throbber
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`HYDRITE CHEMICAL CO.,
`Petitioner,
`
`v.
`
`SOLENIS TECHNOLOGIES, L.P.,
`Patent Owner.
`
`
`
`Case IPR2015-01592
`
`U.S. Patent No. 8,962,059
`
`
`
`PETITIONER’S OPPOSITION
`
`TO
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`PURSUANT TO 37 C.F.R. § 42.64(C)
`
`
`
`
`
`
`
`
`
`
`
`

`
`TABLE OF CONTENTS
`
`I.
`
`PETITIONER’S REPLY AND ACCOMPANYING EXHIBITS ARE
`PROPER REPLY DOCUMENTS ............................................................... 2
`
`II.
`
`EXHIBITS 1022 AND 1029 SHOULD NOT BE EXCLUDED ................. 5
`
`A.
`
`PATENT OWNER’S OBJECTIONS TO EX. 1022 ARE UNTIMELY AND
`IMPROPER. ..................................................................................................... 5
`
`1. Patent Owner waived all evidentiary objections by failing to
`object to the introduction of Ex. 1022 during Dr. Kohl’s
`deposition. ............................................................................................... 5
`2. Ex. 1022 is relevant, not unfairly prejudicial, and not hearsay. ................. 7
`B.
`EX. 1029 IS SELF-AUTHENTICATING AND NOT HEARSAY. ............................ 10
`
`III. CONCLUSION ............................................................................................ 11
`
`
`
`ii
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`
`
`The following Second Updated Exhibit List is provided in accordance with
`
`37 C.F.R. § 42.63(e):
`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`1001
`
`1002
`
`1003
`
`U.S. Patent No. 8,962,059
`
`(“’059 Patent”)
`
`Prosecution History of U.S. Patent No. 8,962,059
`
`(“’059 Prosecution”)1
`
`Assignment Records of U.S. Patent No. 8,962,059
`
`(“’059 Assignment Records”)
`
`Superior Oil Company, Inc. v. Solenis Technologies
`
`L.P., United States District Court for the District of
`
`1004
`
`Delaware, C.A. No. 15-0183-GMS, Notice of
`
`Dismissal, June 11, 2015
`
`(“Interference Dismissal”)
`
`
`1 As available from PAIR.
`
`
`
`iii
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`1005
`
`1006
`
`Declaration of David A. Rockstraw, Ph.D., P.E.
`
`(“Rockstraw Decl.”)
`
`U.S. Patent No. 4,702,798
`
`(“Bonanno”)
`
`George Alther, “Put the Breaks On,” Chemical
`
`1007
`
`Engineering, Vol. 5, No. 3 (March 1998)
`
`(“Alther”)
`
`“The HLB System a time-saving guide to emulsifier
`
`1008
`
`selection,” ICI Americas Inc. (March 1980)
`
`(“ICI”)
`
`Pasupati Mukerjee and Karol J. Mysels, “Critical
`
`Micelle Concentrations of Aqueous Surfactant
`
`1009
`
`Systems,” Nat. Stand. Ref. Data Ser., Nat. Bur. Stand.
`
`(Feb. 1971)
`
`(“Mukerjee”)
`
`iv
`
`
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`1015
`
`U.S. Patent No. 5,283,322
`
`(“Martin”)
`
`U.S. Patent No. 5,558,781
`
`(“Buchold”)
`
`U.S. Patent Application Pub. No. 2008/0110577
`
`(“Winsness”)
`
`U.S. Patent No. 7,309,602
`
`(“David”)
`
`U.S. Patent Application Pub. No. 2007/0210007
`
`(“Scheimann”)
`
`Dictionary.com,
`
`http://dictionary.reference.com/browse/aqueous,
`
`definition of “aqueous,” last accessed July 12, 2015
`
`(“Aqueous”)
`
`v
`
`
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`1016
`
`1017
`
`1018
`
`McCutcheon’s Division, “McCutcheon’s Volume 1:
`
`Emulsifiers & Detergents North American Edition,” p.
`
`211 (1997)
`
`(“McCutcheon’s”)
`
`International Union of Pure and Applied Chemistry,
`
`“Compendium of Chemical Terminology,” Second
`
`Edition, pp. 16, 166 (1997)
`
`(“IUPAC”)
`
`IUPAC-IUB Commission on Biochemical
`
`Nomenclature, “The Nomenclature of Lipids,”
`
`Biochem J., Vol. 171, Issue 1, pp. 21–35 (April 1978)
`
`(“Biochem”)
`
`
`
`vi
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`Vigen K. Babayan, “Specialty Lipids and Their
`
`Biofunctionality,” LIPIDS, Vol. 22, No. 6, pp. 417–20
`
`1019
`
`(1987)
`
`(“Babayan”)
`
`Food and Drugs, 21 C.F.R. § 172.840, “Polysorbate
`
`1020
`
`80” (2015)
`
`(“F&D § 840”)
`
`Food and Drugs, 21 C.F.R. § 573.860, “Polysorbate
`
`1021
`
`80” (2015)
`
`(“F&D § 860”)
`
`Case 2:15-cv-02063, Buckman Laboratories, Inc. v.
`
`Solenis, LLC, et al., Document 62-8, Exhibit D, Filed
`
`1022
`
`November 2, 2015
`
`(“CVEC Slides”)
`
`
`
`vii
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`Deposition Transcript of Scott D. Kohl, Ph.D, taken
`
`1023
`
`June 1, 2016
`
`(“Kohl Dep.”)
`
`Deposition Transcript of Jennifer Bailey, taken June 2,
`
`1024
`
`2016
`
`(“Bailey Dep.”)
`
`1025
`
`1026
`
`1027
`
`
`
`Reply Declaration of David A. Rockstraw, Ph.D., P.E.
`
`(“Rockstraw Reply Decl.”)
`
`Trustees of Columbia University in the City of New
`
`York v. Illumina, Inc., 620 Fed.Appx. 916 (Fed. Cir.
`
`2015)
`
`(“Illumina”)
`
`“Surface Active Agents,” Atlas Powder Company
`
`(1950)
`
`(“Atlas”)
`
`viii
`
`

`
`SECOND UPDATED EXHIBIT LIST
`
`Number
`
`Brief Description
`
`J. Ponte et al., “Handbook of Cereal Science and
`
`1028
`
`Technology,” Second Edition, p. 341 (2000)
`
`(“Cereal Science”)
`
`“Distillers Corn Oil and the Low Carbon Fuel
`
`1029
`
`Standard,” The Jacobsen, April 26, 2016
`
`1030
`
`1031
`
`(“Jacobsen”)
`
`U.S. Patent No. 8,841,469
`
`(“’469 Patent”)
`
`Case 2:15-cv-02063, Buckman Laboratories, Inc. v.
`
`Solenis, LLC, et al., Document 62-6, Exhibit 3, Filed
`
`November 2, 2015
`
`(“Copa Deposition Transcript”)
`
`
`
`
`
`
`
`
`
`ix
`
`

`
`
`
`
`
`Patent Owner’s Motion to Exclude Pursuant to 37 C.F.R. § 42.64(c) (“Patent
`
`Owner’s Motion”) should be expunged by the Board.2 Specifically, at least the
`
`portions of Patent Owner’s Motion that are impermissibly directed toward
`
`contentions concerning alleged “new evidence and arguments” in Petitioner’s
`
`Reply (e.g., Patent Owner’s remarks under Section I, which is devoid of
`
`evidentiary remarks) should be expunged. Patent Owner objects to Petitioner’s
`
`Reply and Dr. Rockstraw’s Reply Declaration (Ex. 1025), not for evidentiary
`
`reasons, but because Patent Owner contends “they contain impermissible new
`
`evidence and arguments.” Patent Owner’s Motion, p. 1. Of course, a “motion to
`
`exclude should address only admissibility of evidence—not whether a Reply
`
`makes a ‘new’ argument.” IPR2014-01555, Paper No. 50, p. 76–77.
`
`
`
`In fact, Patent Owner requested a conference call to discuss whether it could
`
`file a motion to object to portions of Petitioner’s Reply that it believes improperly
`
`include new arguments and evidence. See Paper No. 24. The Board’s Order in
`
`response could not have been clearer. The Board only authorized Patent Owner to
`
`file a two-page paper in the “form of a list providing the location and a concise
`
`description” that “should not contain argument.” Paper No. 24, p. 2 (emphasis
`
`2 See, e.g., 37 C.F.R. § 42.7(a) (“The Board may expunge any paper . . . filed . . .
`
`that is not authorized under this part or in a Board order or that is filed contrary to
`
`a Board order.”) (emphasis added).
`
`1
`
`

`
`
`
`added). Apparently not satisfied with the Board’s Order, Patent Owner now
`
`flagrantly presents its unauthorized arguments in Patent Owner’s Motion.
`
`
`
`Petitioner responds to Patent Owner’s attempt to circumvent the Board’s
`
`Order and brief its arguments concerning the scope of Petitioner’s Reply below.
`
`Should the Board, however, desire to reverse course and actually authorize Patent
`
`Owner to brief the issues, Petitioner requests the opportunity to substantively
`
`respond accordingly with an authorized submission, although Petitioner does not
`
`deem such briefing necessary.
`
`I.
`
`
`
`PETITIONER’S REPLY AND ACCOMPANYING EXHIBITS ARE
`PROPER REPLY DOCUMENTS
`
`Nothing in Petitioner’s Reply, or the accompanying Exhibits, is necessary to
`
`establish the prima facie case set forth in the Petition as found by the Board.
`
`Patent Owner’s arguments are just another example of a patent owner “too often
`
`cry[ing] foul when evidence is properly relied upon in a reply.” IPR2014-01555,
`
`Paper No. 36, p. 5. “In a reply, a petitioner may legitimately respond to arguments
`
`made in an opposition. To do so, often it is necessary to rely on . . . new
`
`evidence.” IPR2014-01555, Paper No. 36, p. 5; see also CBM2012-00002, Paper
`
`No. 38, p. 2 (“by standard procedure the Petitioner has the last word with regard to
`
`the petition and it would not be unusual that one or more reply declarations may be
`
`necessitated by the arguments and evidence presented with the Patent Owner
`
`Response”). Of course, Petitioner, in its Petition, “does not have to anticipate all
`
`2
`
`

`
`
`
`possible arguments which a patent owner made [sic] present in an opposition on
`
`the merits.” IPR2014-01555, Paper No. 36, p. 5; see IPR2013-00057, Paper No.
`
`29, p. 2 (“It also would be unreasonable to expect a Petitioner to submit supporting
`
`testimony for every matter that possibly may be involved in a dispute.”); see also
`
`CBM2012-00002, Paper No. 38, p. 2 (“a petitioner reasonably cannot anticipate in
`
`advance everything that may be presented in a Patent Owner Response”).
`
`
`
`Patent Owner erroneously contends that Petitioner’s reply evidence is
`
`improper because it supports Petitioner’s prima facie case and could have been
`
`submitted earlier. “Patent Owner should recognize” that “the standard for
`
`determining whether a Reply is appropriate is not whether an argument contained
`
`therein or evidence submitted therewith ‘could have been’ submitted in the original
`
`petition.” CBM2012-00002, Paper No. 38, p. 2 (emphasis added); see also
`
`IPR2013-00057, Paper No. 29, p. 2 (“it is not the test for determining
`
`appropriateness of a Reply merely to see whether information was previously
`
`available to [petitioner] and could have been submitted with its Petition”). Instead,
`
`the Patent Owner must establish that the new evidence is necessary to make out a
`
`prima facie case of unpatentability. Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064,
`
`1079 (Fed. Cir. 2015). As recognized by the Federal Circuit, “[e]vidence admitted
`
`in rebuttal to respond to the patent owner’s criticisms will commonly confirm the
`
`prima facie case. That does not make it necessary to the prima facie case.” Id.
`
`3
`
`

`
`
`
`
`
`As for Patent Owner’s contentions that it has no “opportunity for a
`
`meaningful response,” Petitioner notes (as has the Federal Circuit) that Patent
`
`Owner’s motion for observations cuts against such a due-process styled argument.
`
`Id. at 1079-81 (discussing procedural rights, including observations). Patent
`
`Owner also notes that Petitioner did not file any motions for supplemental
`
`information. Tellingly, this is because a “motion to supplement is not necessary if
`
`evidence relied upon in a reply is limited to responding to arguments made in an
`
`opposition.” IPR2014-01555, Paper No. 36, p. 5.
`
`
`
`Finally, Petitioner again notes that Patent Owner’s arguments under Section
`
`I constitute impermissible arguments that directly contradict the Board’s Order.
`
`The Board stated that in “rendering a Final Written Decision, the Board will
`
`determine what weight, if any, is to be given to all of the presented evidence and
`
`arguments in accordance with the rules of the Board.” Paper No. 24, p. 2. Out of
`
`adherence to the Board’s Order, Petitioner will not engage Patent Owner’s
`
`substantive sur-reply remarks directed at its new evidence and argument
`
`contentions, but instead will address the proper evidentiary issues contemplated
`
`under 37 C.F.R. § 42.64(c). See also IPR2013-00170, Paper No. 56, pp. 31-33
`
`(expounding upon what is proper argument in a motion to exclude).
`
`4
`
`

`
`
`
`II. EXHIBITS 1022 AND 1029 SHOULD NOT BE EXCLUDED
`Patent Owner’s Motion fails both procedurally, with respect to Ex. 1022,
`
`and substantively, with respect to all of the challenged exhibits. Moreover, “there
`
`is a strong public policy for making all information filed in an administrative
`
`proceeding available to the public, especially in an inter partes review, which
`
`determines the patentability of claims in an issued patent.” IPR2013-00534, Paper
`
`No. 81, p. 25. It “is better to have a complete record of the evidence submitted by
`
`the parties than to exclude particular pieces of evidence.” IPR2013-00534, Paper
`
`No. 81, p. 25.
`
`A.
`
`Patent Owner’s objections to Ex. 1022 are untimely and
`improper.
`1.
`
`Patent Owner waived all evidentiary objections by failing to
`object to the introduction of Ex. 1022 during Dr. Kohl’s
`deposition.
`
`
`
`All of Patent Owner’s objections to Ex. 1022 (“CVEC”) are untimely and
`
`therefore have been waived. Petitioner served CVEC during the the Kohl
`
`Deposition (Ex. 1023) on June 1, 2016. See Ex. 1023, 50:24-51:17 (“And,
`
`Counsel, this is a new exhibit being served.”) (emphasis added). Under 37 C.F.R.
`
`§ 42.64(a), an “objection to the admissibility of deposition evidence must be made
`
`during the deposition.” 37 C.F.R. § 42.64(a) (emphasis added). Patent Owner did
`
`not object to the introduction of CVEC during the deposition of Dr. Kohl. In fact,
`
`Patent Owner did not file any objection until July 17, 2016, over one month after
`
`5
`
`

`
`
`
`service. See Paper No. 22. Thus, even under the five day window for objecting to
`
`non-deposition evidence, Patent Owner’s objections are untimely. See 42.64(b)(1)
`
`( “Once a trial has been instituted, any objection must be filed within five business
`
`days of service of evidence to which the objection is directed.”). Patent Owner
`
`waived its objections by delaying until well more than a month after even the
`
`statutory five-day deadline had passed before objecting to the exhibit.
`
`
`
`Patent Owner’s objections to deposition questions are not objections to the
`
`introduction of the exhibit itself. In a belated attempt to cure its waiver, Patent
`
`Owner contends that it “raised timely objections to this exhibit in the context of the
`
`questions that Hydrite posed to the witness.” Patent Owner’s Motion, p. 10
`
`(emphasis added). Of course, objecting to the admissibility of the exhibit (i.e.,
`
`CVEC) under the FRE is distinct from objecting to the questions posed to a
`
`witness. Despite the unmistakable language of the Rule, Patent Owner did not
`
`properly object to CVEC during the deposition as required under 37 C.F.R. §
`
`42.64(a). See, e.g., IPR2013-00080, Paper No. 90, pp. 50-52 (discussing waiver of
`
`objections to evidence introduced at a deposition); see also IPR2014-01555, Paper
`
`No. 50, p. 73 (noting that no “objection to admissibility of the Canadian Patent was
`
`made during the Crocker cross-examination” and citing 37 C.F.R. § 42.64(a)).
`
`The portions of Dr. Kohl’s deposition transcript (Ex. 1023) cited by Patent Owner
`
`show that Patent Owner presented no objections (timely or otherwise) to the CVEC
`
`6
`
`

`
`
`
`exhibit. Patent Owner only objected to the questions posed to the witness. Patent
`
`Owner was given ample time to both review and object to the CVEC exhibit at the
`
`time of service during Dr. Kohl’s deposition. Patent Owner did not object, did not
`
`trigger Petitioner’s right to cure, and cannot now retroactively attempt to remedy
`
`what it undoubtedly realizes would have been the proper course of conduct. See 37
`
`C.F.R. § 42.64(a).
`
`2.
`
`Ex. 1022 is relevant, not unfairly prejudicial, and not
`hearsay.
`
`
`
`Even if Patent Owner did not waive its objections to CVEC, the Board
`
`should overrule Patent Owner’s objections to CVEC under FRE 402 (relevance),
`
`FRE 403 (prejudicial), and FRE 802 (hearsay). See Patent Owner’s Motion, p. 9.
`
`
`
`As an initial matter, and as outlined below, Patent Owner should have
`
`provided CVEC to Petitioner under 37 C.F.R. § 42.51(b)(1)(iii) as “relevant
`
`information that is inconsistent with a position advanced” by Patent Owner. See
`
`37 C.F.R. § 42.51(b)(1)(iii).
`
` Specifically, Ex. 1030 (“Copa Deposition
`
`Transcript”) was previously served on Patent Owner in response to Patent Owner’s
`
`Objections to Evidence Submitted with Petitioner’s Reply. The Copa Deposition
`
`Transcript, which is Document 62-6 in Case No. 2:15-cv-02063 (Buckman
`
`Laboratories, Inc. vs. Solenis LLC), is the deposition transcript of Vincent Edward
`
`Copa as Chippewa Valley Ethanol Company’s representative. In particular, the
`
`Board is directed to the Copa Deposition Transcript at 109:12-110:23 at which Mr.
`
`7
`
`

`
`
`
`Smith, Patent Owner’s attorney, discussed “Exhibit D” (i.e., Exhibit 1022 /
`
`CVEC), with Mr. Copa who confirmed that he prepared Exhibit D on or about “the
`
`12th of June in 2009,” clearing the evidentiary objections Patent Owner has
`
`brought in this proceeding. Ex. 1030, 109:12-110:23. Of course, the content
`
`found in CVEC, especially on page 6 titled “Increasing Oil Yield” and noting use
`
`of polysorbate 80, is also fundamentally inconsistent with Patent Owner’s primary
`
`position of patentability and that one of ordinary skill would not have arrived at the
`
`claimed invention.
`
`
`
`Despite having failed to itself disclose this inconsistent evidence, Patent
`
`Owner continues to challenge the admissibility of CVEC. Patent Owner maintains
`
`that CVEC is hearsay, even in view of the Copa Deposition Transcript in which
`
`Patent Owner deposed the creator of the document. Patent Owner’s Motion, p. 10.
`
`At a minimum, CVEC can be offered “as evidence of what it describes to an
`
`ordinary artisan, not for proving the truth of the matters addressed in the
`
`document.” IPR2013-00534, Paper No. 81, p. 25. “Accordingly, [CVEC] is not
`
`hearsay requiring the remedy of exclusion.” IPR2013-00534, Paper No. 81, p. 25.
`
`Of course, “[a]rt can legitimately serve to document the knowledge that skilled
`
`artisans would bring to bear in reading the prior art identified as producing
`
`obviousness.” Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1365
`
`(Fed. Cir. 2015); see also Thomas & Betts Corp. v. Litton Sys., Inc., 720 F.2d 1572,
`
`8
`
`

`
`
`
`1580-81 (Fed. Cir. 1983) (relying on “unpublished internal criteria” that “though
`
`technically not prior art” as “indicators of the level of ordinary skill in the art to
`
`which the invention pertained”).
`
`
`
`In addition, Patent Owner contends that CVEC is irrelevant under FRE 402
`
`for lacking “evidence of when [CVEC] was first publicly available.” Patent
`
`Owner’s Motion, p. 103. To the contrary, given the positions taken by Patent
`
`Owner in the interrelated proceedings (i.e., IPR2015-01592 and IPR2015-01586),
`
`including Dr. Kohl’s position that both interfering patents at issue remain valid,
`
`CVEC is relevant to the level of knowledge of one of ordinary skill, at least as
`
`evidence of what CVEC describes to or is understood by one of ordinary skill.
`
`See, e.g., Thomas & Betts, 720 F.2d at 1580-81 (relying on “unpublished internal
`
`criteria” that “though technically not prior art” as “indicators of the level of
`
`ordinary skill in the art to which the invention pertained”); see also Ariosa
`
`Diagnostics, 805 F.3d at 1365 (finding that art that “had not been identified at the
`
`petition stage as one of the pieces or prior art defining a combination for
`
`obviousness” can still “legitimately serve to document the knowledge that skilled
`
`artisans would bring to bear in reading the prior art identified as producing
`
`obviousness”). Thus, CVEC is relevant, and public availability is not the test.
`
`3 Note that it is unclear whether Patent Owner intended to refer to “the 469 Patent
`
`claims” as opposed to the claims of the ’059 Patent at issues in IPR2015-01592.
`
`9
`
`

`
`
`
`Lastly, Patent Owner asserts that CVEC is “prejudicial” to Patent Owner
`
`because, like Patent Owner, CVEC was in Petitioner’s possession but not earlier
`
`filed. Patent Owner’s Motion, p. 11. Patent Owner continues to assert prejudice in
`
`not having an opportunity to respond and ultimately reverts to its irrelevant
`
`arguments contending that Petitioner’s Reply contained new evidence and
`
`arguments. Patent Owner’s Motion, p. 11. All of Patent Owner’s arguments are
`
`without merit. Returning to the relevant evidentiary issues at hand, the probative
`
`value of CVEC is not outweighed by Patent Owner’s contentions of prejudice.
`
`The Board is well qualified to both understand and weigh the relevancy of CVEC
`
`to the instant proceeding without the “unfair prejudice” contemplated in FRE 403.
`
`Ex. 1029 is self-authenticating and not hearsay.
`
`B.
`Patent Owner’s objections to Ex. 1029 (“Jacobsen”) based on FRE 901
`
`(authentication) and FRE 802 (hearsay) should be overruled because Jacobsen is
`
`self-authenticating and not hearsay. See Patent Owner’s Motion, pp. 11-12.
`
`Contrary to Patent Owner’s assertion that “none of the sub-sections of FRE
`
`902 reasonably apply,” Jacobsen is self-authenticating under FRE 902(7). Patent
`
`Owner’s Motion, p. 10. Specifically, the “The Jacobsen” trade inscription is
`
`affixed to Jacobsen in the course of business and indicates at least one of origin,
`
`ownership, and control. See also IPR2013-00534, Paper No. 81, p. 24 (finding
`
`self-authentication under FRE 902(7)).
`
`10
`
`

`
`
`
`Jacobsen (Ex. 1029) is not hearsay at least to the extent that it “is offered as
`
`evidence of what it describes to an ordinary artisan.” IPR2013-00534, Paper No.
`
`81, p. 25. Petitioner’s Reply referred to Jacobsen as follows:
`
`Solenis does not address that its sales numbers could have been the
`
`result of other significant market forces, including that the “current
`
`value of corn oil as biodiesel is . . . essentially double the value of the
`
`commercial feed that would normally include this oil.” Ex. 1012, ¶6;
`
`see also Ex. 1029 (discussing biodiesel production and the low carbon
`
`fuel standard increasing demand for corn oil).
`
`Petitioner’s Reply, p. 24.
`
`Jacobsen is both relevant and not hearsay, and should not be excluded from
`
`this proceeding, but considered for all that it brings to the trial.
`
`III. CONCLUSION
`
`Patent Owner’s Motion should be expunged for including improper
`
`arguments in direct violation of the Board’s Order. Should the Board decide to
`
`address the actual evidentiary matters, the above-identified exhibits (where
`
`legitimately subject to objection) are proper. Consistent with the “strong public
`
`policy for making all information filed in an administrative proceeding available to
`
`the public,” Petitioner has provided the above remarks that overcome Patent
`
`11
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`

`
`
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`Owner’s asserted (and even procedurally waived) objections such that the record in
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`this proceeding can remain complete. IPR2013-00534, Paper No. 81, p. 25.
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`
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`Date: August 22, 2016
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`Respectfully submitted,
`
`
`
`
`
`/Joel A. Austin/
`Joel A. Austin
`Reg. No. 59,712
`Back-up Counsel for Petitioner
`
`By:
`
`
`
`
`12
`
`

`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`HYDRITE CHEMICAL CO.,
`Petitioner,
`
`v.
`
`SOLENIS TECHNOLOGIES, L.P.,
`Patent Owner.
`
`
`
`Case IPR2015-01592
`Patent 8,962,059
`
`
`CERTIFICATE OF SERVICE
`
`
`
`Filed via PRPS
`
`Dear Board:
`
`
`
`I hereby certify on this 22nd day of August 2016, that a true and correct
`
`copy of the PETITIONER’S OPPOSITION TO PATENT OWNER’S MOTION
`
`TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64(C) (including Exhibit 1031
`
`(previously served)) was electronically mailed in its entirety to:
`
`IPR2015-01592@bakerlaw.com
`
`jlucci@bakerlaw.com
`
`dfarsiou@bakerlaw.com
`
`
`
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`

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`Date: August 22, 2016
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`By:
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`
`
`Respectfully submitted,
`
`
`/Michael Piery/
`Michael Piery
`Reg. No. 71,915
`
`
`
`
`
`2

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