UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`ARRIS GROUP, INC.
`AND
`COX COMMUNICATIONS, INC.
`Petitioners
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case: IPR2015-00635
`U.S. PATENT NO. 5,563,883
`
`
`
`PETITIONERS’ REPLY IN SUPPORT
`OF THEIR MOTION TO EXCLUDE
`
`
`
`
`
`
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`AND
`COX COMMUNICATIONS, INC.
`Petitioners
`
`v.
`
`C-CATION TECHNOLOGIES, LLC
`Patent Owner
`
`
`
`Case: IPR2015-00635
`U.S. PATENT NO. 5,563,883
`
`
`
`PETITIONERS’ REPLY IN SUPPORT
`OF THEIR MOTION TO EXCLUDE
`
`
`
`
`
`
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`TABLE OF ABBREVIATIONS
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`Meaning
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`U.S. Patent No. 5,563,883
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`Petitioners’ Motion to Exclude
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`Petitioners’ Reply to Patent Owner’s
`Response
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`Patent Owner Response
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`Abbreviation
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`’883 patent
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`Pets’ Mot.
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`Reply
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`Resp.
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`I.
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`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`
`THE LIPOFF REPORT IS INADMISSIBLE HEARSAY
`A.
`
`Patent Owner Relies on the Lipoff Report for the Truth of What
`It Says
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`Patent Owner relies on the Lipoff Report “to convince the Board to read a
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`requirement that the ‘central controller’ must perform the step received in claim
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`limitation 1(c).” Pets’ Mot. at 6-7 (citing Resp. at 36-37). Patent Owner does not
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`attempt to justify its reliance on the Lipoff Report as extrinsic evidence about the
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`meaning of the claims. Instead, Patent Owner recharacterizes what its Patent
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`Owner Response says. See Opp. at 1-2. The Patent Owner Response states that
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`“Mr. Lipoff’s prior opinion necessarily rules out step (c) being performed by a
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`remote terminal.” Resp. at 37. In this regard, Patent Owner’s argument relies on
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`the Lipoff Report for its truth. The Lipoff Report should not be admitted as
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`extrinsic evidence justifying a departure from the plain language of claim 1.
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`B.
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`The Lipoff Report Is Not Admissible as Impeachment Evidence
`Because It Does Not Impeach Mr. Lipoff
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`It is axiomatic that to be admissible for purposes of impeachment, the
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`alleged inconsistent statement must actually impeach the witness. As Patent
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`Owner says, when a witness testifies to “X” in one proceeding an otherwise
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`hearsay statement may be offered to show that the witness previously said “not X.”
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`See Regan-Touhy v. Walgreen Co., 526 F.3d 641, 651 n.8 (10th Cir. 2008). Patent
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`Owner’s argument thus depends on the Lipoff Report saying “not X.” Not only
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`1
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`does the Lipoff Report not impeach because it does not say what Patent Owner
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`quotes it as saying, compare Resp. at 21 with Ex. 2028, ¶ 365, but Patent Owner
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`has not explained how the actual text of the Lipoff Report impeaches Mr. Lipoff.
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`It doesn’t. Instead, Mr. Lipoff’s opinion that “[t]he claimed method is initiated and
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`carried out by an apparatus—the central controller,” Ex. 2028, ¶ 365, does not
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`mean that all steps of claim 1 are performed by a central controller. The Lipoff
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`Report is inadmissible for impeachment because it does not impeach a thing.
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`C. The Lipoff Report Is Hearsay and Is Not Admissible for All
`Purposes Even if It Did Impeach Mr. Lipoff
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`Even if the Lipoff Report is admissible for impeachment purposes, it is still
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`hearsay and is not admissible for all purposes. As explained in the Motion to
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`Exclude, under Federal Rule of Evidence 801(d)(1) some statements by declarants
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`used for impeachment may be generally admissible since they are not hearsay. See
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`Pets’ Mot. at 7-8. Patent Owner has not even tried to show that the Lipoff Report
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`meets these requirements. It plainly does not. Thus, even if the Lipoff Report
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`were proper fodder for impeachment, and even if Patent Owner had followed the
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`proper rules for impeaching a witness, it is not admissible for all purposes.
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`II.
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`PATENT OWNER HAS NOT PROPERLY IMPEACHED MR.
`LIPOFF
`Patent Owner had the Lipoff Report at least two years before Mr. Lipoff’s
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`October 2015 deposition, see Ex. 2030 (Sept. 6, 2013 email), and strategically
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`2
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`chose only to make vague references to it during that deposition. Instead of
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`showing where Mr. Lipoff was “given an opportunity to explain . . . the statement
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`and an adverse party [was] given an opportunity to examine the witness about it”
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`while Mr. Lipoff was called as a witness, Fed. R. Evid. 613(b), Patent Owner says
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`that Petitioners “could have submitted another declaration of Mr. Lipoff in which
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`Mr. Lipoff could have attempted to explain the inconsistency,” see Opp. at 4.
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`There are two problems with Patent Owner’s position. First, Patent Owner
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`presumes its Response showed that Mr. Lipoff’s prior opinion was inconsistent.
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`Because Patent Owner misquoted the Lipoff Report, and has not explained how
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`any of the actual text of the Lipoff Report is inconsistent with Mr. Lipoff’s
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`testimony, there was nothing for Mr. Lipoff to explain. That what Patent Owner
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`argues the Lipoff Report says is not what it actually says is self-explanatory.
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`Second, Patent Owner’s attempt to impeach a witness for the first time in a
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`Patent Owner Response after the witness had been discharged is inconsistent with
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`the Board’s rules. A fundamental rule of construction for all of the Board’s rules is
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`that all rules be “construed to secure the just, speedy, and inexpensive resolution of
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`every proceeding.” See 37 C.F.R. § 42.1(b). Patent Owner’s position that another
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`declaration should have been presented with Petitioners’ Reply cannot be
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`reconciled with this rule. Petitioners could have re-engaged with Mr. Lipoff, spent
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`money to prepare and file another declaration, thereby precipitating another
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`3
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`
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`deposition requiring at least some parties, the witness, or their counsel to travel as
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`Patent Owner contends. But, doing so would have increased the cost of the
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`proceeding by thousands of dollars both in court reporter costs, travel costs, expert
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`witness costs, and attorney time. Thus, the Board should not allow Patent Owner
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`to try to impugn Mr. Lipoff’s credibility well after his deposition was closed based
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`on an improper impeachment technique, since the Board’s rules should treat the
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`witness as having been discharged and unavailable unless another declaration is
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`submitted.
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`The cases cited by Patent Owner are of little help to Patent Owner’s
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`position. In Gong, the court excluded a letter written by a doctor even though it
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`appeared to contradict his deposition testimony. Gong v. Hirsch, 913 F.2d 1269
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`(7th Cir. 1990). The doctor’s deposition, during which he testified inconsistent
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`with Plaintiff’s theory of causation in a medical malpractice case, was played to
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`the jury. Id. at 1274. On re-direct during the deposition, the doctor was shown a
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`letter that appeared inconsistent with his testimony, and he was asked to confirm
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`that he authored the letter. Id. Questioning then moved to a different topic. Id.
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`The plaintiff tried to introduce the letter at trial to impeach the inconsistent
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`deposition testimony. Id. The court explained that having the witness say he
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`authored the letter “without establishing the significance of the letter or affording
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`the witness an opportunity to explain” was prejudicial. Id. Here, Patent Owner
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`4
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`didn’t even get Mr. Lipoff to confirm he authored the report. Even the Rush v.
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`Illinois Central Railroad Co. case notes that “it was advisable for the impeaching
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`party to confront the witness with the purported inconsistency during cross
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`examination.” 399 F.3d 705, 723 (6th Cir. 2005). For efficiency, fairness, and
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`completeness of the record, Patent Owner should have provided Mr. Lipoff with
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`adequate opportunity to explain the allegedly inconsistent statements. Having not
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`done so, it was not a proper impeachment under Fed. R. Evid. 613(b).
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`III. THE LIPOFF REPORT IS INCOMPLETE
`Patent Owner contends that Petitioners have not met their burden to show
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`that redacted portions of the Lipoff Report “in fairness ought be considered.” Opp.
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`at 6-7. Patent Owner’s position is perplexing. Patent Owner presents its lawyer’s
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`opinion that the redacted material is irrelevant. Id. But, where, as here, Patent
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`Owner is in possession of the information needed to make the showing, Patent
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`Owner should describe the redacted material, rather than present a cursory
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`statement that the redacted statement is “believed” not to be relevant, except to the
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`extent Patent Owner refers to it in its Response. See Ex. 2029, ¶ 5.
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`IV. CONCLUSION
`For these reasons, and the reasons discussed in Petitioners’ Motion to
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`Exclude, Exhibit 2028 should be excluded.
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`5
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`IPR2015-00635
`U.S. Patent No. 5,563,883
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`
`Respectfully submitted:
`
`/s/ Andrew R. Sommer
`
`Andrew R. Sommer (Reg. No. 53,932)
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`T: (202) 282-5000
`
`Jonathan E. Retsky (Reg. No. 34,415)
`WINSTON & STRAWN LLP
`35 W. Wacker Drive
`Chicago, IL 60601-9703
`T: (312) 558-5600
`
`Attorneys for Petitioner ARRIS Group,
`Inc.
`
`/s/ Michael J. Turton
`
`Mitchell G. Stockwell
`Reg. No. 39,389
`Michael J. Turton
`Reg. No. 40,852
`KILPATRICK TOWNSEND & STOCKTON
`LLP
`1100 Peachtree Street NE, Suite 2800
`Atlanta, GA 30309
`T: (404) 815-6500
`
`Attorneys for Petitioner Cox
`Communications, Inc.
`
`
`
`6
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`Dated: April 11, 2016
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`
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`
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`IPR2015-00635
`U.S. Patent No. 5,563,883
`
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`§ 42.6(e)—CERTIFICATION OF SERVICE
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`In accordance with § 42.6(e)(1), the undersigned certifies that on the 11th
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`day of April 2016, the above PETITIONERS’ REPLY IN SUPPORT OF
`
`THEIR MOTION TO EXCLUDE was served, via electronic mail upon the
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`following counsel for Patent Owner,
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`Respectfully submitted,
`
`/Andrew R. Sommer/
`Andrew R. Sommer
`(Reg. No. 53,932)
`Counsel for Petitioner ARRIS Group,
`Inc.
`
`Walter E. Hanley, Jr.
`whanley@kenyon.com
`
`Sheila Mortazavi
`smortazavi@kenyon.com
`
`Merri Moken
`MMoken@kenyon.com
`
`Dated: April 11, 2016
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`
`
`
`
`
`
`
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`
`
`1
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