UNITED STATES PATENT AND TRADEMARK OFFICE
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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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. IPR2016-01261
`U.S. Patent No. 8,457,113 B2
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`
`
`PETITIONERS’ MOTION TO EXCLUDE
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`

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`TABLE OF CONTENTS
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`I.  MR. BATES’S DECLARATION (EXHIBIT 2070) SHOULD BE
`EXCLUDED .................................................................................................. 1 
`A. 
`Legal Standard for the Admissibility of Expert Opinions ................... 2 
`B.  Mr. Bates’s Opinions are Based on the Wrong Legal Standard .......... 3 
`EXHIBIT 2011 SHOULD BE EXCLUDED .............................................. 9 
`II. 
`III.  EXHIBITS 2021, 2024, 2025, 2027-2030, AND 2065 SHOULD BE
`EXCLUDED ................................................................................................ 10 
`IV.  EXHIBIT 2041 SHOULD BE EXCLUDED ............................................ 12 
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`i
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`TABLE OF AUTHORITIES
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`Cases
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`Bourjaily v. United States, 483 U.S. 171 (1987) ....................................................... 2
`Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 136 (2016) ................................ 9
`Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ........................ 2-3, 9-10
`Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ............................................... 3
`MasterImage 3D v. RealD, IPR2015-00040, 2015 WL 4383224 (P.T.A.B. July 15,
`2015) ....................................................................................................................... 4
`Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1303–08 (Fed. Cir. 2015) ....... 3
`Nike v. Adidas AG, 812 F.3d 1326, 1333-34 (Fed. Cir. 2016) .................................. 2
`Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1295-96 (Fed. Cir. 2015) ... 3
`The Scotts Company LLC v. Encap, LLC, IPR2013-00110, Paper 79, 6-8 (P.T.A.B.
`June 24, 2014) ......................................................................................................... 8
`Veeam Software Corp. v. Symantec Corp., IPR2013-00141, Paper 36, 3-5
`(P.T.A.B. April 7, 2014) ......................................................................................... 8
`Virnetx, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1328 (Fed. Cir. 2014) .................... 2
`
`
`Rules and Regulations
`37 C.F.R. § 42.20(c) ............................................................................................... 2-4
`37 C.F.R. § 42.23(b) ..............................................................................................2, 9
`37 C.F.R. § 42.24(a) ................................................................................................. 11
`37 C.F.R. § 42.24(b) ................................................................................................ 12
`37 C.F.R. § 42.62(a) ................................................................................................... 2
`37 C.F.R. § 42.64(c) ................................................................................................... 1
`37 C.F.R. § 42.121(b) ......................................................................................... 4, 13
`37 C.F.R. § 42.123 ..................................................................................................... 9
`Fed. R. Evid. 104(a) ................................................................................................... 2
`Fed. R. Evid. 106 ..................................................................................................... 12
`Fed. R. Evid. 402 ..................................................................................................... 10
`Fed. R. Evid. 403 ........................................................................................... 9-10, 12
`Fed. R. Evid. 702, 703 ................................................................................. 2, 3, 9-10
`Fed. R. Evid. 1006 ................................................................................................... 12
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012) . 2,
`9
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`ii
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`Pursuant to 37 C.F.R. § 42.64(c), Petitioners Bright House Networks, LLC,
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`WideOpenWest Finance, LLC, Knology of Florida, Inc., and Birch
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`Communications, Inc. (collectively “Petitioners”) hereby move to exclude: (1) the
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`Declaration of Regis J. “Bud” Bates in support of Patent Owner’s Motion to
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`Amend Reply (Exhibit 2070); (2) an opening claim construction expert declaration
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`of Dr. Eric Burger filed by Bright House Networks, LLC, WideOpenWest Finance,
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`LLC, Knology of Florida, Inc., Birch Communications, Inc., and T3
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`Communications, Inc., in district court litigation Case Nos. 3:15- cv-742-J-
`
`32MCR, 3:15-cv-743-J-32MCR, 3:15-cv-746-J-32MCR, 3:15-cv-747-J-32MCR
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`(Exhibit 2011, “Burger Litigation Declaration”); (3) Exhibit 2041; and (4) Exhibits
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`2021, 2024, 2025, 2027-2030, and 2065.
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`Petitioners have complied with the requirements of 37 C.F.R. § 42.64(c).
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`Specifically, Petitioners timely objected to each of these exhibits and, for each
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`exhibit, identified and explained the particular evidentiary grounds for their
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`objections. Paper 32; Paper 44.
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`I. MR. BATES’S DECLARATION (EXHIBIT 2070) SHOULD BE EXCLUDED
`Mr. Bates is Patent Owner’s proferred expert and his Declaration in support
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`of Patent Owner’s Motion to Amend Reply (Exhibit 2070) includes opinions
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`regarding the state of the art and how a person of ordinary skill would understand
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`the prior art and the scope of substitute claim 183 of U.S. Patent No. 8,456,113.
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`1
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`Mr. Bates’s opinions, however, are premised on the wrong legal standard such that
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`they cannot be accepted as reliable. Moreover, Exhibit 2070 includes untimely
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`statements and opinions of Mr. Bates that could have been included in Mr. Bates’s
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`Declaration (Exhibit 2040) in support of Patent Owner’s Motion to Amend (Paper
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`31) but were not. Accordingly, as discussed below, Exhibit 2070 should be
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`excluded at least under Federal Rules of Evidence (“F.R.E.”) 702, 703, 37 C.F.R.
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`§§ 42.20(c), 42.23(b), Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756,
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`48,767 (Aug. 14, 2012), and the standards in Daubert v. Merrell Dow Pharm., Inc.,
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`509 U.S. 579 (1993) and Nike v. Adidas AG, 812 F.3d 1326, 1333-34 (Fed. Cir.
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`2016); Paper 44.
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`A. Legal Standard for the Admissibility of Expert Opinions
`Patent Owner, as the proponent of Mr. Bates’s declaration (Exhibit 2070)
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`and the other exhibits that are the subject of this Motion, has the burden of
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`establishing admissibility by a preponderance of the evidence. See Fed. R. Evid.
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`104(a); Bourjaily v. United States, 483 U.S. 171 (1987).
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`The admissibility of expert testimony is governed by the Federal Rules of
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`Evidence and the principles laid out in Daubert. Virnetx, Inc. v. Cisco Sys., Inc.,
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`767 F.3d 1308, 1328 (Fed. Cir. 2014). The F.R.E., as applied in Daubert, do apply
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`to IPRs. 37 C.F.R. § 42.62(a). Under F.R.E. 702 and Daubert, judges play a
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`“gatekeeping role” and should exclude evidence if it is based upon “unreliable
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`principles or methods, legally insufficient facts and data, or where the reasoning or
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`methodology is not sufficiently tied to the facts of the case.” Summit 6, LLC v.
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`Samsung Elecs. Co., 802 F.3d 1283, 1295-96 (Fed. Cir. 2015). It is an abuse of
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`discretion to admit expert testimony that is not relevant or reliable. Kumho Tire
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`Co. v. Carmichael, 526 U.S. 137 (1999).
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`B. Mr. Bates’s Opinions are Based on the Wrong Legal Standard
`Mr. Bates’s Declaration (Exhibit 2070) should be excluded under F.R.E.
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`702, 703, and 37 C.F.R. § 42.20(c) as unreliable expert testimony because Mr.
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`Bates relies on the wrong legal standard. In its Reply in Support of its Motion to
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`Amend, Patent Owner unequivocally states that “[Patent Owner] believes
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`Petitioner bears the burden of proving that the Substitute Claim is not patentable.”
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`Paper 43 (“Motion to Amend Reply”), 1. In its Order providing guidance on
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`Patent Owner’s Motion to Amend Claims in this IPR, the Board reiterated the law
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`that Patent Owner, and not Petitioners, bear this burden:
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`As the moving party, Patent Owner bears the burden of proof to
`establish that it is entitled to the relief requested in the motion to
`amend. See 37 C.F.R. § 42.20(c). Entry of proposed amendments is
`not automatic, but occurs only upon Patent Owner demonstrating the
`patentability of each proposed substitute claim. See Microsoft Corp. v.
`Proxyconn, Inc., 789 F.3d 1292, 1303–08 (Fed. Cir. 2015) . . . In the
`motion to amend, Patent Owner must show written description
`support in the specification for each proposed substitute claim. See 37
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`3
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`C.F.R. § 42.121(b) . . . Additionally, Patent Owner must show
`patentability over the prior art that is relevant to the substitute claims,
`including prior art of record and prior art known to Patent Owner, and
`not just over the references applied by the Petitioner against the
`original patent claims . . . The motion should provide sufficient
`underlying facts regarding any feature added by the proposed
`substitute claim. For instance, it should be revealed whether the
`feature was previously known anywhere, in whatever setting, and
`whether or not the feature was known in combination with any of the
`other elements in the claim. If any such combination was known, the
`motion should explain the surrounding facts in that regard, and why it
`would not have been obvious for one with ordinary skill in the art to
`adapt that knowledge for use with the rest of the claim elements . . .
`Conclusory statements to the effect that no prior art known to Patent
`Owner renders obvious the proposed substitute claims, or that the
`closest prior art is the references in the record, are not meaningful.
`(Paper 29 (“Order on Motion to Amend”), 4-7 (emphasis added).)
`Patent Owner’s reliance on the wrong legal standard is inexcusable, blatantly
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`flies in the face of the Board’s order in this IPR and the cases cited by the Board
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`therein, and is fatal to its Motion. See also Nike, 812 F.3d at 1333-34 (“[T]he
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`burden of proving patentability of a proposed substitute claim [is] on the movant:
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`the patent owner.”); MasterImage 3D v. RealD, IPR2015-00040, 2015 WL
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`4383224 (P.T.A.B. July 15, 2015) (“The burden is not on the petitioner to show
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`unpatentability, but on the patent owner to show patentable distinction over the
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`prior art of record and also prior art known to the patent owner.”); Order on
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`Motion to Amend, 7 (internal citations omitted).
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`Mr. Bates’s opinions expressed in Exhibit 2070 are inadmissible as
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`unreliable and unhelpful to the Board under F.R.E. 702, 703, and Daubert as they
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`are clearly premised on Patent Owner’s obvious misunderstanding as to the correct
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`legal standard governing its Motion to Amend. See, e.g., Exhibit 2070, ¶¶32, 44,
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`50, 54-55; Motion to Amend Reply, 1. This misunderstanding is not
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`inconsequential. Due to this fundamental error, in his declaration accompanying
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`the Motion to Amend (Exhibit 2040), Mr. Bates states that these two features in the
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`Substitute Claim were not found in the prior art: (1) “communications between a
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`PSTN switch and the tandem access controller (TAC) . . . occur without passing
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`through an intervening edge switch” and (2) “the TAC receiving a first call request
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`associated with a first call and processing a second call associated with a second
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`call request and establishing voice communications across the packet network and
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`a network of tandems after the second call is answered.” Exhibit 2040, ¶¶152,
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`116-145. Petitioners’ Opposition clearly showed that both of these features were
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`disclosed in Archer and were well-known in the state of the art of converging IP-
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`PSTN networks. Paper 35, 1-2, 4-24. Mr. Bates even admitted this during his
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`deposition. Exhibit 1059, 205:15-206:16 (testifying that “the network as it
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`existed” “prior to May 4, 2000” included a “connecting node between an IP carrier
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`[network] and the PSTN . . . at a higher switch level, like a tandem switch” and
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`that this “higher level switch, like a tandem switch” would communicate with
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`“PCM” or “TDM” on “the PSTN side.”); Exhibit 1059, 155:13-158:11; 250:23-
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`251:17. Mr. Bates also did not address any other claim limitations in this original
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`declaration. See Exhibit 2040; Opposition, 3-4, 24-25. In fact, like the two
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`features that he alleged were not found in the prior art, he admitted that these
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`various other limitations were either well-known, or commensurate in scope with
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`limitations in the original claim that they replaced, during his deposition. See, e.g.,
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`Exhibit 1059, 36:1-12, 37:4-9; Exhibit 1060, 271:8-18 (The challenged patents
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`disclosed that “entering call control information for telephone features through a
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`web portal” was “disclosed as those things known in the industry.”), 272:18-20
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`(“typically” a “web portal would include a web server.”), 272:21-273:6; Paper 34,
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`2-3; 24-25.
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`In his declaration (Exhibit 2070) accompanying the Motion to Amend Reply
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`(Paper 43), Mr. Bates asserts, for example:
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` “Archer fails to disclose a TAC that processes the calls in a manner required
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`by the Substitute Claim of receiving a first call without answering it until a
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`second call is answered.” (Exhibit 2070, ¶42);
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` “The claimed invention requires that the first call be accepted and not
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`answered until the second call is answered.” (Id.);
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` “After acceptance of the first call (ACK) by the TAC the initiating caller hears
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`ringing or music while they wait because the first call has not been answered
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`(has not generated an ANM message, for example). Without the acceptance
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`of a first call that is not yet answered, the TAC would not be able to “process[]
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`a second call request associated with a second call across the packet network
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`to complete the call to the subscriber.” (Id.);
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` “Archer, however, teaches that a first call request is answered . . . prior to
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`processing a second call request across the packet network.” (Id.);
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` “There is no disclosure that open architecture switch 502 has any capabilities
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`to apply call features.” (Id., ¶44);
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` “Nor is there any disclosure that open architecture switch is coupled to a ‘web
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`enabled processing system including one or more web servers’ that would
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`allow a subscriber to set call control features.” (Id.);
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` “Petitioner did not even attempt to show that Lewis discloses a ‘web enabled
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`processing system including one or more web servers coupled to a tandem
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`access controller.’” (Id.);
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` “On the second point, Lewis does not teach, suggest, or disclose a TAC that
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`processes the calls in a manner required by the Substitute Claim of receiving
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`a first call without answering it until a second call is answered.” (Id., ¶45);
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` “[T]here is no disclosure that LaPier’s purported TAC has any capabilities to
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`apply call features associated with a subscriber. Nor is there any disclosure
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`that the purported TAC is coupled to a ‘web enabled processing system
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`including one or more web servers’ that would allow a subscriber to set call
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`control features. Petitioner did not even attempt to satisfy these limitations of
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`the Substitute Claim.” (Id., ¶50);
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` “LaPier fails to disclose a TAC that processes the calls in a manner required
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`by the Substitute Claim of receiving a first call without answering it until a
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`second call is answered.” (Id., ¶51);
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` “[T]here is simply no evidence in the record that anyone . . . had any reason
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`to add call features . . . in the manner recited in the Substitute Claim” (Id.,
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`¶51);
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` “Petitioner has not provided any reasons as to how or why a reference could
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`be modified or combined to read on each of the limitations recited in the
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`Substitute Claim.” (Id.);
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` “Petitioner did not even attempt to address the majority of the claim
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`limitations.” (Id.);
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` “Petitioner did not even attempt to show how any prior art reference could
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`possibly render the Substitute Claim obvious.” (Id.)
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`In doing so, Mr. Bates not only applies the wrong legal standard, but he also
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`introduces new opinions and new arguments that he could have included in his
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`8
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`original declaration (Exhibit 2040). Exhibit 2070, ¶¶¶42, 44-45, 47, 50-51, 54; cf.
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`Exhibit 2040, ¶¶116-145, 152. This is in direct contradiction to the Board’s Rules
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`and further render his testimony inadmissible as unreliable, unhelpful to the Board,
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`and unfairly prejudicial, under F.R.E. 702, 703, 403. See 37 C.F.R. § 42.23(b);
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012);
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`The Scotts Company LLC v. Encap, LLC, IPR2013-00110, Paper 79, 6-8 (P.T.A.B.
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`June 24, 2014) (granting motion to exclude expert declaration where opinions “could
`
`have been included with [patent owner’s] motion to amend opening brief” and were
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`thus “untimely.”); Veeam Software Corp. v. Symantec Corp., IPR2013-00141, Paper
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`36, 3-5 (P.T.A.B. April 7, 2014) (expunging expert declarations filed in support of
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`Reply to Motion to Amend for “raising new issues and providing additional evidence
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`that could have been provided in the motion to amend.”). Moreover, because he is
`
`applying the wrong legal standard, Mr. Bates’s testimony in Exhibit 2070 is also
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`unreliable and unhelpful to the Board under F.R.E. 702, 703, and Daubert as he also
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`fails to address combinations of the prior art of record and prior art known to the
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`patent owner. Paper 29, 6-7.
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`Thus. Exhibit 2070 should be excluded at least under F.R.E. 403, 702, 703,
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`the Board’s rules for Motions to Amend and Replies, and the standards in Daubert
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`and Nike.
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`II. EXHIBIT 2011 SHOULD BE EXCLUDED
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`Petitioners move to exclude Exhibit 2011 because this exhibit is irrelevant,
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`confuses the issues, wastes time, and is prejudicial. Paper 32, 3. Exhibit 2011 is
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`an opening claim construction expert declaration of Dr. Eric Burger filed by Bright
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`House Networks, LLC, WideOpenWest Finance, LLC, Knology of Florida, Inc.,
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`Birch Communications, Inc., and T3 Communications, Inc., in district court
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`litigation Case Nos. 3:15- cv-742-J-32MCR, 3:15-cv-743-J-32MCR, 3:15-cv-746-
`
`J-32MCR, 3:15-cv-747-J-32MCR.
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`This declaration should be excluded based on F.R.E. 402 because it is not
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`relevant to any issue in this IPR proceeding, and based on F.R.E. 403 because it
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`confuses the issues in this IPR, wastes time, and is prejudicial to Petitioners.
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`Patent Owner does not rely on this declaration in its Response and thus any attempt
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`to rely on it at the oral hearing is impermissible. See Paper 30 (“Response”);
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`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012);
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`37 C.F.R. § 42.123. Even if Patent Owner had relied on this declaration in its
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`Response, Mr. Burger is not a witness nor declarant in the present proceeding, and
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`his declaration was filed in a different forum with a different claim construction
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`standard than the broadest reasonable interpretation standard applicable to this IPR
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`proceeding. Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 136 (2016).
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`Thus, Exhibit 2011 should be excluded.
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`III. EXHIBITS 2021, 2024, 2025, 2027-2030, AND 2065 SHOULD BE EXCLUDED
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`Petitioners move to exclude Exhibits 2021, 2024, 2025, 2027-2030, and
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`2065, and any reference to or reliance thereon by Patent Owner, because these
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`exhibits are incomplete transcripts and submissions of witnesses who have not
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`submitted declarations or any direct testimony in the present case, and entities who
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`are not petitioners in the present case, and as Patent Owner’s reference to or
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`reliance thereon is taken out of context. Thus, these exhibits confuse the issues in
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`this IPR, waste time, and are prejudicial to Petitioners.
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`Exhibits 2021 and 2027 are respective copies of excerpts of the trial
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`transcript of the cross-examination of Mr. Dean Willis, and excerpts of a
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`declaration of Mr. Willis, from inter partes review proceedings IPR2016-01254
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`and IPR2016-01257. Exhibit 2024 is a copy of excerpts of Cisco Systems, Inc.’s
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`petition for inter partes review from inter partes review proceeding IPR2016-
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`01254. Exhibits 2028-2030, and 2065, are respective copies of excerpts of the trial
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`transcript of the cross-examination of Dr. Tal Lavian, and excerpts of a declaration
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`of Dr. Lavian, from inter partes review proceedings IPR2016-01256, IPR2016-
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`01258, and IPR2016-01260. Exhibit 2025 is a copy of excerpts of YMax
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`Corporation’s petition for inter partes review from inter partes review proceeding
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`IPR2016-01260. Neither Mr. Willis nor Dr. Lavian are witnesses in the present
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`proceeding and have not submitted declarations or any direct testimony in the
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`present case. Additionally, neither Cisco Systems, Inc. nor YMax Corporation are
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`petitioners in the present case.
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`These exhibits should be excluded under F.R.E. 106, 403, and 1006, because
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`they include only Patent Owner’s cherry-picked excerpts of the entire transcripts
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`and submissions of such witnesses and entities, and because Patent Owner relies
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`upon these excerpts out of the context of the rest of the testimony and documents.
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`For example, none of these excerpts involved testimony regarding interconnecting
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`two different types of networks (such as an IP network and a circuit switched
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`network) like the prior art of record in this proceeding. And Patent Owner has
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`deliberately excluded testimony of such witnesses in which the interconnection of
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`two different types of networks was discussed. See, e.g., Exhibit 2021, IPR2016-
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`01254, 80:2-20. Moreover, Exhibits 2021 and 2029 are also incomplete as they
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`lack the respective witnesses’ errata sheet.
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`Thus, Exhibits 2021, 2024, 2025, 2027-2030, and 2065 should be excluded.
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`IV. EXHIBIT 2041 SHOULD BE EXCLUDED
`Exhibit 2041, and any reference to or reliance thereon in this proceeding by
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`Patent Owner, should be excluded under 37 C.F.R. § 42.24(a) and the Board’s
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`Order providing guidance on Patent Owner’s Motion to Amend Claims (Paper 29).
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`Exhibit 2041 is Patent Owner’s “Listing of Section 112 Written Description
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`Support for the Proposed Substitute Claims.”
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`The Board authorized the Patent Owner to “address the requirement to show
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`written description support for each proposed substitute claim in accordance with
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`37 C.F.R. § 42.121(b) in a claim listing appendix to the motion to amend that does
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`not count toward the page limit of the motion.” Order on Motion to Amend, 2-3,
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`5, 7. The Board specifically ordered that “[t]he aforementioned appendix must
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`contain only citations and exact text of the specification showing written
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`description in the specification for each claim limitation of each proposed
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`substitute claim in accordance with 37 C.F.R. § 42.121(b)”, that “Patent Owner
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`should not include in its appendix any argument or characterizations in support of
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`written description,” and that “Patent Owner may reproduce only exact text of the
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`specification alongside the corresponding citations.” Id. at 2-3 (emphasis added).
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`However, Exhibit 2041 includes additional briefing and argument rather
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`than “only citations and exact text of the specification” in violation of the page
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`limits of 37 C.F.R. § 42.24(b) and in direct contravention of the Board’s order. See
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`Exhibit 2041, 1. Thus, at least page 1 of Exhibit 2041 should be excluded.
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`Dated: August 21, 2017
`
`DUANE MORRIS LLP
`ATTN: Patrick McPherson
`505 9th Street, NW, Suite 1000
`Washington, DC 20004
`Tel: 202-776-5214
`Fax: 202-776-7801
`
`
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`
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`
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`By:
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`
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`Respectfully submitted,
`DUANE MORRIS LLP
`
`/s/ Patrick D. McPherson
`Patrick D. McPherson
`Reg. No. 46,255
`Lead Counsel
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`14
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.53, the undersigned certifies that on August 21, 2017, a
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`complete and entire electronic copy of Petitioners’ Motion to Exclude was served
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`electronically via email on the following:
`
`Brent N. Bumgardner
`brent@nelbum.com
`PAL-IPR@nelbum.com
`
`John Murphy
`murphy@nelbum.com
`
`NELSON BUMGARDNER, P.C.
`3131 W. 7th Street, Suite 300
`Fort Worth, Texas 76107
`
`Victor Siber
`vsiber@siberlaw.com
`
`Hanna Madbak
`hmadbak@siberlaw.com
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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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