UNITED STATES PATENT AND TRADEMARK OFFICE
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`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
`Patent No. 7,908,343 B2
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`Paper No. 45
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`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
`Patent No. 7,908,343 B2
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`Paper No. 45
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
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`TABLE OF CONTENTS
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`I.
`II.
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`INTRODUCTION .......................................................................................... 1
`ARGUMENT .................................................................................................. 1
`A.
`Bradium’s Exhibits 2016-2018, 2021, 2030, 2032, 2035-2036,
`2039, 2044-2049, 2051-2053, and 2063 Should be Excluded ............. 1
`The Challenged Exhibits ............................................................ 2
`1.
`The Challenged Exhibits are Inadmissible as Hearsay ............. 4
`2.
`Challenged Exhibits are Incomplete and Misleading ................ 6
`3.
`III. Conclusion ...................................................................................................... 6
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`i
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.64(c) and the Federal Rules of Evidence,
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`Petitioner Microsoft Corporation (“Microsoft” or “Petitioner”) hereby submits its
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`Motion to Exclude inadmissible evidence proffered by Patent Owner Bradium
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`5
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`Technologies, LLC (“Bradium”) (Exhibits 2016-2018, 2021, 2030, 2032, 2035-
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`2036, 2039, 2044-2049, 2051-2053, 2059, and 2063). Microsoft filed timely
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`objections to these exhibits on November 15, 2016 (Paper 22). Bradium’s
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`arguments for secondary indicia of non-obviousness, instead of presenting legally
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`competent evidence, attempt to corroborate the interested testimony of Bradium’s
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`10
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`co-owner Isaac Levanon (Ex. 2004) with inadmissible hearsay, including several
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`press releases or reports generated at the direction of Mr. Levanon himself.
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`II. ARGUMENT
`A. Bradium’s Exhibits 2016-2018, 2021, 2030, 2032, 2035-2036, 2039,
`2044-2049, 2051-2053, and 2063 Should be Excluded
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`15
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`The contents of Exhibits 2016-2018, 2021, 2030, 2032, 2035-2036, 2039,
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`2044-2049, 2051-2053, 2059, and 2063 are inadmissible as hearsay. Federal Rule
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`of Evidence (FRE) 802. The challenged exhibits meet FRE 801’s definition of
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`hearsay as each is being offered by Bradium for the truth of the matter asserted
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`therein. Many of the challenged exhibits are not only hearsay, but hearsay within
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`20
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`hearsay. FRE 801, 805. Because Bradium cannot establish any exceptions to the
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`hearsay rule for the challenged exhibits, they are inadmissible. FRE 801-03, 805.
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`1
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
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`1.
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`The Challenged Exhibits
`a.
`Exhibits 2016 and 2017 are simply printouts of third-party webpages
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`Third-Party Statistics Webpages (Exhibits 2016-2018)
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`purporting to contain statistics about Microsoft Research and Development
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`expenses, without any disclosure of the underlying sources. Paper 22, ¶¶ 1-2. For
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`example, Ex. 2017 contains a disclaimer reading “source information for logged in
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`users only,” but Bradium failed to provide any such source information.
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`Bradium’s expert does not rely on these webpage printouts, nor does Bradium
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`itself even provide any explanation of what they are other than an attorney
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`10
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`declaration stating that the exhibits were retrieved from a particular internet
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`location on a particular date. Bradium cites these exhibits as evidence of the truth
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`of the matter asserted (i.e. Microsoft’s R&D spending patterns). Paper 20 at 56.
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`As for Exhibit 2018, it is not even clear from either the exhibit itself or the
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`Patent Owner Response what this exhibit is, but it appears to simply be a
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`fragmentary excerpt of an internet search result, again without an accompanying
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`copy of the actual linked document, without which the short excerpt makes no
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`sense. Paper 22, ¶ 3. Nevertheless, Bradium cites the short excerpt as evidence of
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`the truth of the matter asserted, specifically that Frost and Sullivan allegedly
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`offered “praise” for 3DVU. Paper 20 at 57. The hyperlink contained in Bradium’s
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`2
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`attorney declaration (Ex. 2060, ¶ 7) shows that the page is simply a search result
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`linking to a report which Bradium chose not to submit.
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`b.
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`3DVU Press Releases (Exhibits 2021, 2030, 2032, 2039,
`2044-2049, and 2063
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`Bradium also cites various press releases (and website reprints of press
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`5
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`releases) in support of its arguments for secondary indicia of non-obviousness. See
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`generally Paper 20 at 5, 55-60. For example, Bradium cites 3DVU’s own press
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`releases, rather than independent evidence, as evidence that 3DVU received certain
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`awards (Paper 20 at 5, citing Ex. 2021), as evidence that 3DVU licensed “the
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`technology of the ‘343 patent” (Paper 20 at 5, citing Ex. 2030, 2032), and in
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`support of its assertions (supported by no other evidence) that 3DVU’s Navi2Go
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`navigation product became a “bestseller.” Paper 20 at 59, citing Ex. 2048.
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`Microsoft objected to these exhibits in Paper 22, ¶¶ 4-5, 10-16, and 21.
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`c.
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`C.E. Unterberg Towbin Reports (Exs. 2035, 2036)
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`Mr. Levanon’s declaration (Ex. 2004)- but not the petition itself- cites Exs.
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`2035 and 2036, which are purportedly unsworn third-party analyses prepared at
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`Mr. Levanon’s request by an investment banker hired by Mr. Levanon. Paper 22,
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`¶¶ 8-9. The purported relevance of these documents is not explained in either
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`20
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`Paper 20 or Ex. 2004, but these documents appear to have been prepared in order
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`to promote Mr. Levanon’s desire to be acquired by Microsoft. Bradium has not
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`offered sworn testimony from the authors of these documents.
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`3
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`Japanese Car Navigation System Brochures (Exs. 2051-
`2053)
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`d.
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`Exs. 2051-2053 are purported car navigation system brochures written
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`almost entirely in Japanese. Paper 22, ¶¶ 17-19. According to Mr. Levanon,
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`5
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`several pages of these exhibits describe the purported characteristics of car
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`navigation systems that Mr. Levanon claims “had all of the 3DVU patented
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`features” (Ex. 2004, ¶ 50), and Mr. Levanon further asserts that certain pages of
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`these brochures are “exclusively devoted to 3DVU technology and its benefits.”
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`Id., ¶¶ 55-56. Yet none of the substantive portions of these brochures have been
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`translated, and the only translation provided- by Bradium’s counsel, not an
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`independent translator- is of short boilerplate legal notice paragraphs.
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`The Challenged Exhibits are Inadmissible as Hearsay
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`2.
`As discussed above, each of the challenged exhibits is an unsworn, out-of-
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`court statement offered for the truth of the matter asserted. Therefore, these
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`exhibits are hearsay and thus inadmissible under FRE 802. Bradium cannot show
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`that any hearsay exception applies to these exhibits. Bradium cannot rely on either
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`FRE 803(18) (statements in learned treatises, periodicals, or pamphlets) or FRE
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`702, because its expert, Dr. Agouris, tellingly did not opine on any of these
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`exhibits. Nor has Bradium provided any foundational evidence to admit the
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`20
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`challenged exhibits as business records under FRE 803(6). Bradium has not
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`4
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`established that any declarant is unavailable under FRE 804. No foundational
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`requirements for any other hearsay exception or exclusion have been established.
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`Nor can such evidence be admitted under FRE 807, the “Residual
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`Exception” to the hearsay rule. In order for a statement to be admitted under FRE
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`5
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`807, the statement (1) must have “equivalent circumstantial guarantees of
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`trustworthiness,” (2) be “offered as evidence of a material fact,” (3) be “more
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`probative on the point for which it is offered than any other evidence that the
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`proponent can obtain through reasonable efforts,” and (4) admitting the statement
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`must “best serve the purposes of these rules and the interests of justice.” Bradium
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`10
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`cannot establish these requirements. For example, the press releases and short
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`news articles that Bradium seeks to rely on, as well as the C.E. Unterberg Towbin
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`reports prepared at Mr. Levanon’s request, are inherently self-serving and
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`unreliable and thus fail the “circumstantial guarantees of trustworthiness” test. Nor
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`does Bradium show that such evidence is more probative on the point for which it
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`is offered than any other evidence that the proponent can obtain through reasonable
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`efforts. Indeed, Bradium does not explain the probativeness of the unsworn
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`analysis in Exs. 2035 and 2036 at all. For example, Bradium fails to show that it
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`could not have obtained direct evidence of any alleged awards and the relative
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`prestige of those awards from the award grantors themselves, rather than relying on
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`20
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`Mr. Levanon’s boasting, or obtained actual 3DVU sales figures- which Mr.
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`Levanon presumably has access to. And in view of the inherently unreliable nature
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`of such evidence, admitting it does not “serve the interests of justice.”
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`Challenged Exhibits are Incomplete and Misleading
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`3.
`In addition to being inadmissible as hearsay for the same reasons, Exs. 2016-
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`2018 and 2051-2053 should be excluded as incomplete and misleading under FRE
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`106 and 403. Exs. 2016-2018 were and are incomplete and misleading because
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`they failed to identify their source data, while Exs. 2051-2053 are misleading and
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`incomplete because they contain no translation of the substantive portions of the
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`exhibits, instead expecting the Board to rely on Mr. Levanon’s self-serving
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`assertions about what they say. Bradium failed to supplement its evidence relating
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`to these exhibits even after Microsoft served its objections.
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`III. CONCLUSION
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`For the forgoing reasons, Petitioner Microsoft respectfully requests that the
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`Board grant the present motion and exclude Patent Owner Bradium’s inadmissible
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`evidence.
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`6
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`Respectfully submitted,
` /Chun M. Ng/
`Lead Counsel
`Chun M. Ng, Reg. No. 36,878
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`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Patrick J. McKeever, Reg. No. 66,019
`Vinay Sathe, Reg. No. 55,595
`Evan S. Day, Pro Hac Vice
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`Attorneys for Microsoft Corporation
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`7
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`Dated: March 24, 2017
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`
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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`
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`PTAB Case IPR2016-00448, Patent No. 7,908,343 B2
`Petitioner’s Motion to Exclude Evidence
`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true copy of the foregoing
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE has been served in its
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`entirety this 24th day of March, 2017 by electronic mail on the Patent Owner via
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`BACK-UP COUNSEL
`Michael N. Zachary
`mzachary@kenyon.com
`KENYON & KENYON, LLP
`1801 Page Mill Road, Ste 210
`Palo Alto, CA 94304
`Clifford Ulrich
`culrich@kenyon.com
`KENYON & KENYON, LLP
`One Broadway
`New York, NY 10004-1007
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`
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`Respectfully submitted,
` /Chun M. Ng/
`Lead Counsel
`Chun M. Ng, Reg. No. 36,878
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`Back-up Counsel
`Matthew C. Bernstein, Pro Hac Vice
`Patrick J. McKeever, Reg. No. 66,019
`Vinay Sathe, Reg. No. 55,595
`Evan S. Day, Pro Hac Vice
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`Attorneys for Microsoft Corporation
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`1
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`its attorneys of record:
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`LEAD COUNSEL
`Christopher J. Coulson
`ccoulson@kenyon.com
`KENYON & KENYON, LLP
`One Broadway
`New York, NY 10004-1007
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`Bradiumiprservice@kenyon.com
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`Dated: March 24, 2017
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`
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
`
`
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