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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
`Petitioner
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`v.
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`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
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`Case IPR2015-01432
`U.S. Patent No. 7,139,794 B2
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`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S SUPPLEMENTAL EVIDENCE
`(37 C.F.R. §42.64(b)(1))
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Bradium Technologies
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`LLC (“Bradium”) objects to Petitioner Microsoft Corporation’s (“Microsoft”)
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`January 25, 2016 Petitioner’s Service of Supplemental Evidence in Response to
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`Patent Owner’s Objections, for Inter Partes Review IPR2015-01432 of U.S. Patent
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`No. 7,139,794, and further objects to the admissibility of the Appendices that
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`accompanied Petitioner’s document.
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`Patent Owner objects to the alleged “supplemental evidence” because it is
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`not supplemental evidence at all. Rather, Microsoft’s submission is an attempt to
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`“correct” a flaw in Exhibit 1007 of Microsoft’s petition. The procedure for
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`correcting such a flaw is to file a motion under 37 CFR 42.104(c), whereby
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`Petitioner must show that the filing of Exhibit 1007 was a “clerical or
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`typographical mistake.” The burden is on Petitioner to make this showing.
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`Terremark North Amer. LLC v. Joao Control & Monitoring Sys., LLC, IPR2015-
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`01485 Paper 10 at pp. 7, 13 (P.T.A.B. Dec. 28, 2015) (denying a motion made
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`under 37 CFR 42.104(c) because Petitioner had not made a sufficient showing to
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`meet its burden of proof); 37 C.F.R. § 42.20(c).
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`Despite being expressly advised by Patent Owner of this procedure,
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`Microsoft has sought to “supplement” its evidence in an effort to avoid having to
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`file a motion to request permission to correct the exhibit. Patent Owner objects to
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`Petitioner’s purported supplemental evidence because Petitioner has expressly
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`chosen to ignore the proper procedure.
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`Further, since Petitioner has not followed the proper procedure, and indeed
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`has expressly attempted to avoid doing so, the purported supplemental evidence is
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`not relevant, and is not admissible under F.R.E. 402. Patent Owner also objects to
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`the purported supplemental evidence under F.R.E. 403, because whatever
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`probative value it might have is substantially outweighed by the danger of unfair
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`prejudice and confusion, as this evidence was neither presented with the original
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`Petition nor authorized by the Board in response to a motion to correct the petition.
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`Patent Owner further objects that Appendix A, which Petitioner represents is
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`a “true copy of U.S. Patent No. 5,760,873,” may not be used to support Petitioner’s
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`argument on the merits, because Petitioner has not sought or been granted
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`authorization to file a motion under 37 CFR 42.123 to submit Appendix A as
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`supplemental information.1 See Handi-Quilter, Inc. v. Bernina Int’l AG, IPR2013-
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`00364, Paper 30 at pp. 2–3 (P.T.A.B. June 12, 2014) (“Supplemental information,
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`on the other hand, is evidence a party intends to support an argument on the merits.
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`Such evidence may only be filed if a § 123 motion is both authorized and
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`granted.”) The deadline for filing such a motion by Petitioner has passed. 37 CFR
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`1 Patent Owner also objects to Appendix B on this basis, to the extent that
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`Petitioner attempts to use it to support Petitioner’s argument on the merits.
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`42.123(a)(1) (request for authorization to file a § 123 motion should be made
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`within one month of institution).
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`Further, Patent Owner objects to Appendix B because Petitioner has not
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`made a showing of a “clerical or typographical mistake” via Appendix B. See 37
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`CFR 42.104(c). The declaration, Appendix B, asserts in conclusory fashion,
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`without foundational explanation, that “[t]he copy [Exhibit 1007] filed on June 16,
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`2015 inadvertently included color markings in the margins of certain pages,
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`including markings at columns 6, 9 and 10.” (Appendix B at ¶ 3.) Petitioner has
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`the burden of proof, yet Exhibit B, i.e., the declaration of Ms. Hare, is silent as to,
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`for example, how or why the markings were included, or who made the markings.
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`Without such evidence, Petitioner cannot meet its burden of showing clerical or
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`typographical mistake.
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`Dated: February 1, 2016
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`/Michelle Carniaux/
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`Michelle Carniaux
`Lead Counsel, Reg. No. 36,098
`Kenyon & Kenyon LLP
`One Broadway, New York, NY 10004
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on February
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`1, 2016, the foregoing Patent Owner’s Objections to Petitioner’s Supplemental
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`Evidence is being served via electronic mail upon the following counsel of
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`record for Petitioner:
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`Bing Ai (Reg. No. 43,312)
`Matthew Bernstein (pro hac vice)
`Vinay Sathe (Reg. No. 55,595)
`Patrick McKeever (Reg. No. 66,019)
`PerkinsServiceBradiumIPR@perkinscoie.com
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`/Michelle Carniaux/
`KENYON & KENYON LLP
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