Case No. IPR 2015‐01176
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
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`SERVICENOW, INC.
`Petitioner
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`v.
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`BMC SOFTWARE, INC.
`Patent Owner
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`________________________
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`Case IPR 2015‐01176
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`Patent No. 5,978,594
`________________________
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`PATENT OWNER'S NOTICE OF OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
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`SERVICENOW, INC.
`Petitioner
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`v.
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`BMC SOFTWARE, INC.
`Patent Owner
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`________________________
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`Case IPR 2015‐01176
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`Patent No. 5,978,594
`________________________
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`PATENT OWNER'S NOTICE OF OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313
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`The undersigned, on behalf of BMC Software, Inc. (“BMC” or “Patent
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`Case No. IPR 2015‐01176
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`Owner”), hereby provides Notice to the Board that the objections made on the
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`record herewith were served to ServiceNow, Inc. (“SNow” or “Petitioner”)
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`pursuant to 37 C.F.R. § 42.64. See also Trial Practice Guide, 77 Fed. Reg. 48756,
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`48767 (Aug. 14, 2012).
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`Dated: December 1, 2015
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`Respectfully submitted,
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`By: Robert A. Cote
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`Robert A. Cote (Reg. No. 34,570)
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`rcote@mckoolsmith.com
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`Kevin Schubert (Reg. No. 59,232)
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`kschubert@mckoolsmith.com
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`McKOOL SMITH, P.C.
`One Bryant Park, 47th Floor
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`New York, NY 10036
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`Tel: 212-402-9400
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`Fax: 212-402-9444
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`Pierre Hubert (Reg. No. 45,826)
`phubert@mckoolsmith.com
`McKOOL SMITH, P.C.
`300 W. 6th Street, Suite 1700
`Austin, TX 78701
`Tel: 512-692-8700
`Fax: 512-692-8744
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`Robert Auchter (Reg. No. 38,069)
`rauchter@mckoolsmith.com
`McKOOL SMITH, P.C.
`1999 K Street, N.W., Suite 600
`Washington, D.C. 20006
`Tel: 202-370-8300
`Fax: 202-370-8344
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`Case No. IPR 2015‐01176
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`Counsel for Patent Owner,
`BMC Software, Inc.
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`Case No. IPR 2015‐01176
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________________
`
`SERVICENOW, INC.
`Petitioner
`
`
`
`v.
`
`
`
`BMC SOFTWARE, INC.
`Patent Owner
`________________________
`
`
`Case IPR 2015‐01176
`
`Patent No. 5,978,594
`________________________
`
`
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
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`
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner BMC Software, Inc.
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`Case No. IPR 2015‐01176
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`(“BMC” or “Patent Owner”) objects to the admissibility of the documents
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`identified below
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`that were submitted by ServiceNow, Inc. (“SNow” or
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`“Petitioner”) during the preliminary proceedings, for the following reasons:
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`Petitioner Exhibit 1002
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`A.
`Petitioner Exhibit 1002 (Declaration of Klausner) is objected to as lacking
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`foundation, assuming facts not in evidence, containing testimony on matters as to
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`which the witness lacks personal knowledge, conclusory, and containing testimony
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`concerning documents for which authentication required by FRE 901 is lacking.
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`For example and without limitation, Dr. Klausner has no personal knowledge
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`regarding whether any of Exhibits 1004-1008 are authentic as required by
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`FRE 901, and thus all statements and testimony by Dr. Klausner concerning these
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`documents lack foundation, assume facts not in evidence, and represent improper
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`testimony under FRE 702.
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`Petitioner Exhibits 1004-1005
`B.
`Petitioner Exhibit 1004 (excerpts from Unix System V) and 1005 (excerpts
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`from Inside MacIntosh) are objected to as lacking authentication, containing
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`hearsay, and being incomplete. Petitioner does not offer evidence that Exhibits
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`1004 and 1005 are what Petitioner claims them to be, and these Exhibits are not
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`self-authenticating. See FRE 901. They also contain inadmissible hearsay. See
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`FRE 801, 802. Also they are incomplete as they contain only cherry-picked
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`Case No. IPR 2015‐01176
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`excerpts that do not accurately represent the reference as a whole. See FRE 106.
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`Petitioner Exhibits 1006-1008
`C.
`Petitioner Exhibits 1006 (QuickBASIC article) and 1007 (excerpts from
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`Microsoft Computer Dictionary) and 1008 (RFC 1067) are objected to as lacking
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`authentication, containing hearsay, irrelevant, and unduly prejudicial, and for 1007,
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`also incompleteness. For example, Petitioner does not offer evidence that these
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`exhibits are what Petitioner claims them to be, and the documents are not self-
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`authenticating. See FRE 901. Petitioner does not assert these documents
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`themselves as prior art references that anticipate or combine to render obvious the
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`challenged patent claims, and as such are not listed as specific grounds for
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`challenging the patent claims. They are irrelevant. See FRE 402, 403. Because
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`these documents are used improperly by Petitioner, the prejudice they would cause
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`outweighs any purported probative value, and they are unduly prejudicial. See Id.
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`They also contain inadmissible hearsay. See FRE 802-807. Also Exhibit 1007
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`contains only cherry-picked excerpts that do not accurately represent the reference
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`as a whole.
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`Case No. IPR 2015‐01176
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`Petitioner Exhibit 1009
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`D.
`Exhibit 1009 (selected Amendment) is objected to on the basis of
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`incompleteness. Insofar as it represents only a portion of the prosecution record
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`for a parent application, it is incomplete. See FRE 106.
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`Petitioner Exhibit 1011
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`E.
`Exhibit 1011 (excerpts from JCCS) is objected to on the basis of relevance,
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`see FRE 402, as it contains portions of a Joint Claim Construction Statement not
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`binding on this proceeding, and also to the extent it cites materials that contain
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`hearsay. See FRE 801, 802.
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`The objections have been made within 10 business days from the
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`November 16, 2015 institution of trial.
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`Dated: December 1, 2015
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`Respectfully submitted,
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`By: Robert A. Cote
`Robert A. Cote (Reg. No. 34,570)
`rcote@mckoolsmith.com
`Kevin Schubert (Reg. No. 59,232)
`kschubert@mckoolsmith.com
`McKOOL SMITH, P.C.
`One Bryant Park, 47th Floor
`New York, NY 10036
`Tel: 212-402-9400
`Fax: 212-402-9444
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`Pierre Hubert (Reg. No. 45,826)
`phubert@mckoolsmith.com
`McKOOL SMITH, P.C.
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`Case No. IPR 2015‐01176
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`300 W. 6th Street, Suite 1700
`Austin, TX 78701
`Tel: 512-692-8700
`Fax: 512-692-8744
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`
`
`
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`Robert Auchter (Reg. No. 38,069)
`rauchter@mckoolsmith.com
`McKOOL SMITH, P.C.
`1999 K Street, N.W., Suite 600
`Washington, D.C. 20006
`Tel: 202-370-8300
`Fax: 202-370-8344
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`Counsel for Patent Owner,
`BMC Software, Inc.
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`Case No. IPR 2015‐01176
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a true copy of the foregoing PATENT
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`OWNER'S NOTICE OF OBJECTIONS TO EVIDENCE PURSUANT TO 37
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`C.F.R. §42.64 and PATENT OWNER’S OBJECTIONS TO EVIDENCE
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`PURSUANT TO 37 C.F.R. § 42.64 is being served on counsel for petitioner by e-
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`mail upon the following:
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`Heidi L. Keefe
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`Phillip Morton
`pmorton@cooley.com
`Andrew Mace
`amace@cooley.com
`Mark Weinstein
`mweinstein@cooley.com
`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
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`Petitioner has consented to service by electronic means.
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`Dated: December 1, 2015
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`Respectfully submitted,
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`By: Robert A. Cote
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`Reg. No. 34,570
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