Filed on behalf of TQ Delta LLC
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`
`Case IPR2016-01009
`Patent No. 8,238,412 B2
`_____________
`
`PATENT OWNER’S MOTION TO EXCLUDE INADMISSIBLE
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`
`Case IPR2016-01009
`Patent No. 8,238,412 B2
`_____________
`
`PATENT OWNER’S MOTION TO EXCLUDE INADMISSIBLE
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(c)
`
`1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01009
`Patent No. 8,238,412
`
`
`Pursuant to 37 C.F.R. § 42.64, Patent Owner TQ Delta, LLC (“Patent
`
`Owner”) hereby moves to exclude certain of Petitioner’s exhibits for lack of
`
`admissibility under the Federal Rules of Evidence (“FRE”).1 In particular, Patent
`
`Owner moves to exclude the following:
`
`Exhibit 1103, Short Declaration in IPR2016-01020: The exhibit is
`
`hearsay under FRE 801-802. It does not fall within any of the exceptions of FRE
`
`803. The declaration is not from an expert to this proceeding, and Petitioners have
`
`not shown that Mr. Short was unavailable for deposition in connection with this
`
`proceeding. If Petitioners had wished to introduce testimony from Mr. Short in
`
`this proceeding, they were required to seek his deposition in this proceeding.
`
`Expert reports, affidavits, declarations, and deposition transcripts from other
`
`proceedings are not admissible. See, e.g., Kirk v. Raymark Indus., Inc., 61 F.3d
`
`147 (3d Cir. 1995) (an expert’s deposition in a prior, unrelated case could not be
`
`used against party in pending case); Estate of Miller v. Ford Motor Co., No. 2:01-
`
`cv-545-FtM-29DNF, 2004 U.S. Dist. LEXIS 29846, at *28 (M.D. Fla. July 22,
`
`
`1 Patent Owner does not waive its objections to Petitioner’s improper new evidence
`
`submitted for the first time on Reply; pursuant to Board guidance this motion only
`
`addresses inadmissibility under the Rules of Evidence.
`
`
`
`2
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01009
`Patent No. 8,238,412
`
`2004) (deposition testimony from employees of a party in a separate lawsuit is not
`
`admissible absent a showing of unavailability).
`
`Ex. 1109 (FCC filing by Alcatel) and App. B to Ex. 1112 (FCC Order):
`
`Exhibit 1109 is also hearsay under FRE 801-802. It is being relied upon for the
`
`truth of the matter asserted, i.e., that “Alcatel measures PSD based on Reverb” and
`
`that Alcatel’s alleged PSD based on Reverb is “for each upstream individual
`
`channel—not a single value.” Ex. 1100, Kiaei Reply Decl. at ¶ 39 and Reply at pp.
`
`30, 33. It does not fall within any of the exceptions of FRE 803; for example, it is
`
`not a public record or report of a public office or agency, but rather a statement by
`
`an unrelated non-party to a public office or agency. It is well established that
`
`third-party pleadings in unrelated proceedings are inadmissible hearsay. See, e.g.,
`
`Transunion Risk & Al. Data Sols., Inc. v. MacLachlan, 2016 U.S. Dist. LEXIS
`
`24569 at *16 n. 6 (S.D. Fla. Feb. 29, 2016) (with respect to “statements in a
`
`nonparty’s proxy statement filed with the SEC,” defendant “correctly notes that the
`
`proxy statement is hearsay and [Plaintiff] fails to cite any hearsay exception
`
`rendering it admissible.”); Rivera v. Metro Transit Auth., 750 F. Supp. 2d 456,
`
`2010 U.S. Dist. LEXIS 120289, *6-7 (S.D.N.Y. 2010) (“An unsworn statement by
`
`a non-party in a complaint in another lawsuit is hearsay when offered to prove the
`
`truth of that statement. It is not admissible”).
`
`
`
`3
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01009
`Patent No. 8,238,412
`
`
`Mr. Bader’s declaration and the Appendix B submitted therewith (Exhibit
`
`1112) do not cure the hearsay nature of Exhibit 1109. Patent Owner is aware of no
`
`legal authority that a third-party’s pleadings to an unrelated government agency
`
`become non-hearsay simply because they were cited by the agency in that third
`
`party’s proceeding (e.g., the third-party’s hearsay statements do not becomes
`
`records “of” the agency). Moreover, the statement in Exhibit 1109 upon which
`
`Petitioners rely was not separately made or recognized in the agency order attached
`
`to Mr. Bader’s declaration. Petitioners do not cite to Appendix B of Exhibit 1112
`
`for any substantive purpose. Accordingly, Appendix B to Exhibit 1112 is not
`
`relevant to any issue in this proceeding under FRE 401-402.
`
`Finally, with respect to each of these exhibits, they are not admissible as
`
`exhibits on the record merely because they were cited by or relied upon by
`
`Petitioners’ exhibit. See FRE 703. Citing an exhibit in an expert declaration is not
`
`a loop-hole for independently admitting an inadmissible exhibit. See, e.g.,
`
`Finchum v. Ford Motor Co., 57 F.3d 526, 532 (7th Cir. 1995) (fact that expert
`
`relied on exhibit “does not automatically mean that the information itself is
`
`independently admissible in evidence . . . the [Plaintiff] could not have introduced
`
`the exhibit into evidence because of the hearsay rule”).
`
`
`
`
`
`4
`
`
`
`
`
`
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison St., Suite 3400
`Chicago, IL 60661
`Telephone: (312) 775-8000
`Lead Counsel for Patent Owner
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01009
`Patent No. 8,238,412
`
`Dated: July 5, 2017
`
`
`
`
`
`5
`
`
`
`Patent Owner’s Motion to Exclude
`IPR2016-01009
`Patent No. 8,238,412
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify, pursuant to 37 C.F.R. Section 42.6, that a complete copy of
`
`the attached PATENT OWNER’S MOTION TO EXCLUDE is being served
`
`on July 5, 2017, by electronic mail to the following:
`
`Lead Counsel
`David L. McCombs
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Tel. 214-651-5533
`Fax 214-200-0853
`david.mccombs.ipr@haynesboone.com
`
`Dated: July 5, 2017
`
`
`
`
`
`
`
`
`
`
`
`Back-up Counsel
`Theodore M. Foster
`Tel. 972-739-8649
`Gregory P. Huh
`Tel. 972-739-6939
`Russell Emerson
`Tel. 214-651-5328
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Fax 972-692-9156
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`russell.emerson.ipr@haynesboone.com
`
`
`
`/Peter J. McAndrews/
`
`
`
`
`
`
`
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison Street, 34th Floor
`Chicago, Illinois 60661
`Telephone: (312) 775-8000
`
`6
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
