UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`__________________
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`Case IPR2016-00449
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`Patent No. 8,924,506 B2
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`__________________
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`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`Paper No. 52
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION,
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`Petitioner,
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`v.
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`BRADIUM TECHNOLOGIES LLC,
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`Patent Owner.
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`__________________
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`Case IPR2016-00449
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`Patent No. 8,924,506 B2
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`__________________
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`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
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`Paper No. 52
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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`Patent Owner Bradium’s Opposition to Petitioner Microsoft’s Motion to
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`Exclude Evidence fails to rebut Microsoft’s showing that Bradium’s secondary
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`indicia of non-obviousness arguments depend on inadmissible hearsay. Bradium
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`repeatedly attempts to obfuscate hearsay statements with attorney argument that
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`the statements are simply being offered “for the fact that [the statements were]
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`made” or words to that effect. These arguments do not change the fact that
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`challenged exhibits are hearsay and relied on by Bradium as hearsay.
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`By its own admission, Bradium relies on Exhibits 2051-2053 (Kenwood car
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`navigation system brochures) as evidence that “DENSO licensed the patented
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`technology that is claimed in the ‘343 and ‘506 patents and included the
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`technology in the Kenwood car navigation systems that are reflected in Exhibits
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`2051-2053” (Paper 49 at 1-2) because “the brochures state that FlyOver’s
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`proprietary technology is included in the products.” (Id. at 2.) This is, by
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`definition, an out of court statement offered to prove the truth of the matter
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`asserted and therefore hearsay. The only portions of these documents that
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`Bradium’s counsel translated are boilerplate intellectual property notices
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`apparently added to the document by FlyOver (which became 3DVU before its
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`eventual failure and closure), not DENSO (see, e.g. Ex. 2051 at 40-41). Therefore,
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`Bradium’s arguments that these statements are “verbal acts that are admissible to
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`show the state of mind of DENSO” (Paper 49 at 4) are nonsensical. Likewise, the
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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`dates on the exhibits are indisputably offered by Bradium for the truth of the matter
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`asserted, i.e. that the systems were released around those dates. Bradium’s attempt
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`to rely on the FRE 803(6) “business records” exception (Paper 49 at 2) also fails
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`because Bradium provides no foundational evidence that the exception applies, as
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`required by FRE 803(6)(D), beyond attorney argument.
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`Bradium’s defense of its failure to translate the exhibit also fails because
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`Bradium’s attorney translation did not include all relevant portions of the exhibit.
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`Mr. Levanon asserts repeatedly that certain pages of Exs. 2051-2053 are “devoted
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`to 3DVU technology and its benefits” and that these brochures “show the ‘Sky
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`Cruise View’… feature that 3DVU developed for the products” (Ex. 2004, ¶¶ 53-
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`56), yet provides no translation of any of the Japanese text on the cited pages
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`discussing these features, relying instead on Mr. Levanon’s self-serving account of
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`what the pages describe. Under such circumstances, a waiver of the requirements
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`of 37 C.F.R. 42.63(b), which Bradium admits is necessary, is unwarranted.
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`Bradium’s arguments regarding the various hearsay press releases, news
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`articles, and websites that it relies on (e.g. Exs. 2018, 2021, 2030, 2032, 2039,
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`2045-2049, and 2063) fail for similar reasons. Bradium repeatedly argues that it
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`only relies on such press releases to show “that the statement was made, and the
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`timing of the statement,” that “a particular author said that [Navi2Go] sold well”
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`and other rationalizations to that effect. (See generally Paper 49 at 6-10, 12.)
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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`However, other than such conclusory assertions, Bradium provides no explanation
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`why the utterance of any of these statements, or their timing, carries any
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`significance beyond the truth of the content of the statements.
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`Moreover, Bradium cites the majority of these exhibits in a section of its
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`Patent Owner Response entitled “commercial success,” showing that Bradium does
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`in fact rely on these exhibits for their content, i.e. the purported success of
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`Bradium’s products. For example, Bradium’s Patent Owner Response cites
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`Ex. 2048, which Mr. Levanon admitted was a 3DVU press release appearing in
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`Directions Magazine (Ex. 1019 at 64:16-65:4) as evidence that “Navi2Go
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`reportedly became the bestseller in marketplaces with thousands of users”
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`(Paper 16 at 60), not “that the statement was made and the date of the statement,”
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`as Bradium now argues. Likewise, Bradium’s argument that it does not rely on its
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`own press releases regarding purported awards (Exs. 2021, 2063) for the truth of
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`the matter asserted therein (i.e., that Bradium received such awards) is not credible
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`when these exhibits are cited by Mr. Levanon solely to show “industry awards.”
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`(Ex. 2004, ¶¶ 36-37.)
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`Bradium argues a similar non-distinction in regard to the two Unterberg
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`Towbin reports (Exs. 2035 and 2036) prepared at Mr. Levanon’s request. In the
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`space of a single sentence, Bradium denies that it “rel[ies] on these valuation
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`summaries for the truth of what they state, i.e. that the technology was worth X
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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`dollars at Y date,” then restates the same purpose as its purported non-hearsay
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`reason for introducing the exhibit, i.e. “to show what a reputable company… said
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`the technology was worth.” (Paper 49 at 11.) Such arguments are self-refuting.
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`Bradium’s attempts to justify Exs. 2016 and 2017 (third party reports
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`discussing purported Microsoft R&D spending) as statements of a party-opponent
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`under FRE 801(d)(2) also fail. (Paper 49 at 13.) First, Bradium’s statement that
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`the documents are “based on Microsoft’s own reported data” is pure attorney
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`argument, unsupported by any evidence or even the exhibits themselves, neither of
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`which cite their sources. Second, neither exhibit is a statement by Microsoft, and
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`Bradium fails to identify any hearsay exception or exclusion applicable to Exs.
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`2016 and 2017, as opposed to their unnamed sources. Without such an exception
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`or exclusion, the exhibits must be excluded. See FRE 805 (hearsay within
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`hearsay).
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`Finally, Bradium’s repeated attempts to use its Opposition to shoehorn in
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`additional substantive argument and deposition testimony from Mr. Levanon
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`should not be considered by the Board on the merits of this proceeding.
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`Because Bradium has failed to rebut Microsoft’s showing in Microsoft’s
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`Motion to Exclude (Paper 42) that numerous exhibits relied upon by Bradium in its
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`Patent Owner Response are inadmissible hearsay, Microsoft respectfully requests
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`that the Board exclude these exhibits.
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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`Dated: April 7, 2017
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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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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`PTAB Case IPR2016-00449, Patent 8,924,506 B2
`Petitioner’s Reply to Patent Owner’s Opposition to Motion to Exclude Evidence
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true copy of the foregoing
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`PETITIONER’S REPLY TO PATENT OWNER’S OPPOSITION TO
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`PETITIONER’S MOTION TO EXCLUDE EVIDENCE has been served in its
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`entirety this 7th day of April, 2017 by electronic mail on the Patent Owner via its
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`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: April 7, 2017
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`PERKINS COIE LLP
`11988 El Camino Real, Suite 350
`San Diego, CA 92130
`(858) 720-5700
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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
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`Clifford Ulrich
`culrich@kenyon.com
`KENYON & KENYON, LLP
`One Broadway
`New York, NY 10004-1007
`
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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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