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