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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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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 7,908,343
`____________________
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`PATENT OWNER BRADIUM TECHNOLOGIES LLC’S
`REPLY IN SUPPORT OF BRADIUM’S
`MOTION TO EXCLUDE EVIDENCE
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
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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 7,908,343
`____________________
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`PATENT OWNER BRADIUM TECHNOLOGIES LLC’S
`REPLY IN SUPPORT OF BRADIUM’S
`MOTION TO EXCLUDE EVIDENCE
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`PUBLIC VERSION (NON-CONFIDENTIAL)
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`Contents
`The Facts and the Law Support Exclusion of Exhibit 1017 (Lavi
`Declaration) ..................................................................................................... 1
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`FRE 703 Does Not Save Microsoft’s Exhibits ................................................ 5
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`I.
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`II.
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`Patent Owner Bradium Technologies LLC (“Bradium”) respectfully submits
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`this reply in support of its Motion to Exclude (Paper 47). Exhibits 1015,1 1017,
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`1020, 1022-23, 1027-29, 1030-31 and Microsoft’s leading redirect examination at
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`Exhibit 2078 should be excluded. The portions of Exhibit 1016 and Paper 34 that
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`rely on Exhibit 1017 should also be excluded.
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`I.
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`THE FACTS AND THE LAW SUPPORT EXCLUSION OF EXHIBIT
`1017 (LAVI DECLARATION)
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`Microsoft’s after-the-fact justifications for failing to produce Mr. Lavi in the
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`United States fail. Microsoft never sought to revisit this issue with the Board, but
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`instead remained silent until Bradium requested an update.
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`Microsoft’s attempt now to justify its failure to even bother consulting with
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`Bradium or Mr. Levanon before publicly filing the Lavi declaration is also
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`factually incorrect or unsupported. First, Microsoft’s allegations regarding one
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`3DVU entity, “3DVU, Inc.” are unavailing. Microsoft had no justification, given
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`that Bradium had filed materials under seal in these IPRs, for making any
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`assumptions about the 3DVU entities without checking.
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`But Microsoft’s representations in its reply are also incorrect. As one
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`example, even putting aside the issue of confidential and propriety information of
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`the 3DVU entities themselves, the 3DVU entities do include an ongoing concern
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`with current confidentiality obligations to DENSO. Microsoft has been
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`1 Microsoft did not oppose the exclusion of Exhibit 1015. See generally Paper 49.
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`specifically on notice of this confidentiality obligation since November 2016. See
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`PUBLIC VERSION (NON-CONFIDENTIAL)
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`Paper 15 (Nov. 11, 2016) at page 3 (explaining that Exhibit 2029 is a confidential
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`License Agreement that imposes a confidentiality requirement and that DENSO
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`Corporation has requested that Patent Owner Bradium maintain Exhibit 2029 as
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`confidential pursuant to a protective order.).
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`Mr. Lavi was employed in Israel by Flyover Technologies. See Ex. 2072 at
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`¶3; Ex. 1019 at 32:8–18. Flyover Technologies Israel Ltd. is now doing business
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`as 3-D-V-U Israel (2000) Ltd. (“3DVU Israel”). See Ex. 2082. 3DVU Israel has
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`an ongoing confidentiality obligation to DENSO. See id.
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` Ex.
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`2082. Therefore, Bradium obtained permission for its disclosures and filed
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`information under seal as needed. Paper 15 at page 3.
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`Mr. Lavi (and Microsoft) violated the confidentiality requirements of an
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`active technology license with DENSO.
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` Mr. Lavi did not have permission from
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`3DVU Israel or DENSO to reveal this information. Bradium did specifically
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`identify paragraphs containing confidential information in Mr. Lavi’s declaration.
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`Ex. 2084 at page 1.
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`Microsoft had ample time to resolve confidentiality issues before publicly
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`filing Mr. Lavi’s declaration. Mr. Lavi’s contact information is readily and
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`publicly available via LinkedIn, and he works at Facebook, a company in which
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`Microsoft has made a significant investment. See Ex. 2083. Bradium told
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`Microsoft that Bradium has no relationship with Mr. Lavi back in February 2016.
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`Paper 49 at 2.
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`Microsoft’s various claims regarding Mr. Lavi are unfounded and
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`unsupported. Microsoft’s claim that Mr. Lavi is “concerned” about legal
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`consequences of his actions or “retaliation” or “threats” is not based on any
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`evidence. Paper 49 at 3:3–5 (no citation to evidence), 5:6-7 (no citation to
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`evidence). The evidence of record contradicts these claims, as Microsoft never
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`raised any alleged concerns of Mr. Lavi in the parties meet-and-confer. Paper 47
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`at page 3; Ex. 2079. Bradium’s limited waiver offer to Mr. Lavi was reasonable.
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`Microsoft does not dispute that Bradium’s offer was transmitted to Mr. Lavi by
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`Microsoft’s counsel after Microsoft’s counsel had edited it as Microsoft saw fit.
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`See Paper 4 at page 3. Mr. Lavi did not reply. Paper 47 at page 5.
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`Microsoft’s other claims in support of its asserted diligence are also without
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`evidentiary support. Microsoft has no evidence to show a Letter of Request can be
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`accomplished in less than 60–75 days. Microsoft also does not dispute that it was
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`silent from March 13 until March 22 regarding the status of Mr. Lavi. See Paper
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`47 at pages 4–5.
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`Microsoft also misstates the law. Microsoft states that Bradium should have
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`provided Mr. Lavi’s contact information as part of Rule 26 initial disclosures.
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`Rule 26 disclosure of individuals’ contact information applies if the individuals
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`have information that Bradium “may use to support its claims or defenses.” Fed. R.
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`Civ. P. 26(a)(1)(A)(i). Bradium has no such expectation.
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`Mr. Lavi’s failure to appear for deposition, in light of the totality of the
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`circumstances, supports excluding his declaration. See, e.g., Baxter v. Palmigiano,
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`425 U.S. 308, 317–18 (1976) (where Disciplinary Board’s decision must be based
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`on “substantial evidence,” an inmate’s silence supported an adverse decision by the
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`Board). Mr. Lavi’s declaration shows obvious bias, as he raises unsupported
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`allegations of fraudulent salary/tax payments, (1017, ¶38), failure of 3DVU to pay
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`Mr. Lavi his final paycheck (although he later returned and continued work during
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`the next year, he says, for several days) (1017, ¶¶38, 41), and alleged signature
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`fraud of both Mr. Levanon and his family (id., ¶41.) This bias remains unexplored
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`and is alone reason enough to exclude his hearsay declaration. See Bowling v.
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`Hasbro, Inc., No. 05-cv-229S, 2008 WL 717741, **6-7 (D.R.I. Mar. 17, 2008)
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`(excluding report based in part on obvious bias).
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`II.
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`FRE 703 DOES NOT SAVE MICROSOFT’S EXHIBITS
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`FRE 703 does not save Microsoft’s exhibits. Microsoft attempts to use Dr.
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`Michalson as a conduit to introduce the manifestly unreliable May 2000 version of
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`a Microsoft technical report, when Microsoft must have had access to the earlier
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`“June 1999” but has not explained why it has not come forward with that version.
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`The obvious indicia of unreliability should result in exclusion of Exhibit 1030.
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`Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 711 F.3d 1348,
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`1373 (Fed. Cir. 2013) “while an expert’s data need not be admissible, the data
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`cannot be derived from a manifestly unreliable source”) (abuse of discretion to
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`allow testimony). Microsoft cannot use an expert declaration as a conduit for
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`introducing unreliable hearsay under the guise of FRE 703. Marvel Characters,
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`Inc. v. Kirby, 726 F.3d 119, 136 (2d Cir. 2013). Dr. Michalson failed to testify on
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`direct from personal knowledge as to the hearsay asserted in Exhibit 1030,
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`depriving the Board of an opportunity to judge credibility after cross-examination,
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`so Exhibit 1030. See Marvel Characters., 726 F.3d at 136 (2d Cir. 2013).
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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
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`Dated: April 5, 2017
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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 April 5
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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
`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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