`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`WHATSAPP INC. and FACEBOOK, INC.
`
`Petitioner
`
`v.
`
`TRIPLAY, INC.
`
`Patent Owner
`
`IPR2015‐00740
`
`____________
`
`Patent 8,332,475 B2
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
` SUBMITTED IN THE PETITION
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), TriPlay, Inc. (“Patent Owner”) hereby
`
`objects to Exhibit 1002 “Declaration of David Klausner” (“the Klausner
`
`Declaration”) submitted on behalf of WhatsApp Inc. and Facebook, Inc.
`
`(collectively, “Petitioner”) in their Petition filed on February 14, 2015 (Paper _).
`
`The Patent Owner objects to the Klausner Declaration under Federal Rule of
`
`Evidence 702 because there is nothing in the record establishing that Mr. Klausner
`
`is qualified to opine as to the knowledge of a person of ordinary skill in the art at
`
`the time of the ‘475 patent.
`
`Federal Rule of Evidence 702 applies to this proceeding and thus the Board
`
`is tasked with the “gate keeping” function of insuring that expert evidence
`
`admitted is helpful to the fact finder. Daubert v. Merrell Dow Pharmaceuticals,
`
`Inc., 509 U.S. 579, 597 (1993). In patent proceedings, validity and infringement
`
`issues are analyzed from the perspective of a person of ordinary skill in the art and
`
`thus an expert opinion from a person who does not qualify as a person of ordinary
`
`skill in the art is not helpful and is routinely excluded. See, e.g., Sundance, Inc. v.
`
`Demonte Fabrication, 550 F.3d 1356, 1360 (Fed. Cir. 2009); Precision
`
`Fabrications Group, Inc. v. Tietex Int’l, Ltd., No. 1:13-cv-645, 2015 WL 224942,
`
`at *4 (M.D.N.C. Jan. 15, 2015); Morpho Detection, Inc. v. Smiths Detection, Inc.,
`
`No. 2:11-cv-498, 2012 WL 6004085, at *2 (E.D. Va. Nov. 30, 2012); Hypertherm,
`
`
`
`2
`
`
`
`Inc. v. Am. Tourch Tip Co., No. 05-cv-373-JD, 2009 WL 530064, at *4 (D.N.H.
`
`Feb. 27, 2009).
`
`Mr. Klausner offers several opinions from the perspective of a person of
`
`ordinary skill in the art. For example, at paragraph 107, Mr. Klausner opines that:
`
`[i]t would have been obvious to one ordinary skill in the art to adapt the
`teachings of Druyan and Tittel to Coulombe, with no change in their
`respective functions, predictably resulting in the messaging system of
`Coulombe in which messages received by the SIP Proxy/Registrar 12
`included HTML messages that include a style sheet file (“template”)
`identified by its URL (“unique identifier”).
`
`But the above opinion as well as Mr. Klausner’s other opinions from the
`
`perspective of a person of ordinary skill in the art are not helpful to the trier of fact
`
`because there is nothing in the record establishing that Mr. Klausner is qualified to
`
`opine as to the knowledge of a person or ordinary skill in the art at the time of the
`
`‘475 patent (or, at present, for that matter).
`
`Here, the ‘475 patent relates to the “field of electronic messaging, and, in
`
`particular, to cross-platform messaging” (‘475 patent, col. 1:5-6) and the
`
`Coulumbe reference relied upon by Mr. Klausner as his primary reference relates
`
`to “interoperability between terminal devices using session initiation protocol (SIP)
`
`messages” (Coulumbe, ¶ 1). But Mr. Klausner is not qualified to opine as to the
`
`knowledge of a person of ordinary skill in the art in messaging systems of the type
`
`described in the ‘475 patent or in Coulumbe. His resume details extensive
`
`expertise in a number of hardware and software projects, but there is not a single
`
`
`
`3
`
`
`
`reference to Mr. Klausner having developed and implemented a messaging system.
`
`(WhatsApp Inc.’s Exhibit 1002, pg. 098-102). Indeed, the only “experience”
`
`regarding the technology at issue set forth in the Klausner Declaration is that
`
`“[s]pecific computer-related technologies that [Mr. Klausner] worked with
`
`include . . . web technologies (such as . . . messaging . . . .”) (Id., ¶ 2, pg. 1). That
`
`does not qualify Mr. Klausner to opine as to the knowledge of a person of ordinary
`
`skill in the art.
`
`At a minimum, as a person of ordinary skill in the art would have had at
`
`least two years of experience designing and implementing messaging systems
`
`between user devices. There is nothing in the record establishing that Mr.
`
`Klausner meets that minimum qualification, and Patent Owner lodges its objection
`
`to the Klausner Declaration on that basis.
`
`Respectfully submitted,
`
`
`/Barry J. Schindler/
`By
`Barry J. Schindler (Reg. No. 32,938)
`Greenberg Traurig, LLP
`200 Park Avenue
`P.O. Box 677
`Florham Park, NJ 07932
`Telephone: 973-360-7900
`Facsimile: 973-301-8410
`SchindlerB@gtlaw.com
`njdocket@gtlaw.com
`
`
`
` /Jeremy J. Monaldo/
`Jeremy J. Monaldo (Reg. No. 58,680)
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: September 4, 2015
`
`
`
`
`
`
`
`4
`
`
`
`Fish & Richardson P.C.
`1425 K Street, NW
`11th Floor
`Washington, DC 20005
`Telephone: 202-783-5070
`Facsimile: 202-783-2331
`monaldo@fr.com
`
`Counsel for Patent Owner TriPlay Inc.
`
`
`
`5
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
