of April 2, 2015 Telephone Hearing,
`IPR2015-00635.
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`v
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`U.S. Patent No. 5,563,883
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`Exhibit #
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`C-Cation 2023
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`Paper No. 47
`Filed: April 4, 2016
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`Exhibit Description
`
`Declaration of Dr. Chris Heegard, November 5, 2015,
`Arris Group, Inc. and Cox Communications, Inc. v. C-
`Cation Tech., LLC, IPR2015-00635.
`
`C-Cation 2024
`
`Curriculum Vitae of Dr. Chris Heegard.
`
`C-Cation 2025
`
`Certified File History, U.S. Patent Application No.
`08/276,534.
`
`C-Cation 2026
`
`U.S. Patent No. 4,573,206 to Grauel et al.
`
`C-Cation 2027
`
`C-Cation 2028
`
`Transcript of Deposition of Stuart J. Lipoff, October 20,
`2015, Arris Group, Inc. and Cox Communications, Inc. v.
`C-Cation Tech., LLC, IPR2015-00635.
`
`Expert Report of Stuart Lipoff Regarding Defendants’
`Non-Infringement of U.S. Patent No. 5,563,883 and
`Related Technical Matters, C-Cation Tech., LLC v.
`Comcast Corp., No. 2:11-cv-30 (E.D. Tex.), dated
`September 6, 2013 (Redacted).
`
`C-Cation 2029
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`Declaration of David J. Kaplan dated November 25,
`2015.
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`C-Cation 2030
`
`September 6, 2013 E-mail from Ryan K. Wong to Lewis
`Popovski et al.
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`vi
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`I.
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`INTRODUCTION
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`Paper No. 47
`Filed: April 4, 2016
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`Patent Owner C-Cation Technologies, LLC (“C-Cation”) responds in
`
`opposition to the Motion to Exclude (Paper 41) (hereinafter “Motion”) filed by
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`Arris Group, Inc. and Cox Communications, Inc. (collectively “Petitioners”).
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`Exhibit 2028 is admissible, and it is respectfully submitted that the Board
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`should deny the Petitioners’ motion.
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`II. LEGAL STANDARD
`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) (“[T]he
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`Federal Rules of Evidence shall apply to a proceeding.”). In a motion to
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`exclude, the movant bears the burden of proof to establish that the disputed
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`material should be excluded. 37 C.F.R. § 42.20(c). Petitioners have failed to
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`carry that burden.
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`III. ARGUMENT
`A. Exhibit 2028 is Not Hearsay Because It Is Not Offered For the
`Truth of the Matter Asserted
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`Exhibit 2028 is not inadmissible hearsay because C-Cation does not rely
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`on the truth of the statement cited in its Patent Owner’s Response (Paper 28)
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`(hereinafter “Response”). Rather, C-Cation cites Exhibit 2028 (Mr. Lipoff’s
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`expert report in a prior litigation2) on pages 21 and 36-37 of its Response to
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`Paper No. 47
`Filed: April 4, 2016
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`show a prior inconsistent statement made by Mr. Lipoff. The cited prior
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`statement contradicts statements that Mr. Lipoff has made in this proceeding in
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`Exhibit 1002 (Mr. Lipoff’s declaration).
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`A statement that “the declarant does not make while testifying at the
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`current” proceeding and is offered “to prove the truth of the matter asserted in
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`the statement” is hearsay. FED. R. EVID. 801(c). However, not all extrajudicial
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`statements are hearsay. In fact, it is well established that an out of court
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`statement used for a purpose other than to prove the truth of the matter asserted,
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`e.g., impeachment of a witness by showing a prior inconsistent statement, is not
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`hearsay. Regan-Touhy v. Walgreen Co., 526 F.3d 641, 651 n.8 (10th Cir. 2008)
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`(quoting United States v. Graham, 858 F.2d 986, 990 n. 5 (5th Cir.1988)
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`(“[T]he hallmark of an inconsistent statement offered to impeach a witness's
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`testimony is that the statement . . . is not offered for the truth of the matter
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`asserted; rather, it is offered only to establish that the witness has said both ‘x’
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`and ‘not x’ and is therefore unreliable.”); United States v. Bao, 189 F.3d 860,
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`865-66 (9th Cir. 1999) (“A prior inconsistent statement is admissible to raise
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`the suggestion that if a witness makes inconsistent statements, then his entire
`
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`2 C-Cation Tech. v. Comcast et al., 2:11-cv-00030-TJW (E.D. Tex.).
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`testimony may not be credible; such an inference does not depend on whether
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`Paper No. 47
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`either the prior statement or the subsequent in-court statement is true.
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`Therefore, because a declarant’s prior inconsistent statement is not offered for
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`its truth, it is not hearsay.”) (internal citations omitted).
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`The inconsistent statements at issue relate to Mr. Lipoff’s position in this
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`proceeding that remote terminals can perform the claimed step of “determining
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`whether one of said plurality of remote terminals need to be reassigned” (step
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`1(c)), and his prior inconsistent position that the claimed method (including step
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`1(c)) is initiated and carried out by the central controller. Petitioners cannot
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`dispute that Mr. Lipoff’s statement in Exhibit 2028 is inconsistent with his
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`statements in Exhibit 1002, and they have made no effort to reconcile Mr.
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`Lipoff’s clearly inconsistent statements either in their motion or in this
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`proceeding.
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`Because the statement in Exhibit 2028 is used solely for the purpose of
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`attacking the credibility of Mr. Lipoff by exposing a contradiction between his
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`prior testimony in Exhibit 2028 and what he is asserting now in this proceeding
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`(Exhibit 1002), Exhibit 2028 is not inadmissible hearsay.
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`B. Mr. Lipoff Can Be Properly Impeached by His Prior
`Inconsistent Statement in Exhibit 2028
`
`Mr. Lipoff can be properly impeached by his prior inconsistent statement
`
`in Exhibit 2028 under Fed. R. Evid. 613. Contrary to Petitioners’ assertion, see
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`3
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`Mot., at 8, the Rules do not require that Mr. Lipoff actually be “subject to cross
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`Paper No. 47
`Filed: April 4, 2016
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`examination” about the prior statements for those prior statements to be used for
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`impeachment purposes.
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`Procedurally, once C-Cation filed its Response, Petitioners were aware of
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`Mr. Lipoff’s inconsistent statement in Exhibit 2028. When they filed
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`Petitioners’ Reply, they could have submitted another declaration of Mr. Lipoff
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`in which Mr. Lipoff could have attempted to explain the inconsistency, but they
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`chose not to avail themselves of the opportunity to do so.
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`Rule 613(b) of the Federal Rules of Evidence provides that “[e]xtrinsic
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`evidence of a witness’s prior inconsistent statement is admissible only if the
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`witness is given an opportunity to explain or deny the statement and an adverse
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`party is given an opportunity to examine the witness about it . . . .” It is
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`important to note that Rule 613(b) only requires an opportunity to explain and
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`examine; the rule does not require an actual explanation or an actual
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`examination. FED. R. EVID. 613(b); Wammock v. Celotex Corp., 793 F.2d 1518,
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`1522-23 (11th Cir. 1986) (“[I]f the witness is or might be available for recall
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`and the opposing party simply fails to recall him, there has been a sufficient
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`opportunity to explain such that the extrinsic evidence should be admitted under
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`Rule 613(b).”); 28 CHARLES ALLEN WRIGHT & ARTHUR MILLER, FEDERAL
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`4
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`PRACTICE AND PROCEDURE § 6205 (2d ed.) (“[T]here is no requirement that the
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`Paper No. 47
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`witness or opposing counsel actually avail themselves of these opportunities.”).
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`Neither does Rule 613(b) require that the impeaching party confront the
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`witness with the inconsistent statement. Gong v. Hirsch, 913 F.2d 1269, 1274
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`(7th Cir. 1990) (“[I]t is not essential that the proponent of the inconsistent
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`statement be the one to afford the witness the opportunity to explain or deny the
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`statement.”); Wammock, 793 F.2d at 1523 n.3 (“The rule does not indicate that
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`the party introducing evidence of the inconsistent statement must afford the
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`witness an opportunity to explain.”).
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`Furthermore, the opportunity can be provided to the witness even after
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`the witness is discharged. Rush v. Illinois Cent. R.R. Co., 399 F.3d 705, 717
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`(6th Cir. 2005) (stating that “a sufficient opportunity to explain or deny under
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`Rule 613 existed where the impeached witness could be called on rebuttal” even
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`though the witness was not confronted with the inconsistent statement during
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`cross-examination); United States v. Young, 86 F.3d 944, 949 (9th Cir. 1996)
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`(rejecting violation of Rule 613(b) when witness was not asked about the
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`inconsistent statement during cross-examination since government was free to
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`recall the witness and give him an opportunity to explain or deny the statement).
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`Indeed, Petitioners note that Rule 613(b) is satisfied if “at some point in time—
`
`even after the introduction of the extrinsic evidence—the witness is afforded the
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`chance to deny or explain the statement . . . .” Mot., at 4 (citing CHARLES T.
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`Paper No. 47
`Filed: April 4, 2016
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`MCCORMICK, ET AL., MCCORMICK ON EVIDENCE § 37 (7th ed., 2013)).
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`Under Rule 613, C-Cation was not obliged to question Mr. Lipoff about
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`the inconsistency. See, e.g., Gong, 913 F.2d at 1274. C-Cation should not be
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`prevented from impeaching Mr. Lipoff under Rule 613(b) when Mr. Lipoff and
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`Petitioners had an opportunity to explain the inconsistency and chose to forego
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`it. Thus, C-Cation’s use of Exhibit 2028 to impeach Mr. Lipoff’s credibility is
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`appropriate.
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`C. Exhibit 2028 Cannot Be Excluded Under Fed. R. Evid. 106
`Exhibit 2028 cannot be excluded under Fed. R. Evid. 106 because
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`Petitioners have not established that any of the redacted portions of Exhibit
`
`2028 “in fairness ought to be considered.”
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`Rule 106 provides that “[i]f a party introduces . . . part of a writing . . . an
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`adverse party may require the introduction, at that time, of any other part . . .
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`that in fairness ought to be considered at the same time.” FED. R. EVID. 106.
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`To invoke Rule 106, the party must show that “‘misunderstanding or distortion
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`can be averted only through presentation of another portion’ of the document at
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`issue.” United States v. Loya-Medina, 552 F. App'x 805, 808 (10th Cir. 2014)
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`(citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988)). Mere
`
`speculation and conjuncture that the excluded part might be relevant does not
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`require introduction of additional parts or evidence. Although in some cases
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`Paper No. 47
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`courts require that a document be admitted in its entirety, the party urging
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`admission of the excluded part must specify “the portion of the [document] that
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`is relevant to the issue at trial and that qualifies or explains portions already
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`admitted.” United States v. Webber, 255 F.3d 523, 526 (8th Cir. 2001) (internal
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`quotations and citation omitted). Here, Petitioners have not shown that Rule
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`106 should be applied.
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`First, Petitioners misstate that C-Cation redacted the report. As explained
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`in the Declaration of David J. Kaplan (Exhibit 2029) served on Petitioners as
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`supplemental evidence (on November 25, 2015), Exhibit 2028 is designated as
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`“RESTRICTED – ATTORNEY’S EYES ONLY” under the protective order in
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`C-Cation Tech. v. Comcast, 11-CV-30-JRG-RSP (E.D. Tex.). Ex. 2029, at ¶ 3.
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`The protective order required C-Cation to seek permission from the defendants
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`in the Comcast case before producing the expert report in this proceeding. Id.
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`C-Cation timely contacted counsel for the Comcast defendants and requested
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`permission to produce the expert report. Id. at ¶ 4. Counsel authorized
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`production of the report, but subject to the redactions made by them. Id. Thus,
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`C-Cation did not redact Exhibit 2028, and C-Cation produced the report in the
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`form in which C-Cation received it from counsel for the Comcast defendants.
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`7
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`Paper No. 47
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`Moreover, in his Declaration, Mr. Kaplan states that the redacted sections
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`of the report did not relate to or contradict the statement of Mr. Lipoff used for
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`the impeachment purpose. Id. at ¶ 5. Petitioners have not produced any
`
`evidence to the contrary. Given the uncontroverted declaration of David
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`Kaplan and Petitioners’ failure to show that any of the redacted portions of
`
`Exhibit 2028 “in fairness ought to be considered,” Exhibit 2028 should be
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`admitted.
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`IV. CONCLUSION
`For the reasons stated above, the Board should deny Petitioners’ Motion
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`to Exclude Evidence.
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`Date: April 4, 2016
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`Paper No. 47
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`Respectfully submitted,
`KENYON & KENYON LLP
`
`/Walter E. Hanley, Jr./
`
`Walter E. Hanley, Jr. (Reg. No. 28,720)
`whanley@kenyon.com
`Lead Counsel for Patent Owner
`
`Sheila Mortazavi (Reg. No. 43,343)
`smortazavi@kenyon.com
`Backup Counsel for Patent Owner
`
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
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`Paper No. 47
`Filed: April 4, 2016
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`Certificate of Service
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`
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`The undersigned hereby certifies that the foregoing PATENT OWNER’S
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`OPPOSITION TO PETITIONERS’ MOTION TO EXCLUDE EVIDENCE was
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`served via e-mail on April 4, 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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