UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`LG ELECTRONICS, INC.,
`Petitioner
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`v.
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`CORE WIRELESS LICENSING S.A.R.L.,
`Patent Owner
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`_______________
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`Case IPR2015-01984
`Patent 8,434,020
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`_______________
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE PETITIONER’S EVIDENCE UNDER 37 C.F.R. § 42.64(c)
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`LG ELECTRONICS, INC.,
`Petitioner
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`
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`v.
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`CORE WIRELESS LICENSING S.A.R.L.,
`Patent Owner
`
`_______________
`
`Case IPR2015-01984
`Patent 8,434,020
`
`_______________
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`
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE PETITIONER’S EVIDENCE UNDER 37 C.F.R. § 42.64(c)
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`Patent Owner moved to exclude Petitioner’s Exhibits 1010-1013 and ¶¶13-
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`18 of Exhibit 1015 as unauthenticated, inadmissible hearsay, and irrelevant in that
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`Petitioner has not established a date of publication, and has not established that
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`such references would have been known to a POSITA as of the critical date. Paper
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`31 at 1-7. Petitioner opposes the motion for exclusion (Paper 33 or “Opp.”).
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`1. The Objected-to Exhibits Are Not Authenticated
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`F.R.E. 901(a) requires evidence to be authenticated by “evidence sufficient
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`to support a finding that the item is what the proponent claims it is.” This can be
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`established, for example, with “Testimony of a Witness with Knowledge” or
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`“Distinctive Characteristics and the Like.” Fed. R. Evid. 901(b)(1), (4).
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`Petitioner contends that each of Exhibits 1010-1013 “are authentic under
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`Rule 901(b)(4) because they contain ‘distinctive characteristics’ that show they are
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`what they claim to be.” Opp. at 5. In describing Exhibit 1010, Petitioner argues
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`that the “Audi TT and Honda S2000” were “manufactured beginning in 1998 and
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`1999, respectively.” Opp. at 3. For Exhibit 1011, Petitioner points to the “Ericsson
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`logo, a UPC code, and an image of the phone in a user’s hand” and also to the
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`“[a]rtifacts of the copying process” as such allegedly distinctive characteristics.
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`Opp. at 4. Petitioner offers no evidence why these characteristics are allegedly
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`distinctive and no explanation of how they establish authenticity. Further, even the
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`allegations of distinctiveness are comprised of attorney argument, not evidence. In
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`1
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`essence, Petitioner askes the Board to rely on attorney argument and the contents
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`of unauthenticated documents in order to prove authentication. This circular
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`argument must fail, just as previous attempts to rely upon Rule 901(b)(4) before
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`the Board have failed. See, e.g., TRW Automotive U.S. LLC v. Magna Electronics
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`Inc., Case No. IPR2014-01347, slip op. at 10-11 (PTAB Jan. 6, 2016) (Paper 25)
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`(rejecting petitioner’s argument for self-authentication as “circular” and founded
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`upon “attorney argument.”).
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`Petitioner next argues that Dr. Rhyne can properly act as a “witness with
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`knowledge” to authenticate Exhibits 1010-1013 under Rule 901(b)(1). Opp. at 5.
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`But Dr. Rhyne testified that he received the exhibits from counsel and had not seen
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`them before LG’s attorneys gave them to him. Paper 31 at 1-5 (citing to Rhyne
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`testimony in Ex. 2011). Petitioner responds that Dr. Rhyne once subscribed to
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`Popular Science. Opp. at 5 (citing Ex. 2011 at 12:2). But this general statement is
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`undercut by Dr. Rhyne’s more specific testimony at Ex. 2011, 12:5-7:
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`Q. So you don’t remember reading this particular issue of Popular Science
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`back in 1999?
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`A. I do not.
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`At best, Dr. Rhyne can only confirm that the Exhibits filed in the record
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`were the documents provided to him by Petitioner’s counsel in preparation for this
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`2
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`case. Id. That is insufficient to establish that the Exhibits are authentic as of the
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`purported dates contained within these documents.
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`Dr. Rhyne’s other testimony in no way substantiates the authenticity of the
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`Exhibits. For example, Exhibits 1012 and 1013 are directed to events that
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`allegedly occurred at “CeBit” in 1999. Dr. Rhyne has not testified that he attended
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`CeBit in 1999, or even whether (in his personal knowledge) CeBit occurred. See
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`Ex. 1015 at ¶16. There is simply no evidence in the record to establish that Dr.
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`Rhyne is a person with knowledge sufficient to authenticate these Exhibits. 1
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`2. The Objected-to Evidence is Irrelevant and Inadmissible Hearsay
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`Petitioner argues that Exhibits 1010-1013 are relevant to the knowledge that
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`would have been possessed by a POSITA as of the critical date. Opp. at 8. But all
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`Petitioner has to establish a publication date is the inadmissible hearsay contained
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`within the unauthenticated Exhibits themselves. Without evidence of publication,
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`Petitioner has failed to establish that any of these documents are “prior art” under
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`pre-AIA 35 U.S.C. § 102. On its own, this renders these exhibits irrelevant as to
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`1 Petitioner twice quotes the testimony of Patent Owner’s witness, Scott Denning,
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`in attempting to establish admissibility of Exhibits 1010-1013. Opp. at 6, 9. But
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`Mr. Denning’s confirmation that these Exhibits say what they say is not a
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`confirmation of their truth or authenticity. Neither Dr. Rhyne nor Mr. Denning
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`have established the authenticity of these Exhibits 1010-1013.
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`3
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`the knowledge that a POSITA would have possessed as of the critical date.
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`Further, Petitioner’s argument on hearsay underscores that Exhibits 1010-
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`1013 are inadmissible. In arguing that Exhibits 1010-1013 are not hearsay because
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`they are not a “statement” under the hearsay rule, Petitioner has divided the
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`contents of these Exhibits into two categories: the alleged dates of publication, and
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`the technical contents of the document. Petitioner asks the Board to consider the
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`technical contents of the Exhibits for what they disclose to a POSITA, but asks the
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`Board to accept the dates contained within the Exhibits as true. Petitioner cannot
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`have it both ways. If the contents of the Exhibits are submitted for their truth, then
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`the Exhibits are inadmissible hearsay not subject to any exception. If the contents
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`of the Exhibits are not submitted for their truth, then the Exhibits are not shown to
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`be prior art and are irrelevant to the knowledge of a POSITA as of the critical date.
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`In any event, a date printed in a document does not establish a publication
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`date. Stryker Corp. v. Karl Storz Endoscopy-America, Inc., Case IPR2015-00677
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`slip op. at 18-19 (PTAB Sept. 2, 2015) (Paper 15) (a copyright notice does not
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`establish a publication date under patent law); ServiceNow v. Hewlett-Packard Co.,
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`Case IPR2015-00707, slip op. at 17 (PTAB Aug. 26, 2015) (Paper 12); Standard
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`Innovation Corp. v. Lelo, Inc., Case IPR2014-00148, slip op. at 13–16 (PTAB Apr.
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`23, 2015) (Paper 41).
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`4
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`Relying next on Fed. R. Evid. 803(17) , Petitioner argues that “Exhibits
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`1010-1013 are all ‘commercial publications’ that are ‘generally relied upon by the
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`public.’” Opp. at 7. This assertion is unsupported attorney argument. Petitioner
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`then resorts to Fed. R. Evid. 807, and asks the Board to treat unauthenticated
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`Exhibits 1010-1013 as corroborating each other. Id. This argument asks the Board
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`to find references admissible in bulk, even where they are inadmissible
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`individually. But Petitioner fails to even identify much less meet all requirements
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`of the residual exception. See Fed. R. Evid. 807(a)(1)-(4).
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`Finally, Petitioner argues that Dr. Rhyne is entitled to rely upon hearsay
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`under Fed. R. Evid. 703. But Dr. Rhyne cannot reach an opinion on what would
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`have been known to a POSITA as of the critical date based on Exhibits that have
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`not been established to be within the knowledge of a POSITA as of the critical
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`date. His opinions are entitled to little to no weight under 37 C.F.R. § 42.65(a).
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`3. Conclusion
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`In summary, Petitioner has failed to establish any date of publication of
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`these Exhibits 1010-1013, and has failed to establish the authenticity of these
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`Exhibits prior to the critical date in this case. As a result of these failures, these
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`Exhibits are not relevant to any issue in this proceeding. These Exhibits, and Dr.
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`Rhyne’s testimony relying upon these exhibits, are therefore inadmissible, and
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`should be excluded and given no weight in the outcome of this proceeding.
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`5
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`Respectfully submitted,
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`By: /s/ Wayne M. Helge
`Wayne M. Helge (Reg. No. 56,905)
`Walter D. Davis (Reg. No. 45,137)
`DAVIDSON BERQUIST JACKSON & GOWDEY,
`LLP
`8300 Greensboro Drive, Suite 500
`McLean, VA 22102
`Telephone: 571-765-7700
`Fax: 571-765-7200
`Email: whelge@dbjg.com
`Email: wdavis@dbjg.com
` Counsel for Patent Owner
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`
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`Dated: December 5, 2016
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`6
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 5, 2016, a true and correct copy of the
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`foregoing PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
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`EXCLUDE PETITIONER’S EVIDENCE is being served via email by consent to
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`the Petitioner at the correspondence addresses of record as follows:
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`LG-CoreWireless-IPR@gtlaw.com
`finnh@gtlaw.com
`harrisr@gtlaw.com
`maierse@gtlaw.com
`kudlack@gtlaw.com
`brownn@gtlaw.com
`cyrusa@gtlaw.com
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`
`
`By: /s/ Wayne M. Helge
` USPTO Reg. No. 56,905
` Counsel for Patent Owner
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`
`
`Herbert H. Finn
`Richard D. Harris
`Eric J. Maiers
`Kevin Kudlac
`Nicholas A. Brown
`Ashkon Cyrus
`Greenberg Traurig, LLP
`77 W. Wacker Dr., Suite 3100
`Chicago, IL 60601
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`7
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