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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Bright House Networks, LLC,
`WideOpenWest Finance, LLC,
`Knology of Florida, Inc.
`Birch Communications, Inc.
`Petitioners
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`v.
`
`Focal IP, LLC,
`Patent Owner
`
`
`
`Case No. IPR2016-01259
`U.S. Patent No. 8,155,298
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`
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`PETITIONERS’ REPLY IN SUPPORT OF THEIR MOTION TO
`EXCLUDE
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`DM2\8151675.1
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`I.
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`PATENT OWNER HAS NOT OVERCOME THE ARGUMENTS IN THE MOTION
`TO EXCLUDE FOR EXHIBITS 2011, 2021, 2024, 2025, AND 2027-2030
`A. Exhibit 2011 Remains Inadmissible
`For the reasons set forth in Petitioners’ Motion to Exclude (Paper 48),
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`Exhibit 2011 remains irrelevant under F.R.E. 402 and any attempted reliance on
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`this exhibit by the Patent Owner for the first time during the oral hearing remains
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`improper under F.R.E. 403 and the Board’s rules. Patent Owner acknowledges
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`that it does not cite to Exhibit 2011 in any paper in this proceeding. Paper 49,
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`Opposition to Motion to Exclude (“Opposition”), at 1.
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`Thus, the Board should exclude this exhibit and reject any attempt by Patent
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`Owner to make any argument relying on this document at the oral hearing, like the
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`one it improperly attempts to inject for the first time in its Opposition. Id.; Office
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`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012) (“A party
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`may . . . only present arguments relied upon in the papers previously submitted. No
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`new evidence or arguments may be presented at the oral argument.”)
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`B.
`Exhibits 2021, 2024, 2025, and 2027-2030 Remain Inadmissible
`Patent Owner acknowledges that Exhibits 2021, 2024, 2025, and 2027-2030
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`are incomplete transcripts and submissions of witnesses who have not submitted
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`declarations or any direct testimony in the present case, and of entities who are not
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`petitioners in the present case. Opposition at 2-3. Patent Owner’s argument that
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`Petitioners, instead of itself, needed to submit the complete transcripts and
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`DM2\8151675.1
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`1
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`submissions for each of these exhibits with their Reply is yet another improper
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`attempt to shift Patent Owner’s burden of complying with the F.R.E. onto
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`Petitioners.
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`Rather, Petitioners followed the procedures set forth in F.R.E. 106 and 37
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`C.F.R. 42.64 by timely objecting to these exhibits as incomplete and preserving
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`those objections in its Motion to Exclude. Patent Owner refused to respond to
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`these objections with supplemental evidence including the complete documents
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`and thus failed to cure its lack of compliance with the F.R.E. Petitioners’ filing of
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`Exhibit 1161 did not retroactively relieve Patent Owner of its obligation to comply
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`with the Federal Rules, or with those of this Board, for all of these exhibits.
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`Thus, Exhibits 2021, 2024, 2025, and 2027-2030 remain inadmissible in this
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`IPR.
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`II. CONCLUSION
`For at least the above reasons and the reasons set forth in Petitioners’ Motion
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`to Exclude (Paper 48), the Board should exclude Exhibits 2011, 2021, 2024, 2025,
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`and 2027-2030.
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`DM2\8151675.1
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`2
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`Dated: September 5, 2017
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`BAKER BOTTS LLP
`ATTN: Wayne Stacy
`101 California Street, Suite 3600
`San Francisco, CA 94111
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`
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`By:
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`
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`Respectfully submitted,
`BAKER BOTTS LLP
`/s/ Wayne Stacy
`Wayne Stacy
`Reg. No. 45,125
`Lead Counsel
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`DM2\8151675.1
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`3
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.53, the undersigned certifies that on September 5, 2017,
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`a complete and entire electronic copy of Petitioners’ Reply to Their Motion to
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`Exclude was served electronically via email on the following:
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`Brent N. Bumgardner
`brent@nelbum.com
`PAL-IPR@nelbum.com
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`John Murphy
`murphy@nelbum.com
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`NELSON BUMGARDNER, P.C.
`3131 W. 7th Street, Suite 300
`Fort Worth, Texas 76107
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`Victor Siber
`vsiber@siberlaw.com
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`Hanna Madbak
`hmadbak@siberlaw.com
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`
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`DM2\8151675.1
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`1
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`By: /s/ Christopher J. Tyson
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`Christopher J. Tyson
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`Reg. No. 63,850
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`Back-up Counsel
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