`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
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`VALVE CORPORATION,
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`Petitioner,
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`v.
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`IRONBURG INVENTIONS LTD.,
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`Patent Owner.
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`____________
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`Cases
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`IPR2016-00948 (Patent 8,641,525 B2)
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`IPR2016-00949 (Patent 9,089,770 B2)
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`
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`PATENT OWNER’S MOTION TO EXCLUDE
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`PURSUANT TO 37 C.F.R. § 42.64(c)
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`
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`TABLE OF CONTENTS
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`Page
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`B.
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`INTRODUCTION .......................................................................................... 1
`I.
`LEGAL STANDARD .................................................................................... 2
`II.
`III. ARGUMENT .................................................................................................. 2
`A.
`Exhibit 1007 Is Inadmissible Hearsay, Not Authenticated,
`Irrelevant And Misleading/Confusing .................................................. 2
`1.
`Exhibit 1007 Is Unauthenticated ................................................ 2
`2.
`Exhibit 1007 Is Inadmissible Hearsay ....................................... 4
`3.
`Exhibit 1007 Is Irrelevant, Misleading And Confusing............. 6
`The Petitioner Response And Exhibits 1025-1027 Are
`Inadmissible .......................................................................................... 8
`1.
`Exhibits 1025-1027 And The Petitioner Response Are
`Inadmissible Pursuant To 37 C.F.R § 42.123(b) ....................... 8
`Exhibits 1025-1027 Are Unauthenticated, Irrelevant And
`Confusing ................................................................................. 10
`Exhibits 1025-1027 And The Petitioner Response Were
`Improperly Filed And Should Be Expunged From The
`Record ...................................................................................... 11
`IV. CONCLUSION ............................................................................................. 12
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`2.
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`3.
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`TABLE OF AUTHORITIES
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`Page
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`FEDERAL CASES
`Avocent Huntsville Corp. v. Cyber Switching Patents,
`LLC, Case IPR2015-00690, Paper 28 at 5–7 (PTAB Oct. 2, 2015) .............. 9, 12
`EMC Corp. v. Personalweb Techs., LLC,
`IPR2013-00084, Paper 64 at 45 (PTAB May 15, 2014) ...................................... 4
`IA Labs CA, LLC v. Nintendo Co., Ltd.,
`857 F.Supp.2d 550 (D. Md., Feb. 14, 2012) ......................................................... 7
`Loraine v. Markel Am. Ins. Co.,
`241 F.R.D. 534 (D. Md. 2007) ............................................................................. 4
`Nestle Oil OYJ, v. REG Synthetic Fuels, LLC,
`IPR2013-00578, Paper 53 at 4 (PTAB March 12, 2015) ................................. 3, 4
`Standard Innovation Corp. v. Lelo, Inc.,
`IPR2014-00148, Paper 41 at 13-15 (PTAB April 23, 2015) ................................ 6
`Symantec Corp. v. Trustees of Columbia Univ.,
`IPR2015-00372, Paper 30 at 2-3 (PTAB Sept. 29, 2015) .................................. 11
`RULES
`F.R.E. 401 .............................................................................................................. 1, 6
`F.R.E. 402 .............................................................................................................. 1, 2
`F.R.E. 403 .............................................................................................. 1, 2, 6, 10, 11
`F.R.E. 801-803 ....................................................................................................... 2, 4
`F.R.E. 802 .................................................................................................................. 4
`F.R.E. 901 .......................................................................................................... 2, 3, 4
`F.R.E. 902 .................................................................................................................. 3
`F.R.E. 902(3) .................................................................................................. 3, 10, 11
`REGULATIONS
`37 C.F.R. § 42.62(a) ................................................................................................... 2
`37 C.F.R. § 42.64 ................................................................................................... 1, 9
`37 C.F.R. § 42.64(b)(2) .................................................................................... 2, 9, 11
`37 C.F.R. § 42.64(c) ................................................................................................... 1
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`TABLE OF AUTHORITIES
`(continued)
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`Page
`37 C.F.R. § 42.123(a) ............................................................................................. 8, 9
`37 C.F.R. § 42.123(b) ........................................................................................ 2, 8, 9
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. § 42.64(c), Patent Owner Ironburg Inventions Ltd.
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`(“Patent Owner”) moves to exclude Exhibits 1007 and 1025-1027, submitted by
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`Petitioner Valve Corporation (“Petitioner”) in support of Petitioner’s Corrected
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`Petition (Paper 4) filed May 2, 2016 and Petitioner’s Reply to the Patent Owner
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`Response filed on March 28, 2017. Exhibit 1007 was objected to on three different
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`occasions: (1) Patent Owner’s Preliminary Response (dated July 28, 2016),
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`(2) Patent Owner’s Objections to Petitioner’s Evidence Pursuant to 37 C.F.R.
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`§42.64 (dated November 1, 2016), and (3) Patent Owner’s Objections to Evidence
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`Relied Upon in Petitioner’s Reply (dated April 4, 2017).
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`In response to Patent Owner’s objections, Petitioner filed supplemental
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`evidence on November 14, 2016 and April 13, 2017. Petitioner’s first attempt to
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`provide supplemental evidence was in the form of a Declaration of Joshua C.
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`Harrison (“Harrison Declaration”), and the second attempt involved the filing of
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`Exhibits 1025-1027 accompanied by a Petitioner Response.
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`Petitioner’s Exhibit 1007 should be excluded as lacking authentication,
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`inadmissible hearsay, irrelevant to the present action, and/or confusing or
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`misleading. See Federal Rules of Evidence (“F.R.E.”) 901, 802, and 401-403.
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`Petitioner’s Exhibits 1025-1027 should also be excluded as untimely and/or
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`inadmissible. See 37 C.F.R. § 42.64(b)(2); 37 C.F.R. § 42.123(b). Further, the
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`Petitioner’s Supplemental Evidence Filed In Response to Patent Owner’s
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`Evidentiary Objections (Paper No. 25/26) and Exhibits 1025-1027 should be
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`expunged from the record.
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`II. LEGAL STANDARD
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`The Federal Rules of Evidence govern the admissibility of evidence and
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`expert testimony in an inter partes review. 37 C.F.R. § 42.62(a). Irrelevant
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`evidence is not admissible. F.R.E. 402. Additionally, relevant evidence may be
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`excluded “if its probative value is substantially outweighed by a danger of …
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`unfair prejudice, [or] confusing the issues.” F.R.E. 403. In addition, statements not
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`made while testifying at the current trial or hearing offered to prove the truth of the
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`matter asserted are inadmissible unless an exception justified admission.
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`F.R.E. 801-803. Lastly, to authenticate an item of evidence, “the proponent must
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`produce evidence sufficient to support a finding that the item is what the proponent
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`claims it is.” F.R.E. 901.
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`III. ARGUMENT
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`A. Exhibit 1007 Is Inadmissible Hearsay, Not Authenticated,
`Irrelevant And Misleading/Confusing
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`
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`1.
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`Exhibit 1007 Is Unauthenticated
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`F.R.E. 901 requires authentication with evidence sufficient to support a
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`finding that the matter in question is what its proponent claims. Petitioner failed to
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`provide any evidence to support a finding that Exhibit 1007 is what Petitioner
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`claims it is, and thus, Exhibit 1007 is inadmissible and should be excluded.
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`Exhibit 1007 is allegedly a webpage retrieved from the U.K. Intellectual
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`Property Office. See Declaration of Joshua C. Harrison (“Harrison Declaration”),
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`EX1013 at ¶7. Exhibit 1007 is not self-authenticating. F.R.E. 902. Indeed, F.R.E.
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`902(3) requires that a foreign public document “must be accompanied by a final
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`certification that certifies the genuineness of the signature and official position of
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`the signer or attester – or of any foreign official whose certificate of genuineness
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`relates to the signature or attestation or is in a chain of certificates of genuineness
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`relating to the signature or attestation.” (emphasis added). “The certification may
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`be made by a secretary of a United States embassy or legation; by a consul general,
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`vice consul, or consular agent of the United States; or by a diplomatic or consular
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`official of the foreign country assigned or accredited to the United States.” Id.
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`Exhibit 1007 did not have the required final certification, and as such, is not self-
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`authenticating.
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`“When offering a printout of a webpage into evidence to prove the website’s
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`contents, the proponent of the evidence must authenticate the information from the
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`website itself, not merely the printout.” Nestle Oil OYJ, v. REG Synthetic Fuels,
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`LLC, IPR2013-00578, Paper 53 at 4 (PTAB March 12, 2015). “For this reason, the
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`Board has required that to authenticate printouts from a website, the party
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`proffering the evidence must produce some statement or affidavit from someone
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`with knowledge of the website for example a web master or someone else with
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`personal knowledge would be sufficient.” Id. (internal quotations omitted); F.R.E.
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`901; see also EMC Corp. v. Personalweb Techs., LLC, IPR2013-00084, Paper 64
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`at 45 (PTAB May 15, 2014). To do so, the witness authenticating electronic
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`evidence must “provide factual specificity about the process by which the
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`electronically stored information is created, acquired, maintained, and preserved
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`without alteration or change, or the process by which it is produced if the result of
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`system or process that does so.” Loraine v. Markel Am. Ins. Co., 241 F.R.D. 534,
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`545 (D. Md. 2007). Here, the Harrison Declaration does not meet this standard.
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`Because Petitioner provides insufficient authenticating testimony, Exhibit 1007
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`should be excluded.
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`
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`2.
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`Exhibit 1007 Is Inadmissible Hearsay
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`Patent Owner objects to Exhibit 1007 as containing inadmissible hearsay,
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`pursuant to F.R.E. 802. If, as here, an exception does not apply, the rule against
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`hearsay operates to prohibit out-of-court statements from being offered to prove
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`the truth of the matter asserted. F.R.E. 801–803.
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`Exhibit 1007 is inadmissible hearsay evidence including specific statements
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`by a UK examiner, Mr. Donohoe, in an unrelated patent application. In its
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`Petitioner’s Reply, Petitioner quotes the UK examiner’s statements as follows:
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`“It is extremely well known in the art to modify gamepads to suit the
`requirements of a particular game or gamer. […] The features
`defined in your claims are typical features of gamepad
`controls/buttons. As evidenced by the documents listed above, the
`skilled person would consider them as nothing more than routine
`modifications or variations to literally any gamepad. Moreover, the
`skilled person would find it entirely obvious to modify or tailor a
`given conventional gamepad to suit the needs of any individual, and
`would possess (or have ready access to) the skills and knowledge
`required to do so.”
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`Petitioner’s Reply to the Patent Owner Response, IPR2016-00949, Paper 24
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`at 22 (PTAB March 28, 2017) (emphasis in original); Petitioner’s Reply to
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`the Patent Owner Response, IPR2016-00948, Paper 23 at 21 (PTAB March
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`28, 2017) (emphasis in original).
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`In reliance on this out-of-court statement, Petitioner concludes in its Reply
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`that “[e]vidently such modifications were typically obvious to a POSITA without
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`hindsight, and implemented successfully. That is corroborated by a timely
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`description of the state of the video game controller art by Mr. Donohoe, a
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`POSITA speaking for the UK Intellectual Property Office …” Id.
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`Petitioner offered the statement to prove the truth of the matter asserted
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`therein. Specifically, Exhibit 1007 is hearsay because Petitioner is using the out-
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`of-court statements to prove what Petitioner contends was known in the art at the
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`time of the invention. Here, the UK examiner's statement is not prior art, not from
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`before the application was originally filed, not sworn testimony, and is therefore
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`hearsay not subject to any hearsay exception. See, e.g., Standard Innovation Corp.
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`v. Lelo, Inc., IPR2014-00148, Paper 41 at 13-15 (PTAB April 23, 2015) (hearsay
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`statements not subject to exceptions were found inadmissible in PTAB
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`proceeding). Petitioner has not shown that a hearsay exception applies. Indeed,
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`there is no applicable exception. As such, Exhibit 1007 constitutes inadmissible
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`hearsay and should be excluded on that basis alone.
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`3.
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`Exhibit 1007 Is Irrelevant, Misleading And Confusing
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`Exhibit 1007 is also misleading and confusing, and as such, should be
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`excluded under F.R.E. 401, 403. Exhibit 1007 is irrelevant, misleading, and
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`confusing because the statements were not made in the context of the Challenged
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`Claims nor in the context of applicable U.S. law. The statements are not relevant to
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`the patentability of the Challenged Claims, particularly to the extent it has not been
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`shown to be prior art or evidence of the level of ordinary skill in the art at the
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`relevant time period. It is also irrelevant because Petitioner failed to carry its
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`burden of establishing the U.K. Examiner qualifies as a person of ordinary skill in
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`the art (“POSITA”).
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`Indeed, Petitioner’s expert opined that a POSITA is “a designer of
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`commercial video game controllers” that “would have a bachelor’s degree in an
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`industrial design or engineering field, and approximately two years of relevant
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`experience.” (EX1012, ¶ 11.) Petitioner never explains how the U.K. Examiner
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`actually qualifies as a POSITA under Petitioner’s own proposed minimum
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`qualifications. Petitioner makes no effort to present the U.K. Examiner’s
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`educational background, whether the U.K. Examiner even had any prior experience
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`in video game controller technology, or even if he did, how the U.K. Examiner’s
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`prior experience was relevant to the video game controller industry. Petitioner also
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`failed to explain how a U.K. Examiner, presumably trained under U.K. Patent
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`Law, and not U.S. Patent Law or video game technology, is actually a skilled
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`artisan with respect to the technology of the ‘770 Patent and the ‘525 Patent.
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`Just as the vast majority of U.S. district courts have deemed parallel USPTO
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`proceedings, such as reexamination proceedings, to have little relevance to factual
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`issues underlying the question of obviousness in the district court cases, so does a
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`U.K. patent office examination of a U.K. patent application have little relevance
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`here. See IA Labs CA, LLC v. Nintendo Co., Ltd., 857 F.Supp.2d 550 (D. Md.,
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`Feb. 14, 2012) (holding that evidence relating to PTO reexamination be excluded
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`because the probative value was outweighed by its potential for undue prejudice)
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`(citing Callaway Golf v. Acushnet Co., 576 F.3d 1331, 1343 (Fed. Cir. 2009);
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`Belden Techs., Inc. v. Superior Essex Commc'ns, LP, 802 F.Supp.2d 555, 569
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`(D.Del. 2011); Transamerica Life Ins. v. Lincoln Nat'l Life Ins. Co., 597 F.Supp.2d
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`897, 907 (N.D.Iowa 2009)). As such, Exhibit 1007 is irrelevant, confusing and
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`misleading and should be excluded on that basis as well.
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`The Petitioner Response And Exhibits 1025-1027 Are
`Inadmissible
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`B.
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`1.
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`Exhibits 1025-1027 And The Petitioner Response Are
`Inadmissible Pursuant To 37 C.F.R. § 42.123(b)
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`Exhibits 1025-1027 and Petitioner’s accompanying Response (dated April
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`13, 2017) are inadmissible because Petitioner failed to seek authorization to file a
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`motion to submit supplemental information pursuant to 37 C.F.R. § 42.123(b).
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`Once a trial has been instituted, a party may file a motion to submit supplemental
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`information. 37 C.F.R. § 42.123(a). However, “[a] party seeking to submit
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`supplemental information more than one month after the date the trial is instituted,
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`must request authorization to file a motion to submit the information.” 37 C.F.R. §
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`42.123(b). The motion to submit supplemental information must show: (1) “why
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`the supplemental information reasonably could not have been obtained earlier,”
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`and (2) “that consideration of the supplemental information would be in the
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`interests-of-justice.” Id.
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`Petitioner has failed to file a motion to submit Exhibits 1025-1027 and the
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`accompanying Response, much less the Board’s authorization to file such motion.
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`Petitioner has not and cannot demonstrate why the belated Exhibits “reasonably
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`could not have been obtained earlier.” Id. This is particularly true given that each
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`of the exhibits were accessible prior to the original filing date of the Petition.
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`Furthermore, Petitioner has not demonstrated “that consideration of the
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`supplemental information would be in the interests-of-justice,” particularly in light
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`of its inexcusable delay in submitting those exhibits. 37 C.F.R. § 42.123(b).
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`The PTAB rules expressly provide procedures for introducing supplemental
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`evidence or supplemental information into a proceeding. See 37 C.F.R.
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`42.64(b)(2) (supplemental evidence), 42.123(a)-(c) (supplemental information).
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`Only supplemental evidence related to admissibility can be provided without a
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`motion under 37 CFR 42.64. See Avocent Huntsville Corp. v. Cyber Switching
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`Patents, LLC, Case IPR2015-00690, Paper 28 at 5–7 (PTAB Oct. 2, 2015)
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`(“Supplemental evidence, served in response to an evidentiary objection, is offered
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`solely to support admissibility of the originally filed evidence and to defeat a
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`motion to exclude that evidence, and not to support any argument on the merits
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`(i.e., regarding the patentability or unpatentability of a claim).”).
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`Here, Petitioner’s Exhibits 1025-1027 fail to support the admissibility of
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`Exhibit 1007. Moreover, Petitioner failed to explain in Petitioner’s April 13, 2017
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`Response how these exhibits support the admissibility of Exhibit 1007. Thus,
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`Petitioner’s Exhibits 1025-1027 and the accompanying Response should be
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`excluded because Petitioner has failed to seek the Board’s authorization to file a
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`motion to submit these exhibits pursuant to 37 C.F.R. § 42.123(b).
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`Exhibits 1025-1027 Are Unauthenticated, Irrelevant And
`Confusing
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`2.
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`Exhibits 1025-1027 are irrelevant and confusing because they do not have
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`any tendency to make a fact more or less probable than it would be without the
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`exhibits, nor are Exhibits 1025-1027 of any consequence in determining the
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`validity of the ‘525 Patent or the ‘770 Patent. F.R.E. 403.
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`Exhibit 1025 is merely the entire U.K. prosecution record from which
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`Exhibit 1007 was excerpted. Exhibit 1025, in its entirety, is not relevant to the
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`present proceedings, has no bearing on the validity of the ‘525 Patent or the ‘770
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`Patent, and does not resolve the hearsay objections to the U.K. Examiner’s
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`comments within Exhibit 1007 that are being offered for no other purpose than for
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`the truth of the matter asserted. Nor is Exhibit 1025 resolve the authentication or
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`confusion/misleading problems of Exhibit 1007. Indeed, Exhibit 1025 is similarly
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`inadmissible because it was unauthenticated and did not have the required
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`certification per F.R.E. 902(3).
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`Exhibit 1026 is a “Study on Inventive Step” by the Standing Committee on
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`the Law of Patents and published by the World Intellectual Property Organization.
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`This study discusses patentability criteria that is irrelevant to U.S. Patent Law and
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`also has no bearing on these proceedings. It appears that Exhibit 1026 is hearsay
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`within hearsay, being offered by Petitioner to validate the U.K. Examiner’s
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`opinions within Exhibit 1007. Exhibit 1026 does nothing to correct Exhibit 1007’s
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`hearsay, authentication, relevancy or confusion/misleading issues, and is therefore,
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`completely irrelevant to the validity of the ‘525 Patent and the ‘770 Patent.
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`Further, foreign patent law is irrelevant to this U.S. proceeding and its inclusion
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`into the record merely serves to confuse issues before the Board. F.R.E. 403.
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`Exhibit 1027 are excerpts from other U.K. patent applications that were
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`examined by the U.K. Examiner; abstracts of a subset of patent documents
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`previously examined by Examiner Donohoe. Exhibit 1027 has nothing to do with
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`hearsay or authentication objections in connection with the Examiner’s comments
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`in Exhibit 1007. It also inadmissible because: (a) it was unauthenticated and did
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`not have the required certification per F.R.E. 902(3); and (b) it is irrelevant to this
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`U.S. proceeding and its inclusion into the record merely serves to confuse the
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`issues before the Board. F.R.E. 403.
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`3.
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`Exhibits 1025-1027 And The Petitioner Response Were
`Improperly Filed And Should Be Expunged From The
`Record
`The PTAB rules required supplemental evidence to be served, not filed,
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`following an objection. 37 C.F.R. § 42.64(b)(2); see also Symantec Corp. v.
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`Trustees of Columbia Univ., IPR2015-00372, Paper 30 at 2-3 (PTAB Sept. 29,
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`2015) (“Under 37 C.F.R. § 42.64(b)(2), a party may respond to an objection to
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`evidence by serving supplemental evidence within ten business days of service of
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`the objection. Patent Owner prematurely filed supplemental evidence before a
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`motion to exclude, and thus the exhibits filed as supplemental evidence will be
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`expunged from the record of these proceedings.”) (emphasis in original).
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`Petitioner filed Exhibits 1025-1027 and the accompanying Petitioner’s
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`Response as supplemental evidence. As previously stated, supplemental evidence
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`“is offered solely to support admissibility of the originally filed evidence … and
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`not to support any argument on the merits (i.e., regarding the patentability or
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`unpatentability of a claim).” See Avocent, Case IPR2015-00690, Paper 28, slip op.
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`at 5–7 (PTAB Oct. 2, 2015). Consequently, Petitioner cannot use Exhibits 1025-
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`1027 to support its arguments on the merits. As such, Patent Owner requests that
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`Exhibits 1025-1027 and the accompanying Petitioner Response be expunged from
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`the record.
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`IV. CONCLUSION
`For the reasons discussed above, Patent Owner respectfully requests that
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`Exhibits 1007, 1025-1027 be excluded from this proceeding, and the April 13,
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`2017 Response, including Exhibits 1025-1027 be expunged from the record.
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`Date: May 5, 2017
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`Respectfully submitted,
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`By: /s/ Ehab M. Samuel
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`Ehab Samuel
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`Attorney for Patent Owner
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`Reg. No. 57,905
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`Danielle Mihalkanin
`Attorney for Patent Owner
`Reg. No. 69,506
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e) and 42.105(b), the undersigned certifies
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`that on May 5, 2017, a complete and entire electronic copy of this PATENT
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`OWNER’S MOTION TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64(c), was
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`served via PTAB E2E to Petitioner’s counsel of record at the following address:
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`
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`Joshua C. Harrison, Reg. No. 45,686, josh@bhiplaw.com
`Reynaldo C. Barcelo, Reg. No. 42,290, rey@bhiplaw.com
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`Respectfully submitted,
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`By: /s/ Ehab M. Samuel
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`Ehab Samuel
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`Attorney for Patent Owner
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`Reg. No. 57,905
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`Danielle Mihalkanin
`Attorney for Patent Owner
`Reg. No. 69,506
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`Date: May 5, 2017
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`318611673.3
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`13
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