UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`
`SAMSUNG ELECTRONICS CO., LTD.;
`MICRON TECHNOLOGY, INC.; and
`SK HYNIX INC.
`Petitioner
`
`v.
`
`ELM 3DS INNOVATIONS, LLC
`Patent Owner
`
`____________________
`
`Case No. IPR2016-00387
`U.S. Patent No. 8,841,778
`____________________
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`
`
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`
`
`SAMSUNG ELECTRONICS CO., LTD.;
`MICRON TECHNOLOGY, INC.; and
`SK HYNIX INC.
`Petitioner
`
`v.
`
`ELM 3DS INNOVATIONS, LLC
`Patent Owner
`
`____________________
`
`Case No. IPR2016-00387
`U.S. Patent No. 8,841,778
`____________________
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`
`
`
`Case No. IPR2016-00387
`Patent No. 8,841,778
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner hereby submits the following
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`objections to the evidence Patent Owner filed with its Patent Owner Preliminary
`
`Response dated April 5, 2016. Petitioner’s objections apply equally to Patent
`
`Owner’s reliance on these Exhibits in any subsequently-filed documents in this
`
`proceeding. These objections are being filed within ten business days of the
`
`Board’s decision to institute a trial in this proceeding.
`
`Exhibit 2100
`
`Petitioner objects to Exhibit 2100 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2100 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2100 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2101
`
`Petitioner objects to Exhibit 2101 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2101 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2101 is irrelevant and has no bearing on
`
`the instituted trial.
`
`
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`1
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`Case No. IPR2016-00387
`Patent No. 8,841,778
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`Exhibit 2102
`
`Petitioner objects to Exhibit 2102 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2102 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2102 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2103
`
`Petitioner objects to Exhibit 2103 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2103 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2103 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2104
`
`Petitioner objects to Exhibit 2104 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2104 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2104 is irrelevant and has no bearing on
`
`
`
`2
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`Case No. IPR2016-00387
`Patent No. 8,841,778
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`the instituted trial.
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`Exhibit 2105
`
`Petitioner objects to Exhibit 2105 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2105 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2105 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2106
`
`Petitioner objects to Exhibit 2106 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2106 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2106 is irrelevant and has no bearing on
`
`the instituted trial. In addition, this Exhibit lacks foundation (Rule 602 of the
`
`Federal Rules of Evidence) and authentication (Rule 901 of the Federal Rules of
`
`Evidence) and constitutes impermissible hearsay (Rule 802 of the Federal Rules of
`
`Evidence).
`
`Exhibit 2107
`
`Petitioner objects to Exhibit 2107 under Rules 401-403 of the Federal Rules
`
`
`
`3
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`Case No. IPR2016-00387
`Patent No. 8,841,778
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`of Evidence to the extent that Exhibit 2107 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2107 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2108
`
`Petitioner objects to Exhibit 2108 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2108 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2108 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2109
`
`Petitioner objects to Exhibit 2109 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2109 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2109 is irrelevant and has no bearing on
`
`the instituted trial. In addition, this Exhibit lacks foundation (Rule 602 of the
`
`Federal Rules of Evidence) and authentication (Rule 901 of the Federal Rules of
`
`
`
`4
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`
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`Evidence) and constitutes impermissible hearsay (Rule 802 of the Federal Rules of
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`Case No. IPR2016-00387
`Patent No. 8,841,778
`
`Evidence).
`
`Exhibit 2115
`
`Petitioner objects to Exhibit 2115 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2115 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2115 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2116
`
`Petitioner objects to Exhibit 2116 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2116 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2116 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2117
`
`Petitioner objects to Exhibit 2117 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2117 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`
`
`5
`
`
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2117 is irrelevant and has no bearing on
`
`Case No. IPR2016-00387
`Patent No. 8,841,778
`
`the instituted trial.
`
`Exhibit 2118
`
`Petitioner objects to Exhibit 2118 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2118 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2118 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2119
`
`Petitioner objects to Exhibit 2119 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2119 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2119 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2120
`
`Petitioner objects to Exhibit 2120 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2120 is irrelevant to trial in this matter given
`
`
`
`6
`
`
`
`Case No. IPR2016-00387
`Patent No. 8,841,778
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2120 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2121
`
`Petitioner objects to Exhibit 2121 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2121 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2121 is irrelevant and has no bearing on
`
`the instituted trial.
`
`Exhibit 2133
`
`Petitioner objects to Exhibit 2133 as constituting impermissible hearsay
`
`(Rule 802 of the Federal Rules of Evidence) to the extent Patent Owner relies on it
`
`for the truth of the matter asserted therein.
`
`Exhibit 2135
`
`Petitioner objects to Exhibit 2135 as constituting impermissible hearsay
`
`(Rule 802 of the Federal Rules of Evidence) to the extent Patent Owner relies on it
`
`for the truth of the matter asserted therein.
`
`
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`7
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`
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`Case No. IPR2016-00387
`Patent No. 8,841,778
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`Exhibit 2137
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`Petitioner objects to Exhibit 2137 because it is a declaration submitted
`
`during patent examination that Patent Owner is relying on as evidence in this
`
`proceeding in violation of 37 C.F.R. § 42.53(a), which states that “[u]ncompelled
`
`direct testimony must be submitted in the form of an affidavit” prepared for the
`
`IPR proceeding.
`
`In addition, Exhibit 2137 lacks foundation (Rule 602 of the Federal Rules of
`
`Evidence) and authentication (Rule 901 of the Federal Rules of Evidence) and
`
`constitutes impermissible hearsay (Rule 802 of the Federal Rules of Evidence).
`
`Exhibit 2143
`
`Petitioner objects to Exhibit 2143 under Rules 401-403 of the Federal Rules
`
`of Evidence to the extent that Exhibit 2143 is irrelevant to trial in this matter given
`
`that the Board has finally rejected Patent Owner’s arguments premised on this
`
`Exhibit. Patent Owner has no further mechanism to challenge the timeliness of the
`
`Petition in this matter, and as such Exhibit 2143 is irrelevant and has no bearing on
`
`the instituted trial. In addition, this Exhibit lacks foundation (Rule 602 of the
`
`Federal Rules of Evidence) and authentication (Rule 901 of the Federal Rules of
`
`Evidence) and constitutes impermissible hearsay (Rule 802 of the Federal Rules of
`
`Evidence).
`
`
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`8
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`
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`Dated: July 15, 2016
`
`Case No. IPR2016-00387
`Patent No. 8,841,778
`
`Respectfully submitted,
`
`By: /Jason A. Engel/
`Jason A. Engel
`Reg. No. 51,654
`Counsel for Petitioner
`
`
`
`
`
`9
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 15, 2016, a true and correct copy of the
`
`foregoing was caused to be served electronically on the following counsel of
`
`record for Patent Owner at the following email addresses:
`
`Cyrus A. Morton, Reg. No. 44,954
`cmorton@robinskaplan.com
`Kelsey J. Thorkelson, Reg. No. 73,130
`kthorkelson@robinskaplan.com
`Samuel L. Walling (Pro Hac Vice)
`SWalling@RobinsKaplan.com
`ROBINS KAPLAN LLP
`2800 LaSalle Plaza
`800 LaSalle Avenue
`Minneapolis, MN 55402-2015
`Tel.: (612) 349-8500
`Fax: (612) 339-4181
`
`James Carmichael, Reg. No. 45,306
`jim@carmichaelip.com
`CARMICHAEL IP, PLLC
`8000 Towers Crescent Drive, 13th Floor
`Tysons Corner, VA 22182
`Tel.: (703) 646-9250
`
`
`
`
`
`
`/Jason A. Engel/
`Jason A. Engel (Reg. No. 51,654)
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