Case IPR2016-01254
`Patent 8,457,113
`
`
`
`Paper No. 44
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`CISCO SYSTEMS, INC.,
`
`Petitioner
`
`
`v.
`
`
`FOCAL IP, LLC,
`
`Patent Owner
`
`________________
`
`Case IPR2016-01254
`Patent Number: 8,457,113
`________________
`
`
`
`
`PATENT OWNER FOCAL IP, LLC’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE
`
`
`
`
`
`
`
`Patent 8,457,113
`
`
`
`Paper No. 44
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`CISCO SYSTEMS, INC.,
`
`Petitioner
`
`
`v.
`
`
`FOCAL IP, LLC,
`
`Patent Owner
`
`________________
`
`Case IPR2016-01254
`Patent Number: 8,457,113
`________________
`
`
`
`
`PATENT OWNER FOCAL IP, LLC’S OPPOSITION TO
`PETITIONER’S MOTION TO EXCLUDE
`
`
`
`
`
`
`
`
`Case IPR2016-01254
`Patent 8,457,113
`
`Patent Owner Focal IP, LLC respectfully submits this opposition to
`
`Paper No. 44
`
`
`
`Petitioner’s Motion to Exclude filed on August 21, 2017.
`
`I.
`
`EXHIBITS 2023, 2025, AND 2028-2030 SHOULD NOT BE
`
`EXCLUDED.
`
`Petitioner argues that Exhibits 2023, 2025, and 2028-20301 should be
`
`excluded under Rules 106, 403, and 1006 because (1) they are incomplete transcripts
`
`and submissions of witnesses from other cases and (2) Patent Owner’s reference to
`
`or reliance on these exhibits is out of context. Paper No. 43 at 1-2. None of these
`
`rules support exclusion of these exhibits.
`
`The Board should not exclude Exhibits 2023, 2025, and 2028-2030 under
`
`Rule 106. As an initial matter, Petitioner waived any argument that these exhibits
`
`should be excluded under Rule 106 because it did not make such an objection within
`
`five business days of service of these exhibits. See 37 C.F.R. § 42.64(b)(2); Paper
`
`No. 26 (Cisco objections to evidence) at 1-2. Moreover, even if Petitioner had
`
`preserved this argument, Rule 106 does not provide a basis for excluding the
`
`exhibits. Rule 106 states: “If a party introduces all or part of a writing or recorded
`
`statement, an adverse party may require the introduction, at that time, of any other
`
`
`1 Petitioner also argues that Exhibit 2065 should be excluded. There is no
`
`Exhibit 2065 in this proceeding.
`
`
`
`1
`
`
`
`Case IPR2016-01254
`Patent 8,457,113
`
`part—or any other writing or recorded statement—that in fairness ought to be
`
`Paper No. 44
`
`
`
`considered at the same time.” Fed. R. Evid. 106. Thus, at most, Rule 106 would
`
`allow Petitioner to seek the admission of other portions of documents it contends
`
`are incomplete. Petitioner has not done so, either in its reply or here. Exhibits 2023,
`
`2025, and 2028-2030 therefore should not be excluded under Rule 106.
`
`Rule 1006 also does not provide a basis for excluding Exhibits 2023, 2025,
`
`and 2028-2030. Rule 1006 merely allows a party to “use a summary, chart, or
`
`calculation to prove the content of voluminous writings, recordings, or photographs
`
`that cannot be conveniently examined in court,” and requires the party to make the
`
`originals available for examination or copying and, if ordered by the court, to
`
`produce the originals in court. Fed. R. Evid. 1006. But Exhibits 2023, 2025, and
`
`2028-2030 are not summaries, charts, or calculations, but excerpts of petitions,
`
`declarations, and deposition transcripts. Rule 1006 therefore does not apply.
`
`Finally, Exhibits 2023, 2025, and 2028-2030 should not be excluded under
`
`Rule 403. Notably, Petitioner has not argued that these exhibits are irrelevant, but
`
`only that they confuse the issues, waste time, and are prejudicial to Petitioner. Paper
`
`No. 43 at 1-2. According to Petitioner, Patent Owner relies on these exhibits out of
`
`context of the rest of the testimony and the documents. Id. For example, Petitioner
`
`argues that “none of the excerpts involved testimony regarding interconnecting two
`
`different types of networks (such as an IP network and a circuit switched network)
`2
`
`
`
`
`
`Case IPR2016-01254
`Patent 8,457,113
`
`like the prior art of record in this proceeding.” Paper No. 43 at 2. This is an
`
`Paper No. 44
`
`
`
`argument about the weight to be given to the evidence, not about the admissibility
`
`of the evidence. The proper time for such arguments was in Petitioner’s reply.
`
`These exhibits are used in a non-confusing manner to illustrate the state of the art
`
`and the opinions of other experts, which Patent Owner and its expert rely upon to
`
`support their analysis. The Board should not exclude Exhibits 2023, 2025, and
`
`2028-2030 under Rule 403.
`
`
`
`
`
`
`
`Dated: August 28, 2017
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`/s/ Brent N. Bumgardner
`Brent N. Bumgardner
`
`Registration No. 48,476
`NELSON BUMGARDNER, P.C.
`3131 W. 7th Street, Suite 300
`Fort Worth, Texas 76107
`Telephone: (817) 377-3490
`Email: brent@nelbum.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`
`
`
`
`Case IPR2016-01254
`Patent 8,457,113
`
`
`
`
`Paper No. 44
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 28th day of August 2017, a copy of Patent Owner
`
`FOCAL IP, LLC’s Opposition to Motion to Exclude has been served in its entirety
`
`via email on the following:
`
`
`Wayne Stacy
`BAKER BOTTS L.L.P.
`2001 Ross Avenue
`Dallas, TX 75201
`Phone: (214) 953-6678
`Facsimile: (214) 661-4678
`wayne.stacy@bakerbotts.com
`
`Sarah J. Guske
`BAKER BOTTS L.L.P.
`101 California Street, #3070
`San Francisco, CA 94111
`Phone: (415) 291-6205
`Facsimile: (415) 291-6305
`sarah.guske@bakerbotts.com
`
`
`
`
`Dated: August 28, 2017
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully Submitted,
`
`/s/ Brent N. Bumgardner
`Brent N. Bumgardner
`
`Registration No. 48,476
`NELSON BUMGARDNER, P.C.
`3131 W. 7th Street, Suite 300
`Fort Worth, Texas 76107
`Telephone: (817) 377-3490
`Email: brent@nelbum.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`4
`
`
`
`
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
