UNITED STATES PATENT AND TRADEMARK OFFICE
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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. IPR2016-01263
`U.S. Patent No. 8,155,298
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`PETITIONERS’ MOTION TO EXCLUDE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`Bright House Networks, LLC,
`WideOpenWest Finance, LLC,
`Knology of Florida, Inc.
`Birch Communications, Inc.
`Petitioners
`
`v.
`
`Focal IP, LLC,
`Patent Owner
`
`
`
`Case No. IPR2016-01263
`U.S. Patent No. 8,155,298
`
`
`
`PETITIONERS’ MOTION TO EXCLUDE
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`I.
`II.
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`TABLE OF CONTENTS
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`EXHIBIT 2011 SHOULD BE EXCLUDED .............................................. 1
`EXHIBITS 2021, 2024, 2025, 2027-2030, AND 2065 SHOULD BE
`EXCLUDED .................................................................................................. 2
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`i
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`TABLE OF AUTHORITIES
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`Cases
`Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. 136 (2016) ................................ 2
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`Rules and Regulations
`37 C.F.R. § 42.64(c) ................................................................................................... 1
`37 C.F.R. § 42.123 ..................................................................................................... 2
`Fed. R. Evid. 106 ....................................................................................................... 4
`Fed. R. Evid. 402 ....................................................................................................... 2
`Fed. R. Evid. 403 ...................................................................................................2, 4
`Fed. R. Evid. 1006 ..................................................................................................... 4
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012)...2
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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) an
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`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-
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`J-32MCR, 3:15-cv-747-J-32MCR (Exhibit 2011, “Burger Litigation Declaration”);
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`and (2) Exhibits 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 37.
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`I.
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`EXHIBIT 2011 SHOULD BE EXCLUDED
`Petitioners move to exclude Exhibit 2011 because this exhibit is irrelevant,
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`confuses the issues, wastes time, and is prejudicial. Paper 37, 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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`1
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`litigation Case Nos. 3:15- cv-742-J-32MCR, 3:15-cv-743-J-32MCR, 3:15-cv-746-
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`J-32MCR, 3:15-cv-747-J-32MCR.
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`This declaration should be excluded based on Federal Rules of Evidence
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`(“F.R.E.”) 402 because it is not relevant to any issue in this IPR proceeding, and
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`based on F.R.E. 403 because it confuses the issues in this IPR, wastes time, and is
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`prejudicial to Petitioners. Patent Owner does not rely on this declaration in its
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`Response and thus any attempt to rely on it at the oral hearing is impermissible.
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`See Paper 30 (“Response”); Office Patent Trial Practice Guide, 77 Fed. Reg.
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`48,756, 48,768 (Aug. 14, 2012); 37 C.F.R. § 42.123. Even if Patent Owner had
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`relied on this declaration in its Response, Mr. Burger is not a witness nor declarant
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`in the present proceeding, and his declaration was filed in a different forum with a
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`different claim construction standard than the broadest reasonable interpretation
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`standard applicable to this IPR proceeding. Cuozzo Speed Technologies, LLC v.
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`Lee, 579 U.S. 136 (2016).
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`Thus, Exhibit 2011 should be excluded.
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`II. EXHIBITS 2021, 2024, 2025, 2027-2030, AND 2065 SHOULD BE EXCLUDED
`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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`2
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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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`3
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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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`Respectfully submitted,
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`
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`By: /Wayne Stacy/
`Wayne Stacy
`USPTO Reg. No. 45,125
`Baker Botts LLP
`101 California Street, Suite 3600
`San Francisco, CA 94111
`LEAD COUNSEL FOR
`PETITIONERS
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`Dated: August 21, 2017
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`4
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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:
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`
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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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`Dated: August 21, 2017
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`1
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`Respectfully submitted,
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`
`
`By: /Wayne Stacy/
`Wayne Stacy
`USPTO Reg. No. 45,125
`Baker Botts LLP
`101 California Street, Suite 3600
`San Francisco, CA 94111
`LEAD COUNSEL FOR
`PETITIONERS
`
`
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