UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`LUMENTUM HOLDINGS, INC., LUMENTUM, INC.,
`LUMENTUM OPERATIONS, LLC, CORIANT OPERATIONS, INC.,
`CORIANT (USA) INC., CIENA CORPORATION, CISCO SYSTEMS, INC., and
`FUJITSU NETWORK COMMUNICATIONS, INC.
`Petitioners
`
`v.
`
`CAPELLA PHOTONICS, INC.
`Patent Owner
`
`
`
`Case No. IPR2015-007311 Patent No. RE 42,368
`Case No. IPR2015-007392 Patent No. RE 42,6783
`__________________
`
`
`PETITIONERS’ OBJECTIONS
`TO PATENT OWNER’S ORAL HEARING DEMONSTRATIVES
`
`
`
`1 Case IPR2015-01969 has been joined to this proceeding. This paper is a
`consolidated filing.
`
` 2
`
` Case IPR2015-01971 has been joined to this proceeding. This paper is a
`consolidated filing.
`
` 3
`
` The word-for-word identical paper is being filed in each proceeding identified in
`the heading.
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`LUMENTUM HOLDINGS, INC., LUMENTUM, INC.,
`LUMENTUM OPERATIONS, LLC, CORIANT OPERATIONS, INC.,
`CORIANT (USA) INC., CIENA CORPORATION, CISCO SYSTEMS, INC., and
`FUJITSU NETWORK COMMUNICATIONS, INC.
`Petitioners
`
`v.
`
`CAPELLA PHOTONICS, INC.
`Patent Owner
`
`
`
`Case No. IPR2015-007311 Patent No. RE 42,368
`Case No. IPR2015-007392 Patent No. RE 42,6783
`__________________
`
`
`PETITIONERS’ OBJECTIONS
`TO PATENT OWNER’S ORAL HEARING DEMONSTRATIVES
`
`
`
`1 Case IPR2015-01969 has been joined to this proceeding. This paper is a
`consolidated filing.
`
` 2
`
` Case IPR2015-01971 has been joined to this proceeding. This paper is a
`consolidated filing.
`
` 3
`
` The word-for-word identical paper is being filed in each proceeding identified in
`the heading.
`
`
`
`Case Nos. IPR2015-00731 and IPR2015-00739
`Petitioners’ Objections to Patent Owner’s Oral Hearing Demonstratives
`
`
`
`Pursuant to the Board’s Order, Requests for Oral Argument, entered on April
`
`28, 2016 in the above-identified proceedings (IPR2015-00731, Paper 45; IPR2015-
`
`00739, Paper 44), Petitioners make the following objections to the Patent Owner’s
`
`demonstrative exhibits served on May 13, 2016.4
`
`Petitioners advised Patent Owner’s counsel of these objections by email on
`
`May 19, 2016, and offered to meet and confer on this topic in an attempt to resolve
`
`the matter before bringing it to the Board’s attention. Patent Owner responded by
`
`email that day saying it disagreed with the Petitioners’ objections, and that it “had
`
`no intention of removing the identified slides or the allegedly objectionable
`
`material.”5
`
`
`4 A copy of the demonstrative exhibits as served on Petitioners is attached hereto
`
`(Ex. 1044 in IPR2015-00731 and Ex. 1055 in IPR2015-00739).
`
`5 Patent Owner also raised a number of objections to Petitioners’ demonstratives.
`
`Petitioners believe these objections are without merit. Nonetheless, in an effort to
`
`compromise, Petitioners agreed to remove one slide and modify two other slides.
`
`Based on these changes made by Petitioners, Patent Owner withdrew its remaining
`
`objections to Petitioners’ demonstratives. However, Patent Owner again
`
`confirmed that it had no intention of making any changes to its own demonstratives
`
`objected to by Petitioners, necessitating the filing of these objections.
`
`
`
`1
`
`
`
`Case Nos. IPR2015-00731 and IPR2015-00739
`Petitioners’ Objections to Patent Owner’s Oral Hearing Demonstratives
`
`
`As described below, certain demonstrative exhibits of Patent Owner are in
`
`violation of the Office Patent Trial Practice Guide section 1.M., that states “[n]o
`
`new evidence or arguments may be presented at the oral argument,” and the
`
`associated guidance provided in the Board’s decision in St. Jude Medical,
`
`Cardiology Division, Inc. v. The Board of Regents of the University of Michigan,
`
`IPR2013-0041(January 27, 2015) (Paper 65). In particular, Petitioners object to
`
`the following demonstrative exhibits for the following reasons:
`
`Slide 7:
`
`The In re: Gurley case was not previously cited and is new
`
`argument.
`
`Slide 19:
`
`The argument based on the McLaughlin patent (Ex. 2030)
`
`alleging that JDSU was focusing on LC (liquid crystal) devices
`
`rather than MEMS mirrors was not previously presented and is
`
`new.
`
`Slide 24:
`
`The displayed passage from the challenged patent was not
`
`previously presented and is new evidence and argument.
`
`Slide 25:
`
`The displayed passage from the challenged patent was not
`
`previously presented and is new evidence and argument.
`
`Slide 26:
`
`The displayed passage from the McLaughlin patent was not
`
`previously presented, and is new evidence and argument.
`
`
`
`2
`
`
`
`Case Nos. IPR2015-00731 and IPR2015-00739
`Petitioners’ Objections to Patent Owner’s Oral Hearing Demonstratives
`
`
`Slide 27:
`
`The displayed Sergienko Declaration testimony was not
`
`previously presented in support of a hindsight argument, and is
`
`new evidence and argument.
`
`Slide 31:
`
`The displayed passage and drawing figure from the challenged
`
`patent were not previously presented, and are new evidence and
`
`argument.
`
`Slide 38:
`
`The Pacing Techs., LLC v. Garmin Int’l. Inc. case was not
`
`previously cited and is new argument.
`
`Petitioners request that the Board require Patent Owner to remove the
`
`objectionable subject matter from its oral hearing demonstratives.
`
`
`Respectfully submitted,
`
`Faegre Baker Daniels LLP
`
`
` / Walter Linder /
`Walter C. Linder
`Reg. No. 31, 707
`Lead Counsel
`Telephone: 612-766-8801
`
`
`
`
`Dated: May 20, 2016
`
`
`
`Faegre Baker Daniels
`2200 Wells Fargo Center
`90 S. Seventh Street
`Minneapolis, MN 55402
`Tel: (612) 766-7000
`
`
`
`
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`
`
`3
`
`
`
`Case Nos. IPR2015-00731 and IPR2015-00739
`Petitioners’ Objections to Patent Owner’s Oral Hearing Demonstratives
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that I caused a true and correct copy of the foregoing Petitioners’
`Objections to Patent Owner’s Oral Hearing Demonstratives to be served by email
`on the following:
`
`Jason D. Eisenberg, Reg. No. 43,447
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W. Washington, D.C. 20005
`E-mail: jasone-PTAB@skgf.com
`
`Robert Greene Sterne, Reg. No. 28,912
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W. Washington, D.C. 20005
`E-mail: rsterne-PTAB@skgf.com
`
`Jon E. Wright, Reg. No. 50,720
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W. Washington, D.C. 20005
`E-mail: jwright-PTAB@skgf.com
`
`Nicholas J. Nowak
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`1100 New York Avenue, N.W. Washington, D.C. 20005
`E-mail: nnowak-PTAB@skgf.com
`
`
`Dated: May 20, 2016
`
`Faegre Baker Daniels
`2200 Wells Fargo Center
`90 S. Seventh Street
`Minneapolis, MN 55402
`Tel: (612) 766-7000
`
`
`
`
`
`
`
`
`By:
`
`
`
`
`4
`
`FAEGRE BAKER DANIELS LLP
`
`
`
` / Walter Linder /
`Walter C. Linder
`Reg. No. 31, 707
`Lead Counsel
`Telephone: 612-766-8801
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