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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`__________________
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`Case IPR2015-01432
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`Patent No. 7,139,794 B2
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`__________________
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`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE
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`Paper No. 46
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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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`__________________
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`Case IPR2015-01432
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`Patent No. 7,139,794 B2
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`__________________
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`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE
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`Paper No. 46
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS
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`EXHIBITS 2002-2005 AND 2010 SHOULD BE EXCLUDED ................. ..1
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`1.
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`Exhibits 2002-2003 .................................................................. ..1
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`EXHIBITS 2002-2005 AND 2010 SHOULD BE EXCLUDED ................... 1
`Exhibits 2002-2003 .................................................................... 1
`1.
`Exhibits 2004-2005 .................................................................... 4
`2.
`Exhibit 2010 ............................................................................... 4
`3.
`CONCLUSION ............................................................................................... 5
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`2.
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`3.
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`Exhibits 2004-2005 .................................................................. ..4
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`Exhibit 2010 ............................................................................. ..4
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`CONCLUSION ............................................................................................. ..5
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`I.
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`I.
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`II.
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`II.
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`i
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`Patent Owner Bradium improperly uses its Opposition (Pap. 45) to
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`Petitioner Microsoft’s Motion to Exclude (Pap. 43) as a vehicle to offer even more
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`new and untimely substantive arguments and evidence that it could have offered in
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`its Patent Owner Response and accompanying expert declaration, but chose not to
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`5
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`do so. Therefore, Bradium’s Opposition should be given no weight.
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`Bradium’s Opposition fails to address this Board’s decision (joined by two
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`members of this panel) regarding the limited scope of testimony and evidence in
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`Respironics v. Zoll Medical, IPR2013-00322, Pap. 26 at 3-4 (May 7, 2014) limiting
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`observations on cross-examination of a reply witness to testimony concerning the
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`10
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`reply. Nor does Bradium’s Opposition offer any contrary authority. Instead,
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`Bradium makes new arguments attempting to link the challenged exhibits to Dr.
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`Michalson’s reply (Ex. 1015), but no such connections were articulated in
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`Bradium’s Motion for Observations on Cross-Examination (Pap. 40). Making the
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`arguments in its Opposition for the first time is entirely inappropriate. Finally,
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`15
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`Bradium’s threadbare reliance on the very limited residual hearsay exception of
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`Federal Rule of Evidence (FRE) 807, like its self-authentication arguments, is
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`unsupported by both the facts and law and must fail.
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`I.
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`EXHIBITS 2002-2005 AND 2010 SHOULD BE EXCLUDED
`1.
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`Exhibits 2002-2003
`a.
`Bradium provides new purported reasons for introducing Exhibits 2002-
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`Inadmissible as untimely and irrelevant
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`1
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`2003, but Bradium does not dispute that none of its proposed observations actually
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`argued that these exhibits were relevant to any issue raised in Dr. Michalson’s
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`reply declaration (Ex. 1015). Pap. 40, Observation Nos. 1-3. Just as the Motion for
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`Observation on Cross-Examination is not a “do-over” for Bradium to introduce
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`5
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`evidence and arguments that it failed to present earlier, Bradium’s Opposition is
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`not an opportunity for Bradium to introduce new arguments and exhibits that were
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`absent not only from Bradium’s substantive papers and supporting expert
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`declarations, but even from its Motion for Observations. See Office Trial Practice
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`Guide (“Guide”), 77 Fed. Reg. at 48,767 (“An observation (or response) is not an
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`opportunity to raise new issues, re-argue issues, or pursue objections”). Simply put,
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`no other substantive paper discussed these exhibits and therefore, they should not
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`be considered by the Board.
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`Bradium’s new arguments nevertheless fail to establish the relevance of Exs.
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`2002 and 2003 to Dr. Michalson’s reply declaration (Ex. 1015). Those exhibits
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`were not even mentioned either in the Patent Owner Response or in Dr. Bajaj’s
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`declaration (Ex. 2001). The cross-examination testimony from Dr. Michalson that
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`consisted entirely of acknowledgement that counsel for Bradium had put these
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`documents in front of him and that they appeared to contain certain passages (Ex.
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`2011 at 9:17-15:14), does not in any way “impeach Dr. Michalson’s credibility as
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`to his opinions regarding Dr. Bajaj.” (Pap. 43 at 6). Finally, Bradium’s argument
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`that these exhibits impeach Dr. Michalson’s credibility because he “admitted that
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`he had not located or reviewed either of these exhibits in rendering his opinion” is
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`preposterous because Dr. Bajaj himself did not cite these exhibits in Ex. 2001.
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`b.
`Bradium fails to provide reasons why Exs. 2002 and 2003 should not be
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`Inadmissible as unauthenticated and hearsay
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`excluded as hearsay. Bradium appears to suggest in a parenthetical on page 7 of its
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`Opposition that these exhibits are “not intended as an assertion,” yet on the same
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`page, Bradium also argues that these exhibits are relevant because of “[t]he fact
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`that Dr. Bajaj treats GIS as integrated with other technical areas…,” and
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`repeatedly quotes excerpts from both exhibits. Id., pp. 6-7. Bradium’s only purpose
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`for quoting these portions of these exhibits is to argue the truth of the matter
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`asserted, and Bradium does not seriously argue otherwise.
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`Bradium also cites FRE 807, the “residual hearsay” rule. However, a hearsay
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`statement may only be admitted under this rule when not otherwise covered by a
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`hearsay exception if “(1) the statement has equivalent circumstantial guarantees of
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`trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more
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`probative on the point for which it is offered than any other evidence that the
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`proponent can obtain through reasonable efforts; and (4) admitting it will best
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`serve the purposes of these rules and the interests of justice.” Bradium fails to even
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`acknowledge these requirements, much less show how they are met. As to the third
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`prong, Bradium does not show why it could not have offered testimony from Dr.
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`Bajaj in his original declaration (Ex. 2001) regarding his experience with GIS.
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`Finally, neither Ex. 2002 nor Ex. 2003 is authenticated. Dr. Michalson
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`repeatedly testified that he had never seen them before, and therefore cannot
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`5
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`authenticate them. Ex. 2011 at 10:3-8, 13:18-14:8. Bradium’s self-authentication
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`arguments also fail. Unlike periodical excerpts containing page number and
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`publication dates, nothing about the purported “preprints” and “page proofs”
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`offered by Bradium shows when, if ever, these documents were actually published,
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`and therefore whether they are what Bradium purports them to be.
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`10
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`Exhibits 2004-2005
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`2.
`Like Exs. 2002-2003, Bradium introduces new substantive arguments in an
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`attempt to relate Exs. 2004-2005 to Dr. Michalson’s Reply Declaration, but fails to
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`dispute that none of the arguments were made in Bradium’s Motion for
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`Observations on Cross-Examination. Pap. 40, observation Nos. 6-8, 11-18.
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`Because no other substantive paper filed by either side discusses these arguments,
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`they should be excluded as untimely and irrelevant (or not considered by the
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`Board) for the same reason as Exs. 2002-2003.
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`Exhibit 2010
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`3.
`Bradium’s Opposition does not dispute, or otherwise address, the fact that
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`Ex. 2010 was never cited or otherwise relied on by Bradium. Pap. 43 at 8. Nor
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`does Bradium address the Board authority cited by Petitioner excluding exhibits
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`not cited in any substantive paper under similar circumstances. Id., citing SK
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`Innovation v. Celgard, IPR2014-00679, Pap. 58 at 49 (Sep. 25, 2015) (excluding
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`exhibits not cited by Patent Owner). Contrary to Bradium assertion, the issue is not
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`whether Bradium could have relied on Ex. 2010 in its Patent Owner Response or
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`accompanying declaration--Bradium however chose not to do so. Here, it is not
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`just that Ex. 2010 is absent from the Patent Owner Response and declaration,
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`Bradium’s Motion for Observation (Pap. 40) does not even mention Ex. 2010 (Pap.
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`43 at 3, 7). Bradium’s belated attempt to introduce new substantive argument
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`regarding Ex. 2010 in its Opposition is not only inappropriate in a paper about
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`evidentiary issues, but it fails to respond to the fact that Bradium failed to cite this
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`document previously and it should therefore be excluded. SK Innovation, IPR2014-
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`00679, Pap. 58 at 49. Alternatively, the Board may decline to consider Ex. 2010 to
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`the extent that it was not discussed in a substantive paper. Innopharma Licensing v.
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`Senju Pharmaceutical, IPR2015-00903, Pap. 82 at 34 (July 28, 2016). Bradium’s
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`new substantive arguments raised only in its Opposition as to all of its new exhibits
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`should be disregarded by the Board. Guide at 48,768.
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`II. CONCLUSION
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`For the reasons above, the Board should exercise its discretion to exclude
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`Patent Owner’s evidence.
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`5
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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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`Dated: September 6, 2016
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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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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`PTAB Case IPR2015-01432, Patent 7,139,794 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude
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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 REPLY TO PATENT OWNER’S OPPOSITION TO
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`PETITIONER’S MOTION TO EXCLUDE has been served in its entirety this 6th
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`day of September, 2016 by electronic mail on the Patent Owner via its attorneys of
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`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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`Dated: September 6, 2016
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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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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`7
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