UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_________________________
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`LINDSAY CORPORATION
`Petitioner
`
`v.
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`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
`
`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
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`PATENT OWNER’S NOTICE OF OBJECTIONS TO PETITIONER’S
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`SUPPLEMENTAL EVIDENCE SERVED OCTOBER 23, 2015
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`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________________
`
`LINDSAY CORPORATION
`Petitioner
`
`v.
`
`VALMONT INDUSTRIES, INC.
`Patent Owner
`_______________________
`
`Case No. IPR2015-01039
`U.S. Patent No. 7,003,357
`
`
`PATENT OWNER’S NOTICE OF OBJECTIONS TO PETITIONER’S
`
`SUPPLEMENTAL EVIDENCE SERVED OCTOBER 23, 2015
`
`
`
`
`
`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
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`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 Exhibit 1009A submitted by
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`Petitioner October 23, 2015, Lindsay Corporation (“Lindsay”) in connection with
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`IPR2015-01039, within five business days of service of Lindsay’s supplemental
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`evidence. The bases for the objections are as follows.
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`Patent Owner objects to Exhibit 1009A (Supplemental Declaration of Craig
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`Rosenberg, “Supplemental Declaration”) in its entirety because the Supplemental
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`Declaration presents new arguments on the merits, rather than addressing the
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`admissibility objections to the originally filed declaration, and Petitioner has not
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`obtained leave to submit supplemental information pursuant to 37 CFR § 42.123.
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`As such, the Supplemental Declaration is improper and should be excluded in its
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`entirety by the Board.
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`The Board has emphasized the distinction between supplemental evidence
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`under 37 C.F.R. § 42.64 that “relates to the admissibility of evidence,” and
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`supplemental information under 37 C.F.R. § 42.123 that “relates to the sufficiency
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`(or weight) of the evidence.” See e.g., Valeo North America, Inc., v. Magna
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`Electronics, Inc., IPR2014-01208, Paper 15: Order on Conduct of the Proceeding
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`Dated January 29, 2015. The Board explained that supplemental evidence is
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`“served in response to an evidentiary objection and filed in response to a motion to
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`2
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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`exclude—is offered solely to support admissibility of the originally filed evidence
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`and to defeat a motion to exclude that evidence, and not to support any argument
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`on the merits (i.e., regarding the patentability or unpatentability of a claim).”
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`Supplemental information, however, “is evidence a party intends to support an
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`argument on the merits.” Supplemental information may only be filed if a motion
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`under Section 123 is authorized and granted. See id.
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`Specifically, Patent Owner objects to all information in Exhibit 1009A that
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`was not originally present in Exhibit 1009, including added matter to paragraphs
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`18, 20-22, 28, 29, 31, 34-36, 38, 40, 42, 46, 52, 56, 58, 61, 65, 70, and 71-74 of
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`Exhibit 1009A because they include new information purportedly to support Craig
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`Rosenberg’s originally filed arguments regarding the unpatentability of the claims.
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`Under the pretense of filing supplemental evidence, Petitioner attempts to rewrite
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`and add arguments that are untimely filed.
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`By way of example only, the following statements, newly added to the
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`Rosenberg declaration, constitute improper supplemental information:
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`(paragraph 46) In addition, in my experience as a human factors engineer,
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`“hand held” means quite simply, “able to be held in the hand or hands” and a
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`“hand held display” is “a display that is able to be held in the hand or hands”. I
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`believe that the definition that is provided by www.dictionary.com is consistent
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`with the definition of handheld as understood by those of skill in the art. In
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`3
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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`addition, I have no reason to believe that the definition of handheld has changed
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`from the timeframe associated with the ‘357 patent (2001 – 2002) to present day.
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`(paragraph 70) It is important to note that different radio bands have
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`different advantages and disadvantages and engineers would choose the frequency
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`and carrier that would result in the most optimal solution given the environmental
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`characteristics that they system will be deployed in as well as other factors (size,
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`weight, power, expense, etc.) So one of skill in the art could easily choose the
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`band and frequency that would be best suited for the operating environment.
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`(paragraph 71) In addition, there was significant motivation to combine
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`Scott and AIMS as both of these inventions were in the field of user interface
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`design and specifically, the design and implementation of graphical user interfaces.
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`To use an old adage, “a picture is worth a 1000 words” and presenting this
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`information to the user in a pictorial format by changing the shape of one or more
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`images to convey the status of the system to the user provides great utility to that
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`user by quickly conveying system status information in a very easy to understand
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`format.
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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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`4
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`Case IPR2015-01039
`Attorney Docket No: 25199-0016IP1
`Respectfully submitted,
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`
` /P. Weston Musselman, Jr./
`P. Weston Musselman, Jr.
`Reg. No. 31,644
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`5
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`
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`Date: October 29, 2015
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`
`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 PATENT OWNER’S NOTICE OF
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`OBJECTIONS TO PETIONER’S SUPPLEMENTAL EVIDENCE SERVED
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`OCTOBER 23, 2015, and any exhibits identified therein, was filed and served on
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`October 29, 2015 by electronic mail, as agreed to by the parties, upon the
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`following:
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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
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`
`
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`
`
`
`
`
` /Christine Rogers/
`Christine Rogers
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(650) 839-5092
`
`
`6
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