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: IPR2015-00635
`U.S. PATENT NO. 5,563,883
`
`
`
`
`PETITIONERS’ OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE
`
`
`
`1
`
`

`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 1
`
`LEGAL STANDARDS ................................................................................... 2
`
`A. An Accurate Statement of the Ancient Document Exception to
`the Rule Against Hearsay ...................................................................... 2
`
`B.
`
`The “Slight” Burden to Prove Authenticity .......................................... 2
`
`III. ARGUMENT ................................................................................................... 3
`
`A.
`
`B.
`
`Patent Owner Has Not Shown Entitlement to the Relief it Seeks ........ 3
`
`The MPT Specifications and Annual Report are Admissible
`(Exhibits 1005, 1006, 1007, and 1010) ................................................. 3
`
`1.
`
`2.
`
`The MPT Specifications Are Offered for a Non-Hearsay
`Purpose ........................................................................................ 3
`
`The MPT Specifications and Annual Report Fall Under the
`“Ancient Documents” Exception to the Rule Against
`Hearsay ........................................................................................ 4
`
`a.
`
`Patent Owner Does Not Dispute That the MPT
`Specifications and Annual Report Are More
`Than 20 Years Old ..................................................... 4
`
`3.
`
`The MPT Specifications and Annual Report Are Authentic ...... 5
`
`a.
`
`b.
`
`c.
`
`d.
`
`Self-Authentication Under FED. R. EVID. 902(5) ...... 5
`
`Public Records under FED. R. EVID.
`901(b)(7)(B) ............................................................... 6
`
`Distinctive Characteristics Under FED. R. EVID.
`901(b)(4) .................................................................... 7
`
`Ancient Documents Under FED. R. EVID.
`901(b)(8) .................................................................... 8
`
`4.
`
`The MPT Specifications and Annual Report Fall Under the
`Residual Exception Too .............................................................. 9
`
`
`
`ii
`
`

`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`H.
`
`Exhibit 1014 Is Relevant and Admissible as a Learned Treatise .......... 9
`
`Exhibit 1015 Is Authentic and Should Remain in the Record
`Because It Further Supports the Authenticity of Other Exhibits ........ 10
`
`Exhibits 1018, 1019 and 1026-1031 Are Plainly Relevant and
`Patent Owner’s Request for Exclusion Ignores Issues Patent
`Owner Put At Issue In This Proceeding .............................................. 11
`
`Exhibits 1030 and 1031 Have Been Authenticated and Patent
`Owner Does Not Show Otherwise ...................................................... 12
`
`Patent Owner’s Arguments About the Admissibility of Exhibits
`1033 and 1034 Is an Inappropriate Sur-Reply and Actually
`Highlight the Relevance of Those Exhibits ........................................ 13
`
`Patent Owner Waived Its Authenticity Objection to the Annual
`Report .................................................................................................. 15
`
`IV. CONCLUSION .............................................................................................. 15
`
`iii
`
`
`
`
`
`

`
`TABLE OF AUTHORITIES
`
`
`CASES
`Dartez v. Fibreboard Corp.,
`765 F.2d 456 (5th Cir. 1985) ................................................................................ 2
`
`Page(s)
`
`Donnelly Garment Co. v. NLRB,
`123 F.2d 215 (8th Cir. 1941) .............................................................................. 13
`
`EMC Corp. v. Personal Web Technologies, LLC,
`IPR2013-00085, Paper 73, slip op. at 66 (P.T.A.B. May 15, 2014) .................... 4
`
`Handi Quilter, Inc. v. Bernia Int’l AG,
`IPR2013-00364, Paper 30, slip op. 2-3 (P.T.A.B. Jun. 12, 2014) ........................ 5
`
`Laird Techs., Inc. v. Graftech Int’l Holdings, Inc.,
`IPR2014-00025 Paper 45 (P.T.A.B Mar. 25, 2015) ........................................... 13
`
`Link v. Mercedes-Benz of N. Am., Inc.,
`788 F.2d 918 (3rd Cir. 1986) ................................................................................ 3
`
`McQueeney v. Wilmington Trust Co.,
`779 F.2d 916 (3d Cir. 1985) ............................................................................. 2, 5
`
`Ultratec, Inc. v. Sorenson Commc’ns, Inc.,
`No. 13-cv-346-bbc, 2014 WL 4829173 (W.D. Wisc. Sept. 29, 2014) ................. 4
`
`Williams v. Long,
`585 F. Supp. 2d 679 (D. Md. 2008) ................................................................ 6, 10
`
`STATUTES
`
`35 U.S.C. § 102(b) ..................................................................................................... 4
`
`OTHER AUTHORITIES
`
`37 C.F.R. § 42.20(c) ............................................................................................... 1, 3
`
`37 C.F.R. § 42.64(b) ........................................................................................ 1, 5, 15
`
`37 C.F.R. § 42.64(b) .................................................................................................. 5
`
`
`
`iv
`
`

`
`Fed. R. Evid. 104(a) ................................................................................................. 11
`Fed. R. Evid. 104(a) ............................................................................................... .. 11
`
`FED. R. EVID. 801(c)................................................................................................... 4
`FED. R. EVID. 801(c) ................................................................................................. ..4
`
`Fed. R. Evid. 802 ................................................................................................. 3, 15
`Fed. R. Evid. 802 ............................................................................................... ..3, 15
`
`Fed. R. Evid. 803(8) ................................................................................................... 6
`Fed. R. Evid. 803(8) ................................................................................................. ..6
`
`Fed. R. Evid. 803(16) ............................................................................................. 2, 4
`Fed. R. Evid. 803(16) ........................................................................................... ..2, 4
`
`Fed. R. Evid. 803(18) ............................................................................................... 10
`Fed. R. Evid. 803(18) ............................................................................................. .. 10
`
`Fed. R. Evid. 807 ....................................................................................................... 9
`
`Fed. R. Evid. 807 ..................................................................................................... ..9
`
`FED. R. EVID. 901(a)................................................................................................... 2
`FED. R. EVID. 901(a) ................................................................................................. ..2
`
`FED. R. EVID. 901(b) .........................................................................................passim
`FED. R. EVID. 901(b) ....................................................................................... ..passz'm
`
`FED. R. EVID. 902(5) .................................................................................................. 5
`FED. R. EVID. 902(5) ................................................................................................ ..5
`
`
`
`
`
`v
`
`

`
`TABLE OF ABBREVIATIONS
`
`Abbreviation
`
`Annual Report
`
`Mot.
`
`MPT Specifications
`Pat. Owner’s 1st Objs.
`
`Pet.
`
`Pet. Reply
`
`Response
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Meaning
`
`Exhibit 1010
`
`Patent Owner’s Motion to Exclude
`
`Exhibits 1005, 1006, and 1007
`
`Patent Owner’s First Set of
`Objections to Petitioner’s Exhibits
`
`Petition for Inter Partes Review
`
`Petitioner’s Reply to the Patent
`Owner’s Response (Feb. 8, 2016)
`
`Patent Owner’s Response to the
`Petition (Nov. 5, 2015)
`
`
`
`vi
`
`

`
`Ex. No.
`
`Brief Description
`
`1001
`
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`U.S. Patent No. 5,563,883 to Cheng
`
`Declaration of Stuart Lipoff
`
`Curriculum Vitae of Stuart Lipoff
`
`Claim Construction Memorandum and Order from C-
`Cation Techs., LLC v. Comcast Corp., et. al., 2:11-CV-
`30-JRG-RSP, Dkt. 222 (Jul. 3, 2013)
`
`MPT 1327: A Signalling Standard for Trunked Private
`Land Mobile Radio Systems (Revised and reprinted
`November 1991) (“MPT 1327”)
`
`MPT 1343: Performance Specification; System Interface
`Specification for radio units to be used with commercial
`trunked networks operating in Band III sub-bands 1 and
`2 (Revised and Reprinted September 1991) (“MPT
`1343”)
`
`MPT 1347: Radio interface specification; For
`commercial trunked networks operating in Band III, sub-
`bands 1 and 2 (Revised and Reprinted September 1991).
`
`U.S. Patent No. 4,870,408 to Zudnek
`
`U.S. Patent No. 4,920,533 to Dufresne et al.
`
`Radiocommunications Agency: 91-92 Annual Report
`
`William Stallings, Local and Metropolitan Area
`Networks (4th Ed. MacMillan Publishing Co. (1993))
`
`John Graham, The Facts on File Dictionary of
`Telecommunications (1983)
`
`C-Cation Technologies, LLC’s Opening Claim
`Construction Brief in C-Cation Techs., LLC v. Comcast
`Corp., et al., No. 2:11-cv-00030-JRG-RSP, Dkt. 187
`(filed Mar. 22, 2013)
`
`
`
`vii
`
`

`
`Ex. No.
`
`Brief Description
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`1022
`
`1023
`
`1024
`
`1025
`
`1026
`
`Robert I. Desourdis, Jr., et al., EMERGING PUBLIC SAFETY
`WIRELESS COMMUNICATIONS SYSTEMS (Artech House,
`2001) (excerpts)
`
`Radiocommunications Agency Home Page (last visited
`1/28/2015)
`
`U.S. Patent No. 5,117,501 to Childress et al.
`
`Thomas Farrell, “A Computer Simulation Analysis of
`Convention and Trunked Land Mobile Radio Systems at
`Wright Patterson Air Force Base” (Jan. 19, 1989).
`
`International Application Publication No. WO 93/16566
`(Aug. 19, 1993)
`
`International Application Publication No. WO 93/16530
`(Aug. 19, 1993)
`
`Standing Protective Order
`
`Declaration of Troy Van Aacken
`
`Transcript of the January 19, 2016 Deposition of Chris
`Heegard, Ph.D.
`
`Exhibit 1 to the January 19, 2016 Deposition of Chris
`Heegard, Ph.D. (annotated copy of ’883 patent, FIG. 6)
`
`Exhibit 2 to the January 19, 2016 Deposition of Chris
`Heegard, Ph.D. (Sept. 2013 Dep. Tr. of C. Heegard,
`Ph.D.)
`
`Exhibit 3 January 19, 2016 Deposition of Chris Heegard,
`Ph.D. (errata and signature to the Sept. 2013 Dep. Tr. of
`C. Heegard)
`
`U.S. Patent No. 5,586,150 to Balasubramaniam (filed
`Nov. 24, 1993; issued Dec. 17, 1996)
`
`
`
`viii
`
`

`
`Ex. No.
`
`Brief Description
`
`1027
`
`1028
`
`1029
`
`1030
`
`1031
`
`1032
`
`1033
`
`1034
`
`1035
`
`1036
`
`U.S. Patent No. 5,276,905 to Hurst et al. (filed Feb. 7,
`1990; issued Jan. 4, 1994)
`
`U.S. Patent No. 5,175,870 to Mabey et al. (filed Nov. 30,
`1989; issued Dec. 29, 1992)
`
`EP 0 382 309 A1 (published Aug. 16, 1990)
`
`Michael Paetsch, Mobile Communications in the US and
`Europe: Regulation, Technology and Markets, 277-324
`(1993)
`
`E.A. Edis & J.E. Varrall, Newnes Telecommunications
`Pocket Book, 142-155 (1992)
`
`In the Matter of Technical Compatibility Protocol
`Standards for Equipment Operating in the 800 MHz
`Public Safety Bands, 4 FCC Rcd. 3874 (F.C.C. May 1,
`1989)
`
`Plaintiff C-Cation Technologies, LLC’s Disclosure of
`Asserted Claims and Infringement Contentions Against
`Cisco Systems, Inc. as served in C-Cation Technologies,
`LLC v. Time Warner Cable, Inc., et al., No. 2:14-cv-59-
`JRG-RSP (E.D. Tex.) on March 31, 2014.
`
`Cisco Systems, Inc., Load Balancing, Dynamic Channel
`Change, and Dynamic Bonding Change in the Cisco
`CMTS Routers (First Published: February 14, 2008; Last
`Updated: October 15, 2012).
`
`Certified Copy: MPT 1327: A Signalling Standard for
`Trunked Private Land Mobile Radio Systems (Revised
`and reprinted November 1991) (“MPT 1327”) (Ex. 1005)
`
`Certified Copy: MPT 1343: Performance Specification;
`System Interface Specification for radio units to be used
`with commercial trunked networks operating in Band III
`sub-bands 1 and 2 (Revised and Reprinted September
`
`
`
`ix
`
`

`
`Ex. No.
`
`Brief Description
`1991) (“MPT 1343”) (“Ex. 1006”)
`
`1037
`
`1038
`
`Certified Copy: MPT 1347: Radio interface
`specification; For commercial trunked networks
`operating in Band III, sub-bands 1 and 2 (Revised and
`Reprinted September 1991) (Ex. 1007)
`
`Certified Copy: Radiocommunications Agency: 91-92
`Annual Report (Ex. 1010)
`
`
`
`x
`
`

`
`I.
`
`INTRODUCTION
`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`
`Patent Owner’s Motion to Exclude (“Motion”) all evidence of the public
`
`availability of the MPT Specifications and its own inconsistent positions about the
`
`scope of the ’833 patent’s claims should be denied. Patent Owner failed to show
`
`entitlement to the relief it seeks, see 37 C.F.R. § 42.20(c), and in one instance, it
`
`waived its objection by failing to timely raise it, see 37 C.F.R. § 42.64(b)(1).
`
`As
`
`to
`
`the merits of
`
`its positions, Patent Owner misapplies and
`
`mischaracterizes the ancient document exception to the hearsay requirement. This
`
`leads Patent Owner to incorrectly conclude that certain exhibits like the MPT
`
`Specifications (Exhibits 1005, 1006, and 1007) and the Annual Report of the
`
`United Kingdom’s Radiocommunications Agency (Exhibit 1010) are inadmissible.
`
`Patent Owner has elected not to address many avenues by which Petitioners show
`
`the proffered exhibits are authentic. We do so here even though Patent Owner did
`
`not. Finally, Patent Owner improperly uses its Motion to Exclude as a sur-reply to
`
`try to explain its positions from parallel litigation under the guise of a relevance
`
`objection. Patent Owner’s statements about the scope of the claims from parallel
`
`litigation are plainly relevant to this proceeding. As we show below, Patent
`
`Owner’s Motion to Exclude should be denied in its entirety.
`
`1
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`
`II. LEGAL STANDARDS
`A. An Accurate Statement of the Ancient Document Exception to the
`Rule Against Hearsay
`
`Patent Owner incorrectly argues that the ancient documents exception
`
`“requires that authenticity be established under Fed. R. Evid. 901(b)(8).” Mot. at
`
`4. That is not what the rule says. Rule 803(16) says: “[a] statement in a document
`
`that is at least 20 years old and whose authenticity is established,” is admissible
`
`over a hearsay objection. Dartez—the case cited by Patent Owner—does not stand
`
`for the proposition Patent Owner cites it for. Instead, Dartez merely says that
`
`“[a]ncient documents are most frequently authenticated under the provisions of
`
`Rule 901(b)(8).” Dartez v. Fibreboard Corp., 765 F.2d 456, 464 (5th Cir. 1985)
`
`(emphasis added). That ancient documents are “most frequently” authenticated
`
`under Rule 901(b)(8) does not mean that they must be. Under Fed. R. Evid.
`
`803(16), any showing of authenticity will satisfy the plain language of the rule.
`
`B.
`The “Slight” Burden to Prove Authenticity
` “The burden of proof for authentication is slight.” McQueeney v.
`
`Wilmington Trust Co., 779 F.2d 916, 927 (3d Cir. 1985). “‘All that it requires is a
`
`foundation from which the fact-finder could legitimately infer that the evidence is
`
`what the proponent claims it to be.’” Id. (quoting In re Japanese Elecs., 723 F.2d
`
`238, 285 (3rd Cir. 1983)); see FED. R. EVID. 901(a). The evidence may come from
`
`the documents themselves and includes the “official appearance of the documents.”
`
`2
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918, 927 (3rd Cir. 1986) (internal
`
`quotation omitted); see also FED. R. EVID. 901(b)(4).
`
`III. ARGUMENT
`A.
`Patent Owner Has Not Shown Entitlement to the Relief it Seeks
`Patent Owner pays no mind to its burden to show entitlement to the relief it
`
`seeks. See 37 C.F.R. § 42.20(c). On four occasions, Patent Owner represents that
`
`no hearsay exception applies. Mot. at 2, 3, 6, 7. In other instances, Patent Owner
`
`merely says that exhibits have not been authenticated. Id. at 11. Without more,
`
`such bald statements fail to adequately show Patent Owner is entitled to relief.
`
`Even when Patent Owner addresses exceptions to the rule against hearsay or the
`
`rules relating to authenticity, it addresses only limited avenues to admissibility of
`
`evidence. Patent Owner’s motion to exclude Exhibits 1005-1007, 1010, 1015,
`
`1030, and 1031 should be denied on this basis alone. But, as we show below,
`
`numerous aspects of the rules that Patent Owner simply chose not to address are
`
`applicable.
`
`B.
`
`The MPT Specifications and Annual Report are Admissible
`(Exhibits 1005, 1006, 1007, and 1010)
`
`1.
`
`The MPT Specifications Are Offered for a Non-Hearsay
`Purpose
`
`Patent Owner’s argument that the MPT Specifications should be excluded
`
`“because the statements in them on which Petitioners rely constitute inadmissible
`
`3
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`hearsay under Fed. R. Evid. 802,” Mot. at 1, overreaches significantly. A prior art
`
`document submitted as a printed publication under 35 U.S.C. § 102(b) may be
`
`offered as evidence of what it describes, not for proving the truth of the matters
`
`contained in the document. See Ultratec, Inc. v. Sorenson Commc’ns, Inc., No. 13-
`
`cv-346-bbc, 2014 WL 4829173, *7 (W.D. Wisc. Sept. 29, 2014) (“[D]istrict courts
`
`have held that prior art references offered as printed publications . . . are not
`
`hearsay because they are not offered to prove the truth of any statements within the
`
`reference.”); FED. R. EVID. 801(c) 1997 Adv. Comm. Note (“If the significance of
`
`an offered statement lies solely in the fact that it was made, no issue is raised as to
`
`the truth of anything asserted, and the statement is not hearsay.”); EMC Corp. v.
`
`Personal Web Technologies, LLC, IPR2013-00085, Paper 73, slip op. at 66
`
`(P.T.A.B. May 15, 2014). Therefore, the MPT Specifications are admissible to
`
`show what they teach and are not hearsay for this purpose.
`
`2.
`
`The MPT Specifications and Annual Report Fall Under the
`“Ancient Documents” Exception to the Rule Against Hearsay
`
`a.
`
`Patent Owner Does Not Dispute That the MPT
`Specifications and Annual Report Are More Than 20
`Years Old
`
`The MPT Specifications and Annual Report are plainly ancient documents.
`
`They are more than 20 years old. See Ex. 1035 (cover); Ex. 1036 (cover); Ex.
`
`1037 (cover); Ex. 1038 (certification indicating that the original release was 1992).
`
`4
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`Patent Owner does not contend otherwise. Under Fed. R. Evid. 803(16), then, the
`
`only remaining question is authenticity. And, as discussed above, contrary to
`
`Patent Owner’s position, any avenue to establishing authenticity may be relied
`
`upon. See supra § II.A.
`
`3.
`
`The MPT Specifications and Annual Report Are Authentic
`
`The evidence—including timely-served supplemental evidence (see Exhibits
`
`1035-1038)—authenticates the MPT Specifications and the Annual Report. See 37
`
`C.F.R. § 42.64(b)(2) (permitting service of supplemental evidence); Handi Quilter,
`
`Inc. v. Bernia Int’l AG, IPR2013-00364, Paper 30, slip op. 2-3 (P.T.A.B. Jun. 12,
`
`2014) (supplemental evidence may be “offered solely to support admissibility of
`
`the originally filed evidence and to defeat a motion to exclude that evidence”).
`
`Petitioners have provided far more than the “slight” evidence needed to establish
`
`the authenticity of Exhibits 1005, 1006, 1007, and 1010. See McQueeney, 779
`
`F.2d at 927.
`
`a.
`
`Self-Authentication Under FED. R. EVID. 902(5)
`
`The MPT Specifications and Annual Report are self-authenticating under
`
`Fed. R. Evid. 902(5) since they are publications “issued by a public authority”—
`
`The Radiocommunications Agency of the United Kingdom (“RA”). See, e.g., Ex.
`
`1038 at pp. 24, 35 (“The Agency published eleven new or revised MPT standards
`
`during the year” and providing a list of those standards); Ex. 1035 at Foreword
`
`5
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`(referring to MPT 1343 and MPT 1347 as being “prepared by the Department of
`
`Trade and Industry, Radiocommunications Agency”); Ex. 1036 at cover (providing
`
`RA’s logo); Ex. 1037 at cover (“[t]he Radiocommunications Agency is an
`
`Executive Agency of the Department of Trade and Industry”). The “RA” was “a
`
`public agency of the United Kingdom” and was an “Executive Agency of the
`
`Department of Trade and Industry.” See, e.g., Ex. 1038 (certification of Julia
`
`Fraser); Ex. 1036 at cover. These documents were plainly issued by the RA.
`
`Further extrinsic evidence of its authenticity is not required. See, e.g., Williams v.
`
`Long, 585 F. Supp. 2d 679, 686 (D. Md. 2008) (“[E]xtrinsic evidence of
`
`authenticity as a condition precedent to the admissibility of evidence is not
`
`required if the evidence is a book, pamphlet, or other publication purporting to be
`
`issued by a public authority.”). Therefore, Exhibits 1005-1007 and 1010 are self-
`
`authenticating.
`
`b.
`
`Public Records under FED. R. EVID. 901(b)(7)(B)
`
`The MPT Specifications and Annual Report are also public records under
`
`Fed. R. Evid. 901(b)(7)(B). While Patent Owner addresses the public records
`
`exception to the rule against hearsay under Fed. R. Evid. 803(8), it says nothing
`
`about Fed. R. Evid. 901(b)(7)(B). That rule requires only “[e]vidence that . . . (B)
`
`a purported public record or statement is from the office where items of its kind are
`
`kept.” See FED. R. EVID. 901(b)(7)(B). This requirement is met by Petitioners’
`
`6
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`supplemental evidence in spades. See Ex. 1035-1038. Each of the MPT
`
`Specifications submitted herewith as supplemental evidence is accompanied by the
`
`certification of Julia Fraser, Head of Knowledge Management of Ofcom, an entity
`
`that was formed out of the combination of the RA and “regulatory bodies in the
`
`United Kingdom” in 2003. See Ex. 1035 (certification); Ex. 1036 (certification);
`
`Ex. 1037 (certification); Ex. 1038 (certification). She is the custodian of each of
`
`the MPT Specifications and the Annual Report and has been since 1990 when she
`
`was with the RA. Id. Ms. Fraser certifies that each of these documents are “true
`
`and correct cop[ies] from the records of Ofcom” and have “been in Ofcom’s
`
`possession (and previously that of the RA) since its original release in 1991.” Id.
`
`Thus, the MPT Specifications and Annual Report are “from the office where items
`
`of its kind are kept” and are authentic public records. FED. R. EVID. 903(b)(7).
`
`c.
`
`Distinctive Characteristics Under FED. R. EVID. 901(b)(4)
`
`Patent Owner does not address the distinctive characteristics of the MPT
`
`Specifications or the Annual Report. But they are authentic under Fed. R. Evid.
`
`901(b)(4) as well. For example, Exhibits 1006, 1007, and 1010 all bear the logo of
`
`the Radiocommunications Agency on their covers. Exhibits 1005, 1006, and 1007
`
`have a similar structure, including a Foreword, hyphenated page numbering, and
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`similar section headings. Each of Exhibits 1005, 1006, 1007, and 1010 refer to one
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`another. They all refer to the same subject matter. Therefore, “[t]he appearance,
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`contents, substance, internal patterns,” and other “distinctive characteristics”
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`together with the circumstances show that Exhibits 1005-1007 and 1010 are
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`authentic.
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`d.
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`Ancient Documents Under FED. R. EVID. 901(b)(8)
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`The MPT Specifications and Annual Report are also authentic under Fed. R.
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`Evid. 901(b)(8). Patent Owner’s only argument against authenticity under this
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`Rule is that there is no evidence about where the documents were found. See Mot.
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`at 2, 4. Exhibits 1005-1007 and 1010 do not look suspicious and are at least 20
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`years old. See FED. R. EVID. 901(b)(8)(A), 901(b)(8)(C). Patent Owner does not
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`contend otherwise.
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`Turning to the last requirement, Patent Owner chose not to address
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`Petitioners’ supplemental evidence. Certifications for each of Exhibits 1005 to
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`1007, and 1010 show that each document “was in a place where, if authentic, it
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`would likely be”—namely with the custodian of records at Ofcom, the entity that
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`resulted when the RA was combined with “several other regulatory bodies in the
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`United Kingdom” in 2003. See, e.g., Ex. 1035 at certification. They have been
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`there since 1991 or 1992. See Exs. 1035-1038 (certifications). Therefore, Exhibits
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`1005-1007 and 1010 are authentic under Fed. R. Evid. 901(b)(8) too.
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`The MPT Specifications and Annual Report Fall Under the
`Residual Exception Too
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`4.
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`Patent Owner does not address the residual exception under Fed. R. Evid.
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`807. But that too would be applicable if no other exceptions are. The statements
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`are from a UK government agency, they are offered for the material fact regarding
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`the publication date of the references, they the most probative evidence of the date
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`they were published, and admitting the statement will serve the purposes of the
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`Federal Rules of Evidence and the interest of justice. Moreover, Patent Owner has
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`been on notice that Petitioners would offer the statements in the MPT
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`Specifications and Annual Report.
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`C. Exhibit 1014 Is Relevant and Admissible as a Learned Treatise
`Patent Owner incorrectly contends that Exhibit 1014—a book titled
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`Emerging Public Safety Wireless Communications Systems—is irrelevant because
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`the book states that the MPT Specifications were “first published in 1988” and
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`does not call out the 1991 versions relied on in the petition. See Mot. 4-6. Patent
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`Owner’s position on relevancy overlooks the purpose that Exhibit 1014 was
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`offered for: to show that the specifications were “published . . . by the U.K.
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`Department of Trade and Industry (‘DTI’)” and “would come to be administered
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`by the Radiocommunications Agency (‘RA’) by 1992.” Pet. at 16. Exhibit 1014 is
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`thus relevant to show that the MPT Specifications were published and administered
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`by RA—a public agency. While cumulative of other evidence, this Exhibit makes
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`it more likely than not that Exhibits 1005-1007 and 1010 are authentic and is
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`admissible. Patent Owner does not contend otherwise.
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`Patent Owner contends Exhibit 1014 is hearsay, but does not address the
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`Learned Treatise exception to the hearsay requirement. Exhibit 1014 may still be
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`used in this proceeding as a “learned treatise” under Fed. R. Evid. 803(18) because
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`it constitutes excerpts from a treatise regarding radio systems and was relied on in
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`Mr. Lipoff’s direct testimony to support his opinions regarding the MPT
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`Specifications. See Ex. 1002, ¶¶ 52, 65. Patent Owner has waived any argument
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`that Mr. Lipoff’s reliance on this exhibit is unreasonable. Exhibit 1014 is
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`admissible.
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`D. Exhibit 1015 Is Authentic and Should Remain in the Record
`Because It Further Supports the Authenticity of Other Exhibits
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`Patent Owner’s motion to exclude Exhibit 1015, a printout from Ofcom’s
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`website, on authenticity and hearsay grounds should be denied. First, “records
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`from government websites are self-authenticating,” and Ofcom is a regulating body
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`formed from the RA—an agency of the Department of Trade and Industry in the
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`United Kingdom, e.g., Ex. 1035 (certification). See Williams 585 F. Supp. 2d at
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`687-88 (collecting cases related to authenticity of government websites).
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`Moreover, the website includes “evidence sufficient to support a finding that the
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`item is what” Petitioners claim it is in that it includes the RA’s logo that also
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`appears on the cover of the MPT Specifications. Compare Ex. 1015 with Ex. 1005
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`(cover).
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`As to Patent Owner’s contention that Exhibit 1015 should be excluded
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`because it is hearsay, Exhibit 1015 should not be excluded because it is relevant to
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`the admissibility of Exhibits 1005-1007 and 1010, including their authenticity, and
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`may be considered pursuant to Fed. R. Evid. 104(a), which indicates that the Board
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`is “not bound by evidence rules, except those on privilege” when considering
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`preliminary questions on admissibility of evidence.
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`E.
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`Exhibits 1018, 1019 and 1026-1031 Are Plainly Relevant and
`Patent Owner’s Request for Exclusion Ignores Issues Patent
`Owner Put At Issue In This Proceeding
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`Patent Owner calls Exhibits 1018, 1019, 1026-1031 irrelevant because they
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`do not specify which version of the MPT Specifications they relate to, or they refer
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`to an earlier version than the one relied on as prior art. See, e.g., Mot. 7-11. Patent
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`Owner seeks an unfair advantage. It was Patent Owner that raised the question of
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`whether a POSITA would have looked to the RA’s library to get information about
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`the MPT Standards. See Resp. at 24 (suggesting an absence of evidence of “how
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`interested persons of ordinary skill could have located” the MPT Specifications).
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`The very evidence Patent Owner seeks to exclude directly refutes its contention
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`because it shows that persons in the field were actually aware of the MPT
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`Specifications. Regardless of which version of the standards these exhibits refer
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`to, they make it more likely than not that a POSITA would have looked to the
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`RA’s library since the RA published and maintained those standards. See Pet.
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`Reply at 4. Petitioners have offered these exhibits to show that persons skilled in
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`the art were well aware of the RA’s work on the MPT Specifications and thus
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`would have been led to the RA to obtain copies of then then-current MPT
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`Specifications. See, e.g., Pet. Reply at 4-5.
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`F.
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`Exhibits 1030 and 1031 Have Been Authenticated and Patent
`Owner Does Not Show Otherwise
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`In addition to an objection on relevancy grounds, which we have shown is
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`unsupported above, see supra § III.F, Patent Owner’s contention that Exhibits
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`1030 and 1031 have not been authenticated is incorrect. First, “[t]he appearance,
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`contents, substance, internal patterns,” and other distinctive characteristics such as
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`library catalog numbers, see Ex. 1031 (cover), copyright pages and ISBNs, id. at
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`p.3, Ex. 1030 at p.5, and the regular pattern of text and the appearance of the
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`books, Ex. 1030, Ex. 1031, all establish that they are what they purport to be under
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`Fed. R. Evid. 901(b)(4). Patent Owner does not argue to the contrary. These
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`exhibits are also ancient texts in that they are more than 20 years old, have nothing
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`to indicate that they are “suspicious” in their origin or content, and, for example,
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`Ex. 1031 was obtained from the United States Library of Congress, which is a
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`place where such a book would be expected to be located. See Ex. 1031 at p.3
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`(library stamp). Thus, these exhibits bear sufficient indicia that they are what
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`Petitioners have claimed them to be, and Patent Owner has not provided any
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`evidence to the contrary.
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`G.
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`Patent Owner’s Arguments About the Admissibility of Exhibits
`1033 and 1034 Is an Inappropriate Sur-Reply and Actually
`Highlight the Relevance of Those Exhibits
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`Patent Owner’s arguments about the relevance of its own litigation-inspired
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`admissions to this proceeding is a thinly-veiled unauthorized sur-reply. As to the
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`merits of Patent Owner’s Motion, the Board has held that “[o]ne who is capable of
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`ruling accurately upon the admissibility of evidence is equally capable of sifting it
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`accurately after it has been received,” Donnelly Garment Co. v. NLRB, 123 F.2d
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`215, 224 (8th Cir. 1941). See, e.g., Laird Techs., Inc. v. Graftech Int’l Holdings,
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`Inc., IPR2014-00025, Paper 45 (P.T.A.B Mar. 25, 2015) (“[S]imilar to a district
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`court in a bench trial, the Board, sitting as a non-jury tribunal with administrative
`
`expertise, is well-positioned to determine and assign appropriate weight to
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`evidence presented.”). Just because Patent Owner disagrees with Petitioners’
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`position does not make the evidence irrelevant.
`
`Turning to the meat of Patent Owner’s argument—that its litigation
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`positi