`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________________________________________________________
`
`UMICORE AG & CO. KG
`
`Petitioner
`
`v.
`
`BASF CORPORATION
`
`Patent Owner
`
`Case IPR2015-01125
`Patent 7,601,662
`__________________________________________________________________
`
`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.
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`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
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`scientific principles and methods to the facts of the case.
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`FRE 802. These paragraphs improperly cite unidentified
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`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-