throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC.,
`ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioners,
`
`v.
`
`ACCELERATION BAY, LLC,
`Patent Owner.
`
`____________________
`
`Case IPR2015-019721
`U.S. Patent No. 6,701,344
`
`__________________________________________________________
`
`PATENT OWNER’S MOTION TO EXCLUDE
`
`
`1 Bungie, Inc., who filed a Petition in IPR2016-00936, has been joined as a
`petitioner in this proceeding.
`
`
`
`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`I.
`
`Introduction
`
`Pursuant to 37 C.F.R. 42.64, Patent Owner Acceleration Bay, LLC (“Patent
`
`Owner”), through this Motion to Exclude, moves to exclude certain evidence,
`
`discussed below, that Petitioner submitted in this proceeding. The Board should
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`grant Patent Owner’s Motion to Exclude for the reasons set forth below.
`
`Patent Owner timely raised the objections set forth herein. On April 7,
`
`2016, Patent Owner timely served Petitioner with objections to the exhibits in its
`
`Petition. Paper 10. On October 21, 2016, Patent Owner timely served Petitioner
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`with objections to the exhibits in its Reply brief. Paper 61.
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`II. The Board Should Exclude Exhibits Outside the Proper Scope of Reply
`(Exs. 1125, 1126, 1128, 1130, 1136, 1137, 1138, 1131, 1144, 1145).
`
`Petitioner’s Reply improperly introduced new evidence and arguments that
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`are inadmissible under 37 C.F.R. § 42.61, and are properly subject to exclusion.
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`Belden Inc. v. Berk-Tek LLC, 803 F.3d 1064, 1081 (Fed. Cir. 2015) (“a party may
`
`move to exclude evidence, whether as improper under the response-only
`
`regulation, under the Trial Practice Guide’s advice, or on other grounds.”) (citation
`
`omitted). These belated submissions should be excluded because it is improper for
`
`Petitioner to introduce new evidence and arguments in its Reply in order to resolve
`
`the deficient arguments and evidentiary shortcomings of its Petition. See, e.g.,
`
`Toshiba Corp. v. Optical Devices, LLC, Case IPR2014-01447, Paper 34 at 44–47
`
`(P.T.A.B. Mar. 9, 2016) (“[Section 42.23(b)], however, does not authorize or
`
`1
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`otherwise provide a means for supplementing the evidence of record.”); Toyota
`
`Motor Corp. v. Am. Vehicular Scis. LLC, Case IPR2013-00424, Paper 50 at 21
`
`(P.T.A.B. Jan. 12, 2015).
`
`Specifically, Petitioner introduced for the first time in its Reply, 23 new
`
`exhibits, including a 142-page rebuttal declaration from Dr. Karger, additional
`
`prior art references, and additional support to attempt to establish the public
`
`accessibility of the Shoubridge Document (Ex. 1105). All of these exhibits contain
`
`information that was available at the time Petitioner filed its Petition.
`
`First, Petitioner could have submitted the (1) Karger Rebuttal Declaration
`
`(Exhibit 1125), (2) Leap Frog (Exhibit 1128), (3) Gautier Document (Exhibit
`
`1130), and (4) Grenier Declaration with McCanne (Exhibit 1144). Instead,
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`Petitioner introduced them, for the first time, in its Reply to supplement its prima
`
`facie invalidity case. Accordingly, Exhibits 1125, 1128, 1130, and 1144 should be
`
`excluded as improper new evidence belatedly introduced in a Reply. Office Patent
`
`Trial Practice Guide, 77 Fed. Reg. 48,156, 48,767 (Aug. 14, 2012) (“[A] reply that
`
`raises a new issue or belatedly presents evidence will not be considered and may
`
`be returned.”).
`
`Petitioner improperly offers the (1) Bennett Decl. (Exhibit 1126), (2) Second
`
`Shoubridge Decl. (Exhibit 1136), (3) IEEE Policy and Procedures Manual (Ex.
`
`1138), and (4) Grenier Decl. with Shoubridge (Exhibit 1141) in its Reply as a
`
`2
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`belated attempt to revise and supplement its argument that the Shoubridge
`
`Document (Exhibit 1105) was publicly available prior art. The Board should not
`
`consider this evidence because it was available at the time that Petitioner filed its
`
`Petition. Further, Exhibit 1138 was last accessed on October 7, 2016, which has
`
`no bearing on the policies and procedure during the relevant time frame at issue.
`
`Second, in its Reply, Petitioner improperly attempts to introduce new
`
`references to supplement its grounds for invalidity of the ’344 Patent. Office
`
`Patent Trial Practice Guide, 77 Fed. Reg. at 48,767 (“[I]ndications that a new issue
`
`has been raised in a reply include new evidence necessary to make out a prima
`
`facie case for … patentability or unpatentability … and new evidence that could
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`have been presented in a prior filing.”). Specifically, Petitioner relies on Exhibits
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`1128, 1130, and 1144 to support its assertion that “[i]t would have been an obvious
`
`implementation choice for an application running at each node (and sending the
`
`‘user traffic’) to form the network using an application layer overlay.” See, e.g.,
`
`Paper 59 at 8, 9; Ex. 1128; Ex. 1130; Ex. 1144; Ex. 1125, see, e.g., ¶¶ 20, 25, 55,
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`116, 121(relying on Exs. 1130 and 1144 to support its arguments as to what would
`
`have been obvious to a person having ordinary skill in the art (PHOSITA)); see,
`
`e.g., ¶¶ 19, 22, 25, 29 (mischaracterizing Ex. 1128 as demonstrating what a
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`PHOSITA would have known during the relevant time frame, even though Ex.
`
`3
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`1128 is from well after the relevant time frame for the ’344 Patent2). This is
`
`improper because the Board instituted IPR of the ’344 Patent based on Shoubridge
`
`(Ex. 1105) alone, thus these additional references are irrelevant. Further, the
`
`earliest these documents can be considered publicly available is early 2000, as
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`discussed more fully below. This is after the relevant time frame at issue here.
`
`Therefore, these new exhibits should be excluded under FRE 401–403 because
`
`they are not part of the instituted grounds in this IPR.
`
`Third, Petitioner’s Reply should be excluded as unfairly prejudicial to
`
`Patent Owner as it belatedly raises new arguments and evidence that could have
`
`been included in the Petition. See generally Fed. R. Evid. 403 (evidence may be
`
`excluded “if its probative value is substantially outweighed by a danger of …
`
`unfair prejudice”). Here, Patent Owner did not have an opportunity to
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`substantively respond to Petitioner’s untimely new evidence and arguments. It
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`would thus be highly prejudicial for the Board to allow Petitioner to sandbag the
`
`Patent Owner with these belated materials, especially ones that support new
`
`arguments by permitting Petitioner’s untimely Exhibits to remain in the record and
`
`by considering such Exhibits. Therefore, under FRE 403, the Board should
`
`
`2 This is apparent from the list of citations, which includes references to documents
`
`as late as 2003. See Ex. 1128, p. 12 at [34] and [35].
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`4
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`exercise its discretion in excluding Exs. 1125-1126, 1128, 1130, 1136-1138, 1131,
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`1144, 1145.
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`III. The Board Should Exclude the Declaration of Karger (Exs. 1119, 1125,
`and 1145).
`
`The testimony of Dr. Karger should be excluded because his opinions are
`
`conclusory, do not disclose underlying facts or data in support of his opinions, and
`
`are unreliable. Fed. R. Evid. 702; Intellectual Ventures Mgmt., LLC v. Xilink, Inc.,
`
`Case IPR2012-00020, Paper 34 at 10 (P.T.A.B. Feb. 11, 2014) (an expert’s
`
`“conclusory testimony is entitled to little or no weight.”); Tietex Int’l, Ltd. v.
`
`Precision Fabrics. Grp., Inc., Case IPR2014-01248, Paper 39 at 17 (P.T.A.B. Jan.
`
`27, 2016) (a lack of objective support for an expert opinion “may render the
`
`testimony of little probative value in [a patentability] determination.”) (quoting
`
`Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir.
`
`1985)). For example, Dr. Karger’s opinion does not near the evidentiary
`
`requirement for an expert opinion in IPR proceedings. Rather, as he admitted
`
`multiple times during his deposition, he did not have any understanding of the
`
`scope of the challenged claims. Given his flawed understanding of the claim
`
`terms, his declarations and testimony must be excluded as unreliable. Schumer v.
`
`Lab. Computer Sys., Inc., 308 F.3d 1304, 1315-16 (Fed. Cir. 2002).
`
`Dr. Karger was required to interpret the claim language using the broadest
`
`reasonable interpretation in light of the specification and to compare the claims to
`
`5
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`the prior art. See In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010).
`
`Dr. Karger failed to do so and his testimony must be excluded because he did not
`
`have an understanding of several claim terms in light of the specification of the
`
`’344 Patent and thus had no understanding of the scope of the claims. See
`
`generally e.g., Ex. 2034, 7/8/16 Karger Tr. at 118:7-120:22 (admitting he did not
`
`have an understanding for “connections” in light of the claims); 174:3-175:3 (same
`
`for “peer-to-peer”); 182:7-10; Ex. 2033, 7/7/16 Karger Tr. at 51:14-52:9 (admitting
`
`he did not have an understanding for “connections” in light of the specification) );
`
`55:3-22 (“So, once again, I’m not claiming that I know what a game environment
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`is”); 84:2-14, 85:7-86:21 (same for “peers”); 86:22-87:6 (same for “peer-to-peer”);
`
`87:9-88:5 (same for “process executing on a computer”); 88:6-15 (same for
`
`“computer host”); 100:23-101:8 (same for “participants”); 88:16-89:3 (same for
`
`“interconnections of participants form a broadcast channel for a game of interest”).
`
`Dr. Karger admitted that he had no understanding of the term “game
`
`environment” as used throughout the challenged claims of the ‘344 Patent. Ex.
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`2033, 7/7/16 Karger Tr. at 44:4-5 (“No, I did not attempt to create a definition of
`
`gaming environment”); see generally id. at 40:24-44:16. Dr. Karger also revealed
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`that he did not construe nor apply any understanding within the scope of the patent
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`to the terms “participant” or “connection,” as used in the challenged claims, in
`
`providing his opinion. See Ex. 2033, 7/7/16 Karger Tr. at 100:23-101:8; id. at
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`6
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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`101:17-18 (“participant is not one of the terms I’ve been asked to assume or
`
`define”); 51:14-52:9 (“connections” was not “a term [Dr. Karger] [was] asked to
`
`define”); Ex. 2034, 7/8/16 Karger Tr. at 118:7-120:22 (“I’m not prepared to
`
`precisely define the boundaries of what would fit within that [claim]
`
`terminology”).
`
`Additionally, Dr. Karger also disregarded the requirement that he consider
`
`secondary considerations in forming his obviousness analysis. Secondary
`
`considerations are a part of the obviousness analysis, not an afterthought to be
`
`thrown in later as Dr. Karger apparently intended to do. Ex. 1119 (“Karger Decl.”)
`
`at ¶ 232 (“I may be asked to review such evidence and to formulate an opinion.”);
`
`Intri-Plex Techs., Inc. & MMI Holdings, Ltd. v. Saint-Gobain Performance
`
`Plastics Rencol Ltd., Case IPR2014-00309, Paper No. 83 at 35 (P.T.A.B. Mar. 23
`
`2014) (citing Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346, 1358 (Fed. Cir.
`
`2013)).
`
`Because Dr. Karger did not have any understanding of the scope of the
`
`claims and did not conduct any proper analysis, his opinion is not based on
`
`sufficient facts or data and is thus unreliable. Dr. Karger’s declarations and
`
`testimony are not credible, irrelevant, and cannot assist the trier of fact and thus
`
`should be afforded no weight. Fed. R. Evid. 401-402, 702. Therefore, the Board
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`should exclude the testimony of Dr. Karger, including Exs. 1119, 1125, and 1145.
`
`7
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`IV. The Board Should Exclude the Shoubridge Declarations (Exs. 1120,
`1136).
`
`The testimony of Dr. Shoubridge (Exs. 1120 and 1136) should be excluded
`
`because his opinions are conclusory and unreliable. Petitioner relies on Ex. 1120
`
`to establish when Shoubridge (Ex. 1105) was publicly accessible. Paper 2 at 4, 5.
`
`Yet, Dr. Shoubridge attaches to his declaration Exhibit B, which he claims is a true
`
`and correct copy of the IEEE Article he presented. Ex. 1120, ¶ 7. Petitioner does
`
`not cite to or rely on Exhibit B substantively throughout its Petition or Reply as the
`
`alleged “Shoubridge” reference. Further, his testimony has no relation to
`
`Shoubridge (Ex. 1105) and is thus not relevant or admissible under FRE 401–402.
`
`See generally Exs. 1126, 1136. Therefore, the Board should exclude the testimony
`
`of Dr. Shoubridge, including the testimony in Exs. 1120 and 1136.
`
`V. The Board Should Exclude the Bennett Declaration (Ex. 1126).
`
`The testimony of Dr. Bennett (Ex. 1126) should be excluded because his
`
`opinions are conclusory and unreliable. Fed. R. Evid. 702. Petitioner relies on Ex.
`
`1126 to establish when Shoubridge (Ex. 1105) was publicly accessible. Paper 59
`
`at 5. However, it is apparent that Dr. Bennett is attempting to authenticate
`
`different versions of Shoubridge, which Petitioner does not rely on in its Petition or
`
`its Reply. See, e.g., Ex. 1126, Attachment 1a. To the extent Dr. Bennett claims
`
`that Ex. 1105 is a true and correct copy of Document 1 as attached to his
`
`Declaration, he provides no basis for such a statement, and instead relies on
`
`8
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`different attachments, such as from the Northwestern University Library. See, e.g.,
`
`Ex. 1126 at ¶¶ 20 – 27. Further, his testimony has no relation to Shoubridge Ex.
`
`1105 and is thus not relevant or admissible under FRE 401 – 402. Thus, his
`
`testimony is unreliable and should be given no weight and thus be excluded.
`
`VI. The Board Should Exclude the Grenier Declarations (Exs. 1141, 1144,
`1132)
`
`Mr. Grenier’s testimony should be excluded because he fails to authenticate
`
`any of the references that he included in his three declarations (Exs. 1141, 1144,
`
`1132) and has no personal knowledge of the facts stated therein. Fed. R. Evid.
`
`901, Fed. R. Evid. 602. Significantly, Mr. Grenier testified that IEEE was not
`
`available until the mid-2000’s, which is after the relevant time frame at issue here.
`
`Ex. 2111 (10/27/16 Grenier Tr.) at 14:15–20. Accordingly, Mr. Grenier’s IEEE
`
`version of Shoubridge (Ex. 1141) is different than the Ex. 1105 Shoubridge that
`
`Petitioner relies on. Mr. Grenier’s Declaration makes no mention of Exhibit 1130,
`
`which is the Gautier Document that Petitioner relied on in its Reply and Opposition
`
`to the Motion to Amend (“Opposition”). With regard to Ex. 1132, while Mr.
`
`Grenier works for IEEE, Gautier is not an IEEE article. Because Grenier lacks
`
`personal knowledge and did not authenticate the relevant references, Exs. 1141,
`
`1144, 1132 are irrelevant and inadmissible under FRE 401 and FRE 402.
`
`VII. The Board Should Exclude the Glenn Little Declaration (Ex. 1104).
`
`
`
`The testimony of Mr. Little (Ex. 1104) should be excluded because his
`
`9
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`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`opinions are conclusory and unreliable. Fed. R. Evid. 702. Petitioner relies on Mr.
`
`Little’s Declaration as evidence of when Exhibit 1104, Exhibit A (“the Lin
`
`Document”) became publicly available. However, Mr. Little did not see the Lin
`
`Document until this year. Little Tr. at 14:3–15. Further, Mr. Little does not claim
`
`to have any actual knowledge as to whether a person of ordinary skill in the art
`
`would have been able to locate the Lin Document, which is the requirement for
`
`establishing that a document was publicly accessible. Little Tr. at 31:18 – 23
`
`(stating that he does not know whether the software generates search terms for
`
`documents, let alone indexes them); Kyocera Wireless Corp. v. Int’l Trade Com’n,
`
`545 F.3d 1340, 1350 (Fed. Cir. 2008) (to be publicly available prior art, there must
`
`be a “satisfactory showing that such document has been disseminated or otherwise
`
`made available to the extent that persons interested and ordinarily skilled in the
`
`subject matter or art exercising reasonable diligence, can locate it.”) (internal
`
`quotation marks omitted) (citation omitted).
`
`Accordingly, Mr. Little’s testimony fails to authenticate Exhibit 1104 (and
`
`its attached Exs. A and B), and is unreliable and conclusory as to the date the Lin
`
`Document that Petitioner relies on was publicly available. For these reasons, Ex.
`
`1104 is not relevant and inadmissible under FRE 401-402, FRE 602 and FRE 901.
`
`VIII. The Board Should Exclude Shoubridge Exhibit 1105.
`
`The Board should exclude the Shoubridge Document (Ex. 1105) as
`
`10
`
`

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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`unauthenticated, hearsay and irrelevant. Fed. R. Evid. 901, 801-803, 401-403.
`
`First, “[t]o satisfy the requirement of authenticating or identifying an item
`
`of evidence, the proponent must produce evidence sufficient to support a finding
`
`that the item is what the proponent claims it is.” Fed. R. Evid. 901. Petitioner
`
`failed to authenticate the Lin Document as a document that was publicly available
`
`as of the priority date. Specifically, Petitioner offers evidence of the publication
`
`date based on the testimony of Drs. Shoubridge, Bennett, and Mr. Grenier, which
`
`are inadmissible for the reasons discussed above. Further, the second version that
`
`Petitioner submitted with its Reply (Ex. 1137) cannot authenticate Ex. 1105
`
`because it is from the University of Massachusetts Library. Petitioner also points
`
`to a date on the document which is inadequate as discussed below.
`
`The Shoubridge Document bears only a copyright date of 1997, which is
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`unauthenticated by any evidence that Petitioner has introduced. The mere
`
`appearance of even a copyright date on a document is insufficient to establish the
`
`date of when the document was available to the public. See, e.g., TRW Automotive
`
`U.S. LLC v. Magna Elecs. Inc., Case IPR2014-01347, Paper 25 at 5–12 (P.T.A.B.
`
`Jan. 6, 2016) (granting patent owner’s motion to exclude prior art for lack of
`
`authentication). The copyright date is insufficient, as a matter of law, to establish
`
`that the Shoubridge Document qualifies as a printed publication, let alone that it
`
`was accessible to the public in 1997. See, e.g., TRW Automotive, Case IPR2014-
`
`11
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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`01347, Paper 25 at 5–12 (“Although [a] copyright notice is probative that IEEE
`
`owns a copyright to the article, it is not probative that the article was ever
`
`published by IEEE or anyone else.”); Stryker Corp. v. Karl Storz Endoscopy-Am.,
`
`Inc., Case IPR2015-00677, Paper 15 at 18–19 (P.T.A.B. Sept. 2, 2015); In re
`
`Lister, 583 F.3d 1307, 1316-17 (Fed. Cir. 2009); iOnROAD Ltd. v. Mobileye
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`Techs. Ltd., Case IPR2013-00227, Paper 18 at 3, 16 (P.T.A.B. Aug. 27, 2013)
`
`(stating that a copyright date does not mean that a reference was published).
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`Accordingly, Ex. 1105 was not properly authenticated.
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`Second, the copyright date on the Shoubridge Document is itself
`
`inadmissible hearsay. Petitioner attempts to rely on the copyright date for a
`
`hearsay purpose, i.e., to prove the truth of the contention that the Shoubridge
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`Document was publicly accessible as of September 1995. Fed. R. Evid. 801
`
`(hearsay is an out-of-court statement offered to prove truth of the matter asserted);
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`Stryker, Case IPR2015-00677, Paper 15 at 18–19; In re Lister, 583 F.3d at 1316-17
`
`(Fed. Cir. 2009). Additionally, such dates on a reference are insufficient, as a
`
`matter of law, to prove by clear and convincing evidence that a reference was
`
`publicly available. No hearsay exception applies. Therefore, the copyright date is
`
`hearsay under FRE 801, and is inadmissible under FRE 802 and FRE 803.
`
`Third, the Shoubridge Document should be excluded as irrelevant, because
`
`Petitioner fails to establish it was available as prior art. Evidence is relevant if (1)
`
`12
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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`it has any tendency to make a fact more or less probably than it would be without
`
`the evidence, and (2) the fact is of consequence in determining the action. Fed. R.
`
`Evid. 401. A Petitioner can challenge the validity of a patent based only on prior
`
`art patents and printed publications. 35 U.S.C. § 311(b). It is Petitioner’s burden
`
`to establish that a document is a “printed publication” by demonstrating that the
`
`document was publicly accessible to persons concerned with the prior art to which
`
`the document relates. ServiceNow, Inc. v. Hewlett-Packard Co., Case IPR2015-
`
`00716, Paper 13 at 8, 15–17 (P.T.A.B. Aug. 26, 2015).
`
`As discussed above, the Shoubridge Document is unauthenticated, is
`
`inadmissible hearsay, and is not prior art. Accordingly, the Shoubridge Document
`
`cannot be relevant in determining whether the ’344 Patent is valid. Further, as
`
`discussed above, Petitioner cannot establish the relevance of the Shoubridge
`
`Document based on any of the belated evidence improperly filed with its Reply
`
`(e.g., Exs. 1126, 1136, 1137, and 1138), which, as explained above, is deficient.
`
`Allowing the Petitioner to rely on the Shoubridge Document as prior art
`
`would be unfairly prejudicial to Patent Owner under FRE 403, given that it is
`
`unauthenticated, its publication date is hearsay, and the document is irrelevant. For
`
`all of the reasons discussed above, the Board should exclude Ex. 1105.
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`IX. The Board Should Exclude the Stansbury Affidavit (Ex. 1131)
`
`The Stansbury Affidavit makes no reference to any exhibit in the Reply.
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`13
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`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`Accordingly, Ex. 1131 is not relevant and inadmissible under FRE 401- 402.
`
`X. The Board Should Exclude the Gautier Document (Ex. 1130)
`(hereinafter “Gautier Document” or “Exhibit 1130”)3
`
`Petitioner has failed to authenticate the Gautier Document that it relies on in
`
`its Reply and Opposition. Fed. R. Evid. 901. Instead, Petitioner attempted to
`
`authenticate a different version of the Gautier Document (Ex. 1149), which it does
`
`not rely on. Thus, Ex. 1130 should be excluded because it is unauthenticated.
`
`The Gautier Document, on its face, also does not have a purported date that
`
`it was published. Petitioner has not offered testimony to establish that Exhibit
`
`1130 was sufficiently publicly accessible to a person interested in the art.
`
`Petitioner has not met its burden of establishing that Exhibit 1130 was publicly
`
`available. Accordingly, the Gautier Document is not relevant under FRE 401 and
`
`FRE 402. Therefore, the Board should exclude Exhibit 1130.
`
`XI. The Board Should Exclude Exhibits 1149–51.
`
`Exhibits 1149 (a library version of Gautier), 1150 (a website page), and
`
`1151 (an ambiguous FTP directory), cited in Petitioner’s Opposition, are not
`
`relevant to this IPR. Specifically, Petitioner relies on Exs. 1149 – 1151 to establish
`
`3 While Petitioners submitted multiple articles written by Gautier, such as Exhibit
`
`1149, Petitioner explicitly defined Gautier as Exhibit 1130 and relies on Exhibit
`
`1130 throughout its Reply and Opposition. Paper 59 at 9; See, generally, Paper 57.
`
`14
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`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
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`the date that Gautier (Ex. 1130) was allegedly publicly available. Yet, none of
`
`these exhibits refers back to Ex. 1130. Petitioner also served a supplemental
`
`declaration from Dr. Bennett, which does not attempt to authenticate Ex. 1130.
`
`Rather, Dr. Bennett only authenticates another version of Gautier (Ex. 1149).4
`
`Thus, the Board should exclude these exhibits under FRE 401–403.
`
`XII. The Board Should Exclude Exhibits Petitioner Did Not Cite
`
`Petitioner does not cite Exhibits 1102–1104, 1106, 1108–1118, 1121, 1123,
`
`1124, 1131 – 1133, 1135, 1139, 1145, 1149 – 1151 in its Reply. Further,
`
`Petitioner did not cite to Exhibits 1126 –1129, 1135–1143 in its Opposition. Thus,
`
`the foregoing exhibits are not relevant under FRE 401 and inadmissible under FRE
`
`402 and FRE 403. Any reliance on these exhibits would be highly prejudicial to
`
`Patent Owner under FRE 403, and should thus be excluded. SK Innovation Co.,
`
`Ltd. v. Celgard, LLC, Case IPR2014-00679, Paper 58 at 49 (P.T.A.B. Sept. 25,
`
`2015) (granting motion to exclude exhibits not cited).
`
`XIII. Conclusion
`
`For the foregoing reasons, the Board should grant PO’s Motion to Exclude.
`
`
`4 Petitioner served a supplemental decl. from Dr. Diot. Given that Petitioner has
`
`not provided him for deposition in the U.S. pursuant to 37 C.F.R. 42.53(b)(2), his
`
`testimony is not relevant, inadmissible, and highly prejudicial under FRE 401–403.
`
`15
`
`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Michael Lee (Reg. No. 63,941)
`mhlee@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700 Fax: 650.752.1800
`
`Shannon Hedvat (Reg. No. 68,417)
`shedvat@kramerlevin.com
`Jeffrey H. Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9185 Fax: 212.715.8000
`
`Attorneys for Patent Owner
`
`Dated: November 10, 2016
`
`(Case No. IPR2015-01951)
`
`
`16
`
`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Motion to Exclude was served on
`
`November 10, 2016, by filing this document through the Patent Review Processing
`
`System as well as delivering via electronic mail upon the following counsel of
`
`record for Petitioner:
`
`
`
`J. Steven Baughman
`Ropes & Gray LLP
`2099 Pennsylvania Ave., NW
`Washington D.C. 20006-6807
`steven.baughman@ropesgray.com
`Activision_Blizzard_PTAB_Service@ropesgray.com
`
`Andrew Thomases
`Daniel W. Richards
`James L. Davis, Jr.
`ROPES & GRAY LLP
`1900 University Ave., 6th Floor
`East Palo Alto, CA 94303
`andrew.thomases@ropesgray.com
`Daniel.w.richards@ropesgray.com
`james.l.davis@ropesgray.com
`
`Matthew R. Shapiro
`Joseph E. Van Tassel
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`matthew.shapiro@ropesgray.com
`joseph.vantassel@ropesgray.com
`
`
`
`17
`
`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Mike Tomasulo
`WINSTON &STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`mtomasulo@winston.com
`
`Michael M. Murray
`WINSTON &STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`mmurray@winston.com
`
`Andrew R. Sommer
`WINSTON &STRAWN LLP
`1700 K. Street, N.W.
`Washington D.C. 20006-3817
`asommer@winston.com
`
`Counsel for Petitioner Activision Blizzard, Inc.,
`Electronic Arts Inc., Take-Two Interactive Software,
`Inc., 2K Sports, Inc., and Rockstar Games, Inc.
`
`
`
`18
`
`

`
`Patent Owner’s Motion to Exclude
`IPR2015-01972 (U.S. Patent No. 6,701,344)
`
`Michael T. Rosato
`Andrew S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Jose C. Villarreal
`Eric C. Arnell
`WILSON SONSINI GOODRICH & ROSATI
`900 South Capital of Texas Hwy
`Las Cimas IV, Fifth Floor
`Austin, TX 78746-5546
`jvillarreal@wsgr.com
`earnell@wsgr.com
`
`Counsel for Petitioner Bungie, Inc.
`
`
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road,
`Menlo Park, CA 94025
`(650) 752-1700
`
`19

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