UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`CASE: IPR2015-01432
`Patent No. 7,139,794 B2
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`PETITIONER’S OBJECTIONS TO PATENT OWNER'S
`EVIDENCE UNDER 37 C.F.R. § 42.64(b)(1)
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`CASE: IPR2015-01432
`Patent No. 7,139,794 B2
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`PETITIONER’S OBJECTIONS TO PATENT OWNER'S
`EVIDENCE UNDER 37 C.F.R. § 42.64(b)(1)
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Microsoft Corporation
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`(“Microsoft”) hereby timely objects to the evidence introduced for the first time by
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`Patent Owner, Bradium Technologies LLC (“Bradium”) at the August 5, 2016
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`deposition of Prof. William R. Michalson, and filed on August 10, 2016. The
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`objections are based on 37 C.F.R. Part 42, and the relevant portions of Federal
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`Rules of Evidence (“FRE”) that are applicable to IPR proceedings under 37 C.F.R.
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`§ 42.62. During the deposition testimony of Prof. Michalson, Microsoft objected
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`to Bradium’s untimely use of such exhibits in this proceeding, and to the testimony
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`obtained during the deposition related to such exhibits. Procedurally, Patent
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`Owner Bradium is prohibited from submitting new evidence subsequent to filing of
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`the Patent Owner Response (by Due Date 2) without first obtaining authorization
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`from PTAB. 35 U.S.C. § 316(a)(8); 37 C.F.R. §§ 42.122 and 42.20.
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`Microsoft’s specific objections to Bradium’s exhibits are:
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`1.
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`Exhibit 2002 (identified by Bradium as “DATA VISUALIZATION
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`TECHNIQUES (John Wiley & Sons Ltd., C. Bajaj, Ed.), Page Proofs,
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`including Chapter 1, Bajaj, C., Visualization Paradigms”) should be
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`excluded for at least the following reasons: Bradium’s attempted
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`introduction of this exhibit is untimely and irrelevant because it was not
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`introduced in any substantive paper by Bradium and is an improper
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`attempt to introduce new evidence, raise new issues or re-argue issues that
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`1
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`Bradium waived by failing to include them in its Patent Owner Response
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`(see Paper 17 (Scheduling Order) at 3); the exhibit is not admissible under
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`FRE 703 because it has not been relied upon by any expert in forming any
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`opinion; the exhibit constitutes hearsay under FRE 801, 802, and 805; the
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`exhibit lacks authentication under FRE 901, 902, and 903; the exhibit
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`should also be excluded pursuant to FRE 401-403 because it is not
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`relevant, and any probative value is substantially outweighed by unfair
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`prejudice to Microsoft because Bradium unduly delayed disclosing the
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`exhibits.
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`2.
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`Exhibit 2003 (identified by Bradium as “Bajaj, C. & Schikore, D.,
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`Topology Preserving Data Simplification with Error Bounds (Preprint)”)
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`should be excluded for at least the following reasons: Bradium’s
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`attempted introduction of this exhibit is untimely and irrelevant because it
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`was not introduced in any substantive paper by Bradium and is an
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`improper attempt to introduce new evidence, raise new issues or re-argue
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`issues that Bradium waived by failing to include them in its Patent Owner
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`Response (see Paper 17 (Scheduling Order) at 3); the exhibit is not
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`admissible under FRE 703 because it has not been relied upon by any
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`expert in forming any opinion; the exhibit constitutes hearsay under FRE
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`801, 802, and 805; the exhibit lacks authentication under FRE 901, 902,
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`2
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`and 903; the exhibit should also be excluded pursuant to FRE 401-403
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`because it is not relevant, and any probative value is substantially
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`outweighed by unfair prejudice to Microsoft because Bradium unduly
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`delayed disclosing the exhibits. .
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`3.
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`Exhibit 2004 (identified by Bradium as “Expert Report of William R.
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`Michalson, Visteon Global Techs., Inc. v. Garmin Int’l, Inc., 10-cv-10578,
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`D.I. 157-2, dated Sept. 29, 2002 (Excerpt)”) should be excluded for at
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`least the following reasons: Bradium’s attempted introduction of this
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`exhibit is untimely and irrelevant because it was not introduced in any
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`substantive paper by Bradium and is an improper attempt to introduce
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`new evidence, raise new issues or re-argue issues that Bradium waived by
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`failing to include them in its Patent Owner Response (see Paper 17
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`(Scheduling Order) at 3); the exhibit is not admissible under FRE 703
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`because it has not been relied upon by any expert in forming any opinion
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`in this case; the exhibit constitutes hearsay under FRE 801, 802, and 805;
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`the exhibit is incomplete and misleading; the exhibit should also be
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`excluded pursuant to FRE 401-403 because it is not relevant, and any
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`probative value is substantially outweighed by unfair prejudice to
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`Microsoft because Bradium unduly delayed disclosing the exhibits. .
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`3
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`Exhibit 2005 (identified by Bradium as “Maguire, et al.,
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`4.
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`EOGRAPHICAL INFORMATION SYSTEMS, Vol. 1, Chapter 2,
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`Coppock, J. and Rhind, D, The History of GIS (Excerpt)”) should be
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`excluded for at least the following reasons: Bradium’s attempted
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`introduction of this exhibit is untimely and irrelevant because it was not
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`introduced in any substantive paper by Bradium and is an improper
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`attempt to introduce new evidence, raise new issues or re-argue issues that
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`Bradium waived by failing to include them in its Patent Owner Response
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`(see Paper 17 (Scheduling Order) at 3); the exhibit is not admissible under
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`FRE 703 because it has not been relied upon by any expert in forming any
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`opinion; the exhibit constitutes hearsay under FRE 801, 802, and 805;
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`should also be excluded pursuant to FRE 401-403 because it is not
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`relevant, and any probative value is substantially outweighed by unfair
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`prejudice to Microsoft because Bradium unduly delayed disclosing the
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`exhibits.
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`5.
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`Exhibit 2006 (identified by Bradium as “Declaration of William
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`Michalson, PH.D, Under Armor Inc. v Adidas AG, IPR2015-00700,
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`Exhibit 2002, dated Nov. 16, 2015 (Excerpt)”) should be excluded for at
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`least the following reasons: Bradium’s attempted introduction of this
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`exhibit is untimely and irrelevant because it was not introduced in any
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`4
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`substantive paper by Bradium and is an improper attempt to introduce
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`new evidence, raise new issues or re-argue issues that Bradium waived by
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`failing to include them in its Patent Owner Response (see Paper 17
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`(Scheduling Order) at 3); the exhibit is not admissible under FRE 703
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`because it has not been relied upon by any expert in forming any opinion
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`in this case; the exhibit constitutes hearsay under FRE 801, 802, and 805;
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`the exhibit is incomplete and misleading; the exhibit should also be
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`excluded pursuant to FRE 401-403 because it is not relevant, and any
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`probative value is substantially outweighed by unfair prejudice to
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`Microsoft because Bradium unduly delayed disclosing the exhibits.
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`6.
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`Exhibit 2010 (U.S. Patent No. 6,169,549) should be excluded for at least
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`the following reasons: Bradium’s attempted introduction of this exhibit is
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`untimely and irrelevant because it was not introduced in any substantive
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`paper by Bradium and is an improper attempt to raise new issues or re-
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`argue issues that Bradium waived by failing to include them in its Patent
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`Owner Response (see Paper 17 (Scheduling Order) at 3).
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`These objections have been timely filed and served within FIVE business
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`days of service of evidence, under 37 C.F.R. § 42.64(b)(1).
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`5
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`Respectfully submitted,
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` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
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`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
`Evan S. Day, Pro Hac Vice
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`Attorneys for Microsoft Corporation
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`6
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`Dated: August 12, 2016
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`
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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`PTAB Case No. IPR2015-01432
`Patent 7,139,794 B2
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true copy of the foregoing
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`PETITIONER’S OBJECTIONS TO PATENT OWNER'S EVIDENCE UNDER 37
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`C.F.R. § 42.64(b)(1) has been served in its entirety this 12th day of August 2016
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`by electronic mail on the Patent Owner via its attorneys of record:
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`Chris Coulson (ccoulson@kenyon.com)
`Michael Zachary (mzachary@kenyon.com)
`Clifford Ulrich (culrich@kenyon.com)
`Bradiumiprservice@kenyon.com
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
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`Respectfully submitted,
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`Dated: August 12, 2016
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` /Bing Ai/
`Lead Counsel
`Bing Ai, Reg. No. 43,312
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`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Vinay Sathe, Reg. No. 55,595
`Patrick J. McKeever, Reg. No. 66,019
`Evan S. Day, Pro Hac Vice
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`Attorneys for Microsoft Corporation
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`1
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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