`
`
`
`
`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’ REPLY IN SUPPORT OF THEIR MOTION TO
`EXCLUDE
`
`DM2\8151696.1
`
`
`
`
`
`I.
`
`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 52),
`
`Exhibit 2011 remains irrelevant under F.R.E. 402 and any attempted reliance on
`
`this exhibit by the Patent Owner for the first time during the oral hearing remains
`
`improper under F.R.E. 403 and the Board’s rules. Patent Owner acknowledges
`
`that it does not cite to Exhibit 2011 in any paper in this proceeding. Paper 53,
`
`Opposition to Motion to Exclude (“Opposition”), at 1.
`
`Thus, the Board should exclude this exhibit and reject any attempt by Patent
`
`Owner to make any argument relying on this document at the oral hearing, like the
`
`one it improperly attempts to inject for the first time in its Opposition. Id.; Office
`
`Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012) (“A party
`
`may . . . only present arguments relied upon in the papers previously submitted. No
`
`new evidence or arguments may be presented at the oral argument.”)
`
`B.
`Exhibits 2021, 2024, 2025, and 2027-2030 Remain Inadmissible
`Patent Owner acknowledges that Exhibits 2021, 2024, 2025, and 2027-2030
`
`are incomplete transcripts and submissions of witnesses who have not submitted
`
`declarations or any direct testimony in the present case, and of entities who are not
`
`petitioners in the present case. Opposition at 2-3. Patent Owner’s argument that
`
`Petitioners, instead of itself, needed to submit the complete transcripts and
`
`DM2\8151696.1
`
`1
`
`
`
`
`
`submissions for each of these exhibits with their Reply is yet another improper
`
`attempt to shift Patent Owner’s burden of complying with the F.R.E. onto
`
`Petitioners.
`
`Rather, Petitioners followed the procedures set forth in F.R.E. 106 and 37
`
`C.F.R. 42.64 by timely objecting to these exhibits as incomplete and preserving
`
`those objections in its Motion to Exclude. Patent Owner refused to respond to
`
`these objections with supplemental evidence including the complete documents
`
`and thus failed to cure its lack of compliance with the F.R.E. Petitioners’ filing of
`
`Exhibit 1061 did not retroactively relieve Patent Owner of its obligation to comply
`
`with the Federal Rules, or with those of this Board, for all of these exhibits.
`
`Thus, Exhibits 2021, 2024, 2025, and 2027-2030 remain inadmissible in this
`
`IPR.
`
`II. CONCLUSION
`For at least the above reasons and the reasons set forth in Petitioners’ Motion
`
`to Exclude (Paper 52), the Board should exclude Exhibits 2011, 2021, 2024, 2025,
`
`and 2027-2030.
`
`DM2\8151696.1
`
`2
`
`
`
`
`
`Dated: September 5, 2017
`
`BAKER BOTTS LLP
`ATTN: Wayne Stacy
`101 California Street, Suite 3600
`San Francisco, CA 94111
`
`
`
`
`
`
`By:
`
`
`
`
`
`Respectfully submitted,
`BAKER BOTTS LLP
`/s/ Wayne Stacy
`Wayne Stacy
`Reg. No. 45,125
`Lead Counsel
`
`DM2\8151696.1
`
`3
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.53, the undersigned certifies that on September 5, 2017,
`
`a complete and entire electronic copy of Petitioners’ Reply to Their Motion to
`
`Exclude was served 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
`
`
`
`
`
`
`
`
`
`DM2\8151696.1
`
`1
`
`By: /s/ Christopher J. Tyson
`
`Christopher J. Tyson
`
`Reg. No. 63,850
`
`Back-up Counsel
`
`
`
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