UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
`
`LINDSAY CORPORATION
`Petitioner
`
`v.
`
`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
`
`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
`
`
`PATENT OWNER VALMONT INDUSTRIES, INC.’S NOTICE OF
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`OBJECTIONS TO PETITIONER’S EVIDENCE
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`
`
`

`
`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Valmont Industries, Inc.
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`
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`(“Valmont”) hereby submits its notice of objections to Exhibits 1009-1012
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`submitted by Petitioner, Lindsay Corporation (“Lindsay”) in connection with
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`IPR2015-01039, within ten business days following institution of the trial. The
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`bases for the objections are as follows:
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`The Petition and Rosenberg Declaration
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`
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`Patent Owner objects to all statements in the Petition and the Rosenberg
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`Declaration (Exhibit 1009) referring to information or testimony from any of the
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`Exhibits objected to below, for the reasons set forth below with respect to that
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`Exhibit.
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`
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`Exhibit 1009
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`Patent Owner objects to Exhibit 1009 (Declaration of Craig Rosenberg) on
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`several grounds:
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`Mr. Rosenberg fails to disclose sufficient underlying facts or data or cite
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`proper documentary evidence, that experts in the field would reasonably rely on,
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`supporting his conclusory statement that a “hand-held” device includes a laptop.
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`See, e.g., Rosenberg Declaration, ¶¶ 13, 14, 43, and 46. FRE 702, 703 and 37
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`C.F.R. Section 42.65(a).
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`2
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`

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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`Patent Owner objects to numerous statements made by Mr. Rosenberg about
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`the beliefs and understandings of a person of ordinary skill in the art (POSITA)—
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`without laying a foundation or otherwise demonstrating personal knowledge. See,
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`e.g., Rosenberg Declaration, ¶¶ 56, 61, 65, and 70-75. FRE 602, 707, 703. Patent
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`Owner objects to these statements in that they are lacking in foundation and
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`unsupported by sufficient facts, documents or data. The resulting conclusory
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`statements are unsupported by documentary evidence and unhelpful in assisting the
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`Board to understand the evidence or determine a fact at issue. FRE 602, 702, 703
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`Patent Owner objects to paragraphs 15-29, 63, 64, and 75 of Exhibit 1009
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`because Petitioner does not refer to those paragraphs in the Petition.
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`Patent Owner reserves its right to further challenge Mr. Rosenberg’s
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`testimony based on information obtained through a deposition of Mr. Rosenberg.
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`The following chart lists supplemental objections to specific paragraphs in
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`Exhibit 1009 and the corresponding grounds for the objections.
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`Paragraph 13
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`Objections to Paragraphs in Exhibit 1009
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`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s conclusory statements
`that “a handheld computer such as a smartphone, PDA,
`laptop, or tablet” (emphasis added). FRE 702, 703 and 37
`C.F.R. Section 42.65(a). The expert’s testimony will not help
`the Board understand the evidence or to determine a fact in
`issue. FRE 702(a).
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`
`3
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`

`
`Paragraph 14
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`Paragraphs 20
`and 22
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`Paragraph 28
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`Paragraph 31
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`Paragraph 34
`
`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s conclusory statements
`that “a variety of handheld devices including laptops, PCs,
`smartphones, and tablets” (emphasis added). FRE 702, 703
`and 37 C.F.R. Section 42.65(a). The expert’s testimony will
`not help the Board understand the evidence or to determine a
`fact in issue. FRE 702(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about the ‘367
`Patent. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements that “data and
`alarms from irrigation devices can be delivered to a remote
`computer through radio transmission or to pagers through
`paging telemetry” and why “having a paging system at each
`pivot to receive command signals from a remote phone to
`control activities at the pivot was also known at the time of the
`invention.” FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about the
`Scott reference. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about the
`Pyotsia patent. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
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`Paragraphs 35
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`Lack of foundation and failure to cite documentary evidence
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`4
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`

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`and 36
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`Paragraph 38
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`Paragraphs 40
`and 42
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`Paragraph 43
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`Paragraph 46
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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about the Abts
`patent. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Last sentence. Lack of foundation and failure to cite
`documentary evidence supporting expert testimony, that
`experts in the field would reasonably rely on, as to the expert’s
`statements about the AIMS article. FRE 702, 703 and 37
`C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about the
`Walker reference. FRE 702, 703 and 37 C.F.R. Section
`42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to why the expert agrees with
`Petitioner’s proposed claim constructions and identification of
`structure disclosed for performing the claimed functions of the
`“means plus function” elements of the claims. FRE 702, 703
`and 37 C.F.R. Section 42.65(a). The expert’s testimony will
`not help the Board understand the evidence or to determine a
`fact in issue. FRE 702(a).
`
`The expert’s scientific, technical, or other specialized
`knowledge does not help the Board to understand the evidence
`or to determine a fact in issue and the expert’s testimony that
`“a laptop computer is a type of handheld display that is ‘small
`enough to be used or operated while being held in the hand or
`hands,’ as defined by Dictonary.com. Given all of the above, a
`laptop is a ‘hand-held display’ is based on improper facts or
`data, that experts in the field would reasonably rely on, and is
`not a product of reliable principles and methods.
`FRE 702(a)-(c), 703 and 37 C.F.R. Section 42.65.
`
`
`5
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`

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`Paragraph 56
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`Paragraph 61
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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the statement that “in my opinion it
`would have been obvious to one of ordinary skill at the time to
`combine Scott with Pyotsia.” FRE 702, 703 and 37 C.F.R.
`Section 42.65(a). Without any bases, the statement merely
`constitutes conclusory attorney-style argument, not helpful to
`the Board.
`
`Third sentence.
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`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the statement that “It
`would have been obvious to a person skilled in the art at the
`time to combine the system described in Scott with the mobile
`phone or mobile terminal of Pyotsia in order to have a more
`compact hand-held mobile device/terminal to monitor and
`control irrigation equipment, such that the user could display
`data received from the irrigation equipment as a plurality of
`GUIs, receive user’s commands to control the irrigation
`equipment through the user’s manipulation of GUIs, and
`transmit signals to the irrigation equipment to control the
`irrigation equipment in accordance with the users commands”
`(emphasis added). The long list of purported motivations to
`combine are unsupported by documentary evidence, that
`experts in the field would reasonably rely on, but merely
`constituting conclusory attorney-style arguments, not helpful
`to the Board. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Fifth sentence.
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to how “one of ordinary skill in the art
`could easily employ the monitoring and controlling system of
`Scott, which is employed on a laptop, on a mobile
`phone or PDA disclosed by Pyotsia to provide enhanced
`portability and mobility.” Without any bases, these statements
`merely constitute conclusory attorney-style arguments, not
`helpful to the Board. FRE 702, 703 and 37 C.F.R. Section
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`6
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`

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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
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`42.65(a).
`
`Second last sentence - Improper expert testimony (37 C.F.R.
`Section 42.65(a)).
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the statement that “one of ordinary
`skill would have been motivated to make the combination to
`provide GUI control of irrigation systems of Scott with
`wireless hand-held control of Pyotsia as claimed in the
`independent claims” (emphasis added). Such a statement
`relies on impermissible hindsight and merely constitutes
`conclusory attorney-style arguments, not helpful to the Board.
`FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to why one of ordinary skill in the art
`when the ’357 Patent’s application was filed would have been
`motivated to select or combine the teachings of the AIMS
`reference with Scott and Pyotsia. FRE 702, 703 and 37 C.F.R.
`Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to why “[choosing] the wireless radio
`band that is most suited to the environment in which the
`system will operate” “is merely a matter of design choice” and
`why “it would have been obvious for the radio link in Scott to
`use the spread spectrum and VHF/UHF radio
`communications.” Without any bases, these statements merely
`constitute conclusory attorney-style arguments, not helpful to
`the Board. FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to why a motivation to combine Scott
`and AIMS and why the motivation existed merely because
`“both of these references relate to the monitoring and
`controlling of irrigation equipment.” Without any bases, these
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`7
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`Paragraph 65
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`Paragraph 70
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`Paragraph 71
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`

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`Paragraph 72
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`Paragraph 73
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`Paragraph 74
`
`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`statements merely constitute conclusory attorney-style
`arguments, not helpful to the Board. FRE 702, 703 and 37
`C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to why it would have been obvious to a
`person skilled in the art to combine the change in shape of the
`GUIs, as in Scott, with the change in visual appearance of the
`graphic icons on the hand-held display, as in Abts and why
`“the shape of said plurality of GUIs change in response to a
`change in the status of the irrigation equipment,” as in claim
`11, would have been obvious over Scott in view of
`Abts. Without any bases, these statements merely constitute
`conclusory attorney-style arguments, not helpful to the Board.
`FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the expert’s statements about “fault
`notification” and how “the software could easily be designed
`and implemented such that there would only have to be a
`single comparison against a single reference value, but
`implicitly, the test or calculation for an alarm condition within
`the software would be implicitly expressing whether that value
`falls within a specified range” (emphasis added). FRE 702,
`703 and 37 C.F.R. Section 42.65(a).
`
`Lack of foundation and failure to cite documentary evidence
`supporting expert testimony, that experts in the field would
`reasonably rely on, as to the statement that “it was well known
`at the time of the subject patent that triggers are invoked by
`comparing the current value of a variable with a range of
`acceptable values, and/or upper or lower limits, for that
`variable.” The resulting conclusion that “it would have been
`obvious that determination by a software program, or
`programmable control apparatus, of whether a watering station
`is faulty could be based on determining whether one or more
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`8
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`

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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`variables that represent a monitored operational status
`parameter fall within a previously defined operational status
`range, as described in claim 15” is without any bases, these
`statements merely constitute conclusory attorney-style
`arguments, not helpful to the Board.
`FRE 702, 703 and 37 C.F.R. Section 42.65(a).
`
`
`
`Exhibits 1010
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`
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`Patent Owner objects to Exhibit 1010 as it has not been authenticated (FRE
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`901 and 902) and it has no evidentiary value. Exhibit 1010 is the online definition
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`of “handheld” from Dictionary.com retrieved in 2015, more than a decade after the
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`relevant date.
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`Exhibit 1011
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`Patent Owner objects to Exhibit 1011 as it has not been authenticated. (FRE
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`901 and 902). Patent Owner objects to the copyright notice and any other dates in
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`the document as inadmissible hearsay (FRE 801 and 802)
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`Exhibit 1012
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`
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`Patent Owner objects to Exhibit 1012 as it has not been authenticated (FRE
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`901 and 902), and Petitioner has not established its date of alleged publication or
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`its public availability as of a specific date. Thus, Patent Owner objects to the
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`admissibility of Exhibit 1012 as Petitioner has not established that Exhibit 1012 is
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`prior art as a printed publication under 35 USC Section 102. Patent Owner objects
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`9
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`

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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`to the reference to “Volume 5, Issue 1”, “Spring” and “1996” and any other dates
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`in the document as inadmissible hearsay (FRE 801 and 802)
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`
`
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`
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`Respectfully submitted,
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`
` /P. Weston Musselman, Jr./
`P. Weston Musselman, Jr.
`Reg. No. 31,644
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`
`
`10
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` 
`
`
`
`Date: October 7, 2015
`
`
`Customer Number 26171
`Fish & Richardson P.C.
`Telephone: (612) 337-2508
`Facsimile: (612) 288-9696
`
`

`
`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`
`
`
`CERTIFICATE OF SERVICE
`
`
`I certify that pursuant to 37 C.F.R. § 42.6(e)(4) and 42.205(b), a complete
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`and entire copy of the foregoing VALMONT INDUSTRIES, INC.’S NOTICE OF
`
`OBJECTIONS TO PETITIONER’S EVIDENCE and any exhibits identified
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`therein were filed and served on October 8, 2015 by electronic mail, as agreed to
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`by the parties, upon the following:
`
`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
`
`
`11