UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`MICROSOFT CORPORATION,
`Petitioner
`
`v.
`
`BRADIUM TECHNOLOGIES LLC,
`Patent Owner
`____________________
`
`CASE IPR2016-00449
`Patent 8,924,506
`____________________
`
`PATENT OWNER BRADIUM TECHNOLOGIES LLC’S
`MOTION TO EXCLUDE EVIDENCE
`
`Paper No. 44
`
`
`
`
`
`
`
`
`
`

`

`
`
`I. 
`
`II. 
`
`
`
`Contents
`Exhibit 1015 (Wikipedia) ................................................................................ 1 
`
`Exhibit 1017 (Lavi Declaration with Exhibits A–F), and Exhibit 1016
`(Michalson declaration) to the extent it relies on exhibit 1017 ....................... 2 
`
`III.  Exhibit 1020 (Purported Stylistic 2300 Technical Reference Guide) ............. 7 
`
`IV.  Exhibit 1022 ..................................................................................................... 8 
`
`V. 
`
`Exhibit 1023 ..................................................................................................... 9 
`
`VI.  Exhibits 1027, 1028, 1029, 1031 ................................................................... 10 
`
`VII.  Exhibit 1030 (Hearsay Use of May 2000 Microsoft Article) ........................ 11 
`
`VIII.  Exhibit 2078 (Redirect Testimony of Dr. Michalson) .................................. 12 
`
`A. 
`
`B. 
`
`Leading Questions ............................................................................... 12 
`
`Lack of Foundation ............................................................................. 14 
`
`
`
`
`
`1
`
`

`

`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`HTC Corp., et al. v. NFC Tech., LLC,
`IPR2014-01198, Paper 41 (P.T.A.B. Nov. 6, 2015) ..................................... 2, 5, 6
`
`John’s Lone Star Distrib., Inc. v. Thermolife Int’l, Inc.,
`IPR2014-01201, Paper 31 (P.T.A.B. May 13, 2015) ........................................... 6
`
`Square, Inc. v. REM Holdings 3, LLC,
`IPR2014-00312, Paper 37 (P.T.A.B. Dec. 9, 2014) ............................................ 2
`
`Stine v. Marathon Oil Co.,
`976 F.2d 254 (5th Cir. 1992) .............................................................................. 12
`
`Other Authorities
`
`37 C.F.R. § 42.5(a) ..................................................................................................... 6
`
`37 C.F.R. § 42.6(e) ..................................................................................................... 1
`
`37 C.F.R. § 42.12(a) & (b) ..................................................................................... 2, 6
`
`37 C.F.R. § 42.51(b)(1)(ii) ......................................................................................... 5
`
`37 C.F.R. § 42.51(b)(2)(i) .......................................................................................... 5
`
`37 C.F.R. § 42.53 ....................................................................................................... 2
`
`37 C.F.R. § 42.53(b)(2) .............................................................................................. 5
`
`37 C.F.R. § 42.53(b)(3) .............................................................................................. 5
`
`37 C.F.R. § 42.53(d)(2) .............................................................................................. 3
`
`37 C.F.R. § 42.53(d)(4) .............................................................................................. 3
`
`37 C.F.R. § 42.53(g) .................................................................................................. 5
`
`37 C.F.R. § 42.62(a) ..................................................................................... 1, 7, 9, 10
`
`37 C.F.R. § 42.64(a) ..........................................................................................passim
`
`
`
`2
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`

`

`
`
`37 C.F.R. § 42.64(c) ................................................................................................... 1
`
`F.R.E. 602 ................................................................................................................ 15
`
`F.R.E. 611(c) ............................................................................................................ 12
`
`F.R.E. 701(a) ............................................................................................................ 15
`
`F.R.E. 702(b) ............................................................................................................ 15
`
`F.R.E. 801 .........................................................................................................passim
`
`F.R.E. 801(d)(2) ....................................................................................................... 12
`
`F.R.E 802 ..........................................................................................................passim
`
`F.R.E 803(6) ................................................................................................... 9, 10, 11
`
`F.R.E. 901 .................................................................................................................. 1
`
`OFFICE PATENT TRIAL PRACTICE GUIDE,
`77 Fed. Reg. 48756 (Aug. 14, 2012) ........................................................................ 5
`
`
`
`
`
`
`3
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`

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`
`
`Pursuant to the Board’s Scheduling Order dated July 27, 2016 (Paper 10);
`
`the Stipulation to Modify Due Dates 4 (Paper 36); and 37 C.F.R. § 42.64(c),
`
`Patent Owner Bradium Technologies LLC (“Bradium”) respectfully submits this
`
`Motion to Exclude Petitioner Microsoft’s evidence.1
`
`I.
`
`EXHIBIT 1015 (WIKIPEDIA)2
`Exhibit 1015 should be excluded as unauthenticated hearsay. The exhibit
`
`should be excluded under F.R.E. 901 because no authenticating information was
`
`provided at the deposition at which this exhibit was first used. 37 C.F.R.
`
`§ 42.64(a). The exhibit should also be excluded as hearsay under 37 C.F.R.
`
`§ 42.62(a) and F.R.E. 801 & 802 to the extent that Petitioner relies on the exhibit
`
`for the truth of what it states, and Petitioner has not shown that a hearsay exception
`
`applies.
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`Patent Owner objected on the record at the January 13, 2017 deposition in
`
`which this exhibit was introduced by Petitioner’s counsel for the first time. See Ex.
`
`1018, 62:17–64:12. Petitioner did not offer evidence to cure the objections during
`
`the deposition, and the parties did not stipulate to waive 37 C.F.R. § 42.64(a) on
`
`the deposition record. Petitioner’s attempt to cure the deficiencies in the exhibit
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`via a declaration submitted on March 6, 2017 does not conform with the rules.
`
`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).
`
`2 This exhibit was marked as Exhibit 1014 at the deposition of Dr. Agouris. Ex.
`1018, 62:17-24.
`
`
`
`1
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`

`

`
`
`II. EXHIBIT 1017 (LAVI DECLARATION WITH EXHIBITS A–F), AND
`EXHIBIT 1016 (MICHALSON DECLARATION) TO THE EXTENT
`IT RELIES ON EXHIBIT 1017
`
`Exhibit 1017, and the portions of Dr. Michalson’s Declaration (Exhibit
`
`1016) and Petitioners’ Reply Brief (Paper 31) that rely on Exhibit 1017, should be
`
`excluded as hearsay under 37 C.F.R. § 42.62(a) and F.R.E. 801 & 802, and
`
`because Mr. Lavi was not made available for deposition in the United States. See
`
`37 C.F.R. § 42.53; Square, Inc. v. REM Holdings 3, LLC, Case No. IPR2014-
`
`00312, Paper 37 at 2–3 (P.T.A.B. Dec. 9, 2014) (Order) (declarant residing outside
`
`of the United States required to travel to the United States for deposition).
`
`Bradium has also requested the Board’s authorization to file a motion to strike and
`
`expunge Exhibit 1017 and the portions of Petitioner’s Papers and Exhibits that rely
`
`on Exhibit 1017.3 The Board has the authority to grant this remedy whether or not
`
`it chooses to entertain a separate motion. See 37 C.F.R. § 42.12(a) & (b); HTC
`
`Corp., et al. v. NFC Tech., LLC, IPR2014-01198, Paper 41 at 4 (P.T.A.B. Nov. 6,
`
`2015).
`
`Patent Owner provided ample notice of its request for Mr. Lavi to appear in
`
`the United States for deposition. On February 9, 2017, soon after receiving
`
`
`3 C. Coulson e-mail of March 22, 2017, 12:10 p.m. Eastern. The portions of the
`record that cite and rely on Exhibit 1017, and that should be excluded, struck and
`expunged, are as follows: Pages 2–3, 15–16, 23–26 of Paper 31 (Petitioner’s
`reply), and Paragraphs 11, 29–30, 50, 52, 73, 99, 109, 111, 131, 143, 148, 151, 156
`and 159 of Exhibit 1016 (Michalson reply declaration).
`
`2
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`
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`

`

`
`
`Petitioner’s Reply on February 10, 2017, Bradium requested that Mr. Lavi be made
`
`available in the United States for deposition on March 2, 2017. See Ex. 2080 at
`
`page 1. Bradium reiterated this request in a February 13 letter. Id. Patent Owner
`
`also timely and formally objected to Exhibit 1017. Paper 35 at page 3. On
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`February 14, Bradium timely served and filed a notice of deposition formally
`
`setting a March 2, 2017, date for Mr. Lavi to appear at Bradium’s counsel’s offices
`
`in New York. See Paper 32; 37 C.F.R. § 42.53(d)(4) (ten business days prior to
`
`deposition); 37 C.F.R. § 42.53(d)(2) (a week prior to the DUE DATE 4 then in
`
`effect).
`
`At Bradium’s request (see Ex. 2080 at page 1), the parties met-and-conferred
`
`by telephone on February 15, 2017. Ex. 2079. During the meet and confer,
`
`counsel for Microsoft stated that it had no response from Mr. Lavi to report as of
`
`that date. Id. Microsoft did not mention any concerns Mr. Lavi may have had
`
`about appearing at the deposition. Id. Not until February 28, 2017 did Microsoft
`
`raise any issue, or indicate in any way that Mr. Lavi had concerns about appearing
`
`for a deposition in the United States. Ex. 2080 at page 1. For the first time in its
`
`February 28 e-mail, Microsoft proposed that the parties request the Board to
`
`submit a Letter of Request to the Israel Central Authority under the Hague
`
`Convention.
`
`Microsoft’s proposal for additional, non-routine discovery—a request for
`
`
`
`3
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`

`

`
`
`deposition of Mr. Lavi in Israel via the Hague Convention—was untimely and
`
`insufficient. By Microsoft’s own admission during the call with the Board on
`
`March 6, 2017, the process could be expected to take at least two to three months,
`
`putting the deposition well past the April 18, 2017, scheduled date for the hearing
`
`in this matter (a date on which Microsoft has now requested oral argument). In
`
`short, as Mr. Lavi has now, through Microsoft, indicated he will not come to the
`
`U.S. for deposition, Bradium is not able to test his declaration statements via a
`
`deposition.
`
`On March 2, 2017, the parties jointly requested a conference call with the
`
`Board. A call with the Board was then held on March 6, 2017. During the call,
`
`Bradium offered a one-week extension to DUE DATE 4 to provide additional time
`
`for Mr. Lavi to appear in the United States, to which the parties later stipulated.
`
`See Paper 36. In addition, based on the Board’s guidance offered during the call,
`
`Patent Owner Bradium provided a limited waiver proposal on Sunday, March 12,
`
`to facilitate Mr. Lavi’s appearance in the United States for cross-examination
`
`deposition. Ex. 2081 at page 1. Bradium also offered on March 12 to extend the
`
`date for the deposition, to and including on Friday, March 24, to provide Mr. Lavi
`
`additional time to appear. Id.. Microsoft provided an edited version of Bradium’s
`
`proposal to Mr. Lavi on March 13, including various strike-throughs, edits and
`
`additions requested by Microsoft. Id.
`
`
`
`4
`
`

`

`
`
`Bradium never heard back from Microsoft regarding Mr. Lavi’s response to
`
`the proposal. On March 20, Patent Owner requested that Microsoft “[p]lease
`
`advise Mr. Lavi’s response to Bradium’s proposal [of March 12], and please advise
`
`whether Mr. Lavi will appear in the U.S. for deposition . . . .” Id.. Microsoft did
`
`not respond to Patent Owner’s e-mail. On March 22, 2017, Bradium learned from
`
`Microsoft’s email to the Board on that date that “Microsoft has not been able to
`
`obtain Mr. Lavi’s consent to come to the USA.”4
`
`Petitioner Microsoft was required to timely produce Mr. Lavi in the United
`
`States. 37 C.F.R. § 42.51(b)(1)(ii). If a party proffers a witness’s testimony, that
`
`party must make that witness available for cross-examination by the other party as
`
`a part of routine discovery. HTC Corp., IPR2014-01198, Paper 41 at 3–4
`
`(P.T.A.B. Nov. 6, 2015). The default rule requires cross-examination “within the
`
`United States.” 37 C.F.R. § 42.53(b)(2). Deposition testimony outside of the
`
`United States may only be taken by agreement of the parties or as the Board
`
`specifically directs. 37 C.F.R. § 42.53(b)(3). The burden and expense of
`
`producing third-party witnesses falls on the party presenting the witness. OFFICE
`
`PATENT TRIAL PRACTICE GUIDE, 77 Fed. Reg. 48756, 48761 (Aug. 14, 2012); see
`
`37 C.F.R. § 42.53(g). For example, Mr. Levanon recently flew to the United States
`
`for deposition in New York, at Microsoft counsel’s request. 37 C.F.R.
`
`4 E. Day e-mail of March 22, 2017, 2:50 p.m. Eastern (“And Microsoft has not
`been able to obtain Mr. Lavi’s consent to come to the USA.”)
`
`5
`
`
`
`

`

`
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`§ 42.53(b)(2) & (3). Petitioner is responsible for the availability of its third-party
`
`declarants. See HTC Corp., IPR2014-01198, Paper 41 at 4 (P.T.A.B. Nov. 6,
`
`2015). A United States deposition under U.S. rules is appropriate for Mr. Lavi
`
`because of the substantive character of his declaration and the volume and nature
`
`of the materials. The declaration totals 31 pages, with six exhibits attached totaling
`
`40 pages.
`
`Microsoft’s allegation, as expressed on the parties’ call with the Board on
`
`March 6, 2017, is that Mr. Lavi was concerned about retaliation by Bradium or Mr.
`
`Levanon if Mr. Lavi appeared voluntarily for a deposition in the U.S. In response,
`
`and pursuant to the Board’s suggestion, Bradium (and Mr. Levanon) agreed that
`
`the voluntary deposition in the U.S. would not serve as a basis for any claim
`
`Bradium (or Mr. Levanon) might have against Mr. Lavi. Nonetheless, Mr. Lavi
`
`still has declined to appear in the U.S. for a deposition.
`
`The Board has the authority to exclude, and further to strike and expunge,
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`Mr. Lavi’s declaration (Ex. 1017) due to his unwillingness to appear for deposition
`
`in the United States. See HTC Corp., IPR2014-01198, Paper 41 at 4 (P.T.A.B.
`
`Nov. 6, 2015) (“To the extent that our Rules governing routine discovery do not
`
`cover specifically striking a declaration, where cross-examination is unavailable,
`
`we exercise our authority to strike such a declaration under 37 C.F.R. § 42.12(a)
`
`and (b).”) (citing John’s Lone Star Distrib., Inc. v. Thermolife Int’l, Inc., Case
`
`
`
`6
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`

`

`
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`IPR2014-01201, Paper 31 at 3 (P.T.A.B. May 13, 2015) and 37 C.F.R. § 42.5(a)
`
`(Board may determine the proper course of conduct).
`
`Accordingly, Bradium requests that the Lavi Declaration, and all of
`
`Petitioner’s materials citing or relying upon the declaration, be excluded, and
`
`expunged or stricken from the record.
`
`III. EXHIBIT 1020 (PURPORTED STYLISTIC 2300 TECHNICAL
`REFERENCE GUIDE)
`
`Exhibit 1020 should be excluded as hearsay under 37 C.F.R. § 42.62(a) and
`
`F.R.E. 801 & 802. Petitioner relies on the exhibit for the truth of what it states,
`
`and Petitioner has not shown that a hearsay exception applies. Bradium objected
`
`to Exhibit 1020 on this basis. Paper 35 at page 5.
`
`Petitioner relies on Exhibit 1020 for the truth of what it states. Dr.
`
`Michalson cites Exhibit 1020, and only Exhibit 1020, as his source for the
`
`purported availability of a Fujitsu product line and the features and characteristics
`
`of the Fujitsu product. Ex. 1016 at ¶¶53–54.
`
`No hearsay exception applies. Dr. Michalson is silent regarding Exhibit
`
`1020, other than citing it for the truth of its hearsay statements. Microsoft
`
`provided a February 28, 2017 declaration by a Ms. Meghan Bright, a Patent
`
`Paralegal, but this declaration does not show any hearsay exception applies, either.
`
`The declaration states that Exhibit 1020 is a “true and correct” copy of a document
`
`that was available at and downloaded from a URL as of February 6, 2017. Bright
`
`
`
`7
`
`

`

`
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`Decl. at ¶ 5. However, downloading a document from a URL (which is not further
`
`described) in 2017 does nothing to show that the document was previously
`
`available, or that the contents of the document are accurate or reliable. The mere
`
`recital of the title on the front page of the document, or the words “Copyright 1998”
`
`that appear on the second page of the exhibit, do not cure the hearsay issue. In fact,
`
`Petitioner does not explain whether or not “Fujitsu Personal Systems, Inc.,” the
`
`corporate name that appears immediately below the “Copyright 1998,” is a
`
`company that is currently in existence. Petitioner also does not address the
`
`statement on page 2 of the exhibit that includes “we cannot guarantee the accuracy
`
`of the contents of this document.”
`
`Petitioner has not shown, for example, that F.R.E. 803(6) (records of
`
`regularly conducted activity) applies. Petitioner has not put forth any evidence that
`
`Exhibit 1020, for example, was made at or near the time by someone with
`
`knowledge. Petitioner has also not shown that the exhibit is a record that “was
`
`kept in the course of a regularly conducted activity of a [particular] business.” In
`
`fact, Petitioner has not even shown what corporate entity kept the document, if any.
`
`For example, Petitioner has come forward with no evidence to show what the
`
`relationship of “Fujitsu Personal Systems, Inc.” would be to the entity from which
`
`the exhibit was downloaded in 2017.
`
`IV. EXHIBIT 1022
`
`
`
`8
`
`

`

`
`
`Exhibit 1022 should be excluded as hearsay under 37 C.F.R. § 42.62(a) and
`
`F.R.E. 801 & 802. To the extent that Petitioner relies on the exhibit for the truth of
`
`what it states, Petitioner has not shown that a hearsay exception applies. Bradium
`
`objected to Exhibit 1022 on this basis. Paper 35 at page 6.
`
`No hearsay exception applies. Dr. Michalson’s general, one-line statement
`
`that the exhibit is consistent with his knowledge and understanding with
`
`“geographic coordinate systems” does not show any hearsay exception applies.
`
`For example, Dr. Michalson does not distinguish between his current (2017)
`
`knowledge, versus knowledge as of 2007 or earlier. The Bright declaration also
`
`does not show any hearsay exception applies. The declaration, at Paragraph 6,
`
`merely recites that the document is a “true and correct” copy of what was
`
`downloaded in 2017. For the reasons explained with respect to Exhibit 1020, these
`
`statements do not cure the hearsay nature of Exhibit 1022. For example, Petitioner
`
`has not shown that F.R.E. 803(6) applies because Petitioner has not put forth any
`
`evidence that Exhibit 1020, for example, was made at or near the time by someone
`
`with knowledge.
`
`V. EXHIBIT 1023
`Exhibit 1023 should be excluded as hearsay under 37 C.F.R. § 42.62(a) and
`
`F.R.E. 801 & 802. Petitioner appears to rely on Exhibit 1023 for the truth of what
`
`it states. Paper 31 at page 16; Exhibit 1016 (Michalson reply declaration) at ¶¶111,
`
`
`
`9
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`

`

`
`
`149. Bradium objected to Exhibit 1022 on this basis. Paper 35 at pages 6–7.
`
`No hearsay exception applies. Petitioner and Dr. Michalson are silent
`
`regarding the exhibit, other than relying on it for the truth of what it states. The
`
`February 24, 2017 affidavit of Christopher Butler provided by Microsoft does not
`
`show any hearsay exception applies. At most, it purports to show that the website
`
`was captured on a particular date, which would not address the reliability or
`
`accuracy of the information contained in the exhibit itself.
`
`Petitioner has not shown, for example, that F.R.E. 803(6) applies. Petitioner
`
`has not put forth any evidence that Exhibit 1020, for example, was made at or near
`
`the time by someone with knowledge.
`
`VI. EXHIBITS 1027, 1028, 1029, 1031
`Exhibits 1027, 1028, 1029, and 1031 should be excluded as hearsay under
`
`37 C.F.R. § 42.62(a) and F.R.E. 801 & 802. Petitioner relies on these exhibits for
`
`the truth of what they state. Patent Owner objected to these exhibits as hearsay.
`
`Paper 35 at 9–11.
`
`No hearsay exception applies. While Exhibit 1027 and 1029 are included in
`
`the Butler declaration, this declaration does not show that any hearsay exception
`
`applies. At most, the declaration purports to show that the websites were captured
`
`on a particular date, which would not address the reliability or accuracy of the
`
`information contained in the exhibits themselves.
`
`
`
`
`
`10
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`

`

`
`
`VII. EXHIBIT 1030 (HEARSAY USE OF MAY 2000 MICROSOFT
`ARTICLE)
`
`Microsoft cannot credibly rely on Exhibit 1030, a May 2000 version of a
`
`Microsoft Corporation technical report, to show 1999 or earlier research activities
`
`by Microsoft. On its face, this “Microsoft Corporation” document refers to an
`
`earlier, “June 1999” version that is not in evidence. The contents of that June 1999
`
`version are unknown and whether such contents would satisfy the hearsay rules
`
`would be speculative.
`
`Exhibit 1030 is used by Microsoft as hearsay and it should be excluded as
`
`Microsoft evidence.5 Petitioner Microsoft relies on this article, which on its face
`
`states that it appeared in May 2000 proceedings (copyright date 2000), for the truth
`
`of what it says regarding past (1999) information. Exhibit 2078 at 6:7–7:3. For
`
`example, Dr. Michalson states that he assumed that it is a 1999 document based on
`
`the face of the document, and that he has relied on no other information about the
`
`document other than the document itself. Ex. 2078 at 7:5–8:1. No evidence has
`
`
`5 Bradium may rely on portions of this Microsoft Corporation document as a party
`admission, even though Microsoft may not so rely. F.R.E. 801(d)(2). For
`example, the portion of the document that states that the map tile client-server
`solution described in Exhibit 1030 “had not been attempted before” and that
`“many people felt it was impossible without using an object-oriented or
`object-relational system” may be used as a party admission against Microsoft.
`Ex. 1030 at 2–3. See Paper 41 (Motion for Observations) at Paragraph 3 (page 2);
`Exhibit 2078 at 9:13–10:24. Microsoft cannot use its own document as a party
`admission against Patent Owner, however, and no other hearsay exception has
`been shown to apply.
`
`
`
`
`11
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`

`

`
`
`been proffered showing that the May 2000 document in fact reflects 1999 or earlier
`
`facts or information, and consequently no foundation has been shown, and the
`
`document is therefore irrelevant.
`
`The Bright declaration does not cure the hearsay nature of Exhibit 1030, or
`
`provide the necessary foundation to establish relevance. The declaration merely
`
`states that the document was downloaded in 2017, and incorrectly characterizes the
`
`document, without supporting evidence, as a “June 1999” document.
`
`VIII. EXHIBIT 2078 (REDIRECT TESTIMONY OF DR. MICHALSON)
`The redirect examination of Dr. Michalson by Microsoft counsel was
`
`improper in form and should be excluded. The redirect portion is Exhibit 2078 at
`
`76:4–92:3.
`
`Leading Questions
`
`A.
`The redirect testimony should be excluded because the questions were
`
`highly leading, so much so that counsel was testifying. Direct (and redirect)
`
`examination must be done with open, non-leading questions. F.R.E. 611(c).
`
`Leading questions, as used on redirect examination of Dr. Michalson, rendered this
`
`the testimony of the questioning attorney, not the witness, and should be
`
`disallowed. Stine v. Marathon Oil Co., 976 F.2d 254, 266 (5th Cir. 1992) (“As we
`
`all are fully aware, any good trial advocate who is allowed leading questions can
`
`both testify for the witness and argue the client’s case by the use of leading
`
`
`
`12
`
`

`

`
`
`questions. This practice must not be allowed.”)
`
`For example:
`
`Q. Is it fair to say that that opinion was offered under the broadest
`reasonable interpretation that's applicable to this proceeding?
`
`MR. COULSON: Objection. Leading.
`
`A. Yes, I believe that's what I said.
`
`BY MR. DAY:
`
`Q. Are you aware that there's a different standard that's applicable in
`district court litigation?
`
`A. Yes.
`
`MR. COULSON: Objection. Leading.
`
`Exhibit 2078 at 80:22–81:11. And as another example:
`
`Mr. Coulson asked you a number of questions about Exhibit 2076,
`which I believe was a declaration offered in a different proceeding
`relating to different patents and different products. Can you pull
`up that exhibit.
`
`A. Yes.
`
`MR. COULSON: Object to the statement.
`
`A. That's correct.
`
`MR. COULSON: Counsel's testifying.
`
`BY MR. DAY: Q. Is it correct that that declaration is a
`declaration in a different proceeding that relates to different
`products and different patents?
`
`MR. COULSON: Objection to form. Leading.
`13
`
`
`
`

`

`
`
`A. Yes, it does.
`
`Ex. 2078 at 82:5–24. As another example:
`
`Q. And is it fair to say that over the next -- withdraw that. Over the
`next several paragraphs, you discussed ways in which those social
`media sharing functions were specifically linked to the commercial
`success of the MapMyFitness product; is that right?
`
`A. Yes.
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`MR. COULSON: Objection. Leading. Foundation.
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`A. Yes, that's correct.
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`Ex. 2078 at 89:24–89:10. As yet another example:
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`Q. So, in that case, that would be -- your purpose for offering that
`analysis -- withdraw that. Was your purpose for offering that analysis
`to explain that the industry praise you're referring to there in that case
`was related to the patented features in that case?
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`MR. COULSON: Objection to these repeated leading questions.
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`A. Yes.
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`Ex. 2078 at 91:5–15. Petitioner’s improper leading cross-examination infected the
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`entire testimony, and all redirect testimony should be struck in its entirety.
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`Lack of Foundation
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`B.
`As a consequence of the repeated leading questions posted by Petitioner’s
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`counsel throughout redirect, the examination repeatedly failed to develop the
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`14
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`foundation for purported knowledge of the witness and therefore the testimony
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`should be excluded under F.R.E. 602 (Need for Personal Knowledge), F.R.E.
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`701(a) (testimony must be rationally based on the witness’s perception), and F.R.E.
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`702(b) (expert testimony must be based on sufficient facts or data). In particular,
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`the examination did not provide a foundation for the witness’s alleged
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`“recollection” regarding TerraServer independently from the hearsay Exhibit 1030.
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`Ex. 2078 at 77:8–78:6. The witness’s only response to that leading question was
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`“Yes, it is.” Id. Patent Owner’s counsel made a foundation objection, but there
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`was no follow-up question. Id. Similarly, leading questions, combined with lack
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`of development of the foundation for one-word responses, render testimony such
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`as mere attorney argument which is unhelpful to the Board and misleading in the
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`guise of purported expert testimony. Exhibit 2078 at 89:24–90:10.
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`For this reason, too, all of the redirect testimony of Dr. Michalson (Exhibit
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`2078 at 76:4–92:3) should be excluded.
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`15
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`Dated: March 24, 2017
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`/s/ Chris J. Coulson
`Chris J. Coulson (Reg. No. 61,771)
`Lead Counsel for Patent Owner
`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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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on March 24,
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`2017, the foregoing Patent Owner Bradium Technologies LLC’s Motion for
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`Observations on Cross-Examination were served via electronic mail upon the
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`following counsel of 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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