Paper _____
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`MICROSOFT CORPORATION and MICROSOFT MOBILE, INC.,
`Petitioners
`
`v.
`
`GLOBAL TOUCH SOLUTIONS, LLC
`Patent Owner
`________________
`
`Case IPR2015-01149
`Patent No. 7,329,970 B2
`________________
`
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS REGARDING
`CROSS EXAMATION OF DR. MARK HORENSTEIN
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`MICROSOFT CORPORATION and MICROSOFT MOBILE, INC.,
`Petitioners
`
`v.
`
`GLOBAL TOUCH SOLUTIONS, LLC
`Patent Owner
`________________
`
`Case IPR2015-01149
`Patent No. 7,329,970 B2
`________________
`
`
`
`
`
`
`
`
`
`
`PATENT OWNER’S MOTION FOR OBSERVATIONS REGARDING
`CROSS EXAMATION OF DR. MARK HORENSTEIN
`
`
`
`
`
`
`
`
`Pursuant to the Scheduling Order (Paper 13) of November 17, 2015, and the
`
`Notice of Stipulation to Extend Due Date 4 (Paper 22) of June 15, 2016, Patent
`
`Owner Global Touch Solutions, LLC, respectfully submits this Motion for
`
`Observations regarding Cross Examination of Dr. Mark Horenstein. Specifically,
`
`Patent Owner submits that observations of Dr. Horenstein’s conduct and answers
`
`on cross-examination reflect on his lack of credibility as a witness. To properly
`
`understand the nature of Dr. Horenstein’s testimony, it is at first necessary to
`
`understand that in response to Patent Owner’s objection to evidence, Petitioners
`
`served but did not file supplemental Declarations that attempt to address the basis
`
`of Patent Owner’s objection – that each and every Declaration filed by Petitioners
`
`in the captioned proceeding has lacked the proper jurat, and is not the affidavit
`
`required by Rule 53. Patent Owner has moved to exclude that Declaration on that
`
`basis.
`
`The supplemental declaration filed by Petitioners reflects an attempt to cure
`
`the inadmissibility, but falls short in more than one respect – it asserts “all
`
`statements made on information and belief are true” – a statement clearly beyond
`
`the ability of the Declarant to assert with any reliability. It also offers, as the only
`
`safeguard of trustworthiness and reliability, the statement that if he has offered
`
`willful false statements, he recognizes that they are punishable as provided in
`
`
`
`2
`
`
`
`
`
`“Section 1101 of Title 18” of the U.S. Code. To the best of undersigned counsel’s
`
`knowledge, no such provision exists.
`
`Whether the errors are those of counsel or those of the witness who adopted
`
`counsel’s testimony without question, they reflect a witness who declined to pay
`
`due attention to testimony and has a disregard for that testimony. This is nowhere
`
`more clearly reflected than in paragraph 6 of the Reply Declaration, Exhibit 1020,
`
`where the witness refers to one aspect of the reference, identified as reference
`
`character 520, when he intended to refer to a completely different aspect of the
`
`reference. The witness testified that the error would have been obvious to anyone
`
`reading the Declaration, but he failed to notice it when he “executed” the Exhibit
`
`1020 (execution was not by signature, but by affixation of a graphic text by an
`
`individual) and again when the supplemental Declaration was provided in response
`
`to Patent Owner’s Objection to Evidence. (For ease of reference, the Supplemental
`
`Declaration was identified in the proceeding as Exhibit 2008). The necessary
`
`implication is that if it would have been obvious to anyone reading the Declaration,
`
`and the expert witness did not notice the error the first time the Reply Declaration
`
`(Exhibit 1020) was prepared or the second time, when the supplemental evidence
`
`was prepared and served, Horenstein did not read it on either occasion.
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`CITATIONS TO TESTIMONY
`
`Observation 1: In Exhibit 2007, at 80:5-7, regarding Dr. Horenstein’s
`
`Second Declaration (Exhibit 1020), Dr. Horenstein testified “I think it would be
`
`obvious to anyone reading paragraph seven that the first instance of number 520 is
`
`a typo and should be 516.” This is relevant to Dr. Horenstein’s credibility and the
`
`weight to be given to his testimony because Dr. Horenstein did not acknowledge
`
`this error upon signing the Second Declaration (Exhibit 1020) on June 1, 2016, or
`
`upon re-signing the Second Declaration (Exhibit 2008) on June 9, 2016, indicating
`
`he did not read either declaration.
`
`Observation 2: In Exhibit 2007, at 92:4-6, regarding Dr. Horenstein’s
`
`Second Declaration (Exhibit 1020), Dr. Horenstein testified “In my mind, this is in
`
`context, it is an obvious typographical error that anyone could identify upon
`
`reading the document[.]” This is relevant to Dr. Horenstein’s credibility and the
`
`weight to be given to his testimony because Dr. Horenstein did not acknowledge
`
`this error upon signing the Second Declaration (Exhibit 1020) on June 1, 2016, or
`
`upon re-signing the Second Declaration (Exhibit 2008) on June 9, 2016, indicating
`
`he did not read either declaration.
`
`Observation 3: In Exhibit 2007, at 97:21-98:1, regarding whether Dr.
`
`Horenstein knew about the error of paragraph 7 of Dr. Horenstein’s Second
`
`Declaration (Exhibit 1020) by June 9, 2016, Dr. Horenstein testified “Apparently
`
`
`
`4
`
`
`
`
`
`not because I signed the documents on June 9th with the boiler plate clause added.”
`
`This is relevant to Dr. Horenstein’s credibility and the weight to be given to his
`
`testimony because Dr. Horenstein did not acknowledge this error upon signing the
`
`Second Declaration (Exhibit 1020) on June 1, 2016, or upon re-signing the Second
`
`Declaration (Exhibit 2008) on June 9, 2016, indicating he did not read either
`
`declaration.
`
`Observation 4: In Exhibit 2007, at 37:11-12, regarding the jurat added to
`
`the Second Declaration (Exhibit 2008), Dr. Horenstein testified that the jurat “to
`
`me what appears to be a standard boiler plate paragraph[.]” Similarly, in Exhibit
`
`2007, at 38:2-3; 38:11-16; 97:21-98:1; 104:12-13; 104:18-19; 105:22-106:1;
`
`137:3-4; and 139:21-22, Dr. Horenstein testified that he views the jurat as merely
`
`“boiler plate” language. This is relevant to Dr. Horenstein’s credibility and the
`
`weight to be given to his testimony because this testimony indicates the lack of
`
`meaning given to the jurat by Dr. Horenstein.
`
`Observation 5: In Exhibit 2007, at 131:10-14, regarding the scope of
`
`Patent Owner’s expert’s testimony, Dr. Horenstein testifies that Patent Owner’s
`
`expert did not testify about adjusting sensitivity of a touch sensor: “Did he talk
`
`about adjusting the sensitivity of the touch sensor in any fashion? MR. MURPHY:
`
`Object to form. THE WITNESS: No. In paragraph four I offer the remedy of
`
`adjusting the sensitivity.” This is relevant to the timeliness of the arguments
`
`
`
`5
`
`
`
`
`
`presented in at least paragraph 4 of Dr. Horenstein’s Second Declaration (Exhibit
`
`1020).
`
`Observation 6: In Exhibit 2007, at 133:8, regarding the portions of the
`
`record to which paragraph 4 of Dr. Horenstein’s Second Declaration responds, Dr.
`
`Horenstein testifies “Inadvertent actuation by animate objects.” This is relevant to
`
`the timeliness of the arguments presented in at least paragraph 4 of Dr.
`
`Horenstein’s Second Declaration (Exhibit 1020) because inadvertent actuation by
`
`animate objects was previously addressed in Dr. Horenstein’s First Declaration
`
`(Exhibit 1012 at ¶42) without discussion of adjusting sensitivity of a touch sensor.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Steven B. Kelber
`Steven B. Kelber
`Reg. No: 30,073
`The Kelber Law Group
`1875 Eye Street, N.W., Fifth Floor
`Washington, D.C. 20006
`E-Mail: steve@kelberlawgroup.com
`Tel: (240) 506-6702
`Nathan Cristler
`Reg. No: 61,736
`Cristler IP, PLLC
`1801 21st Road North
`Arlington, Virginia 22209
`E-Mail: ncristler@cristlerip.com
`Tel: (512) 576-5166
`
`Counsel for Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`Date: July 6, 2016
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`6
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`
`
`
`Pursuant to 37 C.F.R. §§ 42.6 and 42.105, I hereby certify that on this 6th
`day of July, 2016, the foregoing PATENT OWNER’S MOTION FOR
`OBSERVATIONS REGARDING CROSS EXAMATION OF DR. MARK
`HORENSTEIN was served by e-mail on counsel for Petitioner:
`
`
`Daniele J. Goettle
`bdgoettle@bakerlaw.com
`
`John F. Murphy
`johnmurphy@bakerlaw.com
`
`Sarah C. Dukmen
`Msft-gt@bakerlaw.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Steven B. Kelber
`Steven B. Kelber
`Reg. No: 30,073
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`7
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
