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`Patent No.: 8,559,635
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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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`APPLE INC.
`Petitioner
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`v.
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`PERSONALIZED MEDIA COMMUNICATIONS LLC
`Patent Owner
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`Case No.: IPR2016-00754
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED
`BY THE PETITIONER WITH ITS REPLY
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`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`Patent Owner Personalized Media Communications LLC (“PMC”) hereby
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`objects pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
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`(“FRE”) to the admissibility of certain purported evidence served by Petitioner
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`Apple Inc. on March 13, 2017 in connection with its Reply to Patent Owner’s
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`Response to Petition for Inter Partes Review. The exhibits objected to, and
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`grounds for PMC’s objections, are listed below. PMC also objects to Petitioner’s
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`reliance on or citations to any objected evidence in its papers.
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`PMC objects to the Petitioner’s exhibits as follows:
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`Exhibit
`1036
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`Basis of Objection
`FRE 401-403 (Relevance, No probative value) – This exhibit is
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`irrelevant and its probative value is substantially outweighed by
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`the danger of wasting time in this proceeding.
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`1037
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`FRE 401-403 (Relevance, No probative value) – This exhibit is
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`irrelevant and its probative value is substantially outweighed by
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`the danger of wasting time in this proceeding.
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`1039
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`FRE 401-403 (Relevance, No probative value) – This exhibit is
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`irrelevant and its probative value is substantially outweighed by
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`the danger of wasting time in this proceeding. This exhibit was
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`allegedly published in 1988 and, therefore, bears no relevance to
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`what the person of ordinary skill in the art would have known by
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`the relevant date. Furthermore, this exhibit at best purports to
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`reflect a layperson’s understanding of “processor” rather than what
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`a person of ordinary skill in the art would understand. Therefore,
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`Exhibit 1039 should be excluded.
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`1040
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`FRE 401-403 (Relevance, No probative value) – This exhibit is
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`irrelevant and its probative value is substantially outweighed by
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`the danger of wasting time in this proceeding. This exhibit was
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`allegedly published in 1979 and, therefore, bears no relevance to
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`what the person of ordinary skill in the art would have known by
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`the relevant date. Furthermore, this exhibit at best purports to
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`reflect a layperson’s understanding of “processor” rather than what
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`a person of ordinary skill in the art would understand. Therefore,
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`Exhibit 1040 should be excluded.
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`1055
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`FRE 401-403 (Relevance, No probative value) – PMC objects to
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`this exhibit to the extent it includes or relies on irrelevant or
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`inadmissible information and to the extent that it includes or relies
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`on information the probative value of which is substantially
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`outweighed by the danger of unfair prejudice, wasting time, or
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`needlessly presenting cumulative evidence.
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`3
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`PMC further objects to this declaration as improper reply evidence
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`pursuant to 37 C.F.R. § 42.23(b), which limits replies to arguments
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`raised in the patent owner response. See also Rules of Practice for
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`Trials Before the Patent Trial and Appeal Board and Judicial
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`Review of Patent Trial and Appeal Board Decisions; Final Rule,
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`77 Fed. Reg. 48612, 48620 (Aug. 14, 2012) (“Rules of Practice”)
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`(“Oppositions and replies may rely upon appropriate evidence to
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`support the positions asserted. Reply evidence, however, must be
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`responsive and not merely new evidence that could have been
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`presented earlier to support the movant’s motion.”). This
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`declaration is improper at a minimum to the extent it addresses
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`Apple’s evidence submitted with its petition, new evidence
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`submitted in Apple’s Reply, and/or introduce claim construction
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`issues that should have been raised with Apple’s petition.
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`In addition to the above general objections regarding Mr. Wechselberger’s Reply
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`Declaration (Ex. 1055), PMC further objects to specific paragraphs, as set forth
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`below:
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`4
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`Paragraph(s) Basis of Objection
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`4-6, 8, 10
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`37 C.F.R. § 42.23(b); Rules of Practice for Trials Before the Patent
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`Trial and Appeal Board and Judicial Review of Patent Trial and
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`Appeal Board Decisions; Final Rule, 77 Fed. Reg. 48612, 48620
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`(Aug. 14, 2012) (Exceeds Scope of Reply Evidence);
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`Fed. R. Evid. 702/703 (Bases/Reliability of an Expert’s Opinion
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`Testimony); Fed. R. Evid. 705 and 37 C.F.R. § 42.65 (Failure to
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`Disclose Facts or Underlying Data).
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`12-13, 15-19
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`37 C.F.R. § 42.23(b); Rules of Practice for Trials Before the Patent
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`Trial and Appeal Board and Judicial Review of Patent Trial and
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`Appeal Board Decisions; Final Rule, 77 Fed. Reg. 48612, 48620
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`(Aug. 14, 2012) (Exceeds Scope of Reply Evidence);
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`Fed. R. Evid. 702/703 (Bases/Reliability of an Expert’s Opinion
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`Testimony); Fed. R. Evid. 705 and 37 C.F.R. § 42.65 (Failure to
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`Disclose Facts or Underlying Data).
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`21-22
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`37 C.F.R. § 42.23(b); Rules of Practice for Trials Before the Patent
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`Trial and Appeal Board and Judicial Review of Patent Trial and
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`Appeal Board Decisions; Final Rule, 77 Fed. Reg. 48612, 48620
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`5
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`(Aug. 14, 2012) (Exceeds Scope of Reply Evidence);
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`Fed. R. Evid. 702/703 (Bases/Reliability of an Expert’s Opinion
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`Testimony); Fed. R. Evid. 705 and 37 C.F.R. § 42.65 (Failure to
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`Disclose Facts or Underlying Data).
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`Dated: March 20, 2017
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`Respectfully submitted,
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`/ Douglas J. Kline /
`By
`Douglas J. Kline
`Registration No.: 35,574
`GOODWIN PROCTER LLP
`100 Northern Avenue
`Boston, MA 02210
`(617) 570-1209
`Attorney for Patent Owner Personalized
`Media Communications, LLC
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`6
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`Certificate of Service
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`The undersigned hereby certifies that a copy of the:
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`PATENT OWNER’S OBJECTIONS TO EVIDENCE SUBMITTED
`BY THE PETITIONER WITH ITS REPLY
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`was served, pursuant to 37 C.F.R. §42.6(e)(1) and the consent found in Section
`III.D of the Petition (Paper No. 1), by electronic mail on counsel for Petitioner at
`the electronic mail addresses set forth below:
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`Marcus E. Sernel, Joel R. Merkin, and Eugene Goryunov
`KIRKLAND & ELLIS LLP
`300 North LaSalle Street
`Chicago, Illinois 60654
`P: (312) 862-2000; F: (312) 862-2200
`marc.sernel@kirkland.com
`joel.merkin@kirkland.com
`eugene.goryunov@kirkland.com
`Apple-PMC-PTAB@kirkland.com
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`Gregory S. Arovas
`KIRKLAND & ELLIS LLP
`601 Lexington Avenue
`New York, New York 10022
`P: (212) 446-4800; F: (212) 446-4900
`greg.arovas@kirkland.com
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`Date: March 20, 2017
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`By:
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` / Douglas J. Kline /
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`7
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