Case IPR2016-01263
`Patent 8,155,298
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`Paper No. 53
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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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`BRIGHT HOUSE NETWORKS, LLC
`WIDEOPENWEST FINANCE, LLC
`KNOLOGY OF FLORIDA, INC.
`BIRCH COMMUNICATIONS, 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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`________________
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`Case IPR2016-01263
`Patent Number: 8,155,298
`________________
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`PATENT OWNER FOCAL IP, LLC’S OPPOSITION TO
`PETITIONERS’ MOTION TO EXCLUDE
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`Patent 8,155,298
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`Paper No. 53
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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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`BRIGHT HOUSE NETWORKS, LLC
`WIDEOPENWEST FINANCE, LLC
`KNOLOGY OF FLORIDA, INC.
`BIRCH COMMUNICATIONS, 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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`________________
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`Case IPR2016-01263
`Patent Number: 8,155,298
`________________
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`PATENT OWNER FOCAL IP, LLC’S OPPOSITION TO
`PETITIONERS’ MOTION TO EXCLUDE
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`Case IPR2016-01263
`Patent 8,155,298
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`Patent Owner Focal IP, LLC respectfully submits this opposition to
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`Paper No. 53
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`Petitioners’ Motion to Exclude filed on August 21, 2017.
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`I.
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`EXHIBIT 2011 SHOULD NOT BE EXCLUDED.
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`Petitioners argue that Exhibit 2011 should be excluded under Rules 402 and
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`403 because Patent Owner does not rely on it in Patent Owner’s response. Paper
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`No. 52 at 1-2. Exhibit 2011 was introduced as an exhibit at the deposition of Dr. La
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`Porta, Petitioners’ expert. Ex. 2020 at 214:23-215:10. Dr. La Porta’s deposition
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`transcript was filed as an exhibit in full. Exs. 2019-2020. Exhibit 2011, as an exhibit
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`at that deposition, was accordingly also filed.
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`Exhibit 2011 is an expert declaration from Dr. Eric Burger, Petitioners’ expert
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`in the related district court proceeding, where Dr. Burger expresses his opinions on
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`how the claims at issue—including the claims of the challenged patent—should be
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`construed. See Ex. 2011, passim. The positions regarding claim construction that
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`Petitioners and its expert have taken in parallel proceedings are relevant and non-
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`prejudicial to Petitioners. For at least these reasons, Exhibit 2011 should not be
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`excluded under Rules 402 or 403.
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`1
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`Case IPR2016-01263
`Patent 8,155,298
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`II. EXHIBITS 2021, 2024, 2025, AND 2027-2030 SHOULD NOT BE
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`Paper No. 53
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`EXCLUDED.
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`Petitioners argue that Exhibits 2021, 2024, 2025, and 2027-20301 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 and entities from other cases and (2) Patent Owner’s
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`reference to or reliance on these exhibits is out of context. Paper No. 50 at 2-4.
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`None of these rules support exclusion of these exhibits.
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`Rule 106 does not provide a basis for excluding Exhibits 2021, 2024, 2025,
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`and 2027-2030. Rule 106 states: “If a party introduces all or part of a writing or
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`recorded statement, an adverse party may require the introduction, at that time, of
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`any other part—or any other writing or recorded statement—that in fairness ought
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`to be considered at the same time.” Fed. R. Evid. 106. Thus, at most, Rule 106
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`would allow Petitioners to seek the admission of other portions of documents they
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`contend are incomplete. Indeed Petitioners have already introduced the full
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`transcript of Mr. Willis’s deposition and relied on a portion of it in their reply. See
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`Ex. 1061 (Willis deposition transcript); Paper No. 39 at 11. But they have chosen
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`not to introduce other portions of the exhibits they now challenge, either in their
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`1 Petitioners’ also argue that Exhibit 2065 should be excluded. There is no
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`Exhibit 2065 in this proceeding.
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`2
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`Case IPR2016-01263
`Patent 8,155,298
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`reply or here. Exhibits 2021, 2024, 2025, and 2027-2030 therefore should not be
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`Paper No. 53
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`excluded under Rule 106.
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`Rule 1006 also does not provide a basis for excluding Exhibits 2021, 2024,
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`2025, and 2027-2030. Rule 1006 merely allows a party to “use a summary, chart,
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`or calculation to prove the content of voluminous writings, recordings, or
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`photographs that cannot be conveniently examined in court,” and requires the party
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`to make the originals available for examination or copying and, if ordered by the
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`court, to produce the originals in court. Fed. R. Evid. 1006. But Exhibits 2021,
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`2024, 2025, and 2027-2030 are not summaries, charts, or calculations, but excerpts
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`of petitions, declarations, and deposition transcripts. Rule 1006 therefore does not
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`apply.
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`Finally, Exhibits 2021, 2024, 2025, and 2027-2030 should not be excluded
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`under Rule 403. Notably, Petitioners have not argued that these exhibits are
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`irrelevant, but only that they confuse the issues, waste time, and are prejudicial to
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`Petitioners. Paper No. 52 at 3-4. According to Petitioners, Patent Owner relies on
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`these exhibits out of context of the rest of the testimony and the documents. Id. For
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`example, Petitioners argue that “none of these excerpts involved testimony
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`regarding interconnecting two different types of networks (such as an IP network
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`and a circuit switched network) like the prior art of record in this proceeding.” Id.
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`at 4. This is an argument about the weight to be given to the evidence, not about the
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`Case IPR2016-01263
`Patent 8,155,298
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`admissibility of the evidence. The proper time for such arguments was in
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`Paper No. 53
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`Petitioners’ reply. These exhibits are used in a non-confusing manner to illustrate
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`the state of the art and the opinions of other experts, which Patent Owner and its
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`expert rely upon to support their analysis. The Board should not exclude Exhibits
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`2021, 2024, 2025, and 2027-2030 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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`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 Petitioners’ Motion to Exclude Evidence has been
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`served in its entirety 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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`Paper No. 53
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`Case IPR2016-01263
`Patent 8,155,298
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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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`May Eaton
`BAKER BOTTS L.L.P.
`1001 Page Mill Road
`Building One, Suite 200
`Palo Alto, CA 94304
`Phone: (650) 739-7520
`Facsimile: (650) 739-7620
`may.eaton@bakerbotts.com
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`Patrick McPherson
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington DC 20004
`Tel: 202-776-5214
`Fax: 202-776-7801
`PDMcPherson@duanemorris.com
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`Christopher Tyson
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington DC 20004
`Tel: 202-776-7851
`Fax: 202-776-7801
`CJTyson@duanemorris.com
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`Kyle Lynn Elliott
`Spencer Fane LLP
`1000 Walnut, Suite 1400
`Kansas City, MO 64106
`Tel: 816-292-8150
`Fax: 816-474-3216
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`Case IPR2016-01263
`Patent 8,155,298
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`sfbbaction@spencerfane.com
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`Dated: August 28, 2017
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`Paper No. 53
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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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