UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`ARRIS GROUP, INC., ARUBA NETWORKS, INC.,
`HEWLETT PACKARD ENTERPRISE COMPANY, and HP, INC.,
`Petitioner,
`
`V.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC
`Patent Owner.
`
`______________________
`
`Case IPR2016-00768
`Patent 5,659,8911
`______________________
`
`Before MEREDITH C. PETRAVICK, SCOTT A. DANIELS, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`PETITIONERS’ CONSOLIDATED OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PATENT OWNER’S RESPONSE
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`
`
`in a representative capacity for Petitioners ARRIS Group, Inc., Aruba Networks,
`
`Inc., Hewlett Packard Enterprise Company, and HP Inc. (“Petitioners”), hereby
`
`submit the following objections to Patent Owner Mobile Telecommunications
`
`Technologies, LLC’s (“Patent Owner”) Exhibits as indicated below, and any
`
`reference thereto/reliance thereon, without limitation. Petitioners’ objections
`
`1 Case IPR2016-00766 has been joined with the instant proceeding.
`
`
`______________________
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`ARRIS GROUP, INC., ARUBA NETWORKS, INC.,
`HEWLETT PACKARD ENTERPRISE COMPANY, and HP, INC.,
`Petitioner,
`
`V.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC
`Patent Owner.
`
`______________________
`
`Case IPR2016-00768
`Patent 5,659,8911
`______________________
`
`Before MEREDITH C. PETRAVICK, SCOTT A. DANIELS, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`PETITIONERS’ CONSOLIDATED OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PATENT OWNER’S RESPONSE
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`
`
`in a representative capacity for Petitioners ARRIS Group, Inc., Aruba Networks,
`
`Inc., Hewlett Packard Enterprise Company, and HP Inc. (“Petitioners”), hereby
`
`submit the following objections to Patent Owner Mobile Telecommunications
`
`Technologies, LLC’s (“Patent Owner”) Exhibits as indicated below, and any
`
`reference thereto/reliance thereon, without limitation. Petitioners’ objections
`
`1 Case IPR2016-00766 has been joined with the instant proceeding.
`
`
`
`
`below apply the Federal Rules of Evidence (“F.R.E.”) as required by 37 C.F.R §
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`42.62.
`
`These objections address evidentiary deficiencies in the new material served
`
`by Patent Owner on January 9, 2017.
`
`The following objections apply to the Exhibits indicated below as they are
`
`actually presented by Patent Owner, in the context of Patent Owner’s January 9,
`
`2017 Patent Owner Response (Paper 28), and not in the context of any other
`
`substantive argument on the merits of the instituted grounds in this proceeding.
`
`Petitioners expressly object to any other purported use of these Exhibits, including
`
`as substantive evidence in this proceeding, which would be untimely and improper
`
`under the applicable rules, and Petitioners expressly assert, reserve, and do not
`
`waive any other objections that would be applicable in such a context.
`
`I. Objections to Exhibit 2011, And Any Reference to/Reliance Thereon
`Grounds for objection: F.R.E. 702 (“Testimony by Expert Witnesses”);
`
`F.R.E. 703 (“Bases of an Expert’s Opinion Testimony); F.R.E. 801, 802
`
`(Impermissible Hearsay); F.R.E. 401 (“Test for Relevant Evidence”); F.R.E. 402
`
`(“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding Relevant
`
`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”); and 37
`
`C.F.R. § 42.61 (“Admissibility”).
`
`Petitioners object to the use of Exhibit 2011 under F.R.E. 702. Exhibit 2011
`
`
`
`2
`
`
`
`
`purports to provide expert testimony in this matter, including the knowledge of a
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`person of ordinary skill at the relevant time (e.g., Ex. 2011 ¶¶37 (“a PHOSITA
`
`would also conclude….”), 45 (“a PHOSITA would understand this limitation to
`
`mean….”), 46-48, 52, 54-55, 60-61, 63, 65, 67, 74-75, 77, 86, 88-90, 92, 97-98,
`
`101, 103, 112, 114, 118, 121, 127-28), but fails to establish that Dr. Jay P. Kesan
`
`was a person of ordinary skill at the relevant time. Indeed, Dr. Kesan never even
`
`claims in his declaration that he would have qualified as a person of ordinary skill
`
`as of the ’891 patent’s claimed priority date of June 7, 1995. Because there has
`
`been no showing that he was a person of ordinary skill at the relevant time period,
`
`his testimony would not help the trier of fact under F.R.E. 702. Dr. Kesan
`
`provides the following definition of one of ordinary skill in the art:
`
`A person of ordinary skill in the art at the time of the invention
`(PHOSITA) of the ’891 Patent would possess a bachelor’s degree in
`electrical engineering or its equivalent and about four years working
`in the field of wireless telecommunications networks and would
`possess knowledge regarding frequency, amplitude, and masks as
`used in telecommunications, or equivalent education and work
`experience.
`
`See Ex. 2011 at ¶ 9 (emphasis added). Yet, there is no indication in either Dr.
`
`Kesan’s declaration (Ex. 2011) or his CV (Appendix A of Ex. 2011) that he had
`
`the requisite “about four years working in the field of wireless telecommunications
`
`networks” or “knowledge regarding frequency, amplitude, and masks as used in
`
`telecommunications” as of June 7, 1995. Therefore, even under his own
`
`
`
`3
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`
`
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`formulation of one of skill in the art, Dr. Kesan would not have been one of skill in
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`IPR2016-00768
`U.S. Patent No. 5,659,891
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`the art as of the ’891’s claimed priority date of June 7, 1995. Dr. Kesan also fails
`
`to meet the definition of the level of ordinary skill set forth by Petitioners’ expert
`
`as of the claimed priority date. Accordingly, Exhibit 2011 is irrelevant and
`
`inadmissible (F.R.E. 401, 402).
`
`Further, Dr. Kesan purports to repeat statements in the Appendices and/or other
`
`sources he cites for the truth of the matter contained therein, but without
`
`demonstrating that any hearsay exception applies, in violation of Rules 801, 802,
`
`703, 403. E.g., Ex. 2011 ¶¶50-51, 57-59, 61-62, 99, 129-33.
`
`Further, for these same reasons, permitting reference to or reliance on testimony
`
`of Dr. Kesan in the Patent Owner Response or other submissions of Patent Owner
`
`would also be impermissible, misleading, irrelevant, and unfairly prejudicial to
`
`Petitioners (F.R.E. 402, 403).
`
`II. Objections to Appendices C-K to Exhibit 2011, And Any Reference
`to/Reliance Thereon
`
`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
`
`Evidence”); F.R.E. 1002 (“Requirement of the Original”); F.R.E. 1003
`
`(“Admissibility of Duplicates”); F.R.E. 801, 802 (Impermissible Hearsay), 805
`
`(Hearsay within Hearsay); F.R.E. 401 (“Test for Relevant Evidence”); F.R.E. 402
`
`(“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding Relevant
`
`
`
`4
`
`
`
`
`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”); F.R.E. 106
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`(“Remainder of or Related Writings or Recorded Statements”); F.R.E. 702
`
`(“Testimony by Expert Witnesses”); 37 C.F.R. § 42.63 (“Form of evidence”); and
`
`37 C.F.R. § 42.61 (“Admissibility”).
`
`Petitioners object to the use of Appendices C-K of Exhibit 2011 because
`
`Patent Owner and/or Patent Owner’s expert purportedly rely on these Appendices
`
`as evidence,2 but Patent Owner failed to file them in the form of exhibits as
`
`required under 37 C.F.R. § 42.63. 3
`
`Petitioners further object to the use of Appendices C-K of Exhibit 2011
`
`under F.R.E. 901, 1002, 1003, and 37 C.F.R. § 42.61 because Patent Owner fails to
`
`provide the authentication required for these documents, and the Exhibits are not
`
`self-authenticating under F.R.E. 902.
`
`Petitioners further object to the use of Appendices C-K of Exhibit 2011 as
`
`impermissible hearsay under F.R.E. 801 and 802, and 805, to the extent to which
`
`the out of court statements therein, or the out of court statements referenced
`
`
`2 E.g., Ex. 2011 ¶¶50-51, 57-59, 61-62, 99, 129-33; Pap. 28 at 28-29 (citing Ex.
`
`2011 ¶50), 30-31 (citing Ex. 2011 ¶¶57, 61-62), 56, 59.
`
`3 Patent Owner appears to have re-filed Exhibits 2002-2010 as Appendices C-K,
`
`respectively.
`
`
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`5
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`
`
`therein, are offered for the truth of the matters asserted and constitute
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`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`impermissible hearsay for which Patent Owner has not demonstrated any exception
`
`or exclusion to the rule against hearsay (F.R.E. 801, 802, 805).
`
`Petitioners further object to the use of Appendices C-E of Exhibit 2011
`
`under F.R.E. 401, 402, and 403, and 37 C.F.R. § 42.61 because they are dated
`
`2015, 2012, and 2002, respectively, which are well after the June 1995 filing date
`
`of the ’891 patent and do not purport to represent the state of the art in the time
`
`period relevant to the ’891 patent.
`
`Petitioners further object to the use of Appendices F-J of Exhibit 2011 under
`
`F.R.E. 401, 402, and 403, and 37 C.F.R. § 42.61. Petitioners’ expert in this
`
`proceeding is Dr. Apostolos K. Kakaes. Appendix F, however, appears to be an
`
`expert declaration submitted by Dr. Paul S. Min on behalf of Samsung Electronics
`
`Co., Ltd., Samsung Electronics America, Inc., and Samsung Telecommunications
`
`America, LLC—who are not parties to this proceeding—in Mobile
`
`Telecommunications Technologies, LLC v. Samsung Electronics Co., Ltd., et al.,
`
`Case No. 2:15-cv-00183-JRG-RSP (E.D. Tex.), to which Petitioners were not and
`
`are not a party. Additionally, admission of Appendix F would be doubly improper
`
`because (1) Petitioners were not and are not a party to that litigation and were not
`
`given the opportunity to depose Dr. Min, and (2) Petitioners are not permitted to
`
`depose Dr. Min as a part of routine discovery under 37 C.F.R. § 42.51(b)(1). See
`
`
`
`6
`
`
`
`
`37 C.F.R. § 42.51(b)(1)(ii) (authorizing only cross examination of testimony
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`prepared for this proceeding).
`
`In addition, Appendices G-J appear to be deposition transcripts of witnesses
`
`who are not a party to this proceeding and that were taken in various district court
`
`litigations to which Petitioners were not and are not a party. For example,
`
`Appendix G appears to be a transcript of the deposition of William Hays—a named
`
`inventor of the ’891 patent—and Appendix H appears to be a transcript of the
`
`deposition of Dr. Rade Petrovic—author of a prior art reference (Exhibit 1013)
`
`submitted in this proceeding—in Mobile Telecommunications Technologies, LLC
`
`v. Sprint Nextel Corporation, Case No. 2:12-cv-832-JRG-RSP (Lead Case) (E.D.
`
`Tex.), Mobile Telecommunications Technologies, LLC v. Samsung
`
`Telecommunications America, LLC, Case No. 2:13-cv-259-JRG-RSP (E.D. Tex.),
`
`and Mobile Telecommunications Technologies, LLC v. Apple Inc., Case No. 2:13-
`
`cv-259-JRG-RSP (E.D. Tex.). Appendix I appears to be a transcript of the
`
`deposition of Dr. Petrovic in Mobile Telecommunications Technologics, LLC v.
`
`Leap Wireless International, Inc. et al., Case No. 2:13-cv-00885-JRG-RSP (E.D.
`
`Tex.). And, Appendix J appears to be a transcript of the deposition of Dr. Petrovic
`
`in Mobile Telecommunications Technologics LLC v. AT&T Mobility et al., Case
`
`No. 2:14-cv-00897-RSP (E.D. Tex.). Admission of Appendices G-J would be
`
`doubly improper because (1) Petitioners were not and are not a party to these
`
`
`
`7
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`
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`litigations and were not given the opportunity to participate in the depositions of
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`Dr. Hays or Dr. Petrovic, and (2) Petitioners are not permitted to depose Dr. Hays
`
`or Dr. Petrovic as a part of routine discovery under 37 C.F.R. § 42.51(b)(1). To
`
`the extent Appendices G-J are considered despite Petitioners’ objections,
`
`Petitioners hereby expressly repeat and incorporate by reference all of the
`
`objections stated on the record in those depositions, and affirmatively maintain all
`
`such objections.
`
`To the extent Patent Owner relies on Appendices F-J as expert testimony,
`
`Petitioners further object to the use of Appendices F-J under F.R.E. 702 because
`
`Patent Owner has not cited any evidence that the witnesses qualify as experts in the
`
`area of the offered testimony.
`
`Petitioners further object to the use of Appendix G under F.R.E. 106. The
`
`first page of Appendix G indicates that it is “VOLUME 2” of a transcript of the
`
`deposition of William Hays. Therefore, Appendix G appears to be an incomplete
`
`copy of the complete deposition of William Hays.
`
`Accordingly, these Exhibits do not appear to make any fact of consequence
`
`in determining this action more or less probable than it would be without it and is
`
`thus irrelevant and not admissible (F.R.E. 401, 402); permitting reference
`
`to/reliance on this document in Patent Owner’s response or other submissions of
`
`Patent Owner would be impermissible, misleading, irrelevant, and unfairly
`
`
`
`8
`
`
`
`
`prejudicial to Petitioner (F.R.E. 402, 403).
`
`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`III. Objections to Exhibits 2012-2013 And Any Reference to/Reliance
`Thereon
`
`Grounds for objection: 37 C.F.R. § 42.61 (“Admissibility”); 37 C.F.R. §
`
`42.64(a) (“Deposition evidence”); and 37 C.F.R. § 42.53(f)(8) (Objections in
`
`depositions).
`
`Exhibits 2012-2013 appear to be the deposition transcripts of Petitioners’
`
`expert, Dr. Paul Kakaes, in this proceeding. Petitioners hereby expressly repeat
`
`and incorporate by reference all of their objections stated on the record in those
`
`depositions, and affirmatively maintain all such objections.
`
`
`
`Dated: January 17, 2017
`
`Respectfully submitted,
`
`By: /J. Steven Baughman/
`J. Steven Baughman (Lead counsel)
`Reg. No. 47,414
`
`Ropes & Gray LLP
`2099 Pennsylvania Ave., N.W.
`Washington, D.C. 20006- 6807
`P: 202-508-4606/ F: 202-383-8371
`steven.baughman@ropesgray.com
`
`
`
`
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`9
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`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that a copy of the foregoing PETITIONERS’
`
`CONSOLIDATED OBJECTIONS TO EVIDENCE SUBMITTED WITH
`
`PATENT OWNER’S RESPONSE was served on January 17, 2017 in its entirety
`
`by causing the aforementioned document to be electronically mailed, pursuant to
`
`the parties’ agreement, to the following attorneys of record for the Patent Owner
`
`listed below:
`
`John R. Kasha
`Kelly L. Kasha
`Kasha Law LLC
`14532 Dufief Mill Rd.
`North Potomac, MD 20878
`(703) 867-1886 (phone)
`(301) 340-3022 (facsimile)
`john.kasha@kashalaw.com
`kelly.kasha@kashalaw.com
`Attorney for Patent Owner
`Mobile Telecommunications
`Technologies, LLC
`
`Henning Schmidt (pro hac vice)
`Reed & Scardino LLP
`hschmidt@reedscardino.com
`
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`ROPES & GRAY LLP
`
`/Ginny Blundell/
`Ginny Blundell
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`
`
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`
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`10
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