UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
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`LINDSAY CORPORATION
`Petitioner
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`v.
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`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
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`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
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`LINDSAY CORPORATION
`Petitioner
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`v.
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`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
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`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
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`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
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`I. INTRODUCTION
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`Case IPR2015-01039
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`Valmont Industries, Inc. (“Valmont”) requests that the Board exclude Exhibit
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`1019 (Design Patterns) and the identified paragraphs of Exhibit 1009 (Declaration
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`of Dr. Craig Rosenberg) and Exhibit 1018 (Reply Declaration of Dr. Craig
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`Rosenberg) (collectively, the “Challenged Evidence”) submitted by Lindsay
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`Corporation (“Lindsay”), for the reasons stated below. Valmont also respectfully
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`requests that the Board preclude Lindsay from using the Challenged Evidence at any
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`hearing or in any paper in this proceeding.
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`II.
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`STATEMENT OF MATERIAL FACTS
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`Valmont timely objected to Exhibit 1009, based on the grounds asserted
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`herein, in its Notice of Objections served on October 8, 2015. Lindsay relies on
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`Exhibit 1009 in its Petition, filed on April 10, 2015, and in its Reply, filed April 22,
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`2016. Valmont timely objected to Exhibits 1018 and 1019 in its Notice of Objections
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`to Petitioner’s Supplemental Evidence served on April 22, 2016. Lindsay relies on
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`Exhibits 1018 and 1019 in its Reply, filed on April 22, 2016.
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`III. LEGAL STANDARD
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`The admissibility of expert testimony in IPRs is governed by the Federal Rules
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`of Evidence. See 37 C.F.R. § 42.62 (“[T]he Federal Rules of Evidence shall apply
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`to [an IPR] proceeding.”). According to Rule 402, “[i]rrelevant evidence is not
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`admissible.” Evidence is only relevant if it has a “tendency to make a fact more or
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`less probable than it would be without the evidence” and “the fact is of consequence
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`in determining the action.” Fed. R. Evid. 401.
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`According to Rule 702, an expert witness must be “qualified as an expert by
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`knowledge, skill, experience, training, or education,” and the testimony must “help
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`the trier of fact to understand the evidence or to determine a fact in issue.” In addition,
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`Rule 702 requires that the expert’s testimony be “based on sufficient facts or data”
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`and “the product of reliable principles and methods”; and the expert must “reliably
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`appl[y] the principles and methods to the facts of the case.” Id. Finally, “[e]xpert
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`testimony that does not disclose the underlying facts or data on which the opinion is
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`based is entitled to little or no weight,” 37 C.F.R. § 42.65(a).
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`In Daubert, the Supreme Court held that scientific expert testimony is
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`admissible only if it is both relevant and reliable. See Daubert v. Merrell Dow
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`Pharms., Inc., 509 U.S. 579, 597 (1993); see also Kumho Tire Co. v. Carmichael,
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`526 U.S. 137, 141 (1999) (stating that in Daubert “this Court focused upon the
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`admissibility of scientific expert testimony. It pointed out that such testimony is
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`admissible only if it is both relevant and reliable.”). In Kumho, the Supreme Court
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`extended its holding in Daubert to apply “not only to testimony based on ‘scientific’
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`knowledge, but also to testimony based on ‘technical’ and ‘other specialized’
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`knowledge.” 526 U.S. at 141.
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`In determining whether an expert’s testimony is admissible, the Board must
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`determine whether: (1) the expert is qualified; (2) the expert’s testimony is relevant;
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`and (3) the expert’s testimony is based on sufficient facts or data and is reliable. If
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`any of these requirements is not met, the expert’s proposed evidence and opinions
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`should be excluded under Rule 702, Rule 402, 37 C.F.R. § 42.65(a), and the Supreme
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`Court’s holdings in Daubert and Kumho.
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`IV. ARGUMENTS
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`A. Numerous conclusory statements in Exhibits 1018 and 1009 should
`be excluded under FRE 702, 703, and 37 C.F.R. § 42.65(a).
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`Paragraphs 13-14, 43, and 46 in Exhibit 1009 and Paragraphs 3, 8, 12, 17-18,
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`26-27, and 29 in Exhibit 1019 should be excluded under at least FRE 702, 703, and
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`37 C.F.R. § 42.65(a), as they are conclusory and unsupported by additional evidence
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`as explained below. Expert testimony that “does little more than repeat, without
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`citation to additional evidence, the conclusory arguments of their respective counsel”
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`will be accorded little or no weight. Edmund Optics, Inc. v. Semrock, Inc., IPR2014-
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`00583 (Paper No. 50) (emphasis added).
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`1. Dr. Rosenberg fails to provide evidentiary support for his conclusory
`statements that a “handheld device” includes a “laptop.”
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`Dr. Rosenberg’s statements that a “handheld device” includes a “laptop”
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`merely parrot the conclusory arguments of Lindsay’s counsel. See e.g., Ex. 1009,
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`¶¶ 13, 14, 43, and 46; Ex. 1018, ¶ 3; Petition at 6; and Reply at 4. None of these
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`statements disclose the underlying facts or data on which the opinion is based and
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`thus, should be excluded. FRE 702, 703; 37 C.F.R. § 42.65(a); see also Infobionic,
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`Inc., IPR2015-01704, 2016 WL 1081571 (Feb. 16, 2016) (“We do not find the
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`testimony of Petitioner's expert to be persuasive or helpful as it repeats the
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`Petitioner's arguments and offers little or no elaboration as to how one of ordinary
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`skill in the art would understand the term ‘subset.’”).
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`For example, Dr. Rosenberg makes several presumptive statements that a
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`“laptop” is a “handheld device” without explaining the underlying basis for that
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`conclusion. See Ex. 1009, ¶¶ 13, 14; Ex. 1018, ¶ 3. In fact, Dr. Rosenberg
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`acknowledged in his deposition that the only documentary evidence he relied for his
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`conclusion was the Dictionary.com definition of “handheld” published more than a
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`decade after the filing date of the ‘357 application. See Cross-Examination of
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`Petitioner’s Reply witness, Craig Rosenberg, Ph.D. (Exhibit 2019), 15:12-25, 17:6-
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`18:1.
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`2. Dr. Rosenberg’s interpretation of numerous claim terms relate to legal
`issues for which Dr. Rosenberg is not an expert.
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`The statements in Paragraph 43 of Exhibit 1009 implicate Dr. Rosenberg’s
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`understanding of United States patent law and/or patent examination practice with
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`respect to a person of ordinary skill in the art (POSITA), a subject on which he is not
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`an expert. The paragraphs should thus be excluded under Rules 401 and 402 as
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`irrelevant, under Rule 602 as lacking foundation, and under Rules 701 and 702 as
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`providing legal opinions on which a lay witness is not competent to testify. Dr.
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`Rosenberg’s testimony on legal standards regarding U.S. patent law is not admissible
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`under 37 C.F.R. § 42.65(a). For example, Dr. Rosenberg states, “I agree that the
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`proposed constructions for those terms represent their broadest reasonable
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`interpretation in light of the ’357 Patent specification.” Ex. 1009, ¶ 43. With respect
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`to the “means plus function” elements of the claims, Dr. Rosenberg “agree[s] with
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`the identification of structure disclosed in the specification to perform the functions
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`that is set forth in the petition at pages 7-8.” Id.
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`3. Dr. Rosenberg’s conclusory statements regarding motivation to
`combine are inadmissible.
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`Valmont moves to exclude Dr. Rosenberg’s statements in Paragraphs 8 and 12
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`of Exhibit 1018 regarding motivation to combine because they are vague, conclusory,
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`and generally unhelpful in analyzing the prior art or why a person of ordinary skill
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`in the art would be motivated to combine the references, and improperly attempt to
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`re-characterize and expand on Linsday’s previously-filed insufficient evidence. See
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`Edmund Optics, Inc., IPR2014-00583, 2014 WL 4731775, at *6 (Sept. 19, 2014)
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`(according little or no weight to declarations that “provide[d] no sufficiently
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`meaningful … analysis that would constitute articulated reasoning with rational
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`underpinning for combining the cited references … as required by prevailing law”).
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`For example, Paragraph 8 contains multiple conclusory statements beginning
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`with “A fair reading of my [previous] testimony reveals….”, in which Dr. Rosenberg
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`merely attempts to improperly re-characterize and expand on Lindsay’s previously
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`insufficient evidence without properly moving to supplement evidence. Ex. 1018, ¶
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`8 (“A fair reading of my testimony reveals . . . .”). To the extent Dr. Rosenberg
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`actually said as much in his initial Declaration, there is simply no need to supplement
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`the record with the new statements in Paragraph 8. To the extent Dr. Rosenberg adds
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`new evidence, it is improper.
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`In Paragraph 12, Dr. Rosenberg “disagrees” with Dr. Mercer’s opinion that a
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`“POSITA would have no motivation to create such a handheld device,” stating that
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`such an opinion is “inconsistent with a tidal wave of design thought in which the end
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`goal is to achieve a smaller hardware package providing robust functionality of larger
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`hardware to enhance productivity so that users of technology can achieve more and
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`not be tethered to a desk, i.e. enhanced mobility and portability.” Id., ¶ 12. Dr.
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`Rosenberg provides no evidence, however, that a POSITA would be motivated to
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`create the handheld device in the ’357 patent and instead relies on his unsupported
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`conclusion that a “hand-held” device includes a “laptop”: “[t]his general desire and
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`goal is expressly stated in AIMS, a 1996 article, where a PC based software product
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`disclosing all the claimed functionality of the ’357 patent is sought to be improved
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`by putting it on a laptop and interfacing it with wireless communications.” Id.
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`4. Paragraphs 18 and 26 in Exhibit 1018 should be excluded as
`inadmissible under FRE 701, 702 and 703.
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`Dr. Rosenberg makes numerous observations in Paragraphs 18 and 26 of
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`Exhibit 1018 without laying a foundation for his opinion or otherwise demonstrating
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`a basis for his knowledge regarding a POSITA’s belief. Valmont thus moves to
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`exclude these statements under FRE 701, 702 and 703, as they are inadmissible for
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`not being based on sufficient facts or data, are not the product of reliable principles
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`and methods, and do not apply reliable principles and methods to the facts of the case.
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`In particular, in almost every statement in Paragraph 18, Dr. Rosenberg fails
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`to cite to any documentary evidence supporting his testimony. For instance, Dr.
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`Rosenberg fails to identify the basis of, or documentary evidence supporting, his
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`statements regarding: (a) why “26,000 total pixels is more than enough to display
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`GUI elements depicting valves, irrigation patterns, and animations” and “GUI
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`elements can easily be drawn with as few as about 1000 pixels”; (b) “animating these
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`GUI elements is as simple as cycling through one or more images or pixels to impart
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`motion”; and (c) “as few as 4 images or renderings could be used to show a sprinkler
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`head cycling through an irrigation pattern.” Ex. 1018, ¶ 18. He further conclusorily
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`states that “a person of ordinary skill in the art at the time of the ’357 patent
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`applications filing would know that he could achieve the above GUI elements with
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`one image or rendering” based on their “problem solving capabilities.” Id.; see also
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`Exhibit 2019, 30:23-31:3 (acknowledging “problem solving capabilities” were not
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`previously discussed). In fact, other than the citations Dr. Mercer identified in his
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`Declaration, Dr. Rosenberg provides no citations whatsoever in Paragraph 18. See
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`generally Ex. 1018, ¶ 18.
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`Paragraph 26 fairs no better. Dr. Rosenberg provides no citations to his
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`statements that: (a) “Scott distinguishes between the generation of a Site map’s
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`rendering and the use of a site map by a user”; (b) “[o]ne of ordinary skill in the art
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`would recognize that the memory and computing power for storing and displaying a
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`graphic and sending a control signal based upon user interaction—the latter steps of
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`Scott (after rendering)— is not a highly memory or computer intensive task”; and
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`(c) “at the time of the filing of the ’357 patent application, simple graphical icons
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`could easily occupy less than 1 kb of memory, leaving substantial free memory
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`available for other tasks.”
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`B. Numerous Paragraphs in Exhibits 1009 and 1018 should be
`excluded because they lack foundation and evidentiary support.
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`Valmont moves to exclude Paragraphs 13, 14, 20, 22, 28, 31, 34-36, 38, 40,
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`42, 56, 61, 65, and 70-75 of Exhibit 1009 and Paragraphs 17, 27, and 29 of Exhibit
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`1018 because they lack foundation under Rule 602, and are unsupported by sufficient
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`facts, data or reasoned explanation under Rules 701, 702, and 703 as explained below.
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`The Board accords little or no weight to expert testimony that “does little more than
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`repeat, without citation to additional evidence, the conclusory arguments of their
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`respective counsel.” Edmund Optics, Inc. v. Semrock, Inc., IPR2014-00583
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`(emphasis added). Because the Board may accord no weight to expert testimony, a
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`Motion to Exclude is proper.
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`For example, in Paragraph 13 of Exhibit 1009, Dr. Rosenberg fails to identify
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`the basis for, or additional evidence supporting, his statement that a handheld
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`computer includes a “smartphone, PDA, laptop, or tablet into a full featured digital
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`stethoscope.” Ex. 1009, ¶ 12. Similarly, in Paragraph 14, Dr. Rosenberg states,
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`without explanation, that “handheld devices include[e] laptops, PCs, smartphones,
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`and tablets.” Id., ¶ 14. In Paragraph 34, Dr. Rosenberg makes numerous
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`unsubstantiated statements concerning Internet programming standards such as
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`HTML and/or WAP protocols before he conclusorily states “the mobile terminal MT
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`is able to receive commands to control the field devices in response to selections or
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`inputs made by the mobile terminal user by means of the interactive WWW pages.”
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`Id., ¶ 34.
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`In Paragraphs 20 and 22, Dr. Rosenberg characterizes the ’357 patent, but fails
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`to cite to the patent or otherwise explain the basis for his statement. Id., ¶¶ 20-22. Dr.
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`Rosenberg makes similar unsupported characterizations concerning Abts in
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`Paragraph 28, Scott in Paragraphs 31, 35 and 36, AIMS Telemetry Network in
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`Paragraphs 38 and 65, Walker in Paragraphs 40 and 42, and Pyotsia, Scott, and AIMS
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`in Paragraph 61. Id., ¶¶ 28, 31, 35-36, 38, 40, 42, 61 and 65.
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`In Paragraph 70, Dr. Rosenberg fails to cite documentary evidence supporting
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`his testimony as to why “it is merely a matter of design choice to choose the wireless
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`radio band that is most suited to the environment in which the system will operate”
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`and how it would have been obvious to a POSITA “for the radio link in Scott to use
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`the spread spectrum and VHF/UHF radio communications disclosed in Abts.” Id., ¶
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`70. In Paragraph 71, Dr. Rosenberg fails to explain how it would have been obvious
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`to a POSITA “to combine the disclosure of Scott regarding GUIs that are shaped to
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`identify operating irrigation patterns for specific irrigation equipment with the
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`disclosure in AIMS regarding the GUIs showing the change in the status of the
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`irrigation equipment.” Id., ¶ 71. In Paragraph 72, Dr. Rosenberg fails to explain how
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`“it would have been obvious to a person skilled in the art, in response to a change in
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`status of the irrigation equipment, to combine the change in shape of the GUIs.” Id.,
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`¶ 72.
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`In Paragraph 56, Dr. Rosenberg fails to explain the basis for his statement that
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`“if it were determined that a laptop computer is not sufficiently compact to be
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`considered a hand-held display or hand-held remote user interface, in my opinion it
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`would have been obvious to one of ordinary skill at the time to combine Scott with
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`Pyotsia.” Id., ¶ 56.
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`In Paragraph 73, Dr. Rosenberg conclusorily states, “[f]or a fault notification
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`to work, it must have (1) a minimum and/or maximum limit and/or (2) a predefined
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`range of values that are utilized and compared against for the software to decide if it
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`needs to trigger a notification event.” Ex. 1009, ¶ 73. He further indicates without
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`citation that “even a single threshold level can be considered to be within a range,”
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`and “depending on how the system was designed and configured, there could easily
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`be a default ‘zero point’ or “reference point” that a second value can be compared to
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`in a range calculation.” Id.
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`In Paragraph 74, Dr. Rosenberg claims it was “well known” that “triggers are
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`invoked by comparing the current value of a variable with a range of acceptable
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`values, and/or upper or lower limits, for that variable,” but fails to identify any
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`documentary evidence to support as much. Id., ¶ 74. In Paragraph 75, Dr. Rosenberg
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`states only that his “evaluation of the ’357 Patent, along with its prosecution history
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`and related prior art discussed above, leads me to conclude that each of the claims
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`would have been anticipated or been obvious to one of skill in the art at the time of
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`filing of the ’357 Patent.” Id., ¶ 75.
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`In Paragraph 17 of Exhibit 1018, Dr. Rosenberg conclusorily states “the
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`various hardware limitations Dr. Mercer points to as part of his opinion are not
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`problems in the 2001/2002 timeframe to achieve the claimed limitations of the ’357
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`patent with anticipated success using commonly held knowledge possessed by those
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`of ordinary skill in the art.” Ex. 1018, ¶ 17. Dr. Rosenberg’s statements in Paragraph
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`27 concerning “rotation or pixel conversion” and what a person or ordinary skill in
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`the art would recognize regarding “the distinction between CAD rendering and
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`simple display,” and Paragraph 29 regarding cell phone capability and what a person
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`of ordinary skill in the art’s expectations of success, are similarly unsupported. Id.,
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`¶¶ 27, 29.
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`C. Numerous Paragraphs in Exhibit 1018 should be excluded under 37
`CFR § 42.123 because they present new arguments on the merits.
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`Valmont moves to exclude Paragraphs 3, 11-12, 18, 26-27, 29, and 32 in Exhibit
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`1018 as they present new arguments on the merits and constitute improperly filed and served
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`supplemental information. 37 C.F.R. § 42.123; see also Toshiba Corp., IPR2014-01447,
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`2016 WL 932016, at *22 (Mar. 9, 2016) (“our Rules expressly provide procedures
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`for introducing supplemental evidence or supplemental information into a
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`proceeding”). Valmont moves to exclude Paragraph 32 for the additional reason that
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`it impermissibly relies on Exhibit 1019, which lacks foundation under Rule 602.
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`Notably, by presenting new arguments and evidence in Paragraphs 3, 11-12, 18, 26-
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`27, 29, and 32, Lindsay acknowledges that its initial evidence was insufficient.
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`For example, in Paragraph 11, Dr. Rosenberg presents an entirely new theory
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`that there is a “division between preliminary set up (e.g., rendering of site maps) and
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`subsequent monitoring and control functionality.” Ex. 1018, ¶ 11; see also Exhibit
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`2019, 27:15-24 and 45:21-46:14 (admitting the distinction was not previously raised).
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`Dr. Rosenberg’s statements in (a) Paragraph 18 regarding the “rendering”
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`capabilities of a PDA, (b) Paragraph 26 regarding how “Scott distinguishes between
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`the generation of a Site map’s rendering and the use of a site map by a user,” and (c)
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`Paragraph 27 regarding how “[o]ne of ordinary skill in the art would recognize the
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`distinction between CAD rendering and simple display, and understand techniques
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`such as graphical manipulation such as rotation to save memory,” all hinge on Dr.
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`Rosenberg’s new “rendering/display” theory. Because these paragraphs constitute
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`improperly filed and served supplemental information, they should be excluded. See 37
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`C.F.R. § 42.123.
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`Moreover, in Paragraph 3, Dr. Rosenberg argues for the first time that “during
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`the 2001/2002 timeframe, [he] personally used laptops in a “hand-held” manner,”
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`and that between 1997 and 1998, while he was working for Boeing, he “and the other
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`Boeing engineers used the laptops in a hand-held manner.” Ex. 1018, ¶ 3. In
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`Paragraph 12, Dr. Rosenberg’s motivation to combine argument is based on his new
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`claim that “there has been a consistent desire and goal of shrinking hardware and
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`software,” and there was “a tidal wave of design thought in which the end goal is to
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`achieve a smaller hardware package providing robust functionality of larger
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`hardware to enhance productivity so that users of technology can achieve more and
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`not be tethered to a desk, i.e. enhanced mobility and portability.” Ex. 1018, ¶ 12; see
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`also Exhibit 2019, 28:13-30:1 (admitting that this position not previously raised).
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`In Paragraph 32, Dr. Rosenberg argues for the first time that “[o]ne of ordinary
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`skill in the art at the time of the invention knows that graphical representations of
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`what a user sees is not communicated to a controller to achieve commands of that
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`equipment.” Ex. 1018, ¶ 32. He further states that “a fundamental tenet of GUI design,
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`the representation of data—what the user sees in a GUI—is decoupled from the data
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`and underlying control so that simpler data constructs and commands can be
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`manipulated and communicated to achieve the desired command.” To make this
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`argument, Dr. Rosenberg relies impermissibly on Exhibit 1019, which is
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`inadmissible for the reasons discussed below. Id.
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`Indeed, Dr. Rosenberg’s entire reply declaration should be disregarded. “Once
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`the Board identifies new issues presented for the first time in reply, . . . the Board
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`[need not] parse the reply brief to determine which, if any, parts of that brief are
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`responsive and which are improper.” Intelligent Bio-Systems, Inc. v. Illumina
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`Cambridge Ltd., No. 2015-1693, --- F.3d ---, 2016 WL 2620512, at *8 (Fed. Cir.
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`May 9, 2016). Petitioner has identified new issues raised in Dr. Rosenberg’s reply
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`declaration. Therefore, the Board need not determine which portions are new. Id.
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`D. Exhibit 1019 (Design Patterns) should be excluded for numerous
`reasons.
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`Valmont moves to exclude Exhibit 1019 as it is improperly filed and served
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`supplemental information (37 C.F.R. § 42.123), has not been properly authenticated (FRE
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`901), lacks foundation (FRE 602), constitutes inadmissible hearsay (FRE 801, 802),
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`and the probative value of the information in it is substantially outweighed by a
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`danger of unfair prejudice (FRE 403). See Toshiba Corp., IPR2014-01447, 2016
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`WL 932016, at *22.
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`E. Numerous unreferenced paragraphs in Exhibit 1009 should be ex-
`cluded as irrelevant
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`Paragraphs 15-29, 63, 64, and 75 of Exhibit 1009 are irrelevant under Rule
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`401 as they are not referred to in Lindsay’s Petition and therefore inadmissible under
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`Rule 702, as they do not help the Board to understand the evidence or to determine a
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`fact in issue. Furthermore, incorporation by reference of these paragraphs would be
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`prohibited under 37 C.F.R. § 42.6(a)(3). Accordingly, these paragraphs should be
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`excluded as inadmissible under FRE 402 and 37 C.F.R. § 42.6(a)(3).
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`IV. CONCLUSION
` For the stated reasons, Valmont asks that the evidence discussed above be excluded.
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`
` /P. Weston Musselman, Jr./
`P. Weston Musselman, Jr.
`Reg. No. 31,644
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`Respectfully submitted,
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`
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`Date: May 16, 2016
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`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (612) 337-2508
`Facsimile: (612) 288-9696
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`CERTIFICATE OF SERVICE
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`Case IPR2015-01039
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`Pursuant to 37 CFR § 42.6(e)(4), the undersigned certifies that on May 16,
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`2016, a complete and entire copy of this PATENT OWNER’S MOTION TO
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`EXCLUDE EVIDENCE was provided via email to the Petitioner by serving the
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`correspondence email address of record as follows:
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`HOVEY WILLIAMS LLP
`
`Scott R. Brown, Reg. No. 40,535
`Matthew B. Walters, Reg. No. 65,343
`10801 Mastin Blvd., Suite 1000
`Overland Park, Kansas 66210
`P: (913) 647-9050; F: (913) 647-9057
`srb@hoveywilliams.com
`mbw@hoveywilliams.com
`ATTORNEYS FOR PETITIONER
`
`
`
`
`
`
`
`
` /Christine Rogers/
`Christine Rogers
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(650) 839-5092
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