UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`JDS UNIPHASE CORPORATION
`Petitioner
`
`v.
`
`CAPELLA PHOTONICS, INC.
`Patent Owner
`
`
`
`Patent No. RE 42,678
`
`
`
`Title: RECONFIGURABLE OPTICAL ADD-DROP
`MULTIPLEXERS WITH SERVO CONTROL AND DYNAMIC
`SPECTRAL POWER MANAGEMENT CAPABILITIES
`
`
`
`Inter Partes Review No. 2015-00739
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`__________________
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`
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`PETITIONER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`JDS UNIPHASE CORPORATION
`Petitioner
`
`v.
`
`CAPELLA PHOTONICS, INC.
`Patent Owner
`
`
`
`Patent No. RE 42,678
`
`
`
`Title: RECONFIGURABLE OPTICAL ADD-DROP
`MULTIPLEXERS WITH SERVO CONTROL AND DYNAMIC
`SPECTRAL POWER MANAGEMENT CAPABILITIES
`
`
`
`Inter Partes Review No. 2015-00739
`
`__________________
`
`
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`
`
`Inter Partes Review No. 2015-00739
`Petitioner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
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`
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner1 hereby objects to the
`
`following evidence submitted by Patent Owner Capella Photonics, Inc. with its
`
`Patent Owner Response (Paper No. 16):
`
`1.
`
`Exhibit 2005 is objected to as hearsay under FRE 801-807, and under
`
`Federal Rule of Civil Procedure 32. Exhibit 2005 is a deposition transcript from
`
`different IPR proceedings not involving Petitioner (IPR2014-01166 and IPR2014-
`
`01276). Petitioner is not a party to those proceedings, and Petitioner was not
`
`present or represented at the deposition. Accordingly, Exhibit 2005 is not
`
`admissible under Federal Rule 32, and does not fall within any exception to the
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`rule against the admissibility of hearsay.2
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`Petitioner further objects on the same bases to use of the deposition
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`testimony in Exhibit 2005 to support portions of Patent Owner’s Response,
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`including at pages 19, 21, 45, 52 and 53.
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`1 As a result of a reorganization involving original Petitioner JDS Uniphase
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`Corporation, the real parties-in-interest for Petitioner in this proceeding are now
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`Lumentum Holdings Inc., Lumentum Inc., and Lumentum Operations LLC. See
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`IPR2015-00739, Updated Mandatory Notice, Paper 10.
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`2 Exhibit 2005 was first submitted with Patent Owner’s Preliminary Response in
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`violation of 37 C.F.R. §107(c). Accordingly, the Board excluded that evidence
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`from consideration. (Paper 7 at 14-15 n. 5.)
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`1
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`Inter Partes Review No. 2015-00739
`Petitioner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
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`2.
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`Exhibit 2021 is objected to under FRE 401-403, 801-807, and 901 as
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`it lacks foundation and relevance, including because the only date on the document
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`is a purported copyright date of 2013.
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`3.
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`Exhibit 2025 is objected to under FRE 401-403, 901, and 1002 as it
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`lacks foundation and does not identify the date of the document. The Exhibit
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`appears to be an abstract of a presentation, yet excludes foundational information
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`regarding the purported presentation.
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`4.
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`Exhibits 2016 and 2020 are objected to under FRE 901 and 1002,
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`and 37 C.F.R. §42.54 because they are incomplete excerpts of documents. See 37
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`C.F.R. §42.54(b)(1) (“Unless previously served or otherwise by agreement of the
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`parties, any exhibit cited in a paper or in testimony must be served with the citing
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`paper or testimony.”); c.f. Apotex Inc. v. Wyeth LLC, IPR2014-00115, Paper 19 at
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`3 (May 29, 2014) (“[I]f deposition testimony is submitted as an exhibit, the parties
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`should file the full transcript of the deposition rather than excerpts of only those
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`portions being cited by the parties.”). In addition, the omitted portions may
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`contain inconsistent information under 37 C.F.R. §54(b)(1)(iii), and Petitioner
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`2
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`Inter Partes Review No. 2015-00739
`Petitioner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
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` must be afforded an opportunity to review the entire documents, not isolated
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`excerpts presented by Patent Owner.
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`
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`
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`Dated: December 8, 2015
`
`
`Faegre Baker Daniels
`2200 Wells Fargo Center
`90 S. Seventh Street
`Minneapolis, MN 55402
`Tel: (612) 766-7000
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`
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`By:
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`
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`Respectfully submitted,
`Faegre Baker Daniels LLP
`
`
` / Walter Linder/
`Walter C. Linder
`Reg. No. 31, 707
`Lead Counsel
`Telephone: 612-766-8801
`
`3
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`Inter Partes Review No. 2015-00739
`Petitioner’s Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1)
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`CERTIFICATE OF SERVICE
`
`I hereby certify that I caused a true and correct copy of the foregoing Petitioner’s
`Objections to Evidence Pursuant to 37 C.F.R. § 42.64(b)(1) to be electronically 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
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`Dated: December 8, 2015
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`Faegre Baker Daniels LLP
`2200 Wells Fargo Center
`90 South Seventh Street
`Minneapolis, MN 55402-3901
`Telephone: (612) 766-7000
`Facsimile: (612) 766-1600
`
`
`
`
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`4
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`FAEGRE BAKER DANIELS LLP
`
`
` /Walter Linder/
`By:
` Walter C. Linder
` Reg. No. 31,707
` Customer No. 25764
`
`Telephone: 612-766-8801
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