Case IPR2015-01972
`Patent No. 6,701,344
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioners,
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`v.
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`ACCELERATION BAY, LLC,
`Patent Owner.
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`Case IPR2015-019721
`Patent No. 6,701,344 B1
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`Before the Honorable SALLY C. MEDLEY, LYNNE E. PETTIGREW, and WIL-
`LIAM M. FINK, Administrative Patent Judges.
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`PETITIONERS’ CONSOLIDATED MOTION TO EXCLUDE EVIDENCE
`UNDER 37 C.F.R. §§ 42.62 AND 42.64
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`1 Bungie, Inc., who filed Petition IPR2016-00934, has been joined as a petitioner in
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`this proceeding.
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`1
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`Patent No. 6,701,344
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ACTIVISION BLIZZARD, INC.,
`ELECTRONIC ARTS INC.,
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`2K SPORTS, INC., ROCKSTAR GAMES, INC., and
`BUNGIE, INC.,
`Petitioners,
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`v.
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`ACCELERATION BAY, LLC,
`Patent Owner.
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`Case IPR2015-019721
`Patent No. 6,701,344 B1
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`Before the Honorable SALLY C. MEDLEY, LYNNE E. PETTIGREW, and WIL-
`LIAM M. FINK, Administrative Patent Judges.
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`PETITIONERS’ CONSOLIDATED MOTION TO EXCLUDE EVIDENCE
`UNDER 37 C.F.R. §§ 42.62 AND 42.64
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`1 Bungie, Inc., who filed Petition IPR2016-00934, has been joined as a petitioner in
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`this proceeding.
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`1
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`Case IPR2015-01972
`Patent No. 6,701,344
`Petitioners Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interac-
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`tive Software, Inc., 2K Sports, Inc., Rockstar Games, Inc., and Bungie, Inc. (col-
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`lectively, “Petitioners”), respectfully submit this Motion to Exclude pursuant to 37
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`C.F.R. §§ 42.62 and 42.64, and the Notice of Stipulation to Modify Due Dates 3-5
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`(Paper 64 at 1). As an initial matter, Petitioners respectfully submit that the Board,
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`sitting as a non-jury tribunal with administrative expertise, is well-positioned to de-
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`termine and assign the appropriate weight to be accorded to the evidence presented
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`by both Petitioners and Patent Owner Acceleration Bay, LLC (“Patent Owner”)
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`without the need for formal exclusion. See, e.g., S.E.C. v. Guenthner, 395 F. Supp.
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`2d 835, 842 n.3 (D. Neb. 2005) (“Trial courts should be more reluctant to exclude
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`evidence in a bench trial than a jury trial. . . . [E]vidence should be admitted and
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`then sifted . . . [and] the trial court is presumed to consider only the competent evi-
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`dence and to disregard all evidence that is incompetent”; “‘the better course’ is to
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`‘hear the testimony, and continue to sustain objections when appropriate’”; “[T]he
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`court has admitted the testimony . . . and has accorded it appropriate weight.” (cita-
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`tions omitted)); Builders Steel Co. v. Comm’r of Internal Revenue, 179 F.2d 377,
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`379 (8th Cir. 1950) (vacating Tax Court decision for exclusion of competent and
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`material evidence; “In the trial of a nonjury case, it is virtually impossible for a tri-
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`al judge to commit reversible error by receiving incompetent evidence . . . . On the
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`other hand, a trial judge who, in the trial of a nonjury case, attempts to make strict
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`Case IPR2015-01972
`Patent No. 6,701,344
`rulings on the admissibility of evidence, can easily get his decision reversed by ex-
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`cluding evidence which is objected to, but which, on review, the appellate court
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`believes should have been admitted.”). Petitioners accordingly submit that it is, as
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`a general matter, better for the Board to have before it a complete record of the ev-
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`idence submitted by the parties than to exclude particular pieces of it and thereby
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`risk improper exclusion that could later be assigned as error. See, e.g., Builders
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`Steel, 179 F.2d at 379; Donnelly Garment Co. v. Nat’l Labor Relations Bd.
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`(“NLRB”), 123 F.2d 215, 224 (8th Cir. 1941) (finding NLRB’s refusal to receive
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`testimonial evidence amounted to a denial of due process; “One who is capable of
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`ruling accurately upon the admissibility of evidence is equally capable of sifting it
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`accurately after it has been received, and, since he will base his findings upon the
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`evidence which he regards as competent, material and convincing, he cannot be in-
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`jured by the presence in the record of testimony which he does not consider com-
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`petent or material. . . . [I]f evidence was excluded which [the reviewing] court re-
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`gards as having been admissible, a new trial or rehearing cannot be avoided.”). See
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`also, e.g., Samuel H. Moss, Inc. v. F.T.C., 148 F.2d 378, 380 (2d Cir. 1945), cert.
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`denied, 326 U.S. 734 (1945) (observing that, “if the case was to be tried with
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`strictness, the examiner was right . . . [but w]hy [the examiner] or the Commis-
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`sion’s attorney should have thought it desirable to be so formal about the admis-
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`sion of evidence, we cannot understand. Even in criminal trials to a jury it is bet-
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`Case IPR2015-01972
`Patent No. 6,701,344
`ter, nine times out of ten, to admit, than to exclude, evidence . . . [W]e take this oc-
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`casion to point out the danger always involved in conducting such a proceeding in
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`such a spirit, and the absence of any advantage in depriving either the Commission
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`or ourselves of all evidence”).
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`However, to the extent that the Board intends to apply the Federal Rules of
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`Evidence strictly in these proceedings, cf. 77 Fed. Reg. 48,612, 48,616 (Aug. 14,
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`2012) (“42.5(a) and (b) permit administrative patent judges wide latitude in admin-
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`istering the proceedings to balance the ideal of precise rules against the need for
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`flexibility to achieve reasonably fast, inexpensive, and fair proceedings”), Petition-
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`ers hereby move to exclude paragraphs 5-8 and 10 of Exhibit 2026 as inadmissible
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`hearsay, statements not based on personal knowledge, or both. For the same rea-
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`sons, any reference to or reliance on these paragraphs in Patent Owner’s Response
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`(Paper 31, “POR”) should be excluded as well. Petitioner’s objections to Exhibit
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`2026 were previously set forth in Petitioners Consolidated Objections to Evidence
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`(Paper 36 at 12-14), filed and served on July 25, 2016 pursuant to 37 C.F.R. §
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`42.64(b)(1), and are further explained below pursuant to 37 C.F.R. § 42.64(c).
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`I.
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`Legal Standard
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`An out-of-court statement used to prove the truth of the matter asserted is in-
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`admissible hearsay unless otherwise provided by a federal statute, the Federal
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`Rules of Evidence, or other rules prescribed by the Supreme Court. F.R.E. 801,
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`4
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`Case IPR2015-01972
`Patent No. 6,701,344
`802. Furthermore, “[a] witness may testify to a matter only if evidence is intro-
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`duced sufficient to support a finding that the witness has personal knowledge of the
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`matter.” F.R.E. 602.
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`II. Exhibit 2026 ¶¶ 5-8, 10 Are Inadmissible
`Patent Owner relies on statements made in a declaration by third party Dr.
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`Robert Abarbanel (Exhibit 2026) to support arguments that the named inventors of
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`U.S. Patent No. 6,701,344 (the “’344 patent”) conceived and reduced to practice
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`the claimed invention through the development of SWAN “by September 16,
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`1999.” POR at 4-5. But Patent Owner uses these statements, which by their ex-
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`press terms contain out-of-court “discussions” with the named inventors, to try to
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`prove the truth of the matter asserted—that various features were implemented in
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`SWAN “on or before September 16, 1999”—making them inadmissible hearsay.
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`F.R.E. 801, 802; Exhibit 2026 ¶¶ 5-8, 10. And because no recognized hearsay ex-
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`ception applies to these statements (F.R.E. 803, 804), they should be excluded. In
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`addition, these statements are not based on the declarants’ “personal knowledge” in
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`violation of Rule 602, and should be excluded for this additional reason.
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`III. CONCLUSION
`For the foregoing reasons, to the extent the Board determines to apply the
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`Federal Rules of Evidence strictly in this proceeding, paragraphs 5-8 and 10 of Ex-
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`hibit 2026 and any reference to those paragraphs or reliance thereon by Patent
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`Case IPR2015-01972
`Patent No. 6,701,344
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`Owner should be excluded.
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`Respectfully submitted, by: /J. Steven Baughman/
`J. Steven Baughman (lead counsel)
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`November 10, 2016
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`6
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing PETITIONERS’
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`CONSOLIDATED MOTION TO EXCLUDE EVIDENCE UNDER 37 C.F.R. §§
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`42.62 AND 42.64 was served on November 10, 2016 in its entirety by causing the
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`aforementioned document to be electronically mailed, pursuant to the parties’
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`agreement, to the following attorneys of record:
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`James Hannah
`Reg. No. 56,369
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Phone: 650-752-1712
`Fax: 650-752-1812
`jhannah@kramerlevin.com
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`Michael Lee
`Reg. No. 63,941
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Phone: 650-752-1716
`Fax: 650-752-1812
`mhlee@kramerlevin.com
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`Shannon Hedvat
`Reg. No. 68,417
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Phone: 212-715-9185
`Fax: 212-715-8000
`shedvat@kramerlevin.com
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`Jeffrey Price
`Reg. No. 69,141
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Phone: 212-715-7502
`Fax: 212-715-8000
`jprice@kramerlevin.com
`svdocketing@kramerlevin.com
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`Counsel for Patent Owner Acceleration Bay
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`Dated:
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`November 10, 2016
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`/s/Bridget McAuliffe
`Bridget McAuliffe
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`ROPES & GRAY LLP
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