UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`PALO ALTO NETWORKS, INC.,
`BLUE COAT SYSTEMS, INC.,
`Petitioner,
`
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2016-001591
`U.S. Patent No. 8,677,494
`
`__________________________________________________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE IN PETITIONER’S
`REPLY UNDER 37 C.F.R. § 42.64
`
`
`1 Case IPR2016-01174 has been joined with this proceeding.
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`PALO ALTO NETWORKS, INC.,
`BLUE COAT SYSTEMS, INC.,
`Petitioner,
`
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2016-001591
`U.S. Patent No. 8,677,494
`
`__________________________________________________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE IN PETITIONER’S
`REPLY UNDER 37 C.F.R. § 42.64
`
`
`1 Case IPR2016-01174 has been joined with this proceeding.
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`Patent Owner Finjan, Inc. (“Patent Owner”) objects under the Federal Rules
`
`
`
`
`of Evidence and 37 C.F.R. § 42.64(b)(1) to the admissibility of the following
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`documents submitted by Palo Alto Networks, Inc. and Blue Coat Systems, Inc.
`
`(“Petitioner”) in its Reply to Patent Owner’s Response (“Reply”). Paper No. 26.
`
`
`
`Petitioner’s Reply was filed on November 16, 2016. Patent Owner’s
`
`objections are timely under 37 C.F.R. § 42.64(b)(1). Patent Owner serves
`
`Petitioner with these objections to provide notice that Patent Owner will move to
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`exclude these exhibits as improper evidence.
`
`I.
`
`PETITIONER’S EVIDENCE
`A.
`
`Supplemental Declaration of John Hawes of Virus Bulletin
`(“Hawes Supplemental Declaration”) (Exhibit 1089)
`
`Patent Owner objects to the admissibility of the Hawes Supplemental
`
`Declaration for at least the following reasons:
`
`Patent Owner objects to the Hawes Supplemental Declaration as untimely
`
`because Petitioner should have introduced it in its Petition. See 37 C.F.R. §
`
`42.104(b); 37 C.F.R. § 42.23(b). Patent Owner objects to the Hawes Supplemental
`
`Declaration because it is supplemental information that is improper and untimely
`
`under 37 C.F.R. § 42.123.
`
`Patent Owner objects to the Hawes Supplemental Declaration as not relevant
`
`under FRE 401 and FRE 402 because it exceeds the proper scope of Petitioner’s
`
`Reply. See 37 C.F.R. § 42.23(b). Patent Owner further objects to the Hawes
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`1
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`
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`Supplemental Declaration under FRE 403 because of the prejudice arising from
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`Patent Owner’s inability to respond to the untimely evidence and arguments
`
`therein.
`
`Under FRE 702, Mr. John Hawes’ opinions are inadmissible because they
`
`are conclusory, do not disclose underlying facts or data in support of his opinions,
`
`and are unreliable. Additionally, Mr. Hawes is unqualified as an expert and lacks
`
`personal knowledge to provide opinions of public accessibility. As such, his
`
`opinions are inadmissible under FRE 702 and FRE 602.
`
`Petitioner has failed to authenticate the exhibits to the Hawes Supplemental
`
`Declaration under FRE 901 and FRE 602. Specifically, Petitioner has failed to
`
`establish that the exhibits are what Petitioner claims they are. To the extent that
`
`Petitioner attempts to rely on any date that appears in the exhibits to the Hawes
`
`Supplemental Declaration to establish public accessibility as a printed publication,
`
`the date is hearsay under FRE 801 and is inadmissible under FRE 802 and FRE
`
`803, and further, the date has not been authenticated and is inadmissible under
`
`FRE 901.
`
`Patent Owner objects to the Hawes Supplemental Declaration because it does
`
`not introduce evidence of Mr. Hawes’s personal knowledge of the subject matter of
`
`the testimony contained therein, rendering such testimony inadmissible under FRE
`
`602.
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`
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`2
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner also objects to the Hawes Supplemental Declaration because it
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`is hearsay under FRE 801 and does not fall within a hearsay exception under FRE
`
`802 and FRE 803.
`
`Mr. Hawes’ opinions are not relevant under FRE 401 and FRE 402.
`
`Moreover, the Hawes Supplemental Declaration is confusing, of minimal probative
`
`value, outweighed by prejudice, and/or a waste of time and is therefore
`
`inadmissible under FRE 403. Further, his opinions that rely on the exhibits cited
`
`therein are also unreliable and inadmissible for the reasons discussed above.
`
`B.
`
`Supplemental Declaration of Dr. Aviel D. Rubin (“Rubin
`Supplemental Declaration”) (Exhibit 1090)
`
`Patent Owner objects to the admissibility of the Rubin Supplemental
`
`Declaration for at least the following reasons:
`
`Patent Owner objects to the Rubin Supplemental Declaration as untimely
`
`because Petitioner should have introduced it in its Petition. See 37 C.F.R. §
`
`42.104(b); 37 C.F.R. § 42.23(b). Patent Owner objects to the Rubin Supplemental
`
`Declaration because it is supplemental information that is improper and untimely
`
`under 37 C.F.R. § 42.123.
`
`Patent Owner objects to the Rubin Supplemental Declaration as not relevant
`
`under FRE 401 and FRE 402 because it exceeds the proper scope of Petitioner’s
`
`Reply. See 37 C.F.R. § 42.23(b). Patent Owner further objects to the Rubin
`
`Supplemental Declaration under FRE 403 because of the prejudice arising from
`
`
`
`3
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`
`
`
`Patent Owner’s inability to respond to the untimely evidence and arguments
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`therein.
`
`Under FRE 702, Dr. Aviel Rubin’s opinions are inadmissible because they
`
`are conclusory, do not disclose underlying facts or data in support of his opinions,
`
`and are unreliable. Additionally, Dr. Aviel Rubin is unqualified as an expert to
`
`provide technical opinions of a person skilled in the art. As such, his opinions are
`
`inadmissible under FRE 702.
`
`Petitioner has failed to authenticate the Rubin Supplemental Declaration
`
`under FRE 901 and FRE 602. Specifically, Petitioner has failed to establish that
`
`the Rubin Supplemental Declaration is what Petitioner claims it is. To the extent
`
`that Petitioner attempts to rely on any date that appears in the Rubin Supplemental
`
`Declaration to establish public accessibility as a printed publication, the date is
`
`hearsay under FRE 801 and is inadmissible under FRE 802 and FRE 803, and
`
`further, the date has not been authenticated and is inadmissible under FRE 901.
`
`Patent Owner objects to the Rubin Supplemental Declaration because it does
`
`not introduce evidence of Mr. Rubin’s personal knowledge of the subject matter of
`
`the testimony contained therein, rendering such testimony inadmissible under FRE
`
`602.
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`
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`4
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner also objects to the Rubin Supplemental Declaration because it
`
`is hearsay under FRE 801 and does not fall within a hearsay exception under FRE
`
`802 and FRE 803.
`
`Dr. Rubin’s opinions are not relevant under FRE 401 and FRE 402.
`
`Moreover, the Rubin Supplemental Declaration is confusing, of minimal probative
`
`value, outweighed by prejudice, and/or a waste of time and is therefore
`
`inadmissible under FRE 403. Further, his opinions that rely on the exhibits cited
`
`therein are also unreliable and inadmissible for the reasons discussed above.
`
`C. Ondrej Vicek “A New Toy in the Avast Research Lab” (December
`3, 2012) (“Vicek”) (Exhibit 1091)
`
`Patent Owner objects to the admissibility of Vicek for at least the following
`
`reasons:
`
`Patent Owner objects to Vicek as untimely because Petitioner should have
`
`introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. § 42.23(b).
`
`Patent Owner objects to Vicek because it is supplemental information that is
`
`improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to Vicek as not relevant under FRE 401 and FRE 402
`
`because it exceeds the proper scope of Petitioner’s Reply. See 37 C.F.R. §
`
`42.23(b). Patent Owner further objects to Vicek under FRE 403 because of the
`
`prejudice arising from Patent Owner’s inability to respond to the untimely
`
`evidence and arguments therein.
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`
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`5
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Petitioner has failed to authenticate Vicek under FRE 901 and FRE 602.
`
`Specifically, Petitioner has failed to establish that Vicek is what Petitioner claims it
`
`to be, including when, if ever, it first became publicly available.
`
`Patent Owner objects to the portions of Vicek that Petitioner does not cite to
`
`or rely on in its Reply. Accordingly, such evidence is not relevant under FRE 401
`
`and is inadmissible under FRE 402. Any attempt by Petitioner to rely on these
`
`portions would be highly prejudicial to Patent Owner under FRE 403.
`
`Patent Owner also objects because Vicek is hearsay under FRE 801 and
`
`inadmissible under FRE 802 and FRE 803.
`
`Vicek is also irrelevant, confusing, and of minimal probative value under
`
`FRE 401 and FRE 402, outweighed by prejudice, and/or a waste of time and is
`
`therefore inadmissible under FRE 403.
`
`D.
`
`Plaintiff Finjan, Inc.’s Opening Claim Construction Brief, Finjan,
`Inc. v. Blue Coat Sys., Inc., No. 13-cv-03999-BLF (N.D. Cal. Aug.
`22, 2014), ECF 65. (“Blue Coat Brief”) (Exhibit 1092)
`
`Patent Owner objects to the admissibility of the Blue Coat Brief for at least
`
`the following reasons:
`
`Patent Owner objects to the Blue Coat Brief as untimely because Petitioner
`
`should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the Blue Coat Brief because it is supplemental
`
`information that is improper and untimely under 37 C.F.R. § 42.123.
`
`
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`6
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner objects to the Blue Coat Brief as not relevant under FRE 401
`
`and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See 37
`
`C.F.R. § 42.23(b). Patent Owner further objects to the Blue Coat Brief under FRE
`
`403 because of the prejudice arising from Patent Owner’s inability to respond to
`
`the untimely evidence and arguments therein.
`
`Patent Owner objects because the cited portions of the Blue Coat Brief are
`
`not relevant. For example, Petitioner cites the Blue Coat Brief, which discusses
`
`U.S. Patent No. 6,154,844 (“’844 Patent”) and further discusses the term
`
`“suspicious” in the context of the ‘844 Patent, which is outside the scope of the
`
`present IPR. Specifically, the ‘844 Patent discusses “generating by the inspector a
`
`firm Downloadable security profile that identifies suspicious code in the received
`
`Downloadable,” whereas the ‘494 Patent in the present IPR discusses “deriving
`
`security profile data for the Downloadable, including a list of suspicious
`
`computer operations.” (Emphasis added). Moreover, Petitioner cited language
`
`that is outside the scope of the Court’s adopted claim construction.
`
`Patent Owner objects to the portions of the Blue Coat Brief that Petitioner
`
`does not cite to or rely on in its Reply. Accordingly, such evidence is not relevant
`
`under FRE 401 and is inadmissible under FRE 402. Any attempt by Petitioner to
`
`rely on these portions would be highly prejudicial to Patent Owner under FRE
`
`403.
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`
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`7
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner also objects because the Blue Coat Brief is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`The Blue Coat Brief is also irrelevant, confusing, and of minimal probative
`
`value under FRE 401 and FRE 402, outweighed by prejudice, and/or a waste of
`
`time and is therefore inadmissible under FRE 403.
`
`E. U.S. Patent No. 5,361,359 (“’359 Patent”) (Exhibit 1093)
`Patent Owner objects to the admissibility of the ‘359 Patent for at least the
`
`following reasons:
`
`Patent Owner objects to the ‘359 Patent as untimely because Petitioner
`
`should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the ‘359 Patent because it is supplemental
`
`information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to the ‘359 Patent as not relevant under FRE 401 and
`
`FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See 37 C.F.R.
`
`§ 42.23(b). Patent Owner further objects to the ‘359 Patent under FRE 403
`
`because of the prejudice arising from Patent Owner’s inability to respond to the
`
`untimely evidence and arguments therein.
`
`Patent Owner objects because the cited portions of the ‘359 Patent are not
`
`relevant. For example, Petitioner cites the ‘359 Patent and claims it “identif[ies]
`
`file write operations as potentially malicious.” Paper No. 26 at 9. However, the
`
`
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`8
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`
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`cited portion of the ‘359 Patent merely mentions that content is stored on a
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`protected media, to which users with certain access cannot write. Exhibit 1093 at
`
`6:27-42.
`
`Accordingly, for at least the foregoing reasons, the cited portions of the ‘359
`
`Patent are not relevant under FRE 401 and inadmissible under FRE 402.
`
`Moreover, Petitioner’s use of the ‘359 Patent is confusing, of minimal probative
`
`value, outweighed by prejudice, and/or a waste of time and is therefore
`
`inadmissible under FRE 403.
`
`Patent Owner objects to the portions of the ‘359 Patent that Petitioner does
`
`not cite to or rely on in its Reply. Such evidence is not relevant under FRE 401
`
`and is inadmissible under FRE 402. Any attempt by Petitioner to rely on these
`
`portions would be highly prejudicial to Patent Owner under FRE 403.
`
`The ‘359 Patent is also irrelevant, confusing, and of minimal probative value
`
`under FRE 401 and FRE 402. Moreover, the ‘359 Patent is confusing, of minimal
`
`probative value, outweighed by prejudice, and/or a waste of time and is therefore
`
`inadmissible under FRE 403.
`
`F. U.S. Patent No. 5,434,562 (“’562 Patent”) (Exhibit 1094)
`Patent Owner objects to the admissibility of the ‘562 Patent for at least the
`
`following reasons:
`
`
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`9
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`
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner objects to the ‘562 Patent as untimely because Petitioner
`
`should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the ‘562 Patent because it is supplemental
`
`information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to the ‘562 Patent as not relevant under FRE 401 and
`
`FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See 37 C.F.R.
`
`§ 42.23(b). Patent Owner further objects to the ‘562 Patent under FRE 403
`
`because of the prejudice arising from Patent Owner’s inability to respond to the
`
`untimely evidence and arguments therein.
`
`Patent Owner objects because the cited portions of the ‘562 Patent are not
`
`relevant. For example, Petitioner cites the ‘562 Patent, which states the “invention
`
`is particularly useful in multi-user environments, such as those in a university
`
`computer lab, wherein only a computer supervisor is authorized to add programs
`
`and data to a mass storage peripheral device and other users are authorized only to
`
`read programs and data from a storage device,” which is outside the scope of the
`
`present IPR. Exhibit 1094 at 1:25-30.
`
`Accordingly, for at least the foregoing reasons, the cited portions of the ‘562
`
`Patent are not relevant under FRE 401 and inadmissible under FRE 402.
`
`Moreover, Petitioner’s use of the ‘562 Patent is confusing, of minimal probative
`
`
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`10
`
`
`
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`value, outweighed by prejudice, and/or a waste of time and is therefore
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`inadmissible under FRE 403.
`
`Patent Owner objects to the portions of the ‘562 Patent that Petitioner does
`
`not cite to or rely on in its Reply. Accordingly, such evidence is not relevant under
`
`FRE 401 and is inadmissible under FRE 402. Any attempt by Petitioner to rely on
`
`these portions would be highly prejudicial to Patent Owner under FRE 403.
`
`The ‘562 Patent is also irrelevant, confusing, and of minimal probative value
`
`under FRE 401 and FRE 402. Moreover, the ‘562 Patent is confusing, of minimal
`
`probative value, outweighed by prejudice, and/or a waste of time and is therefore
`
`inadmissible under FRE 403.
`
`G. Exhibit 1006 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 10, 2015) (“Symantec Exhibit 1006”) (Exhibit 1095)
`
`Patent Owner objects to Symantec Exhibit 1006 as untimely because
`
`Petitioner should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37
`
`C.F.R. § 42.23(b). Patent Owner objects to Symantec Exhibit 1006 because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to Symantec Exhibit 1006 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1006
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`
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`11
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Petitioner is improperly introducing Symantec Exhibit 1006 for the purpose
`
`of establishing the date Swimmer was publicly available prior art because
`
`Petitioner has failed to authenticate Swimmer through Symantec Exhibit 1006
`
`under FRE 901 and FRE 602. Symantec Exhibit 1006 is not self-authenticating
`
`under FRE 901, not the original under FRE 1002, and not a “duplicate” under
`
`FRE 1001(e) and FRE 1003. Specifically, Petitioner has failed to establish that
`
`Symantec Exhibit 1006 is what Petitioner claims it to be. Moreover, Symantec
`
`Exhibit 1006 cites to “Symantec Ex. 1005,” (Exhibit 1095 at 8) which was not
`
`included in Symantec Exhibits 1095.
`
`Petitioner has failed to authenticate Symantec Exhibit 1006 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1006 is what Petitioner claims it is, and has failed to authenticate the date by which
`
`Symantec Exhibit 1006 was allegedly publicly accessible as a printed publication.
`
`To the extent that Petitioner attempts to rely on the date that appears on Symantec
`
`Exhibit 1006 to establish public accessibility as a printed publication, the date is
`
`hearsay under FRE 801 and is inadmissible under FRE 802, and further, the date
`
`has not been authenticated and is inadmissible under FRE 901.
`
`Patent Owner objects to Symantec Exhibit 1006 because it does not
`
`introduce evidence of Ms. Sylvia Hall-Ellis’ personal knowledge of the subject
`
`
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`12
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`
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`matter of the testimony contained therein, rendering such testimony inadmissible
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`under FRE 602.
`
`Patent Owner also objects because Symantec Exhibit 1006 is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`Because of these deficiencies, Petitioner has failed to establish that
`
`Swimmer is a prior art printed publication through Symantec Exhibits 1095 and its
`
`included Exhibits. Accordingly, Symantec Exhibit 1006 is irrelevant, confusing,
`
`and of minimal probative value under FRE 401, FRE 402, and FRE 403.
`
`H. Exhibit 1007 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 10, 2015) (“Symantec Exhibit 1007”) (Exhibit 1095)
`
`Patent Owner objects to Symantec Exhibit 1007 as untimely because
`
`Petitioner should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37
`
`C.F.R. § 42.23(b). Patent Owner objects to Symantec Exhibit 1007 because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to Symantec Exhibit 1007 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1007
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Under FRE 702, Ms. Sylvia Hall-Ellis’ opinions are inadmissible because
`
`they are conclusory, do not disclose underlying facts or data in support of her
`
`
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`13
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`
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`opinions, and are unreliable. Additionally, Ms. Hall-Ellis is unqualified as an
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`expert and lacks personal knowledge regarding the public accessibility of
`
`Swimmer. As such, her opinions are inadmissible under FRE 702 and she lacks
`
`personal knowledge under FRE 602.
`
`Petitioner has failed to authenticate Symantec Exhibit 1007 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1006 is what Petitioner claims it is.
`
`Patent Owner objects to Symantec Exhibit 1007 because it does not
`
`introduce evidence of Ms. Sylvia Hall-Ellis’ personal knowledge of the subject
`
`matter of the testimony contained therein, rendering such testimony inadmissible
`
`under FRE 602.
`
`Patent Owner also objects because Symantec Exhibit 1007 is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`Accordingly, Symantec Exhibit 1007 is irrelevant, confusing, and of
`
`minimal probative value under FRE 401, FRE 402, and FRE 403.
`
`I.
`
`Exhibit 1011 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 10, 2015) (“Symantec Exhibit 1011”) (Exhibit 1095)
`
`Patent Owner objects to Symantec Exhibit 1011 as untimely because
`
`Petitioner should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37
`
`C.F.R. § 42.23(b). Patent Owner objects to Symantec Exhibit 1011 because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
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`
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`14
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`Patent Owner objects to Symantec Exhibit 1011 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1011
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Petitioner is improperly introducing Symantec Exhibit 1011 for the purpose
`
`of establishing the date Swimmer was publicly available prior art because
`
`Petitioner has failed to authenticate Swimmer through Symantec Exhibit 1011
`
`under FRE 901 and FRE 602. Symantec Exhibit 1011 is not self-authenticating
`
`under FRE 901, not the original under FRE 1002, and not a “duplicate” under
`
`FRE 1001(e) and FRE 1003. Specifically, Petitioner has failed to establish that
`
`Symantec Exhibit 1011 is what Petitioner claims it to be.
`
`Petitioner has failed to authenticate Symantec Exhibit 1011 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1011 is what Petitioner claims it is, and has failed to authenticate the date by which
`
`Symantec Exhibit 1011 was allegedly publicly accessible as a printed publication
`
`by examination of Symantec Exhibit 1011 on its face. To the extent that Petitioner
`
`attempts to rely on the date that appears on Symantec Exhibit 1011 to establish
`
`public accessibility as a printed publication, the date is hearsay under FRE 801 and
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`15
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`is inadmissible under FRE 802, and further, the date has not been authenticated
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`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
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`and is inadmissible under FRE 901.
`
`Patent Owner objects to Symantec Exhibit 1011 because it does not
`
`introduce evidence of Ms. Sylvia Hall-Ellis’ personal knowledge of the subject
`
`matter of the testimony contained therein, rendering such testimony inadmissible
`
`under FRE 602.
`
`Patent Owner also objects because Symantec Exhibit 1011 is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`Because of these deficiencies, Petitioner has failed to establish that
`
`Swimmer is a prior art printed publication through Symantec Exhibits 1095 and its
`
`included Exhibits. Accordingly, Symantec Exhibit 1011 is irrelevant, confusing,
`
`and of minimal probative value under FRE 401, FRE 402, and FRE 403.
`
`J.
`
`Exhibit 1037 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 10, 2015) (“Symantec Exhibit 1037”) (Exhibit 1095)
`Patent Owner objects to Symantec Exhibit 1037 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1037
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Patent Owner objects to Symantec Exhibit 1037 as untimely because it
`
`should have been introduced in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`
`
`16
`
`
`
`
`42.23(b). Patent Owner objects to Symantec Exhibit 1037 because it is
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Petitioner is improperly introducing Symantec Exhibit 1037 for the purpose
`
`of establishing the date Swimmer was publicly available prior art because
`
`Petitioner has failed to authenticate Swimmer through Symantec Exhibit 1037
`
`under FRE 901 and FRE 602. Symantec Exhibit 1037 is not self-authenticating
`
`under FRE 901, not the original under FRE 1002, and not a “duplicate” under
`
`FRE 1001(e) and FRE 1003. Specifically, Petitioner has failed to establish that
`
`Symantec Exhibit 1037 is what Petitioner claims it to be.
`
`Petitioner has failed to authenticate Symantec Exhibit 1037 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1037 is what Petitioner claims it is, and has failed to authenticate the date by which
`
`Symantec Exhibit 1037 was allegedly publicly accessible as a printed publication
`
`by examination of Symantec Exhibit 1037 on its face. To the extent that Petitioner
`
`attempts to rely on the date that appears on Symantec Exhibit 1037 to establish
`
`public accessibility as a printed publication, the date is hearsay under FRE 801 and
`
`is inadmissible under FRE 802, and further, the date has not been authenticated
`
`and is inadmissible under FRE 901.
`
`To the extent that Petitioner attempts to rely on any date that appears on
`
`Symantec Exhibit 1037 to establish public accessibility of Swimmer as a printed
`
`
`
`17
`
`
`
`
`publication, the date is hearsay under FRE 801 and is inadmissible under FRE 802
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`and FRE 803, and further, the date has not been authenticated and is inadmissible
`
`under FRE 901 and FRE 902.
`
`Patent Owner objects to Symantec Exhibit 1037 because it does not
`
`introduce evidence of Ms. Sylvia Hall-Ellis’ personal knowledge of the subject
`
`matter of the testimony contained therein, rendering such testimony inadmissible
`
`under FRE 602.
`
`Patent Owner also objects because Symantec Exhibit 1037 is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`Because of these deficiencies, Petitioner has failed to establish that
`
`Swimmer is a prior art printed publication through Symantec Exhibits 1095 and its
`
`included Exhibits. Accordingly, Symantec Exhibit 1037 is irrelevant, confusing,
`
`and of minimal probative value under FRE 401, FRE 402, and FRE 403.
`
`K. Exhibit 1038 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 16, 2016) (“Symantec Exhibit 1038”) (Exhibit 1096)
`
`Patent Owner objects to Symantec Exhibit 1038 as untimely because
`
`Petitioner should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37
`
`C.F.R. § 42.23(b). Patent Owner objects to Symantec Exhibit 1038 because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to Symantec Exhibit 1038 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`
`
`18
`
`
`
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1038
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Petitioner has failed to authenticate Symantec Exhibit 1038 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1038 is what Petitioner claims it to be. To the extent that Petitioner attempts to
`
`rely on any dates that appear on the Symantec Exhibit 1038 to establish public
`
`accessibility as a printed publication, the dates are hearsay under FRE 801 and are
`
`inadmissible under FRE 802, and further, the dates have not been authenticated
`
`and are inadmissible under FRE 901.
`
`Under FRE 702, Dr. Richard Ford’s opinions are inadmissible because they
`
`are conclusory, do not disclose underlying facts or data in support of his opinions,
`
`and are unreliable. Additionally, Dr. Ford is unqualified as an expert and lacks
`
`personal knowledge regarding the public accessibility of the Virus Bulletin. As
`
`such, his opinions are inadmissible under FRE 702 and he lacks personal
`
`knowledge under FRE 602.
`
`Patent Owner also objects because Symantec Exhibits 1038 is hearsay under
`
`FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`His opinions are also irrelevant, confusing, and of minimal probative value
`
`under FRE 401 and FRE 402. Moreover, Symantec Exhibits 1038 is confusing, of
`
`
`
`19
`
`
`
`
`minimal probative value, outweighed by prejudice, and/or a waste of time and is
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`therefore inadmissible under FRE 403.
`
`L.
`
`Exhibit 1039 from Symantec Corp. v. Finjan, Inc., IPR2015-01892
`(PTAB Sept. 16, 2016) (“Symantec Exhibit 1039”) (Exhibit 1096)
`
`Patent Owner objects to Symantec Exhibit 1039 as untimely because
`
`Petitioner should have introduced it in its Petition. See 37 C.F.R. § 42.104(b); 37
`
`C.F.R. § 42.23(b). Patent Owner objects to Symantec Exhibit 1039 because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to Symantec Exhibit 1039 as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to Symantec Exhibit 1039
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Petitioner is improperly introducing Symantec Exhibit 1039 for the purpose
`
`of establishing the date Swimmer was publicly available prior art because
`
`Petitioner has failed to authenticate Swimmer through Symantec Exhibit 1039
`
`under FRE 901 and FRE 602. Symantec Exhibit 1039 is not self-authenticating
`
`under FRE 901, not the original under FRE 1002, and not a “duplicate” under
`
`FRE 1001(e) and FRE 1003. Specifically, Petitioner has failed to establish that
`
`Symantec Exhibit 1039 is what Petitioner claims it to be.
`
`
`
`20
`
`
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2016-00159 (U.S. Patent No. 8,677,494)
`
`Petitioner has failed to authenticate Symantec Exhibit 1039 under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that Symantec Exhibit
`
`1039 is what Petitioner claims it is, and has failed to authenticate the date by which
`
`Symantec Exhibit 1039 was allegedly publicly accessible as a printed publication
`
`by examination of Symantec Exhibit 1039 on its face. To the extent that Petitioner
`
`attempts to rely on the date that appears on Symantec Exhibit 1039 to establish
`
`public accessibility as a printed publication, the date is hearsay under FRE 801 and
`
`is inadmissible under FRE 802, and further, the date has not been authenticated
`
`and is inadmissible under FRE 901.
`
`To the extent that Petitioner attempts to rely on any date that appears on
`
`Symantec Exhibit 1039 to establish public accessibility of Swimmer as a printed
`
`publication, the date is hearsay under FRE 801 and is inadmissible under FRE 802
`
`and FRE 803, and further, the date has not been authenticated and is inadmissible
`
`under FRE 901 and FRE 902.
`
`Patent Owner also objects because Symantec Exhibit 1039 is hearsay under
`
`FRE 801 and inadmissible under
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