IPR2015-01444
`Patent 7,039,033
`
`
`
`By: Andy H. Chan, Reg. No. 56,893
`Pepper Hamilton LLP
`333 Twin Dolphin Drive
`Suite 400
`Redwood City, CA 94065
`(650) 802-3602 (telephone)
`(650) 802-3650 (facsimile)
`chana@pepperlaw.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., AND APPLE INC.,
`Petitioner
`v.
`
`IXI IP, LLC
`Patent Owner
`___________________
`
`Case No. IPR2015-01444
`Patent 7,039,033
`___________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`RELIED UPON IN THE REPLY
`
`
`
`
`1
`
`
`
`
`
`
`
`
`
`
`Patent 7,039,033
`
`
`
`By: Andy H. Chan, Reg. No. 56,893
`Pepper Hamilton LLP
`333 Twin Dolphin Drive
`Suite 400
`Redwood City, CA 94065
`(650) 802-3602 (telephone)
`(650) 802-3650 (facsimile)
`chana@pepperlaw.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., AND APPLE INC.,
`Petitioner
`v.
`
`IXI IP, LLC
`Patent Owner
`___________________
`
`Case No. IPR2015-01444
`Patent 7,039,033
`___________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE
`RELIED UPON IN THE REPLY
`
`
`
`
`1
`
`
`
`
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`
`IPR2015-01444
`Patent 7,039,033
`
`
`Pursuant to 37 C.F.R. § 42.64(b), Patent Owner IXI IP, LLC respectfully
`
`asserts the following objections to the evidence proffered with the Petitioner’s
`
`Reply to Patent Owner’s Response of June 21, 2016. The Federal Rules of
`
`Evidence (“FRE”) apply to these proceedings according to the provisions of 37
`
`C.F.R. § 42.62(a), and these rules form the basis of the objections contained herein.
`
`These objections are being filed within five business days from the date
`
`Petitioner’s Reply and its accompanying evidence were served on Patent Owner.
`
`II.
`
`PATENT OWNER’S OBJECTIONS TO EXHIBITS 1016, AND 1017
`A. Exhibits 1016 and 1017 Are Inadmissible Pursuant To 37 C.F.R. §
`42.123(b)
`
`Exhibit 1016 is inadmissible because Petitioner has failed to seek
`
`authorization to file a motion to submit supplemental information pursuant to 37
`
`C.F.R. § 42.123(b). Once a trial has been instituted, a party may file a motion to
`
`submit supplemental information. 37 C.F.R. § 42.123(a). However, “[a] party
`
`seeking to submit supplemental information more than one month after the date the
`
`trial is instituted, must request authorization to file a motion to submit the
`
`information.” 37 C.F.R. § 42.123(b). The motion to submit supplemental
`
`information must show: (1) “why the supplemental information reasonably could
`
`not have been obtained earlier,” and (2) “that consideration of the supplemental
`
`information would be in the interests-of-justice.” Id.
`
`
`
`2
`
`
`
`In particular, Petitioner alleges that Exhibit 1016 demonstrates that
`
`IPR2015-01444
`Patent 7,039,033
`
`
`Marchand’s JINI technology is plug and play and sufficient to load and execute
`
`software. Paper 18 at 24. Additionally, Petitioner alleges that Exhibit 1017
`
`demonstrates that webpage access for browsing the internet is a well-known
`
`functionality of a laptop. Paper 18 at 21. Petitioner was or should have been
`
`aware of these references before the Petition was filed, yet, Petitioner chose not to
`
`rely on Exhibits 1016 and 1017 in the Petition. Rather, Petitioner now, having
`
`been shown the flaws in its analysis, attempts to rehabilitate its arguments by
`
`improperly relying on new evidence not previously asserted.
`
`Petitioner has failed to file a motion to submit Exhibits 1016 or 1017, let
`
`alone seek the Board’s authorization to file such motion. Petitioner has not and
`
`cannot demonstrate why the belated Exhibits 1016 and 1017 “reasonably could not
`
`have been obtained earlier.” Id. Furthermore, Petitioner has not demonstrated
`
`“that consideration of the supplemental information would be in the interests-of-
`
`justice,” particularly in light of its inexcusable delay in submitting those exhibits.
`
`37 C.F.R. § 42.123(b).
`
`Accordingly, Exhibits 1016 and 1017 should be excluded because Petitioner
`
`has failed to seek the Board’s authorization to file a motion to submit these
`
`exhibits pursuant to 37 C.F.R. § 42.123(b).
`
`
`
`3
`
`
`
`Exhibit 1016 Is Not Authenticated
`
`B.
`Notwithstanding the impropriety of the newly added evidence, Exhibit 1016
`
`IPR2015-01444
`Patent 7,039,033
`
`
`is not properly authenticated. As a proponent of the evidence, Petitioner bears the
`
`burden of establishing that the proffered evidence, Exhibit 1016 meets the
`
`requirements of FRE 901. But Petitioner has failed to provide any evidence to
`
`support a finding that Exhibit 1016 is what Petitioner claims it is, and thus, is
`
`inadmissible.
`
`Petitioner has failed to offer sufficient evidence to establish the authenticity
`
`of Exhibit 1016. Petitioner provides no evidence identifying specifically from
`
`where Exhibits 1016 was obtained or when, if at all, Exhibit 1016 was published or
`
`otherwise publicly available. Petitioner also fails to provide testimonial evidence
`
`from any witness having personal knowledge of Exhibit 1016 to establish its
`
`authenticity. Nor does Petitioner point to any characteristics of the document to
`
`support and establish its authenticity pursuant to FRE 901.
`
`C. Exhibit 1016 Constitutes Hearsay
`To the extent Petitioner relies on the date information appearing on Exhibit
`
`1016 to argue that the contents of the document were publicly available as of a
`
`particular date, the information constitutes inadmissible hearsay. Petitioner
`
`attempts to rely on Exhibit 1016 without explaining when or if the exhibit was
`
`published or otherwise publicly available. Petitioner cannot rely on the date
`
`
`
`4
`
`
`
`information appearing on Exhibit 1016 to prove the truth of the matter being
`
`IPR2015-01444
`Patent 7,039,033
`
`
`asserted; namely, that the contents of the document were publicly available, as of a
`
`particular date, because Petitioner has not shown that a hearsay exception applies.
`
`As such, Patent Owner objects under FRE 801 and 802.
`
`D. Exhibits 1016 and 1017 Are Not Relevant
`Exhibits 1016 and 1017 are not relevant and thus are inadmissible under
`
`FRE 402. Exhibits 1016 and 1017 were, or should have been, known to Petitioner
`
`at the time of filing the Petition, but Petitioner did not consider them relevant
`
`enough to cite them. Now, in the Reply, Petitioner relies on Exhibit 1016 to allege
`
`that Marchand’s JINI technology is plug and play and sufficient to load and
`
`execute software. Paper 18 at 24. However, Petitioner provides no explanation
`
`regarding how or why this references demonstrates that Marchand’s JINI
`
`technology is plug and play and sufficient to load and execute software. Petitioner
`
`simply cites to Exhibit 1016 without providing any analysis regarding how its
`
`teachings relate to Marchand or to the ’033 Patent.
`
`Similarly, Petitioner, for the first time in the Reply, relies on Exhibit 1017 to
`
`allege that webpage access for browsing the internet is a well-known functionality
`
`of a laptop. Paper 18 at 21. Petitioner points to no evidence and provides no
`
`analysis to suggest that this proposition in anyway relates to the ’033 Patent or the
`
`cited prior art.
`
`
`
`5
`
`
`
`Neither Exhibit 1016 nor 1017 has a direct impact on the teachings of the
`
`IPR2015-01444
`Patent 7,039,033
`
`
`’033 Patent or the cited prior art. Exhibits 1016 and 1017 have no tendency to
`
`make a fact more or less probable than it would be without the exhibit, nor are the
`
`teachings of any of the exhibits of consequence in determining what is disclosed in
`
`the cited prior art. See FRE 401.
`
`III. CONCLUSION
`For at least the foregoing reasons, the evidence proffered by Petitioner in the
`
`Reply, in the form of Exhibits 1016 and 1017, fail to comply with 37 C.F.R. §
`
`42.64(b), 37 C.F.R. § 42.123(b) and the Federal Rules of Evidence. Patent Owner
`
`reserves the right to move to exclude the evidence objected to herein at the
`
`appropriate time.
`
`
`
`
`
`6
`
`
`
`IPR2015-01444
`Patent 7,039,033
`
`
`Respectfully submitted,
`
` /Andy H. Chan/
`By:
`Andy H. Chan, Reg. No. 56,893
`Pepper Hamilton LLP
`333 Twin Dolphin Drive,
`Suite 400
`Redwood City, CA 94065
`(650) 802-3600 (telephone)
`(650) 802-3650 (facsimile)
`
`George S. Haight IV, Reg. No. 54,146,
`Pepper Hamilton LLP
`125 High Street
`19th Floor High Street Tower
`Boston, MA 02110
`(617) 204-5165 (telephone)
`(617) 204-5150 (facsimile)
`
`Attorneys for Patent Owner
`
`7
`
`
`Dated: June 28, 2016
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IPR2015-01444
`Patent 7,039,033
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 28th day of June, 2016, a true and correct copy
`
`of the foregoing Patent Owner’s Objections to Evidence Relied Upon in the Reply
`
`was served on the following counsel for Petitioner via email:
`
`Kevin Greene
`Email: IPR00035-0004IP1@fr.com
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: (202) 783-5070
`Fax: (202) 783-2331
`
`Jeremy Monaldo
`Email: PTABInbound@fr.com
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: (202) 783-5070
`Fax: (202) 783-2331
`
`Indranil Mukerji
`Email: PTABInbound@fr.com
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: (202) 783-5070
`Fax: (202) 783-2331
`
`
`
`W. Karl Renner
`Email: axf@fr.com
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: (202) 783-5070
`Fax: (202) 783-2331
`
`
`
`
`8
`
`
`
`IPR2015-01444
`Patent 7,039,033
`
`
`Katherine A. Vidal
`Email: PTABInbound@fr.com
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Tel: 650-839-5084
`Fax: 877-769-7645
`
`
`Respectfully submitted,
`By: /Andy H. Chan/
`
`Andy H. Chan, Reg. No. 56,893
`Pepper Hamilton LLP
`333 Twin Dolphin Drive,
`Suite 400
`Redwood City, CA 94065
`(650) 802-3600 (telephone)
`(650) 802-3650 (facsimile)
`
`
`
`
`
`
`
`
`
`9
`
`
`
`
`
`Dated: June 28, 2016
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
