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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ARRIS GROUP, INC.
`Petitioner
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`v.
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`TQ DELTA, LLC
`Patent Owner
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`Case: IPR2016-01160
`Patent 8,611,404
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE UNDER 37 C.F.R. §42.64(c)
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`I.
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`INTRODUCTION
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`Petitioner ARRIS Group, Inc. opposes Patent Owner TQ Delta’s Motion to
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`Exclude (Paper 25) requesting that the Board exclude Petitioner’s Exhibits 1007,
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`1008, 1010, 1011, 1012, 1014, 1015, 1016, and 1019 and paragraphs 21-23, 25-28,
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`and 147-249 of Ex. 1003 because it is improper.
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`II. THE EXHIBITS ARE RELEVANT AND PUBLIC POLICY
`DICTATES PRESERVING THE RECORD
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`In Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co., the Board noted:
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`There is a strong public policy for making all information filed in a
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`non-jury, quasi-judicial administrative proceeding available to the
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`public, especially in an inter-partes review which determines the
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`patentability of claim in an issued patent . . . . it is better to have a
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`complete record of the evidence submitted by the parties than to
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`exclude particular pieces.
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`No. CMB2012-00002, Paper 66, at 60-61 (P.T.A.B. Jan 23, 2014).
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`Here, the Exhibits are relied on not only in support of the non-instituted
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`grounds, but also to explain the relevant technology. See, e.g., Petition at 14-22.
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`Indeed, most of the Exhibits are prior art references relied on to illustrate the state
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`of the art before the claimed invention. Accordingly, since the Exhibits are relied
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`upon throughout the Petition for these reasons, there is a strong public interest in
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`making them available to the public. Id. at 60-61. See also 37 C.F.R. §42.14. The
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`1
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`Board in Duncan Parking Technologies, Inc. v. IPS Group Inc. explained that
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`“documents relied upon by a petitioner in support of a ground of unpatentability,
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`even if that ground proves unsuccessful, generally should be made available to the
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`public. Indeed, maintaining the integrity of the public record weighs in favor of
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`keeping underlying documents in the record that are part of the history of the
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`proceeding.” No. IPR2016-00067, Paper 29, at 17 (P.T.A.B. March 27, 2017).
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`While the Board may ignore these exhibits as not related to the instituted
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`ground of review, the presence of the Exhibits in the record does not impact the
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`Board’s decision, but their absence from the record does a disservice to the public.
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`As explained by the Board in Duncan Parking Tech., “we do not discern why
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`simply the presence in the record of documents associated with the unsuccessful
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`ground of petition would lead to a ‘confusion’ to either the public or any reviewing
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`tribunal. . . . It does not follow that documents that were part of a ground which did
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`not proceed to trial will somehow lead to confusion in any review of the Board’s
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`determination as to the ground on which trial was instituted.” Id. at 17.
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`If the Exhibits are excluded, the record would be incomplete. Id at 17. Those
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`viewing the petition in the future would not only lack access to the Exhibits, but
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`would also not understand (without deeper investigation) why they are missing.
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`For at least these reasons, the Exhibits are relevant and public policy dictates
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`preserving the record.
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`2
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`III. CONCLUSION
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`The Patent Owner’s Motion to Exclude Evidence should be denied for at
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`least the reasons stated above.
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`Dated: August 18, 2017
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`Respectfully submitted,
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`/Charles W. Griggers/
`Charles W. Griggers
`Reg. No. 47,283
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`Attorney for Petitioner
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`3
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that copies of the foregoing Petitioner’s
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`Opposition to Patent Owner’s Motion to Exclude Evidence were served on August
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`18, 2017, via electronic mail, per agreement of the parties, to counsel for the
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`following addresses:
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`Peter McAndrews (Reg. No. 38,547) at pmcandrews@mcandrews-ip.com
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`Thomas J. Wimbiscus (Reg. No. 36,059) at twimbiscus@mcandrews-ip.com
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`Scott P. McBride (Reg. No. 42,853) at smcbride@mcandrews-ip.com
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`Christopher M. Scharff (Reg. No. 53,556) at cscharff@mcandrews-ip.com
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`By:
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` /Charles W. Griggers/
`Charles W. Griggers
`Reg. No. 47,283
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`Attorney for Petitioner
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