UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
`Petitioner
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`v.
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`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
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`Case IPR2016-00448
`U.S. Patent No. 7,908,343 B2
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`PAPER NO. 35
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`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S EVIDENCE
`(37 C.F.R. §42.64(b)(1))
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
`
`
`
`
`Case IPR2016-00448
`U.S. Patent No. 7,908,343 B2
`
`
`
`PAPER NO. 35
`
`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S EVIDENCE
`(37 C.F.R. §42.64(b)(1))
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner Bradium Technologies
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`LLC (“Bradium”) objects to Petitioner Microsoft Corporation’s (“Microsoft”)
`
`evidence filed on February 6, 2017 with Microsoft’s Reply to Patent Owner’s
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`Response (Paper 34) for Inter Partes Review IPR2016-00448 of U.S. Patent No.
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`7,908,343.
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`In this paper, a reference to “F.R.E.” means the Federal Rules of Evidence, a
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`reference to “C.F.R.” means the Code of Federal Regulations, and “’343 patent”
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`means U.S. Patent No. 7,908,343. All objections under F.R.E. 802 (hearsay) apply
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`to the extent that Petitioner rely on the exhibit(s) identified in connection with that
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`objection for the truth of the matters asserted therein.
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`Patent Owner objects as follows:
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`Ex. 1014 (LinkedIn Page):1 Patent Owner objected on the record at
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`deposition to this exhibit. See Ex. 1019, 48:21-49:4. Petitioner did not offer
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`evidence to cure the objections during the deposition, and the parties did not
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`stipulate to waive 37 C.F.R. 42.64(a) on the deposition record.
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`Patent Owner further objects to any portion of Exhibit 1016 (Michalson
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`reply declaration), e.g., Paragraph 11 of Exhibit 1016, and Paper 34 that relies on
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`or refers to Exhibit 1014.
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`1 This exhibit was marked as Exhibit 1015 at the deposition of Mr. Levanon. Ex.
`1019, 48:21-49:10.
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`Ex. 1015 (Wikipedia):2 Patent Owner objected on the record at deposition
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`to this exhibit. See Ex. 1018, 62:17-64:12. Petitioner did not offer evidence to
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`cure the objections during the deposition, and the parties did not stipulate to waive
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`37 C.F.R. 42.64(a) on the deposition record.
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`Ex. 1016 (Michalson Declaration):
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`Patent Owner objects to Exhibit 1016 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) as not relevant and prejudicial under F.R.E. 402 and 403 to the extent that
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`the Declaration includes material that is not sufficiently referenced and explained,
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`or not referenced or explained at all, in the Petition, in an attempt to circumvent the
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`5600-word limit for replies to patent owner responses. See 37 C.F.R. § 42.24(c)(1).
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`Paragraphs 1–7, 31, 123–125, 128–129, 133 and 164–165 of Exhibit 1016 are not
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`cited or discussed in Petitioner’s reply.
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`Patent Owner further objects to Exhibit 1016 under 37 C.F.R. § 42.23 to the
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`extent that it presents evidence and arguments available to Petitioner at the time the
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`Petition was filed. See also 37 C.F.R. § 42.22(a)(2). A reply may only respond to
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`arguments raised in the corresponding opposition or patent owner response. 37
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`C.F.R. § 42.23.
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`Patent Owner objects to this exhibit under F.R.E. 702. Dr. Michalson
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`purports to testify as an expert without a showing that the foundational
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`2 This exhibit was marked as Exhibit 1014 at the deposition of Dr. Agouris. Ex.
`1018, 62:17-24.
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`requirements of F.R.E. 702 are satisfied. Dr. Michalson purports to construe
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`claims terms “remote computer” and “fixed byte size” without explaining the bases
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`on which he reaches his conclusions. E.g., Ex. 1016, ¶¶ 148, 149.
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`Exhibit 1017 (Declaration of Yonatan Lavi, with Exhibits A-F):
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`Patent Owner objects to the declaration of Mr. Lavi (Ex. 1017) to the extent
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`that Mr. Lavi is not made available for deposition in the United States. See 37
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`C.F.R. 42.53; Square, Inc. v. REM Holdings 3, LLC, Case No. IPR2014-00312,
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`Paper 37 (PTAB, Dec. 9, 2014) (Order) (declarant residing outside of the United
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`States required to travel to the United States for deposition).
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`Patent Owner objects to Exhibit 1017 as containing 3DVU and third-party
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`confidential information regarding which Mr. Lavi, as a former employee, is
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`subject to confidentiality obligations.
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`Patent Owner objects to Exhibit 1017 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403. See, e.g.,
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`Exhibit 1017, Paragraphs 41-42, 44-45.
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`Patent Owner objects to this exhibit under F.R.E. 602 and 701. Petitioner
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`has not introduced evidence sufficient to support a finding that Mr. Lavi has
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`personal knowledge of the subject matter of his testimony. The subject matter of
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`the declaration is not limited to testimony that is (a) rationally based on Mr. Lavi’s
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`perception; (b) helpful to clearly understanding the witness’s testimony or to
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`determining a fact issue; and (c) not based on scientific, technical or other
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`specialized knowledge within the scope of Rule 702. Mr. Lavi purports to opine
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`on what was generally known or known in the industry without foundation. See,
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`e.g., Exhibit 1017, Paragraphs 16, 23, 37-38.
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`Patent Owner objects to this exhibit under F.R.E. 702. Mr. Lavi’s testimony
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`encompasses material covered by F.R.E. 702 without a showing that the
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`foundational requirements of F.R.E. 702 are satisfied. Mr. Lavi purports to
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`interpret claim terms without explaining his bases and reasoning for doing so or
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`from what perspective he is interpreting the claims.
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`Patent Owner objects to Exhibit 1017 and Exhibits A through E to Exhibit
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`1017 beyond the extent they are referenced or explained in Petitioner’s reply as not
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`relevant and prejudicial under F.R.E 402 and 403 and as an improper attempt to
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`circumvent the reply page limit. See 37 C.F.R. §§ 42.22(a)(2) and 42.104(b)(4).
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`Paragraphs 1–6, 13–15, 17–19, 38–45 and Exhibits B, C, E and F of Exhibit 1017
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`are not cited or discussed in Petitioner’s reply.
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`Patent Owner objects to Exhibits B and D–F of Exhibit 1017 under 37
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`C.F.R. §§ 42.6(a)(3) and 42.24(c) and as not relevant and prejudicial under F.R.E.
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`402 and 403 in the manner used by Petitioner, and on grounds of hearsay under
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`F.R.E. 801 and 802. Patent Owner objects to Exhibit B under F.R.E. 901 because
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`authenticating information has not been provided. The declarant merely indicates
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`that the document was retrieved from an “internet archive”. Ex. 1017 at ¶26.
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`Exhibit 1020
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`Patent Owner further objects to Exhibit 1020 under 37 C.F.R. § 42.23 as
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`evidence that was available to Petitioner at the time the Petition was filed. See also
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`37 C.F.R. § 42.22(a)(2). A reply may only respond to arguments raised in the
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`patent owner response. 37 C.F.R. § 42.23. Patent Owner therefore objects to
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`Exhibit 1020, and any portion of Exhibit 1016 (Michalson reply declaration), e.g.,
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`Paragraphs 53-54 of Exhibit 1016, and Paper 34 (e.g, Page 6) that refers to or relies
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`on Exhibit 1020.
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay that Petitioner has
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`not shown that the document was publicly accessible.
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`Exhibit 1022
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`Patent Owner further objects to Exhibit 1022 under 37 C.F.R. § 42.23 as
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`evidence that was available to Petitioner at the time the Petition was filed. See also
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`37 C.F.R. § 42.22(a)(2). A reply may only respond to arguments raised in the
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`patent owner response. 37 C.F.R. § 42.23. Patent Owner therefore objects to
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`Exhibit 1022, and any portion of Exhibit 1016 (Michalson reply declaration), e.g.,
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`Paragraphs 86-93 of Exhibit 1016, and Paper 34 (e.g, Page 13) that refers to or
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`relies on Exhibit 1022.
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay that Petitioner has
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`not shown that the document was publicly accessible.
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`Exhibit 1023
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay that Petitioner has
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`not shown that the document was publicly accessible.
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`Exhibit 1024
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner
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`Exhibit 1025
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner
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`Exhibit 1026 (Excerpt of Initial Claim Chart):
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`Patent Owner objects to Exhibit 1026 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 because it is
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`a partial copy of a litigation document that is taken out of context without
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`sufficient information for the finder of fact to evaluate the document or its
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`relevance.
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`Patent Owner objects under F.R.E 106 and 1002. Exhibit 1026 is a redacted,
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`incomplete document. A complete document was required. Further, the document
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`lacks context, and is taken out of context and incorrectly characterized by
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`Microsoft. For example, Exhibit 1026 should in fairness be considered with
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`Bradium’s First Amended Complaint, including Paragraph 50 thereof. See
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`Bradium Techs. LLC v. Microsoft Corp., No. 15-cv-31-RGA, D.I. 63 at p.14 ¶50
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`(March 14, 2016) (Bradium’s First Amended Complaint).3
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`Patent Owner further objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`3 Bradium reserves the right to seek leave of the Board to file an excerpted version
`of Bradium’s First Amended Complaint.
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`Exhibit 1027
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay.
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`Exhibit 1028
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay.
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`Exhibit 1029
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay.
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`Exhibit 1030
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`Patent Owner further objects to Exhibit 1030 under 37 C.F.R. § 42.23 as
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`evidence that was available to Petitioner at the time the Petition was filed. See also
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`37 C.F.R. § 42.22(a)(2). A reply may only respond to arguments raised in the
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`patent owner response. 37 C.F.R. § 42.23. Patent Owner therefore objects to
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`Exhibit 1030, and any portion of Exhibit 1016 (Michalson reply declaration), e.g.,
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`Paragraph 74 of Exhibit 1016, and Paper 34 that refers to or relies on Exhibit 1030.
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay that has not been
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`shown to be publicly accessible.
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`Exhibit 1031
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`Patent Owner objects to this exhibit under F.R.E. 901 because no
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`authenticating information has been provided.
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`Patent Owner objects to this exhibit on grounds of hearsay under F.R.E. 801
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`and 802. Petitioner and Dr. Michalson rely on the exhibit for the truth of what it
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`states. Petitioner has not shown that a hearsay exception applies.
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`Patent Owner objects to this exhibit under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(c) and as not relevant and prejudicial under F.R.E. 402 and 403 in the
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`manner used by Petitioner because it is unauthenticated hearsay.
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`Dated: February 13, 2017
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`/s/ Chris J. Coulson
`Chris J. Coulson (Reg. No. 61,771)
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, New York 1004-1007
`Tel: (212) 425-7200
`Fax: (212) 425-5288
`chriscoulson@andrewskurthkenyon.com
`
`Michael Zachary (pro hac vice)
`michaelzachary@andrewskurthkenyon.com
`Clifford Ulrich (Reg. No. 42,194)
`clifforduldrich@andrewskurthkenyon.com
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on February
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`13, 2017, the foregoing Patent Owner’s Objections to Petitioner’s Evidence is
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`being served via electronic mail upon the following counsel of record for
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`Petitioner:
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`Chun M. Ng (Reg. No. 36,878)
`Matthew Bernstein (pro hac vice)
`Vinay Sathe (Reg. No. 55,595)
`Patrick McKeever (Reg. No. 66,019)
`Evan S. Day (pro hac vice)
`PerkinsServiceBradiumIPR@perkinscoie.com
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`/s/ Chris J. Coulson
`Chris J. Coulson
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, New York 1004-1007
`Tel: (212) 425-7200
`Fax: (212) 425-5288
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