throbber
IPR2015-00635
`U.S. Patent No. 5,563,883
`
`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
`U.S. Patent 5,563,883
`
`Before the Honorable KRISTEN L. DROESCH, KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN Administrative Patent Judges.
`
`PETITIONERS’ FIRST SET OF OBJECTIONS
`TO PATENT OWNER’S EXHIBITS, NOS. 2023 – 2028
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`in a representative capacity for Petitioners, ARRIS Group, Inc. and Cox
`
`Communications, Inc., hereby submit the following objections to Patent Owner C-
`
`CATION Technologies, LLC’s (“Patent Owner”) Exhibits 2023-2028, and any
`
`1 Cox Communications, Inc., who filed a Petition in IPR2015-01796, has been
`
`joined as a petitioner in this proceeding.
`
`NY:1763556.1
`
`1
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`reference to/reliance on the foregoing. As required by 37 C.F.R § 42.62,
`
`Petitioners’ objections below apply the Federal Rules of Evidence.
`
`I.
`
`
`OBJECTIONS TO EXHIBIT 2027
`
`Evidence objected to: Exhibit 2027.
`
`Grounds for objection: Exhibit 2027 is a transcript of the deposition for
`
`Stuart J. Lipoff, taken on October 20, 2015 in Menlo Park, California in relation to
`
`these proceedings, and contains numerous objections preserved for the record by
`
`the Petitioners. Petitioners reserves their right to assert any objection to testimony
`
`preserved therein.
`
` OBJECTIONS TO EXHIBIT 2028 II.
`
`
`Evidence objected to: Exhibit 2028
`
`Grounds for objection: Exhibit 2028, a redacted version of the document
`
`titled “Expert Report of Stuart Lipoff Regarding Defendants’ Non-infringement of
`
`U.S. Patent No. 5,563,883 and Related Technical Matters,” and allegedly
`
`associated with an action styled C-Cation Technologies, LLC v. Comcast Corp., et
`
`al., No. 2:11-cv-30 (E.D. Tex.). Petitioners object to this Exhibit under Fed. R.
`
`Evid. 106 because it is an incomplete portion of a writing that (1) is redacted,
`
`rendering it incomplete; and (2) it omits documents incorporated by reference into
`
`it, further rendering it incomplete. Petitioners further object to this Exhibit under
`
`Fed. R. Evid. 401 and 403 because it does not make any fact relevant to the
`
`NY:1763556.1
`
`2
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`grounds upon which trial was instituted more or less probable and any facts that
`
`might be established based on this exhibit is of no consequence in determining the
`
`issues on which trial was instituted. Introduction and evaluation of Exhibit 2028
`
`would further lead to undue delay, confusion, and a waste of time; further, the
`
`probative value of this exhibit is outweighed by its prejudicial effect, particularly
`
`in light of the incomplete and hearsay nature of the Exhibit.
`
`To the extent that Patent Owner is using Exhibit 2028 in an attempt to
`
`impeach Mr. Lipoff’s testimony, Patent Owner’s use of the Exhibit is improper
`
`under Fed. R. Evid. 613(b) in that, despite having the opportunity to do so, Patent
`
`Owner did not provide Mr. Lipoff with any allegedly inconsistent statement or
`
`provide him an opportunity to address it in his testimony. Moreover, since Patent
`
`Owner did not properly attempt to use this Exhibit during Mr. Lipoff’s deposition,
`
`Petitioners had no opportunity to examine Mr. Lipoff about this Exhibit.
`
`Exhibit 2014 is further objectionable in that it constitutes hearsay under Fed.
`
`R. Evid. 802, to which no exception has been (or can be) shown to apply.
`
`Moreover, Exhibit 2028 has not been authenticated as required by Fed. R. Evid.
`
`901, and has not been shown to be (and is not) self-authenticating.
`
`
`
`NY:1763556.1
`
`3
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`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.
`
`
`
`Dated: November 12, 2015
`
`
`
`NY:1763556.1
`
`4
`
`

`
`IPR2015-00635
`U.S. Patent No. 5,563,883
`
`§ 42.6(e)—CERTIFICATION OF SERVICE
`
`In accordance with § 42.6(e)(1), the undersigned certifies that on the 12th
`
`day of November 2015, the above PETITIONER’S FIRST SET OF
`
`OBJECTIONS TO PATENT OWNER’S EXHIBITS, NOS. 2023-2028 was
`
`served, via electronic mail upon the following counsel for Patent Owner,
`
`
`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
`
`David J. Kaplan
`djkaplan@kenyon.com
`
`David J. Cooperberg
`dcooperberg@kenyon.com
`
`Dated: November 12, 2015
`
`
`
`
`
`
`
`
`WINSTON & STRAWN LLP
`1700 K Street NW
`Washington, DC 20006
`
`
`NY:1763556.1
`
`5

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