UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`LG Electronics, Inc.,
`Petitioner
`
`v.
`
`Core Wireless Licensing S.a.r.l.,
`Patent Owner.
`
`
`
`Case No. IPR2015-01984
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`Patent No. 8,434,020
`
`Title: Computing Device with Improved User Interface for
`Applications
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`
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`PETITIONER’S OPPOSITION TO MOTION
`TO EXCLUDE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`LG Electronics, Inc.,
`Petitioner
`
`v.
`
`Core Wireless Licensing S.a.r.l.,
`Patent Owner.
`
`
`
`Case No. IPR2015-01984
`
`Patent No. 8,434,020
`
`Title: Computing Device with Improved User Interface for
`Applications
`
`
`
`PETITIONER’S OPPOSITION TO MOTION
`TO EXCLUDE
`
`
`
`
`
`
`
`
`
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`
`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`TABLE OF CONTENTS
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`TABLE OF EXHIBITS .......................................................................................... III
`I.
`PATENT OWNER’S EVIDENTIARY OBJECTIONS SHOULD BE
`OVERRULED ................................................................................................ 1
`A.
`Exhibits 1010, 1011, 1012, and 1013 Are Admissible ........................ 1
`1.
`
`Exhibits 1010-1013 Are Authentic ............................................ 2
`
` 2.
`Exhibits 1010-1013 Are Not Hearsay, And Are
`Admissible Regardless ............................................................... 6
`Exhibits 1010-1013 Are Relevant Because They
`Contradict Patent Owner’s Argument. ....................................... 8
`Patent Owner’s Objections To Paragraphs 13-18 Of Dr.
`Rhyne’s Rebuttal Declaration (Ex. 1015) Should Be Overruled
`For The Same Reasons. ...................................................................... 10
`II.
`CONCLUSION ............................................................................................. 10
`CERTIFICATE OF SERVICE ............................................................................... 12
`
`
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`B.
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`3.
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`ii
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`Petitioner’s Opposition to Motion to Exclude
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`TABLE OF EXHIBITS
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`IPR2015-01984
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`Exhibit
`1010
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`Description
`Excerpt from 12/99 issue of Popular Science
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`1011
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`1012
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`1013
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`1014
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`1015
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`1016
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`
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`User’s Guide for Ericsson R380s
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`Press release dated 3/18/99 from Open Mobile Alliance
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`Article dated 3/18/199 from EE Times
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`Excerpts from Authoritative Dictionary of IEEE
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`Rebuttal Declaration Of Dr. Vernon Thomas Rhyne, III
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`Transcript of September 7, 2016 Deposition of Scott Denning
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`iii
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`IPR2015-01984
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`Petitioner’s Opposition To Motion To Exclude
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`I.
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`PATENT OWNER’S EVIDENTIARY OBJECTIONS SHOULD BE
`OVERRULED
`A. Exhibits 1010, 1011, 1012, and 1013 Are Admissible
`Exhibits 1010-1013 relate to the Ericsson R380 mobile telephone that is
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`pictured below. Together, Exhibits 1010-1013 are referred to by Dr. Rhyne as
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`confirmation that the software architecture “applications layered on top of an
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`operating system” was known to those of ordinary skill prior to the July 2000
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`priority date. Ex. 1015 at ¶¶ 11, 18. More specifically, as Dr. Rhyne explains,
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`these exhibits show that “Ericsson’s R380 “smartphone” included a version of the
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`Symbian EPOC32 operating system as well as a variety of applications.” Ex. 1015
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`at ¶¶ 11-18.
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`Ex. 1011 at 6.
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`
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`Ex. 1010 at 3.
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`Exhibit 1011 is a copy of a manual for the Ericsson R380 that is dated June,
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`2000. Ex. 1011 at 3. Exhibits 1010, 1012, and 1013 are publications from 1999
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`that refer to the Ericsson R380 telephone.
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`1
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`1.
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`Exhibits 1010-1013 Are Authentic
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`Patent Owner objects to each of Exhibits 1010-1013 as “not authenticated,”
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`arguing that Dr. Rhyne “cannot authenticate” these exhibits because he received
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`them from attorneys representing LG. Motion to Exclude (Paper 31) at 1, 2-3, 4, 5.
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`Patent Owner’s argument is incorrect for at least two reasons. First, the fact Dr.
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`Rhyne received copies of these exhibits from LG’s attorneys does not mean that he
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`cannot authenticate them. Second, even without Dr. Rhyne’s testimony, Exhibits
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`1010-1013 satisfy the authenticity requirement because their appearance and
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`contents confirms that each is what it purports to be.
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`Authentication of evidence requires its proponent to “produce evidence
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`sufficient to support a finding that the item is what the proponent claims it is.”
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`Fed. R. Evid. 901(a). Federal Rule of Evidence 901(b) provides examples of how
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`this requirement may be satisfied, including:
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`(1) Testimony of a Witness with Knowledge. Testimony that an
`item is what it is claimed to be.
`…
`(4) Distinctive Characteristics and the Like. The appearance,
`contents,
`substance,
`internal patterns, or other distinctive
`characteristics of the item, taken together with all the circumstances.
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`Exhibits 1010-1013 are each authentic under either or both of these
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`principles. First, each of these exhibits is authentic because, both individually and
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`collectively, the “appearance, contents, substance, internal patterns, or other
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`2
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`distinctive characteristics of the item, taken together with all the circumstances”
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`show that they are what they purport to be.
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`Exhibit 1010 is an excerpted color copy of the December 1999 issue of
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`Popular Science, which featured a cover story called “Best of What’s New Awards
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`1999.” Exhibit 1010 is replete with distinctive characteristics that demonstrate it is
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`what it purports to be. On the front page, for example, its authenticity is shown by
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`the “Popular Science” logo, the images and layout, and the text “December 1999
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`$3.9_” (the last digit of the price is cut off in the copy). Ex. 1010 contains two
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`pictures of the Ericsson R380: one on the front cover, and one in the body of the
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`story. Ex. 1010 at 1, 3. These pictures show the same phone that is illustrated and
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`described in the Ericsson R380 user manual (Ex. 1011). Furthermore, the other
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`pictures and descriptions of devices featured in the “Best of What’s New Awards
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`1999” are all consistent with Ex. 1011 being a copy of the December 1999 issue of
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`Popular Science—for example, the images of the Audi TT and Honda S2000,
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`which are cars that were manufactured beginning in 1998 and 1999, respectively.
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`See Ex. 1010 at 1, 4.
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`Exhibit 1011 is a black-and-white copy of the “User’s Guide” to the
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`Ericsson R380s dated June 2000. It also contains numerous images of the phone.
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`E.g. Ex. 1011 at 1, 6, 7, 13, 90. These images show the same phone pictured in Ex.
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`1010. Like Exhibit 1010, Exhibit 1011 contains a host of distinctive characteristics
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`3
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`that show it is in fact a copy of the June 2000 “User’s Guide” for the “Smartphone
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`R380s.” Ex. 1011 at 1. For example, the first page of the exhibit (showing the
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`front and back covers of the manual) contain the Ericsson logo, a UPC code, and
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`an image of the phone in a user’s hand. Id. The first page also shows the creases
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`near the spine of the manual where it was folded open to be copied. Artifacts of
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`the copying process appear on the edges of virtually every page, showing the edges
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`of the manual as it was pressed onto the copier. Furthermore, the contents of the
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`manual are all consistent with it being what it says it is: a copy of the June 2000
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`Ericsson R380s User Guide.
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` Exhibit 1012 and 1013 are copies of a press release and EE Times article,
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`respectively. Both are dated March 18, 1999. They describe Ericsson’s
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`“unveiling” or “launch” of the R380 at “CeBit”, which as Dr. Rhyne explains is a
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`trade fair that describes itself as “the largest and most influential marketplace for
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`information and communications technology.” Again, these exhibits contain
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`distinctive characteristics that confirm that they are what they purport to be,
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`including for example descriptions of the Ericsson phone that correspond to the
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`images and descriptions in Exhibits 1010 and 1011. E.g. Ex. 1013 (“Ericsson’s
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`R380 looks like a standard mobile phone, but the front panel opens up to reveal a
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`LCD that runs the length of the unit”).
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`4
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`In sum, Exhibits 1010-1013, taken both individually and collectively, are
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`authentic under Rule 901(b)(4) because they contain “distinctive characteristics”
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`that show they are what they claim to be.
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`Exhibits 1010-1013 are also authentic under Rule 901(b)(1) because, Dr.
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`Rhyne testified that each of these Exhibits is what he says it is. See Ex. 1015 at ¶¶
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`13, 14, 15, 16. The fact that Dr. Rhyne received copies of these exhibits from
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`counsel in no way detracts from his ability to testify that each is what he says it is.
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`If Patent Owner is attempting to suggest that Dr. Rhyne is not a person “with
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`knowledge” under Fed. R. Evid. 901(b)(1), this argument fails. Dr. Rhyne’s
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`testimony establishes that he has knowledge regarding the Ericsson phone. Ex.
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`1004 at ¶¶ 13-14; Ex. 1015 at ¶¶ 11-18. Contrary to Patent Owner’s argument, Dr.
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`Rhyne’s deposition testimony further illustrates that he has knowledge pertinent to
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`these documents. See, e.g. Ex. 2011 at 12:2 (Dr. Rhyne testifying that he “used to
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`subscribe to Popular Science”).
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`The testimony of Patent Owner’s expert also confirms that the authenticity
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`of these documents is apparent on their face. After being shown Exhibits 1010-
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`1013, Mr. Denning contradicted his direct testimony and admitted that a person of
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`ordinary skill would have known of the Ericsson R380 phone prior to the July
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`2000 priority date:
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`5
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`Q. Having seen these documents, Exhibits 1010 through 1013, do you
`agree at this point that the Ericsson R380 and R380s were known to a
`person of ordinary skill in the art prior to July 28, 2000?
`MR. HELGE: Object to form.
`THE WITNESS: Yes.
`Ex. 1016 at 141:5-11.
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`
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`2.
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`Exhibits 1010-1013 Are Not Hearsay, And Are Admissible
`Regardless
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`Patent Owner objects to each of Exhibits 1010-1013 as “hearsay,” arguing
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`that are presented for the truth of the statements therein, and are not subject to any
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`exception to the hearsay rule. Motion to Exclude (Paper 31) at 1, 2-3, 4, 5. Patent
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`Owner’s perfunctory argument is incorrect for several reasons.
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`First, and most importantly, Exhibits 1010-1013 are not presented for the
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`truth of “statements” made therein. To the contrary, as with any prior art reference,
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`what matters is the fact of its existence as part of the body of knowledge available
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`to a person of ordinary skill in the art. See e.g. Standard Oil Co. v. American
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`Cynamid Co., 774 F.2d 448 (Fed. Cir. 1985) (obviousness is determined with
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`reference to a “hypothetical person who is presumed to be aware of all the
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`pertinent prior art”). Documents offered as prior art, such as the Ericsson R380
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`User Guide (Ex. 1011), are not “a statement” because they are not “a person’s ...
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`written assertion.” Fed. R. Evid. 801(a). The existence of the document itself is
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`the evidence. Indeed, if Patent Owner were correct that written prior art references
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`6
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`are made up of hearsay ‘statements,’ then no prior art references could be admitted
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`without proving that one of the hearsay exceptions was applicable. That is not the
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`law, and Patent Owner’s own actions show it: Patent Owner presented as evidence
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`a manual for the Ericsson R380 that bears a later date in an effort to show that this
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`phone was not known until after the priority date. Petitioner properly responded
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`by introducing an earlier-dated manual, as well as multiple other publications that
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`corroborate the earlier date.
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`Second, even if prior art documents such as Exhibits 1010-1013 did contain
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`hearsay “statements,” they would be admissible under Fed. R. Evid. 803(17):
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`(17) Market Reports and Similar Commercial Publications. Market
`quotations, lists, directories, or other compilations that are generally
`relied on by the public or by persons in particular occupations.
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`This exception shows that the hearsay rule is not intended to apply to
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`“commercial publications” that are “generally relied on by the public or by persons
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`in particular occupations.” Exhibits 1010-1013 are all “commercial publications”
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`that are “generally relied on by the public.” Furthermore, as discussed above in the
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`context of the authenticity objection, these documents have strong circumstantial
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`guarantees of trustworthiness because they all corroborate each other. See Fed. R.
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`Evid. 807 (allowing admission of hearsay when it has “equivalent circumstantial
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`guarantees of trustworthiness” to the hearsay exceptions listed in Rules 803 and
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`804).
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`Finally, even if none of the foregoing were true, Patent Owner’s ‘hearsay’
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`objection is immaterial because Exhibits 1010-1013 are relied upon by Dr. Rhyne
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`to demonstrate and corroborate his expert opinion, and Dr. Rhyne is entitled to rely
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`upon them even if they were hearsay. See Fed. R. Evid. 703.
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`
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`3.
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`Exhibits 1010-1013 Are Relevant Because They Contradict
`Patent Owner’s Argument.
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`Patent Owner objects to each of Exhibits 1010-1013 as not relevant. These
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`documents are relevant because they directly contradict Patent Owner’s argument.
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`Patent Owner argues that the software architecture of “applications layered on top
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`of an operating system” is required by the claims and not obvious from the
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`Blanchard reference because it was not known for use in mobile telephones. See
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`e.g. Ex. 2001 at ¶ 8. Exhibits 1010-1013 demonstrate that in fact, it was known to
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`those of ordinary skill to use “applications layered on top of an operating system”
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`by the time of the July 2000 priority date. See Ex. 1015 at ¶¶ 11-18. Thus, these
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`exhibits corroborate Dr. Rhyne’s testimony, and contradict the direct testimony of
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`Mr. Denning.
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`The relevance of these documents to this issue is further illustrated by the
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`fact that after Mr. Denning was shown these documents during his cross-
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`examination, he admitted that a person of ordinary skill in the art would have been
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`aware of the Ericsson phone prior to the prior to the July 2000 priority date. Ex.
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`8
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`1016 at 141:5-11. Mr. Denning further admitted that Exhibit 1011 states that this
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`phone had an operating system:
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`Q And do you agree that the phone which ran this EPOC operating
`system used an operating system application architecture as opposed
`to a monolithic operating program architecture?
`MR. HELGE: Object to form.
`THE WITNESS: In your Exhibit 1011 on 19 page 195, it says that the
`R380s contains the EPOC32 operating system and software.
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`Ex. 1016 at 141:5-11. Mr. Denning’s admissions confirm that these documents are
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`relevant because they contradict Patent Owner’s argument by showing that it was
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`known to those of ordinary skill to use “applications layered on top of an operating
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`system” by the time of the July 2000 priority date.
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`Patent Owner also argues that Exhibits 1010-1013 do not establish that the
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`Ericsson R380 was known to a person of ordinary skill in the art prior to the
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`critical date. This argument is wrong. Exhibit 1011 (the User’s Guide) is dated
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`“June 2000.” Ex. 1011 at 3. The other three documents corroborate that date by
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`showing that the phone was announced at the CeBIT conference in March, 1999,
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`and described in the December 1999 edition of Popular Science as being “available
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`early next year.” Ex. 1010 at 3; Ex. 1012 at 1; Ex. 1013 at 1.
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`IPR2015-01984
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`Petitioner’s Opposition to Motion to Exclude
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`B.
`Patent Owner’s Objections To Paragraphs 13-18 Of Dr. Rhyne’s
`Rebuttal Declaration (Ex. 1015) Should Be Overruled For The Same
`Reasons.
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`Patent Owner objects to paragraphs 13-18 of Dr. Rhyne’s Rebuttal
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`Declaration as being “paragraphs that rely on Exs. 1010-1013.” Motion to Exclude
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`(Paper 31) at 6. Patent Owner’s objections to those paragraphs depend on its
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`objections to Exhibits 1010-1013 and should be overruled for the reasons
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`explained above, including that Dr. Rhyne is entitled to rely upon evidence even if
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`it is hearsay. See Fed. R. Evid. 703.
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`II. CONCLUSION
`For the reasons stated above, Patent Owner’s evidentiary objections should
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`Respectfully submitted,
`
`/ Herbert H. Finn /
`Herbert H. Finn
`Registration No.: 38,139
`Greenberg Traurig, LLP
`77 W. Wacker Dr.
`Suite 3100
`Chicago, IL 60601
`P: 312-456-8427
`Lead Counsel for Petitioner
`
`
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`10
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`be overruled.
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`Dated: November 28, 2016
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`IPR2015-01984
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`Petitioner’s Opposition To Motion To Exclude
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a true and correct copy of PETITIONER’S
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`OPPOSITION TO MOTION TO EXCLUDE has been electronically served on the
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`Patent Owner’s attorneys on the date listed below at the following address:
`
`Wayne Helge
`Davidson, Berquist, Jackson & Gowdey, LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Email: whelge@davidsonberquist.com
`Office: 571-765-7700
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`Respectfully submitted,
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` Herbert H. Finn /
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` /
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`Date: November 28, 2016
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`12
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