UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01124
`Patent 8,404,203
`__________________________________________________________________
`
`OBJECTIONS TO PATENT OWNER’S EVIDENCE CITED
`IN ITS FORMAL RESPONSE
`__________________________________________________________________
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01124
`Patent 8,404,203
`__________________________________________________________________
`
`OBJECTIONS TO PATENT OWNER’S EVIDENCE CITED
`IN ITS FORMAL RESPONSE
`__________________________________________________________________
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Umicore AG & Co. KG
`
`(“Umicore” or “Petitioner”) hereby objects to the exhibits cited and relied upon in
`
`Patent Owner’s February 12, 2016 response and the associated Declaration of Dr.
`
`Michael Tsapatsis on the following grounds. For each objected to exhibit, the
`
`pertinent Federal Rule of Evidence (“FRE”) or other rule that gives rise to the
`
`objection is provided, along with a brief summary of the basis of the objection.
`
`I.
`
`Exhibits 2018 to 2035
`
`1.
`
`Ex. 2018 – Declaration of Dr. Michael Tsapatsis. Petitioner objects
`
`to the following paragraphs of Ex. 2018:
`
`Paragraph
`
`Objection
`
`¶ 28
`
`FRE 402. This paragraph is irrelevant. The paragraph
`
`discusses purported research activities of BASF. The
`
`record is entirely bereft of any foundational evidence,
`
`including who conducted the referenced work, whether
`
`that person or persons had ordinary skill in the art, and
`
`the purpose of the work, among other things. Further,
`
`even if supported by adequate foundational evidence, the
`
`purported activities of BASF are irrelevant to claim scope
`
`and the express disclosure of the prior art references at
`
`issue.
`
`-1-
`
`
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data.
`
`FRE 802. This paragraph improperly cites the out of
`
`court statements of Dr. Moini in Ex. 2003 to establish the
`
`truth of the matter asserted.
`
`¶ 47-49
`
`FRE 402. The paragraphs reference published papers
`
`purportedly discussing catalytic materials of BASF. The
`
`record is entirely bereft of necessary foundational
`
`evidence, including the purported characteristics of the
`
`material being tested, who conducted the referenced
`
`work, whether that person or persons had ordinary skill in
`
`the art, and the purpose of the work, among other things.
`
`Even if true, the purported activities of BASF are
`
`irrelevant to claim scope and the express disclosure of the
`
`prior art references at issue.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are not based on the witness’s own personal
`
`-2-
`
`
`
`knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`are not the result of the application of accepted and
`
`reliable principles and methods to the facts of the case.
`
`FRE 802. This paragraph improperly cites out of court
`
`statements in Exs. 2002, 2004, and 2010 to establish the
`
`truth of the matter asserted.
`
`¶¶ 54-55
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`are not the result of the application of reliable scientific
`
`principles and methods.
`
`¶ 61
`
`FRE 402. This paragraph cites a paper published in
`
`2015, and thus is irrelevant for purposes of establishing
`
`the state of the art and the beliefs of those of ordinary
`
`skill as of the ’662 and ’203 patent’s effective filing
`
`dates.
`
`-3-
`
`
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data.
`
`¶¶ 62-63
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraph are not based on sufficient facts or data, and
`
`are not the result of the application of reliable scientific
`
`principles and methods.
`
`¶¶ 64-71
`
`FRE 602.
`
`The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 802. These paragraphs improperly cite out of court
`
`statements in Ex. 2002, 2012, 2022, and 2024 to establish
`
`the truth of the matter asserted.
`
`¶¶ 73-75
`
`FRE 602.
`
`The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 802. These paragraphs improperly cite out of court
`
`statements in Ex. 2021, 2022, 2023, and 2032 to establish
`
`-4-
`
`
`
`the truth of the matter asserted.
`
`¶ 79
`
`FRE 402. The citations to and discussions of the Zones
`
`declaration in this paragraph are irrelevant.
`
`Characterizations of the Zones patent by a named
`
`inventor are not relevant to one of ordinary skill in the
`
`art’s understanding of the reference’s teachings.
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data, and
`
`are not the result of the application of reliable scientific
`
`principles and methods.
`
`FRE 802. This paragraph improperly cites the out of
`
`court statements of Zones in Ex. 2009 to establish the
`
`truth of the matter asserted.
`
`¶¶ 147-150, 155-159,
`
`FRE 602.
`
`The statements and opinions in these
`
`167
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`-5-
`
`
`
`paragraphs are not the result of the application of reliable
`
`scientific principles and methods.
`
`¶ 168
`
`This paragraph is objectionable under FRE 402, 602,
`
`702, and 802 for
`
`the reasons discussed below in
`
`connection with ¶¶ 169, 170, 171, and 174-177.
`
`¶ 169
`
`FRE 402. This paragraph is irrelevant. The purported
`
`secondary considerations are not commensurate in scope
`
`with the ’662 and ’203 patents’ claimed subject matter.
`
`Among other things, the purported skepticism,
`
`unexpected results, and praise relate, at best, to a small
`
`class of materials and not the range of the claimed subject
`
`matter. Further, the cited statements relate exclusively to
`
`commercially acceptable material, and not the materials
`
`as claimed. Further, the record is entirely bereft of
`
`necessary foundational evidence, including evidence
`
`correlating the various materials discussed in these
`
`papers with the claimed subject matter.
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`-6-
`
`
`
`FRE 802. This paragraph improperly cites the out of
`
`court statements in Exs. 2012, 2021, and 2026 to
`
`establish the truth of the matter asserted.
`
`¶ 170
`
`FRE 402. This paragraph is irrelevant. The record is
`
`entirely bereft of necessary foundational evidence,
`
`including, for instance, any specific details regarding the
`
`subject matter and actual participants in the purported
`
`discussions with the unnamed researcher and the
`
`Department of Energy. Further, even if there were
`
`adequate and admissible foundational evidence, the
`
`purported secondary considerations to which the cited
`
`statements relate are not commensurate in scope with the
`
`’662 and ’203 patent’s claimed subject matter. Among
`
`other things, the purported skepticism relates, at best, to a
`
`small class of materials and is limited to products for
`
`commercial use and not the full range of claimed subject
`
`matter.
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`-7-
`
`
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data.
`
`FRE 802. This paragraph improperly cites the out of
`
`court statements of Dr. Roth, an unnamed researcher, and
`
`the Department of Energy in Ex. 2001 to establish the
`
`truth of the matter asserted.
`
`¶ 171
`
`This paragraph is objectionable under FRE 402, 602,
`
`702, and 802 for
`
`the reasons discussed below in
`
`connection with ¶¶ 172, 174-177.
`
`¶ 172
`
`FRE 402. This paragraph is irrelevant. While the
`
`paragraph discusses a 2015 paper which has no bearing
`
`on the knowledge of one of ordinary skill in the art as of
`
`the effective filing date of the ’662 and ’203 patents.
`
`¶ 174
`
`FRE 402. This paragraph is irrelevant. While the
`
`paragraph purport to discuss the testing of various prior
`
`art materials, this testing has no bearing on understanding
`
`of one of ordinary skill in the art would have upon
`
`reading those references. Further, the record is entirely
`
`bereft of necessary foundational evidence, including, for
`
`instance, any specific details regarding the source of the
`
`-8-
`
`
`
`“data from a colleague” referenced by Dr. Moini, and
`
`adequate details regarding the materials tested, the test
`
`conditions, and how data was collected. Additionally,
`
`any reported data is not commensurate in scope with the
`
`claims, and is thus irrelevant for purposes of showing
`
`purported “unexpected results.”
`
`FRE 602. The statements and opinions in this paragraph
`
`are inadmissible because they are not based on the
`
`witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data.
`
`FRE 802. This paragraph improperly cites the out of
`
`court statements of Dr. Moini in Ex. 2011 to establish the
`
`truth of the matter asserted.
`
`¶¶ 175-177
`
`FRE 402. These paragraphs are irrelevant. The
`
`purported allegations regarding “commercial success,”
`
`even if true, are not commensurate in scope with the ’662
`
`and ’203 patent’s claimed subject matter. Among other
`
`things, the purported commercially successful material
`
`relates, at best, to a small class of materials and is limited
`
`-9-
`
`
`
`to products for commercial use and not the full extent of
`
`the claimed subject matter.
`
`FRE 702. The statements and opinions set forth in this
`
`paragraph are not based on sufficient facts or data.
`
`2.
`
`Ex. 2019 – Declaration of Ahmad Moini. Petitioner objects to the
`
`following paragraphs of Ex. 2019:
`
`Paragraph
`
`Objection
`
`¶¶ 4-11
`
`FRE 402. These paragraphs are irrelevant. While the
`
`paragraphs discuss various materials sold by BASF, the
`
`described materials are not commensurate in scope with
`
`the claimed subject matter and thus are irrelevant to the
`
`obviousness of the claims of the ’662 and ’203 patents.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data.
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`-10-
`
`
`
`asserted (including, for instance, the purported reasons
`
`why “customers … purchase” various products as set
`
`forth in ¶ 11).
`
`3.
`
`Ex. 2020 – Gao et al., “Effects of Si/Al Ratio on Cu/SSZ-13 NH3-
`
`SCR Catalysts”: FRE 402. This paper published in 2015, and thus is irrelevant
`
`for purposes of establishing the state of the art and the beliefs or expectations of
`
`those of ordinary skill as of the ’662 and ’203 patents’ effective filing date. FRE
`
`802. Out of court statements in this paper are being improperly cited to establish
`
`the truth of the matter asserted.
`
`4.
`
`Ex. 2021 – Tolonen, “The effect of NO2 on the activity of fresh and
`
`aged zeolite catalysts in the NH3-SCR reaction”: FRE 402. This paper is
`
`irrelevant for the purpose cited. None of the claims of the ’662 and ’203 patents
`
`make any reference to “hydrothermal stability.” FRE 802. Out of court
`
`statements in this paper are being improperly cited to establish the truth of the
`
`matter asserted.
`
`5.
`
`Ex. 2022 – Brandenberger, “The State of the Art in Selective
`
`Catalytic Reduction of NOx by Ammonia Using Metal-Exchanged Zeolite
`
`Catalysts”: FRE 402. This paper is irrelevant for the purpose cited. None of the
`
`claims of the ’662 and ’203 patents make any reference to “hydrothermal
`
`-11-
`
`
`
`stability.” FRE 802. Out of court statements in this paper are being improperly
`
`cited to establish the truth of the matter asserted.
`
`6.
`
`Ex. 2024 – Park, “Hydrothermal stability of CuZSM5 catalyst in
`
`reducing NO by NH3 for the urea selectively catalytic reduction process”:
`
`FRE 402. This paper is irrelevant for the purpose cited. None of the claims of the
`
`’662 and ’203 patents make any reference to “hydrothermal stability.” FRE 802.
`
`Out of court statements in this paper are being improperly cited to establish the
`
`truth of the matter asserted.
`
`7.
`
`Ex. 2026 – Gabrielsson, “Urea-SCR in automotive applications”:
`
`FRE 402. This paper is irrelevant for the purpose cited. Any purported
`
`“pessimis[m]” has no bearing on the obviousness of the claimed subject matter.
`
`FRE 802. Out of court statements in this paper are being improperly cited to
`
`establish the truth of the matter asserted.
`
`8.
`
`Ex. 2027: This exhibit is a deposition transcript. Petitioner hereby
`
`incorporates all the objections made on the record during the deposition.
`
`9.
`
`Ex. 2028: FRE 402. The fact that BASF and Johnson Matthey
`
`entered into a license agreement is irrelevant. Further, the record lacks adequate
`
`foundational evidence regarding the scope and terms of the purported license.
`
`-12-
`
`
`
`10. Ex. 2032 – Krocher, “Investigation of the selective catalytic
`
`reduction of NO by NH3 on Fe-ZSM5 monolith catalysts”: FRE 402. This
`
`paper is irrelevant for the purpose cited.
`
`11. Ex. 2034 – Declaration of Olivia Schmidt. Petitioner objects to the
`
`following paragraphs of Ex. 2034:
`
`Paragraph
`
`Objection
`
`¶¶ 2-8
`
`FRE 402. These paragraphs are irrelevant. While the
`
`paragraphs discuss various materials sold by BASF, the
`
`described materials are not commensurate in scope with
`
`the claimed subject matter and thus are irrelevant to the
`
`obviousness of the claims of the ’662 and ’203 patents.
`
`Further, the record is entirely bereft of necessary
`
`foundational evidence, including, for instance, evidence
`
`and information regarding what is or is not included in
`
`the “global SCR market,” what constitutes a “unit,” and
`
`how the various referenced “estimates” were arrived at.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`-13-
`
`
`
`paragraphs are not based on sufficient facts or data.
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`asserted (including, for instance, unspecified “data,”
`
`unspecified information from various “databases,” and
`
`unidentified “estimates.”)
`
`II.
`
`Exhibits 2001 to 2015
`
`Exhibits 2001-2015 appear to be excerpts from the prosecution or
`
`reexamination history of the ’662 patent. While not objectionable in the abstract in
`
`view of their inclusion in the intrinsic record, all of these exhibits have now been
`
`cited or relied upon in Patent Owner’s 2/12/2016 response and/or in the
`
`Declaration of Dr. Tsapatsis in ways that contravene the Federal Rules of
`
`Evidence. A summary of the improper and objectionable purposes to which
`
`Exhibits 2001-2015 have been put in BASF’s papers follows:
`
`1.
`
`Ex. 2001 (2/9/2011 Declaration of Stanley Roth, Ph.D Under 37
`
`C.F.R. § 1.132). Petitioner objects to Patent Owner’s and/or Dr. Tsapatsis’s use of
`
`following paragraphs of Ex. 2001:
`
`Paragraph
`
`Objection
`
`¶¶ 3-12 (and the
`
`FRE 402. These paragraphs are irrelevant for the purpose
`
`-14-
`
`
`
`attached exhibit)
`
`cited. The record is entirely bereft of necessary
`
`foundational evidence, including, for instance, any
`
`specific details regarding the subject matter and actual
`
`participants in the purported discussions with the
`
`unnamed researcher and the Department of Energy.
`
`Further, even if there were adequate and admissible
`
`foundational evidence, the purported secondary
`
`consideration to which this exhibit relates is not
`
`commensurate in scope with the ’662 and ’203 patent’s
`
`claimed subject matter. Among other things, the
`
`purported skepticism relates, at best, to a small class of
`
`materials and is limited to products for commercial use
`
`and not the full extent of the claimed subject matter.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`are not the result of the reliable application of accepted
`
`scientific principles and methods to the facts of the case.
`
`-15-
`
`
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`asserted (i.e., purported interactions between Mr. Roth,
`
`an unnamed researcher, and various Department of
`
`Energy personnel).
`
`37 C.F.R. § 42.51. The Declaration is inadmissible in its
`
`entirety unless the declarant (and all witnesses identified
`
`in the attached exhibit) is made available for cross
`
`examination on the subject matter of the declaration.
`
`2.
`
`Ex. 2002 – Cavataio et al., “Enhanced Durability of a Cu/Zeolite
`
`Based SCR Catalyst”: FRE 402. The paper is irrelevant for the purpose cited by
`
`Patent Owner and/or Dr. Tsapatsis. The record is entirely bereft of necessary
`
`foundational evidence, including admissible evidence proving that the material
`
`discussed in this paper came from BASF, that the discussed material falls within
`
`the scope of any of the claims of the patent-in-suit, or that there was not some other
`
`modification or change to the tested materials that could have had a bearing on
`
`performance. Further, even if supported by adequate foundational evidence, the
`
`purported test results are not commensurate with the claims. FRE 802. Out of
`
`court statements in this paper are being improperly cited to establish the truth of
`
`the matter asserted.
`
`-16-
`
`
`
`3.
`
`Ex. 2003 – 2/9/2011 Declaration of Ahmad Moini. Petitioner
`
`objects to Patent Owner’s and/or Dr. Tsapatsis’s use of following paragraphs of
`
`Ex. 2003:
`
`Paragraph
`
`Objection
`
`¶¶ 3-7
`
`FRE 402. These paragraphs are irrelevant for the purpose
`
`cited. The paragraphs discuss purported research
`
`activities but lack necessary foundational evidence,
`
`including who conducted the referenced work, whether
`
`that person or persons had ordinary skill in the art, details
`
`regarding the scope of the work, and the purpose of the
`
`work, among other things. Further, even if supported by
`
`adequate foundational evidence, the purported activities
`
`of BASF are irrelevant to claim scope and the express
`
`disclosure of the prior art references at issue. These
`
`paragraphs also include numerous statements regarding a
`
`named inventor’s opinions regarding claim scope and the
`
`disclosures in the ’662 and/or ’203 patents’ specification.
`
`These opinions are irrelevant and inadmissible.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`-17-
`
`
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`are not the result of the reliable application of accepted
`
`scientific principles and methods to the facts of the case.
`
`FRE 802. These paragraphs improperly cite out of court
`
`statements made by unidentified persons to establish the
`
`truth of the matter asserted.
`
`37 C.F.R. § 42.51. The Declaration is inadmissible in its
`
`entirety unless the declarant is made available for cross
`
`examination on the subject matter of the declaration.
`
`4.
`
`Ex. 2004 – 12/14/2011 Second Declaration of Pramod Ravindran
`
`Under 37 C.F.R. §1.132. Petitioner objects to Patent Owner’s and/or Dr.
`
`Tsapatsis’s use of following paragraphs of Ex. 2004:
`
`Paragraph
`
`Objection
`
`¶¶ 3-8
`
`FRE 402. These paragraphs are irrelevant are for the
`
`purpose cited. The paragraphs discuss purported
`
`interactions between BASF and Ford. The record is
`
`entirely bereft of necessary foundational evidence,
`
`-18-
`
`
`
`including any specific factual details regarding the
`
`purported samples provided by BASF, how they were
`
`prepared, the samples’ specific composition, the chain of
`
`custody, and how they were handled by BASF and Ford.
`
`The description of the samples is also incomplete.
`
`Further, even if supported by adequate and complete
`
`foundational evidence, the purported activities of BASF
`
`and Ford are irrelevant to claim scope and the express
`
`disclosure of the prior art references at issue.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible, including statements
`
`regarding purported activities by Ford, because they are
`
`not based on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraph are not based on sufficient facts or data, and
`
`are not the result of the application of accepted and
`
`reliable principles and methods to the facts of the case.
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`asserted (i.e., statements purportedly made by Ford
`
`-19-
`
`
`
`regarding testing they performed).
`
`37 C.F.R. § 42.51. The Declaration is inadmissible in its
`
`entirety unless the declarant is made available for cross
`
`examination on the subject matter of the declaration.
`
`5.
`
`Ex. 2009 – 2/7/2011 Declaration of Stacey Zones. Petitioner objects
`
`to Patent Owner’s and/or Dr. Tsapatsis’s use of following paragraphs of Ex. 2009:
`
`Paragraph
`
`Objection
`
`¶¶ 6-12
`
`FRE 402. These paragraphs are irrelevant for the purpose
`
`cited. The paragraphs include numerous statements and
`
`opinions made by a named inventor of a prior art patent
`
`regarding the purported scope of the disclosure in the
`
`patent. These opinions are irrelevant and inadmissible,
`
`and have no bearing on one of ordinary skill in the art’s
`
`understanding of the prior art.
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`-20-
`
`
`
`are not the result of the reliable application of accepted
`
`scientific principles and methods to the facts of the case.
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`asserted.
`
`37 C.F.R. § 42.51. The Declaration is inadmissible in its
`
`entirety unless the declarant is made available for cross
`
`examination on the subject matter of the declaration.
`
`6.
`
`Ex. 2011 – 12/18/2011 Second Declaration of Ahmad Moini, Ph.D,
`
`Under 37 C.F.R. § 1.132. Petitioner objects to Patent Owner’s and/or Dr.
`
`Tsapatsis’s use of following paragraphs of Ex. 2011:
`
`Paragraph
`
`Objection
`
`¶¶ 3-25
`
`FRE 402. These paragraphs are irrelevant for the purpose
`
`cited. While the paragraphs purport to discuss the testing
`
`of various prior art materials, this testing has no bearing
`
`on one of ordinary skill in the art’s understanding of
`
`those references. Further, the record is entirely bereft of
`
`necessary foundational evidence, including, for instance,
`
`any specific details regarding the source of the “data
`
`-21-
`
`
`
`from a colleague” referenced by Dr. Moini, and adequate
`
`details regarding the materials tested, the test conditions,
`
`and how data was collected. Further, any reported data is
`
`not commensurate in scope with the claims, and is thus
`
`irrelevant for purposes of showing purported “unexpected
`
`results.”
`
`FRE 602. The statements and opinions in these
`
`paragraphs are inadmissible because they are not based
`
`on the witness’s own personal knowledge.
`
`FRE 702. The statements and opinions set forth in these
`
`paragraphs are not based on sufficient facts or data, and
`
`are not the result of the reliable application of accepted
`
`scientific principles and methods to the facts of the case.
`
`FRE 802. These paragraphs improperly cite unidentified
`
`out of court statements to establish the truth of the matter
`
`asserted.
`
`37 C.F.R. (s) 42.51. The Declaration is inadmissible in
`
`its entirety unless the declarant is made available for
`
`cross examination on the subject matter of the
`
`declaration.
`
`-22-
`
`
`
`7.
`
`Ex. 2012 – Centi et al., “Nature of Active Species in Copper-Based
`
`Catalysts and their Chemistry of Transformation of Nitrogen Oxides”: FRE
`
`402. The paper is irrelevant for the purpose cited by Patent Owner and/or Dr.
`
`Tsapatsis. None of the claims of the ’662 and ’203 patent make any reference to
`
`“hydrothermal stability.” FRE 802. Out of court statements in this paper are
`
`being improperly cited establish the truth of the matter asserted.
`
`8.
`
`Ex. 2014 – Kwak et al., “Excellent Activity and Selectivity of Cu-
`
`SSZ-13 in the Selective Catalytic Reduction of NOx with NH3”: FRE 402.
`
`The paper is irrelevant for the purpose cited by Patent Owner and/or Dr. Tsapatsis.
`
`The paper does not appear to be discussing materials within the scope of the ’662
`
`and ’203 patents’ claims. FRE 802. Out of court statements in this paper are
`
`being improperly cited establish the truth of the matter asserted.
`
`9.
`
`Ex. 2015 – Dedececk, “Effect of Framework Charge Density on
`
`Catalytic Activity of Copper Loaded Molecular Sieves on Chabazite Structure
`
`in Nitrogen (II) Oxide Decomposition”: FRE 402. The paper is irrelevant for
`
`the purpose cited by Patent Owner and/or Dr. Tsapatsis. This paper is not one of
`
`the references cited by Petitioner. Further, even if true, any purported test results
`
`set forth in this paper do not change the express disclosure of the prior art cited by
`
`Petitioner and has no bearing on the obviousness of the ’662 and ’203 patent’s
`
`-23-
`
`
`
`claimed subject matter. FRE 802. Out of court statements in this paper are being
`
`improperly cited establish the truth of the matter asserted.
`
`III. Additional Objections
`
`1.
`
`In addition to the above, Petitioner objects to Exhibits 2002, 2012,
`
`2014, 2015, 2017, 2020-2026, 2029-2033 under FRE 901 because they have not
`
`been properly authenticated.
`
`2.
`
`Petitioner objects to Exs. 2006-2008, 2010, 2013, 2016, 2017, and
`
`2031 because these exhibits do not appear to be cited in Patent Owner’s briefing or
`
`declaration and are thus irrelevant. Petitioner reserves the right to make further
`
`objections to the use of these exhibits if they are cited for some purpose by Patent
`
`Owner in future filings.
`
`Date: 2/19/2016
`
`/ Elizabeth Gardner /
`Elizabeth Gardner (Reg. No. 36,519)
`Orrick, Herrington, & Sutcliffe LLP
`51 West 52nd Street
`New York, NY 10019
`Tel: 212-506-5000
`Fax. 212-506-5151
`Email: egardner@orrick.com
`
`-24-
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby confirms that the foregoing OBJECTIONS TO
`
`PATENT OWNER’S EVIDENCE CITED IN ITS FORMAL RESPONSE was
`
`served on February 19, 2016 via e-mail upon the following counsel of record for
`
`Patent Owner:
`
`Brian E. Ferguson (brian.ferguson@weil.com)
`Anish R. Desai (anish.desai@weil.com)
`Weil, Gotshal & Manges LLP
`1300 Eye Street, NW Suite 900
`Washington, DC 20005
`
`/ Elizabeth Gardner /____________
`Elizabeth Gardner (Reg. No. 36,519)
`Orrick, Herrington, & Sutcliffe LLP
`51 West 52nd Street
`New York, NY 10019
`Tel: 212-506-5000
`Fax. 212-506-5151
`Email: egardner@orrick.com
`
`-25-
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
