UNITED STATES PATENT AND TRADEMARK OFFICE
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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 EVIDENCE
`(37 C.F.R. §42.64(b)(1))
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
`
`
`
`
`Case IPR2015-01432
`U.S. Patent No. 7,139,794 B2
`
`
`
`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S EVIDENCE
`(37 C.F.R. §42.64(b)(1))
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`TABLE OF CONTENTS
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`Page
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`Exhibit 1015 (“Michalson Declaration”) ........................................................ 1
`Exhibit 1015, Appendix EE (U.S. Patent No. 5,161,866 to
`A.
`DeJong) ................................................................................................ 3
`Exhibit 1015, Appendix FF (The Virtual Reality Modeling
`Language ISO/IEC 14772-1:1997) ...................................................... 4
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`B.
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`i
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`I.
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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 the admissibility of the following exhibits that
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`accompanied Petitioner Microsoft Corporation’s (“Microsoft”) June 24, 2016
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`Reply to Patent Owner’s Response (Paper No. 27).
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`In this paper, a reference to “F.R.E.” means the Federal Rules of Evidence, a
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`reference to “C.F.R.” means the Code of Federal Regulations, and “’794 patent”
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`means U.S. Patent No. 7,139,794. All objections under F.R.E. 802 (hearsay) apply
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`to the extent that Petitioner rely on the exhibit(s) identified in connection with that
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`objection for the truth of the matters asserted therein.
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`Patent Owner objects as follows:
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`I.
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`Exhibit 10151 (“Michalson Declaration”)
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`Patent Owner objects to Exhibit 1015 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) as not relevant and prejudicial under F.R.E. 402 and 403 to the
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`extent that the Declaration includes material that is not sufficiently referenced and
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`explained, or not referenced or explained at all, in the Petition, in an attempt to
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`circumvent the 5600-word limit for replies to patent owner responses. See 37
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`C.F.R. § 42.24(c)(1). Petitioner fails to cite, reference, or explain large portions of
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`1 Petitioner cites to “Ex. 1013” throughout its reply, but Bradium herein uses
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`reference to “Ex. 1015” as per Petitioner’s updated exhibit list and the Board filing.
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`Petitioner’s Reply to Patent Owner’s Response (Paper No. 27) at iv.
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`1
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`Dr. Michalson’s 91-page declaration, including the following 95 paragraphs. E.g.,
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`Ex. 1015 ¶¶ 32–45, 49–110, 140–44, 153–54, 158–60, 165–70, 184–86. Exhibit
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`1015 ¶ 3 in particular is an improper attempt to incorporate by reference Exhibit
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`1008 and its appendices into the Petition and into Exhibit 1015. See 37 C.F.R. §
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`42.22(a)(2).
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`Patent Owner further objects to Exhibit 1015 under 37 C.F.R. § 1.4 as
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`improperly using an s-signature, “//William R Michalson/,” where no exception to
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`the handwritten signature requirement exists, failing to comply with the Board’s
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`signature requirement. See 37 C.F.R. § 42.6(a)(4) (“Documents must be signed in
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`accordance with §§ 1.33 and 11.18(a) of this title”); 37 C.F.R. § 11.18(a) (referring
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`to compliance with 37 C.F.R. § 1.4(d)). Petitioner submitted a properly signed
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`declaration in the first Michalson Declaration (Ex. 1008) but has failed to do so
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`here.
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`Patent Owner further objects to Exhibit 1015 and its accompanying
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`appendices under 37 C.FR. § 42.23 to the extent that they present evidence and
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`arguments available to Petitioner at the time the Petition was filed. See also 37
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`C.F.R. § 42.22(a)(2). A reply may only respond to arguments raised in the
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`corresponding opposition or patent owner response. 37 C.FR. § 42.23. For
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`example, Dr. Michalson raises new arguments based on new references that were
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`2
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`not included with the Petition, 1015EE and 1015FF, at, e.g., ¶¶ 10, 17, 46, 48, 65,
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`67, 82, 153.
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`Patent Owner further objects to Exhibit 1015 under 37 C.F.R. §§ 42.6(a)(3)
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`and 42.24(a)(1)(i) to the extent that Exhibit 1015 is an improper attempt to include
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`Appendices EE through FF, which are insufficiently referenced and explained, or
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`not referenced and explained at all, in the Petition or Reply.
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`A. Exhibit 1015, Appendix EE (U.S. Patent No. 5,161,866 to DeJong)
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`Patent Owner objects to Exhibit 1015EE under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) as not relevant and prejudicial under F.R.E. 402 and 403 because it
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`is not referenced or explained at all in the Petition. See 37 C.F.R. §§ 42.22(a)(2)
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`and 42.104(b)(4).
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`Bradium objects to Exhibit 1015EE as new evidence through which
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`Petitioner improperly raises new issues in reply. See 37 C.F.R. § 42.23(b); Trial
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`Practice Guide, 77 Fed. Reg. 48756, 48767 (August 14, 2012)(stating “a reply that
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`raises a new issue or belatedly presents evidence will not be considered” and
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`“Examples of indications that new evidence has been raised in a reply
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`include…new evidence that could have been presented in a prior filing.”).
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`3
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`B.
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`Exhibit 1015, Appendix FF (The Virtual Reality Modeling
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`Language ISO/IEC 14772-1:1997)
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`Patent Owner objects to Exhibit 1015FF under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) as not relevant and prejudicial under F.R.E. 402 and 403 because it
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`is not referenced or explained at all in the Petition. See 37 C.F.R. §§ 42.22(a)(2)
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`and 42.104(b)(4).
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`Bradium objects to Exhibit 1015EE as new evidence through which
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`Petitioner improperly raises new issues in reply. See 37 C.F.R. § 42.23(b); Trial
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`Practice Guide, 77 Fed. Reg. 48756, 48767 (August 14, 2012)(stating “a reply that
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`raises a new issue or belatedly presents evidence will not be considered” and
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`“Examples of indications that new evidence has been raised in a reply
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`include…new evidence that could have been presented in a prior filing.”).
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`Dated: June 30, 2016
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`/Chris Coulson/
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`Chris Coulson (Reg. No. 61,771)
`Lead Counsel for Patent Owner
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`CCoulson@kenyon.com
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`4
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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 June 30,
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`2016, the foregoing Patent Owner’s Objections to Petitioner’s Evidence is being
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`served via electronic mail upon the following counsel of 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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`/Chris Coulson/
`KENYON & KENYON LLP
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