`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`THE MANGROVE PARTNERS MASTER FUND, LTD., APPLE INC., and
`BLACK SWAMP, LLC,
`Petitioners,
`
`v.
`
`VIRNETX INC.,
`Patent Owner
`____________________
`
`Case No. IPR2015-010471
`Patent No. 7,490,151
`____________________
`
`PETITIONERS’ OBJECTIONS TO EVIDENCE
`
`1 Apple Inc. and Black Swamp, LLC, who filed petitions in IPR2016-00063 and
`IPR2016-00167, respectively, have been joined as Petitioners in the instant
`proceeding.
`
`
`
`IPR2015-01047
`
`Petitioners’ Objections to Evidence
`
`Petitioners file and serve the following timely objections to evidence that
`
`Patent Owner served on March 21, 2016. See 37 C.F.R. § 42.64(b)(1).
`
`Exhibits 2040, 2041, and 2056 are objected to for lacking relevance. See
`
`Fed. R. Evid. (FRE) 401-403. For example, the portions of these exhibits cited by
`
`Patent Owner are irrelevant to whether Kiuchi discloses a claimed “[DNS] request”
`
`under any proposed construction. Exhibit 2041 is additionally irrelevant for
`
`containing testimony involving a different claim interpretation and different claim
`
`interpretation standard than the one at issue in this proceeding. See FRE 401-403.
`
`Exhibit 2042-2049, 2054, and 2055 are objected to for lacking relevance.
`
`See FRE 401-403. For example, these exhibits do not support Patent Owner’s
`
`characterizations and are irrelevant to Patent Owner’s arguments that rely on them.
`
`Exhibit 2050 is objected to for lacking relevance, foundation, personal
`
`knowledge, exceeding the scope of lay testimony, and for containing inadmissible
`
`hearsay. See FRE 801-807. For example, Exhibit 2050 contains attachments that
`
`Dr. Short does not authenticate, are not otherwise authenticated, and are not self-
`
`authenticating. See FRE 901-903. Exhibit 2050 also contains testimony that
`
`exceeds the proper scope of lay witness testimony because, for example, Dr. Short
`
`testifies as to scientific, technical, or other specialized knowledge. See FRE
`
`701(c). Exhibit 2050 also contains testimony on matters of which there is
`
`insufficient evidence to support that Dr. Short has personal knowledge. See FRE
`
`
`
`IPR2015-01047
`
`Petitioners’ Objections to Evidence
`
`602. As another example, Exhibit 2050 presents expert opinion but Patent Owner
`
`has not shown Dr. Short to be an expert. See FRE 702. Dr. Short’s declaration
`
`also does not present the bases for his opinions. See FRE 702(b); see also 37
`
`C.F.R. § 42.65(a).
`
`Exhibits 2050-2053 are objected to for lacking relevance. See FRE 401-
`
`403. For example, Patent Owner relies on these exhibits as evidence of secondary
`
`considerations of non-obviousness but failed to establish nexus to any allegedly
`
`novel element of the claims.
`
`Exhibit 2058 is objected to for lacking relevance. See FRE 401-403. In
`
`addition, this exhibit is objected to as including numerous e-mails that are neither
`
`cited to, nor relied upon in Patent Owner's response.
`
`Dated: March 28, 2016
`
`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`SIDLEY AUSTIN LLP
`Attorney for Petitioner Apple
`
`/Thomas H. Martin/
`Thomas H. Martin
`Reg. No. 34,383
`MARTIN & FERRARO, LLP
`Attorney for Petitioner Black Swamp
`
`/Abraham Kasdan/
`Abraham Kasdan
`Reg. No. 32, 997
`WIGGIN & DANA LLP
`
`James T. Bailey
`Reg. No. 44,518
`THE LAW OFFICE OF JAMES. T. BAILEY
`Attorneys for Petitioner Mangrove
`
`
`
`IPR2015-01047
`
`Petitioners’ Objections to Evidence
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 28th day of March, 2016, a copy of the foregoing
`
`has been served in its entirety by e-mail on the following counsel of record for
`
`patent owner:
`
`Joseph E. Palys
`josephpalys@paulhastings.com
`
`Naveen Modi
`naveenmodi@paulhastings.com
`
`Dated: March 28, 2016
`
`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
`Reg. No. 43,401
`SIDLEY AUSTIN LLP
`Attorney for Petitioner Apple
`
`/Thomas H. Martin/
`Thomas H. Martin
`Reg. No. 34,383
`MARTIN & FERRARO, LLP
`Attorney for Petitioner Black Swamp
`
`/Abraham Kasdan/
`Abraham Kasdan
`Reg. No. 32, 997
`WIGGIN & DANA LLP
`
`James T. Bailey
`Reg. No. 44,518
`THE LAW OFFICE OF JAMES. T. BAILEY
`Attorneys for Petitioner Mangrove
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