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`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`ARRIS GROUP, INC., ARUBA NETWORKS, INC.,
`HEWLETT PACKARD ENTERPRISE COMPANY, and HP, INC.,
`Petitioner,
`
`v.
`
`MOBILE TELECOMMUNICATION TECHNOLOGIES, LLC,
`Patent Owner.
`______________________
`
`Case IPR2016-00768
`Patent 5,659,8911
`
`______________________
`
`Before the Honorable MEREDITH C. PETRAVICK, SCOTT A. DANIELS, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`
`PETITIONERS’ OBJECTIONS TO PATENT OWNER’S
`DEMONSTRATIVES
`
`
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`
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`1 Case IPR2016-00766 has been joined with the instant proceeding.
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`
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`Pursuant to the Board’s Order (Paper 40 at 2), Petitioners Aruba Networks,
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`Inc., Hewlett Packard Enterprise Company, HP, Inc. and ARRIS Group, Inc.
`
`(collectively, “Petitioners”) object to certain of Patent Owner’s demonstrative
`
`exhibits as specified below. Petitioners have met and conferred in good faith with
`
`Patent Owner Mobile Telecommunication Technologies, LLC (“Patent Owner”) on
`
`June 14, 2017, with additional email communications on June 15 and 16, 2017, in
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`an attempt to resolve its objections, but the parties were unable to reach agreement.
`
`Petitioners object to slides 14 and 23–25 on the basis that they contain new
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`argument and evidence not presented or cited in Patent Owner’s Corrected
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`Response (Paper 42). See Paper 14 (Scheduling Order) at 3 (“any arguments for
`
`patentability not raised in [Patent Owner’s] response will be deemed waived”);
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`IBM v. Intellectual Ventures II LLC, IPR2015-00089, Paper 41 at 3-4 (PTAB Jan.
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`14, 2016) (“To the extent slides 14, 35, 48, and 67 include citations to the Williams
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`Declaration not included in the Response, Patent Owner is precluded from using
`
`them [in its demonstratives]”); Cisco Sys., Inc. v. Crossroads Sys., Inc., IPR2014-
`
`01544, Paper 50 at 11, n.8 (PTAB Jan. 29, 2016) (“Although [Patent Owner]
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`disputed whether Petitioners articulated a sufficient reason to combine the
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`references in its Preliminary Response, it waived this argument by not including it
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`in its Patent Owner Response.”); Funai Elec. Co. v. Samsung Display Co.,
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`IPR2015-01468, Paper 40 at 49 (PTAB Dec. 27, 2016) (argument made in
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`1
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`Preliminary Response deemed waived when not included in Patent Owner
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`IPR2016-00768
`U.S. Patent No. 5,659,891
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`Response).
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`Specifically, slides 14 and 23-25 contain new argument regarding “Dr. Min”
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`and include figures that were never presented or cited in Patent Owner’s Corrected
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`Response (Paper 42) (and likewise not presented in Patent Owner’s Response
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`(Paper 28)). On slide 14, Petitioners object to the language in the table referring to
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`Dr. Min (“Dr. Min’s opinion”), whose name was never mentioned in Patent
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`Owner’s Corrected Response. On slide 23, Petitioners object to the Title
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`(“Opposing expert Dr. Min…”), first bullet point (“Regarding the exemplary
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`mask…”), and the two annotated figures, none of which were discussed or cited in
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`Patent Owner’s Corrected Response. Petitioners object to the entirety of slide 24,
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`which references “Dr. Min” and includes an annotated figure never discussed or
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`cited in Patent Owner’s Corrected Response. On slide 25, Petitioners object to the
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`annotated figure, which was never included or discussed in Patent Owner’s
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`Corrected Response.
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`Patent Owner contends that this material is supported by its Corrected
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`Response (Paper 42) at 22; Ex. 2011 ¶¶ 49-51, 130, Appendix F; and Ex. 2005.
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`But Paper 42 and Ex. 2011 ¶¶ 49-51 do not mention “Dr. Min” at all. Likewise,
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`the figures presented on slides 14 and 23–25 are not discussed or mentioned
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`anywhere in Patent Owner’s Corrected Response (Paper 42) at 22 and Ex. 2011
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`2
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`¶¶ 49-51. Furthermore, Patent Owner did not cite to or discuss at all Ex. 2011 ¶
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`IPR2016-00768
`U.S. Patent No. 5,659,891
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`130 and Appendix F, and Ex. 2005 anywhere in its Corrected Response.
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`Accordingly, Patent Owner has waived any argument contained therein and any
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`reliance on such evidence. Paper 14 at 3; see also Petitioners’ Corrected Reply,
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`Paper 44 at 1, n. 2. Nor would it even be proper for Patent Owner to “incorporate
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`by reference” arguments not made in its Patent Owner Response. 37 C.F.R.
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`§ 42.6(a)(3).
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`If deemed necessary, Petitioners are available for a telephone conference at
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`the Board’s convenience to discuss Petitioners’ objections.
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`3
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`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`
`Dated: June 16, 2017
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`Respectfully submitted,
`
`By: /Gabrielle E. Higgins/
`Gabrielle E. Higgins (lead counsel)
`Reg. No. 38,916
`Kathryn Hong (backup counsel)
`Reg. No. 63,693
`Ropes & Gray LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, CA 94303
`gabrielle.higgins@ropesgray.com
`kathryn.hong@ropesgray.com
`
`
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`Attorneys for Aruba Networks Inc., Hewlett
`Packard Enterprise Company and HP Inc.
`
`
`Mailing address for all correspondence: ROPES & GRAY LLP, IPRM – Floor 43,
`Prudential Tower, 800 Boylston St., Boston, MA 02199-3600
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`4
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`IPR2016-00768
`U.S. Patent No. 5,659,891
`
`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing PETITIONERS’
`
`OBJECTIONS TO PATENT OWNER’S DEMONSTRATIVE EXHIBITS
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`was served on June 16, 2017 in its entirety to the following Counsel for Patent
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`Owner via e-mail, pursuant to the parties’ agreement concerning service:
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`
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`Lead Counsel
`
`
`John R. Kasha
`
`
`Kasha Law LLC
`
`14532 Dufief Mill Rd.
`North Potomac, MD 20878
`Phone: 703-867-1886
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`Fax: 301-340-3022
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`john.kasha@kashalaw.com
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`Attorneys for Patent Owner Mobile Telecommunications Technologies, LLC
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`Back-up Counsel
`Kelly L. Kasha
`Kasha Law LLC
`14532 Dufief Mill Rd.
`North Potomac, MD 20878
`Phone: 240-423-8431
`Fax: 301-340-3022
`kelly.kasha@kashalaw.com
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`ROPES & GRAY LLP
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`/Crena Pacheco/
`Crena Pacheco
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`5
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