PUBLIC VERSION (NON-CONFIDENTIAL)
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
`____________________
`
`CASE IPR2016-00448
`Patent 7,908,343
`____________________
`
`PATENT OWNER BRADIUM TECHNOLOGIES LLC’S
`OPPOSITION TO PETITIONER’S
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
`____________________
`
`CASE IPR2016-00448
`Patent 7,908,343
`____________________
`
`PATENT OWNER BRADIUM TECHNOLOGIES LLC’S
`OPPOSITION TO PETITIONER’S
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`I.
`
`II.
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`Exhibits 2051–2053 (Kenwood Car Navigation System Brochures)
`Should Not Be Excluded ................................................................................. 1
`
`Exhibit 2021 (Press Release Describing Frost & Sullivan Award) Should
`Not Be Excluded .............................................................................................. 6
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`III. The Press Releases (Exhibits 2030, 2032, 2039, 2045–48, 2063) Should
`Not Be Excluded .............................................................................................. 6
`
`A.
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`B.
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`C.
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`D.
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`Exhibits 2030 and 2032 (Press Releases Concerning Kenwood
`System) Should Not Be Excluded ......................................................... 7
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`Exhibit 2039 Should Not Be Excluded ................................................. 7
`
`Exhibits 2045–2047 Should Not Be Excluded ..................................... 8
`
`Exhibit 2048 (Directions Magazine Press Release Titled “3DVU’s
`Mobile Navigation Best Seller on Sprint’s Shop) Should Not Be
`Excluded ................................................................................................ 9
`
`E.
`
`Exhibit 2063 Should Not Be Excluded ................................................. 9
`
`IV. Exhibit 2044 (TechNode Article) Should Not Be Exluded ........................... 10
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`V.
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`Exhibits 2035 and 2036 (C.E. Unterberg Towbin Reports) Should Not Be
`Excluded ........................................................................................................ 10
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`VI. Exhibit 2049 (VC Cafe Article) Should Not Be Excluded ........................... 12
`
`VII. Exhibit 2059 (Microsoft Website) Should Not Be Excluded ........................ 12
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`VIII. Exhibits 2016–2017 (Microsoft R&D Spending) Should Not be Excluded . 13
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`IX. Exhibit 2018 (Frost & Sullivan Website) Should Not Be Excluded ............. 13
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`Conclusion ..................................................................................................... 14
`
`X.
`
`
`
`i
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`Petition for Inter Partes Review by Toyota Motors North America, Inc.
` IPR2014-00280, Paper 17 (P.T.A.B. July 2, 2014) ................................................................... 5
`KW Plastics v. US. Can Co.,
`130 F. Supp. 2d 1297 (M.D. Ala. 2001) ..................................................................................... 4
`Mueller v. Abdnor,
`972 F.2d 931 (8th Cir. 1992) ...................................................................................................... 5
`United States v. Koch,
`625 F.3d 470 (8th Cir. 2010) ...................................................................................................... 5
`Other Authorities
`F.R.E. 801 Advisory Committee Note, 1972 Proposed Rule, Note to Subdivision (c) .................. 4
`Rules
`37 C.F.R. § 42.62(a)........................................................................................................................ 1
`37 C.F.R. § 42.64(c)........................................................................................................................ 1
`F.R.E. 801(c) ................................................................................................................................... 4
`F.R.E. 801(d)(2) ............................................................................................................................ 13
`F.R.E. 801(d)(2) ............................................................................................................................ 13
`F.R.E. 803(3)................................................................................................................................... 4
`F.R.E. 803(6)................................................................................................................................... 2
`Treatises
`2 JOHN W. STRONG ET AL., MCCORMICK ON EVIDENCE, § 249 at 101 (4th ed. 1992) .................... 5
`6 JOHN H. WIGMORE, EVIDENCE, § 1770 at 259 (James H. Chadbourn rev. ed. 1976) .................. 5
`
`
`
`ii
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`Pursuant to the Board’s Scheduling Order dated July 25, 2016 (Paper 10);
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`the Stipulation to Modify Due Dates 4 and 5 (Paper 39); and 37 C.F.R. § 42.64(c),
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`Patent Owner Bradium Technologies LLC (“Bradium”) responds to Petitioner’s
`
`Motion to Exclude Evidence (Paper 45), which seeks to exclude twenty of Patent
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`Owner’s Exhibits, Nos. 2016–18, 2021, 2030, 2032, 2035–36, 2039, 2044–49,
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`2051–53, 2059, and 2063.1
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`The Board should deny Microsoft’s motion. Microsoft’s hearsay objection
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`fails because these exhibits are either Microsoft’s own statements or are used by
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`Bradium for non-hearsay purposes. Microsoft’s objection to the completeness of
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`the translations of Exhibits 2051–53 also fails, because Mr. Levanon relies on the
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`English-language portions of the exhibits and the graphics and logos included in
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`the exhibits. Also, the relevant and necessary portions of the exhibits were
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`translated, and the accuracy of that translation is undisputed.
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`I.
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`EXHIBITS 2051–2053 (KENWOOD CAR NAVIGATION SYSTEM
`BROCHURES) SHOULD NOT BE EXCLUDED
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`Exhibits 2051–2053 are Kenwood car navigation system brochures
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`1 In this motion, “F.R.E.” refers to the Federal Rules of Evidence, which generally
`apply to this proceeding. 37 C.F.R. § 42.62(a).
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`1
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` As explained below, FlyOver’s logos
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`appear on Exhibits 2051–2053, and the brochures state that FlyOver’s proprietary
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`technology is included in the products.
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`The Board should not exclude Exhibits 2051–53, Kenwood (DENSO) car
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`navigation system brochures, on either hearsay or completeness grounds, as
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`Microsoft contends.
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`Microsoft’s hearsay objection fails for several reasons. First, the documents
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`are business documents, were created by Kenwood, and provided to Mr. Levanon.
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`See F.R.E. 803(6) (business records exception to hearsay). Though as explained
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`below the documents are not used for the truth of what they state, even if they were
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`so used, the documents would be admissible.
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`Second, Bradium does not rely on the brochures for the truth of what they
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`2
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`state, for example that any particular 3DVU technology was present in the
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`Kenwood navigation system.
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`Where Mr. Levanon does rely on the brochures, he does so only to show the
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`dates of release of the Kenwood products.
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`Bradium relies on Mr. Levanon’s personal experience, not the Kenwood
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`manuals, to explain DENSO’s success in using 3DVU technology.
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` At deposition, Mr.
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`Levanon again explained that the Kenwood (DENSO) automobile navigation
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`systems included the invention. Ex. 1019 at 57:7–14.
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`It is undisputed that the Kenwood manuals state that “[t]his product . . . uses
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`FlyOver Technologies’ proprietary technology. ‘FlyOver’ and the ‘FlyOver’ logo
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`are registered trademarks.” E.g., Ex. 2051 at 40; 2052 at 64; 2053 at 44–45. These
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`statements show DENSO’s understanding, based on DENSO’s work with Mr.
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`Levanon and 3DVU and the license agreement, that its products included
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`proprietary 3DVU technology. The statements are verbal acts that are admissible
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`to show the state of mind of DENSO. See F.R.E. 801(c); F.R.E. 801 Advisory
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`Committee Note, 1972 Proposed Rule, Note to Subdivision (c); see also KW
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`Plastics v. US. Can Co., 130 F. Supp. 2d 1297, 1298 (M.D. Ala. 2001) (“Evidence
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`is admissible to show the declarant’s ‘then existing state of mind, emotion,
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`sensation, or physical condition . . . .’” (citing F.R.E. 803(3)). Verbal acts “are not
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`hearsay because they are not assertions and not adduced to prove the truth of the
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`4
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`
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`matter.” Mueller v. Abdnor, 972 F.2d 931, 937 (8th Cir. 1992) (citing 2 JOHN W.
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`STRONG ET AL., MCCORMICK ON EVIDENCE, § 249 at 101 (4th ed. 1992); 6 JOHN H.
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`WIGMORE, EVIDENCE, § 1770 at 259 (James H. Chadbourn rev. ed. 1976)).
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`The Kenwood manuals display the Flyover Technologies, LLC Logo. E.g.,
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`Ex. 2051 at 40; Ex. 2052 at 12–13, 37; Ex. 2053 at 1, 12–13, 26, 30, 45. The use
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`of the FlyOver logo on Kenwood’s manuals is not hearsay. See United States v.
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`Koch, 625 F.3d 470, 479–80 (8th Cir. 2010) (name and manufacturer inscription
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`not hearsay)
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`Microsoft’s completeness objection also fails. Mr. Levanon relies on
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`graphics and English statements from the brochures. The relevant additional
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`portions are translated, and the accuracy of translation is unchallenged.
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`Petitioner’s objection to the partial translation is meritless. Partial translations of
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`relevant portions of foreign language documents have been allowed by the
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`P.T.A.B. before. IPR2014-00280, Paper 17 at 5–7 (P.T.A.B. July 2, 2014)
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`(waiving the requirements of 42.63(b) and granting inter partes review based on a
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`partial translation). The relevant portions of the brochures are the sentences
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`immediately adjacent to the Flyover logo on each brochure that state that the
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`Kenwood products include Flyover technology, and these sentences have been
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`translated. There is no dispute that the translations are accurate. Petitioner cites no
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`law. Paper 45 at 6.
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`5
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`The Kenwood automobile navigation system brochures should not be
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`excluded. They are not used for hearsay purposes, and Microsoft’s completeness
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`objection is without merit.
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`II. EXHIBIT 2021 (PRESS RELEASE DESCRIBING FROST &
`SULLIVAN AWARD) SHOULD NOT BE EXCLUDED
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`The Board should not exclude Exhibit 2021. Bradium does not rely on the
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`exhibit, a press release, for the truth of what it reports, but instead to show that the
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`statement was made, and the timing of the statement made by Frost & Sullivan
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`which describes an award given to 3DVU. Microsoft’s hearsay objection thus fails.
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` The press release, Exhibit 2021, documents the timing of
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`the statement made about the award as it was released in 2008, which documents
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`the 2007 award by Frost & Sullivan. Ex. 2021 at 1–3
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`III. THE PRESS RELEASES (EXHIBITS 2030, 2032, 2039, 2045–48, 2063)
`SHOULD NOT BE EXCLUDED
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`The press releases included as Bradium exhibits 2030, 2032, 2045–48, and
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`2063 should not be excluded. The exhibits are not relied upon for the truth of what
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`6
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`they assert, but instead again are used to show that the statements were made, and
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`the timing of statements about the commercial products that include 3DVU
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`technology, and about the industry’s praise for the 3DVU technology. Therefore,
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`Microsoft’s hearsay objections fail and the exhibits should not be excluded.
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`A. Exhibits 2030 and 2032 (Press Releases Concerning Kenwood
`System) Should Not Be Excluded
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`The Board should not exclude Exhibits 2030 and 2032, which are press
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`releases documenting the timing of the use of 3DVU technology in Kenwood
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`(DENSO) automobile navigation systems. Bradium does not rely on these press
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`releases for the truth of their contents, but instead to show that the statements were
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`made, and the timing of these statements relating to the release of the Kenwood
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`systems.
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` Therefore,
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`Microsoft’s hearsay objection fails.
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`B.
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`Exhibit 2039 Should Not Be Excluded
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`Exhibit 2039 is a 2006 press release entitled “Daewoo to Showcase 3DVU’s
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`Visual Map Navigation Technology at the Busan International Motor Show,
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`Korea.”
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` Bradium does not rely on the press release for the
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`truth of what it asserts.
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`7
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` The press release is used to show that the statements were made, and the
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`date of statements made about these activities. Because the exhibit is not relied
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`upon for the truth of the matter it asserts, Microsoft’s objection fails. The exhibit
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`should not be excluded.
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`C. Exhibits 2045–2047 Should Not Be Excluded
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`Exhibits 2045–2047 are press releases and articles regarding 3DVU’s
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`Navi2Go application that were published in or about 2008.
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`Exhibit 2045 is a January 8, 2009 CNET article by Jessica Dolcourt, entitled
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`“3DVU Announces Way2Go 3D Mobile Mapping.” Exhibit 2046 is a December
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`2008 release entitled “3DVU Releases the Ultimate Game-Changer in Mobile
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`Navigation, Navi2Go Two-for-One.”
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` Exhibit 2047 is a
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`September 2008 press release entitled “3DVU Enhancing Over 80 Million Nokia
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`Phones With Navi2Go, the Only 3D Virtual World Mobile Navigation.” The
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`exhibits are not relied upon for the truth of their statements, but instead to show
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`that the statements were made and the timing of the statements, relating to release
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`of the 3DVU applications. Mr. Levanon independently confirmed that, for
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`example, Exhibits 2046 and 2047 accurately reflect the timeline of events
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`associated with 3DVU. Exhibit 1019 at 70:19–73:11. Because Exhibits 2045–
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`2047 are not relied upon for the truth of what they state, Microsoft’s hearsay
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`objection fails. The exhibits should not be excluded.
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`8
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`D. Exhibit 2048 (Directions Magazine Press Release Titled “3DVU’s
`Mobile Navigation Best Seller on Sprint’s Shop) Should Not Be
`Excluded
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`Exhibit 2048 is a Directions Magazine press release, titled “3DVU’s Mobile
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`Navigation Best Seller on Sprint’s Shop,” dated June 21, 2008. This exhibit is not
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`relied upon for the truth of what it assets, but instead is used to show that the
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`statement was made and the date of the statement.
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`Levanon’s testimony is based on his personal knowledge as the CEO of the 3DVU
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`companies, not his press releases. The Exhibit is relied on only to show what
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`Directions Magazine said at a particular time. Therefore, Microsoft’s hearsay
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`objection fails. The exhibit should not be excluded.
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`E.
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`Exhibit 2063 Should Not Be Excluded
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`Exhibit 2063 is a September 2005 press release entitled “3DVU and
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`Infoterra Signed a Memorandum of Understanding.” Bradium does not rely on the
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`exhibit for the truth of what it asserts.
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`9
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` He confirmed this at
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`deposition. Exhibit 1019 at 73:12–74:25. Further, Mr. Levanon confirmed at
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`deposition that this document was authored, at least in part, by Infoterra. Id.
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`The press release is used to show the date of a statement made regarding
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`3DVU’s selection for Red Herring’s list. Because Bradium does not rely on
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`Exhibit 2063 for the truth of what it asserts, Microsoft’s hearsay objection fails.
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`The exhibit should not be excluded.
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`IV. EXHIBIT 2044 (TECHNODE ARTICLE) SHOULD NOT BE
`EXLUDED
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`Exhibit 2044 is a Technode article by Sho Tabata, dated December 3, 2008.
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` Exhibit 2044 is offered to show the date during which
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`statements were made regarding Navi2Go as a bestseller on several mobile
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`operator marketplaces. See Ex. 2044 at 1;
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`on this article for the assertion that Navi2Go sold well, only that a particular author
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`said it sold well.
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`Therefore, Microsoft’s hearsay objection fails. The exhibit should not be excluded.
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`V. EXHIBITS 2035 AND 2036 (C.E. UNTERBERG TOWBIN REPORTS)
`SHOULD NOT BE EXCLUDED
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`Exhibits 2035 and 2036 are valuation summaries regarding 3DVU and a
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`Keyhole Deal Value Analysis that 3DVU prepared at Microsoft’s suggestion.
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`10
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`Ex. 2072 ¶ 73. Bradium does not rely on these valuation summaries for the truth
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`of what they state, i.e., that the technology was worth X dollars at Y date, but
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`instead as verbal acts to show what a reputable company, hired at Microsoft’s
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`request, said the technology was worth. The documents further show the timing
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`and occurrence of acquisition discussions between Microsoft and 3DVU in 2005,
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`which are also confirmed by Mr. Levanon’s direct testimony. The documents are
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`relied upon for the fact that someone evaluated the technology and stated their
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`appraisal of the technology’s value. At deposition, Mr. Levanon further explained
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`these exhibits:
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`Q. Do you recall how much you paid C.E. Unterberg,
`Towbin to provide Exhibit 2035?
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`MR. COULSON: Objection. Foundation.
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`A. I do not recall the amount, but I remember that we
`were pretty upset that Microsoft require us to engage
`with bankers because it cost us money.
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`MR. BERNSTEIN: Objection. Nonresponsive.
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`Q. Exhibit 2036, do you recall how much 3DVU paid
`C.E. Unterberg, Towbin to prepare Exhibit 2036?
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`A. No, I do not recall how much we paid, but again, as
`we said, we were very upset that we had to pay as a
`request of Microsoft to engage with a banker.
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`11
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`Exhibit 1019 at 59:20–60:3. As Mr. Levanon explained, the role of the exhibits is
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`to show that the documents were prepared and used, at Microsoft’s request, in
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`acquisition discussions with Microsoft. Exhibits 2035 and 2036.
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`Because the valuation summaries are not used for the truth of what they state,
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`Microsoft’s hearsay objections fail. The exhibits should not be excluded.
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`VI. EXHIBIT 2049 (VC CAFE ARTICLE) SHOULD NOT BE
`EXCLUDED
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`Exhibit 2049 is a VCCafe Article by Eze Vidra, dated November 2008,
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`entitled, “Navi2go: The Ultimate Killer Navigation Application?” Ex. 2049 at 1.
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`The article is not cited for the truth of what it asserts, but instead Bradium relies on
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`this article for the fact of the statement of the opinion of the publication and its
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`author: “VC Cafe’s take: If they could only make it free by combining it with an
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`in-GPS monetization platform – it would really be the killer navigation app.”
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`Exhibit 2049 at 2 (emphasis added); Paper 21 at pages 59–60. Because Bradium
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`does not rely on the article for the truth of the matter asserted, Microsoft’s
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`objection fails. The exhibit should not be excluded.
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`VII. EXHIBIT 2059 (MICROSOFT WEBSITE) SHOULD NOT BE
`EXCLUDED
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`Exhibit 2059 is a Microsoft website entitled “Bing Maps Tile System.”
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`Ex. 2059 at 1. The exhibit is not hearsay. It is Microsoft’s own statement.
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`12
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`F.R.E. 801(d)(2) (Opposing Party’s Statement). Therefore, Microsoft’s hearsay
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`objection fails. The exhibit should not be excluded.
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`VIII. EXHIBITS 2016–2017 (MICROSOFT R&D SPENDING) SHOULD
`NOT BE EXCLUDED
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` These
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`documents are not hearsay because they are based on Microsoft’s own reported
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`data. F.R.E. 801(d)(2) (Opposing Party’s Statement). Therefore, Microsoft’s
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`hearsay objection fails. The exhibits should not be excluded.
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`IX. EXHIBIT 2018 (FROST & SULLIVAN WEBSITE) SHOULD NOT BE
`EXCLUDED
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`Exhibit 2018 is a Frost & Sullivan website published in 2008 documenting a
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`“Convergence in North American Automotive Industry” marked as a “Market
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`Insights report,” summarized as “Convergence in North American Automotive
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`Industry Fusion Google Earth, Microsoft and 3DVU push for 3D imagery with
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`elevation • Transition already started in Japan and South Korea • BMW… mapping
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`solutions in South Korea using the 3D engine supplied by 3DVU Nissan’s
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`Telematics service Carwings to promote eco driving.” Bradium relies on this
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`exhibit to show that Frost & Sullivan, an international consulting firm that
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`concentrates on uncovering future technologies and mega trends, made a statement
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`about 3DVU, listing it among Google and Microsoft, as companies that push for
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`13
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`3D imagery. Paper 21 at 57. Therefore, Exhibit 2018 is used as a verbal act (the
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`fact that Frost & Sullivan issued this report), not for the truth of the matter asserted
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`in the report summary. Microsoft’s hearsay objection therefore fails. The exhibit
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`should not be excluded.
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`X. CONCLUSION
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`For the foregoing reasons, Patent Owner respectfully requests that the Board
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`deny Microsoft’s motion with respect to Patent Owner’s Exhibit Nos. 2016–18,
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`2021, 2030, 2032, 2035–36, 2039, 2044–49, 2051–53, 2059, and 2063.
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`14
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`Dated: March 31, 2017
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` A
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`/s/ Chris J. Coulson
`Chris J. Coulson (Reg. No. 61,771)
`Lead Counsel for Patent Owner
`NDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`ccoulson@andrewskurthkenyon.com
`
`Michael Zachary (pro hac vice)
`michaelzachary@andrewskurthkenyon.com
`Clifford Ulrich (Reg. No. 42,194)
`cliffordulrich@andrewskurthkenyon.com
`
`15
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`
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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 March 31,
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`2017, the foregoing was served via electronic mail upon the following counsel of
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`record for the Petitioner:
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`Chun Ng (Reg. No. 36,878)
`Matthew Bernstein (pro hac vice)
`Patrick McKeever (Reg. No. 66,019)
`Vinay Sathe (Reg. No. 55,595)
`Evan S. Day (pro hac vice)
`PerkinsServiceBradiumIPR@perkinscoie.com
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` /s/ Chris J. Coulson
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`Chris J. Coulson
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`ccoulson@andrewskurthkenyon.com
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