UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________
`
`JUNIPER NETWORKS INC.,
`RUCKUS WIRELESS, INC.,
`BROCADE COMMUNICATION SYSTEMS, INC.,
`and NETGEAR, INC.,
`
`Petitioners,
`
`v.
`
`CHRIMAR SYSTEMS, INC.,
`
`Patent Owner.
`
`
`
`Case IPR2016-013991
`
`U.S. Patent No. 8,902,760
`
`
`
`
`
`
`
`PATENT OWNER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`1 Ruckus Wireless, Inc., Brocade Communication Systems, Inc. and Netgear, Inc.
`
`filed a petition in (now terminated) IPR2017-00719, who have been joined to the
`
`instant proceeding.
`
`
`
`

`

`Case No.: IPR2016-01399
`Patent No.: 8,902,760
`
`
`
`
`
`
`Table of Contents
`
`Atty. Dkt. No.: CHRMC0110IPR1
`
`Table of Authorities .................................................................................................. ii
`
`List of Exhibits ......................................................................................................... iii
`
`I.
`
`II.
`
`Introduction ...................................................................................................... 1
`
`Argument ......................................................................................................... 1
`
`A.
`
`B.
`
`The Board should exclude new evidence and new arguments,
`which Petitioners should have included in their original Petition ........ 1
`1.
`Petitioners’ new exhibits used to bolster Petitioners’
`obviousness analysis are untimely and should be
`excluded ...................................................................................... 2
`Petitioners’ new exhibits used to supplement their
`Grounds of the original Petition are untimely and should
`be excluded ................................................................................. 6
`Exhibits 1021-1029, 1031, and 1035 are inadmissible hearsay ..........10
`
`2.
`
`III. Conclusion .....................................................................................................12
`
`Certificate of Service ...............................................................................................14
`
`Certificate of Compliance Pursuant to 37 C.F.R. § 42.24 .......................................16
`
`
`
`
`
`i
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`

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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
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`
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`Atty. Dkt. No.: CHRMC0110IPR1
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`Table of Authorities
`
`Cases
`
`Apple, Inc. v. DSS Tech. Mgmt., Inc.,
`
`IPR2015-00369, Paper No. 14 (PTAB Aug. 12, 2015) .................................10
`
`Ariosa Diagnostics v. Verinata Health, Inc.,
`
`805 F.3d 1359 (Fed. Cir. 2015) ....................................................................... 2
`
`Corning Inc. v. DSM IP Assets B.V.,
`
`IPR2013-00052, Paper No. 88 (PTAB May 1, 2014) ..................................... 2
`
`In re Epstein,
`
`32 F.3d 1559 (Fed. Cir. 1994) .......................................................................10
`
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`
`821 F.3d 1359 (Fed. Cir. 2016) ...................................................................1, 2
`
`MaxLinear, Inc. v. Cresta Tech. Corp.,
`
`IPR2015-00594, Paper No. 90 (PTAB Aug. 15, 2016) ................................... 8
`
`Nestlé Purina PetCare Co. v. Oil-Dri Corp. of Am.,
`
`IPR2015-00737, Paper No. 37 (PTAB June 20, 2016) ...............................1, 8
`
`Toshiba Corp. v. Optical Devices, LLC,
`
`IPR2014-01447, Paper No. 34 (PTAB Mar. 9, 2016) .................................1, 2
`
`Statutes
`
`35 U.S.C. § 312 .......................................................................................................... 7
`37 C.F.R. § 42.123 ..................................................................................................... 2
`37 C.F.R. § 42.22 ....................................................................................................... 7
`37 C.F.R. § 42.64 ...................................................................................................1, 2
`
`Rules
`
`Fed. R. Evid. 801 .....................................................................................................10
`Fed. R. Evid. 802 .....................................................................................................10
`Fed. R. Evid. 803 .....................................................................................................10
`
`ii
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`

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`Atty. Dkt. No.: CHRMC0110IPR1
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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
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`
`
`
`
`List of Exhibits
`
`
`Identifier
`
`Exhibit
`Description
`No.
`2017 Memorandum Opinion and Order,
`Dkt. No. 96, filed in Chrimar Systems,
`Inc., et al. v. AMX, LLC, Civil Action
`No. 6:13-cv-881-JDL, Eastern District
`of Texas
`2018 Memorandum Opinion and Order,
`Dkt. No. 105, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`2019 Memorandum Opinion and Order,
`Dkt. No. 108, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`2020 Memorandum Opinion and Order,
`Dkt. No. 122, filed in Chrimar
`Systems, Inc., et al. v. Alcatel-Lucent,
`et al., Civil Action No. 6:15-cv-163-
`JDL, Eastern District of Texas
`2021 Memorandum Opinion and Order,
`Dkt. No. 123, filed in Chrimar
`Systems, Inc., et al. v. Alcatel-Lucent,
`et al., Civil Action No. 6:15-cv-163-
`JDL, Eastern District of Texas
`2035 Memorandum Opinion and Order,
`Dkt. No. 318, filed in Chrimar
`Systems, Inc., et al. v. AMX, LLC,
`Civil Action No. 6:13-cv-881-JDL,
`Eastern District of Texas
`
`Date
`10/22/2014
`
`1/8/2015
`
`1/16/2015
`
`3/28/2016
`
`3/28/2016
`
`9/27/2016
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
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`

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`Atty. Dkt. No.: CHRMC0110IPR1
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`Identifier
`
`Date
`6/15/2010
`
`11/22/2010
`
`
`
`
`
`
`
`11/5/1999
`
`Madisetti Decl.
`Crayford Dep.
`Anderson 1999
`slides
`
`3/7-8/2000
`
`5/24-25/2000
`
`
`
`
`
`5/24/2000
`
`Dove slides
`
`5/24/2000
`
`Anderson 2000
`slides
`
`7/11-12/2000
`
`
`
`Case No.: IPR2016-01399
`Patent No.: 8,902,760
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`
`
`Exhibit
`Description
`No.
`2036 Response to Office Action (Reexam
`Control No. 90/009,513) (June 15,
`2010)
`2037 Notice of Intent to Issue Ex Parte
`Reexamination Certificate (Reexam
`Control No. 90/009,513) (Nov. 22,
`2010)
`2038 Declaration of Dr. Vijay Madisetti
`2039 Deposition transcript of Ian Crayford
`2040
`Slides titled “DTE Power via MDI:
`System Requirements,” presented on
`November 5, 1999 by Arlan Anderson
`of Nortel Networks
`IEEE Power via MDI Task Force
`Meeting Minutes from March 7-8,
`2000
`IEEE Power via MDI Task Force
`Meeting Minutes from May 24-25,
`2000
`Slides titled “DTE Power over MDI:
`Building Consensus,” presented on
`May 24, 2000 by Ralph Andersson of
`TDK Semiconductor, Daniel Dove of
`Hewlett Packard, and Robert Muir of
`Level One Communications
`Slides titled “Powering and Discovery
`Alternatives,” presented on May 24,
`2000 by Arlan Anderson of Nortel
`Networks
`IEEE Power via MDI Task Force
`Meeting Minutes from July 11-12,
`2000
`
`2041
`
`2042
`
`2043
`
`2044
`
`2045
`
`iv
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`Case No.: IPR2016-01399
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`Exhibit
`No.
`2046
`
`2047
`
`Description
`Slides titled “Technical Feasibility of
`Sending Common Mode Power on the
`Signal Pairs,” presented on May 24,
`2000 by Roger Karam and Karl
`Nakamura of Cisco Systems
`E. Krol & E. Hoffman, Internet
`Engineering Task Force Network
`Working Group, Request for
`Comments: 1462, “FYI on “What is
`the Internet?’”
`2048 Declaration of Clyde Camp
`2049 U.S. Patent No. 5,995,392
`2050 Madisetti Curriculum Vitae
`
`Atty. Dkt. No.: CHRMC0110IPR1
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`Date
`
`
`
`Identifier
`Karam slides
`
`May 1993
`
`Krol RFC
`
`
`
`
`
`Camp Decl.
`
`
`
`
`
`
`
`
`v
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`

`

`Case No.: IPR2016-01399
`Patent No.: 8,902,760
`
`
`I.
`
`Introduction
`
`Atty. Dkt. No.: CHRMC0110IPR1
`
`Pursuant to 37 C.F.R. § 42.64(c), Patent Owner, Chrimar Systems, Inc.,
`
`(“Chrimar”), moves to exclude Petitioners’ Juniper Networks Inc., Ruckus
`
`Wireless, Inc., Brocade Communication Systems, Inc. and Netgear, Inc.
`
`(collectively referred to as “Petitioners”) Exhibits 1021 to 1044 (the “Challenged
`
`Exhibits”).
`
`II. Argument
`
`A. The Board should exclude new evidence and new arguments,
`which Petitioners should have included in their original
`Petition
`
`Petitioners’ Reply Brief and accompanying declaration (Ex. 1046) are
`
`riddled with new evidence not previously disclosed in the original Petition. That
`
`new evidence and the accompanying arguments relying on it are improper and
`
`should be excluded. Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821
`
`F.3d 1359, 1369-70 (Fed. Cir. 2016); Nestlé Purina PetCare Co. v. Oil-Dri Corp.
`
`of Am., IPR2015-00737, Paper No. 37 at 24 (PTAB June 20, 2016) (refusing to
`
`consider new evidence proffered in Reply that Petition “could have presented”
`
`with Petition); Toshiba Corp. v. Optical Devices, LLC, IPR2014-01447, Paper No.
`
`34 at 44-47 (PTAB Mar. 9, 2016) (granting motion to exclude where Petitioner
`
`submitted exhibits for the first time in Reply Brief without authorization); Corning
`
`Inc. v. DSM IP Assets B.V., IPR2013-00052, Paper No. 88 at 16 (PTAB May 1,
`
`1
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`2014) (declining to consider testing results presented in a Reply that purported to
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`Atty. Dkt. No.: CHRMC0110IPR1
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`correct the testing described in the petition). Indeed, Exhibits 1021-1043 were not
`
`filed, as provided for by statute, under 37 C.F.R. § 42.123(b) as “supplemental
`
`information,” but instead constitute improper submissions of new evidence outside
`
`the context of 37 C.F.R. § 42.123 or 37 C.F.R. § 42.64(b), and therefore warrant
`
`exclusion. Toshiba Corp., IPR2014-01447, Paper No. 34 at 45 (PTAB Mar. 9,
`
`2016); see also Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767
`
`(Aug. 14, 2012) (“[A] reply that . . . belatedly presents evidence will not be
`
`considered and may be returned.”). The Federal Circuit has also found new
`
`evidence in a Reply Brief to be improper. See Intelligent Bio-Systems, Inc., 821
`
`F.3d at 1366; Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1367-68
`
`(Fed. Cir. 2015). Chrimar addresses the improper nature of Petitioners’ new
`
`evidence submissions in detail below.
`
`1.
`
`Petitioners’ new exhibits used to bolster Petitioners’
`obviousness analysis are untimely and should be
`excluded
`
`Petitioners’ Reply Brief and supporting reply declaration (Ex. 1046) are
`
`littered with new exhibits as Petitioners attempt to correct critical deficiencies in
`
`the original Petition. Such post-Petition additions to the exhibits are improper and
`
`should be excluded. Toshiba Corp., IPR2014-01447, Paper No. 34 at 44-47;
`
`Corning Inc., IPR2013-00052, Paper No. 88 at 16, Intelligent Bio-Systems, 821
`
`2
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`Case No.: IPR2016-01399
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`F.3d at 1359.
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`Atty. Dkt. No.: CHRMC0110IPR1
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`The table below summarizes the new exhibits relied on by Petitioners for the
`
`first time in Petitioners’ Reply Brief and Mr. Crayford’s reply declaration.
`
`
`
`Exhibit No.
`1021
`
`Reply Brief Citation
`(Pages)
`4
`
`1022
`1023
`1024
`1025
`1026
`1027
`1028
`1029
`1030
`1031
`1032
`1033
`1034
`1035
`1036
`1037
`1038
`1039
`1040
`1041
`1042
`1043
`1044
`
`4
`4
`4, 28
`5, 10
`
`5, 10
`
`
`
`
`12, 18
`13
`13, 14, 25
`28
`7, 10
`7, 10
`7, 10
`7, 10
`7, 10
`7, 10
`7, 10
`4, 6, 8
`23, 25, 26
`
`Crayford Reply
`Declaration Citation
`(Paragraphs)
`¶¶16 (footnote), 18, 19,
`20
`¶¶16 (footnote), 18, 21
`¶¶24, 26
`¶24
`¶¶ 25, 31
`¶31
`¶32
`¶32
`¶13
`¶35 (footnote)
`¶61
`¶¶ 48, 68, 69, 81
`¶70
`¶¶ 71, 72, 98
`¶102 (footnote)
`¶37
`¶¶37, 38, 39
`¶4
`¶41
`¶42
`¶43
`¶44
`¶¶23, 35, 49, 70
`¶¶ 94, 99, 102 (footnote)
`
`
`For example, Petitioners rely on a slew of new patent references (Exs. 1025-
`
`1028)—which were not part of any of Petitioners’ original grounds and were not
`
`3
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`submitted with the original Petition—as evidence to support Petitioners’ arguments
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`Atty. Dkt. No.: CHRMC0110IPR1
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`that “Ethernet Phantom Power Is Prior Art” and “Chrimar Did Not Invent or
`
`Enable Ethernet Phantom Power.” (Reply Br. at 5-6.) Petitioners raised precisely
`
`the same arguments in their Petition, but without citing any evidence (other than
`
`“Ground 1” and “Ground 2”). (Pet. at 4.) If Petitioners wanted to support those
`
`arguments with Exs. 1025-1028, they should have done so in the Petition—not
`
`waited to serve the exhibits only after Chrimar had filed its Patent Owner’s
`
`Response and no longer had the ability to respond. For example, from the lawsuits,
`
`Petitioners were aware that Chrimar would “swear behind” the De Nicolo patents
`
`(Exs. 1027-1028) (see, e.g., IPR2016-00569, Paper 31 at 17-29), and Chrimar
`
`would have again done so had those patents been cited in the Petition. By
`
`withholding them until the Reply, Petitioners prevented Chrimar from doing so.
`
`Further, Petitioners cite for the first time to Exhibits 1021-1024, 1029, and
`
`1043 to bolster their argument that a POSITA would know how to implement Bob
`
`Smith Terminations and Common Mode Chokes in Petitioners’ proposed
`
`combinations. (Reply Br. at 3-4.) But again, Petitioners are late. The Petition
`
`expressly states, “The '760 patent explains that it is directed to equipment
`
`networked over ‘pre-existing wiring or cables that connect pieces of networked
`
`computer equipment to a network’” and “[t]he equipment would be connected over
`
`‘conventional multi-wire cables that include a plurality of transmit and receive
`
`4
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`

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`data communication links.’” (Pet. at 3, emphasis in Petition.) Furthermore,
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`Atty. Dkt. No.: CHRMC0110IPR1
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`Petitioner’s expert stated, “a [POSITA] would be familiar with . . . the behavior of
`
`data communications products available on the market.” (Ex. 1002, Crayford ¶ 50.)
`
`Petitioners also recognized, “At the time of the invention, conserving bandwidth
`
`was a known consideration and design motivation in the prior art” (Pet. at 54) and
`
`that proper terminations (e.g., BSTs and CMCs) were essential to achieving that
`
`requirement. (See e.g., Ex 1029 at 1:8-12, 1:65-2:2, 2:52-58.) Nevertheless,
`
`Petitioners failed to address the issue of applying blind power to the pre-existing
`
`Ethernet terminations (BST/CMS) when they submitted their original Petition.
`
`Petitioners have submitted a new IEEE specification for 802.9, adding
`
`Exhibit 1032 relying on that exhibit in Mr. Crayford’s reply declaration. (See e.g.,
`
`Ex. 1046, ¶¶ 48, 67-68, 80.) The Petition referenced isoEthernet several times in its
`
`discussion of the Hunter reference. (Pet. at 8, 26, 27.) Petitioners knew that they
`
`needed to include IEEE specifications if they wanted to rely on the disclosures in
`
`the specifications—the IEEE 802.3 specifications are an essential part of Ground 2.
`
`But for Ground 1, the Petition does not cite to or rely on the IEEE 802.9
`
`specification. Again, if Petitioners wanted this evidence in the record, they should
`
`included it in the original Petition.
`
`Finally, Petitioners have submitted 1036-1042 on the issue of “expert
`
`skepticism,” one of the secondary considerations relevant to obviousness.
`
`5
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`

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`Petitioners were aware that it was their burden to address skepticism—Crayford’s
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`Atty. Dkt. No.: CHRMC0110IPR1
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`first declaration identifies, “expressions of surprise or skepticism by experts and
`
`those skilled in the art at the making of the invention” as one of the “factors known
`
`as ‘secondary considerations.’” (Ex. 1002, ¶ 30.) But Petitioners, who have the
`
`burden, did not address the skepticism expressed by the 802.3 committee to
`
`applying power to the data-carrying wires in an Ethernet system. The Petition
`
`should have addressed the skepticism regarding phantom powering over Ethernet
`
`and should have attempted to rebut that skepticism. Adding the exhibits in reply,
`
`when Chrimar can no longer respond, was too late.
`
`Accordingly, Exhibits 1021-1032 and 1036-1043, as well as the portions of
`
`the Crayford Reply Declaration (Ex. 1046) that rely on those exhibits, should be
`
`excluded.
`
`2.
`
`Petitioners’ new exhibits used to supplement their
`Grounds of the original Petition are untimely and
`should be excluded
`
`The purpose of a reply brief is to respond to arguments and evidence
`
`provided by the Patent Owner—not to raise additional evidence that could have
`
`been presented earlier. See Office Patent Trial Practice Guide, 77 Fed. Reg.
`
`48,756, 48,767 (Aug. 14, 2012) (“[A] reply that raises a new issue or belatedly
`
`presents evidence will not be considered and may be returned. The Board will not
`
`attempt to sort proper from improper portions of the reply. Examples of indications
`
`6
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`

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`that a new issue has been raised in a reply include . . . new evidence that could
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`Atty. Dkt. No.: CHRMC0110IPR1
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`have been presented in a prior filing.”). However, Petitioners try to do just that by
`
`supplementing their arguments with untimely exhibits.
`
`Indeed, Petitioners’ Reply Brief and Reply Declaration (Ex. 1046) rely on
`
`Exhibits 1032-1035, none of which were submitted with the Petition, and all of
`
`which are offered, not to respond to Chrimar’s response, but to cover omissions in
`
`Petitioners’ original arguments. For example, Exhibit 1032—the IEEE 802.9
`
`standard—is being used by Petitioners to fix Petitioners’ omission of details
`
`regaring isoEthernet, which Petitioners contend Hunter (Ex. 1003) incorporates
`
`when it refers to isoEthernet®. (Reply Br. at 11-12.) Clearly, this is information
`
`that could have been presented in Petitioners’ original Petition—just as the IEEE
`
`802.3 standards were. Petitioners’ citation to Exhibit 1035 is likewise improper.
`
`Petitioners rely on Exhibit 1035 to supplement their claim that the Bloch-Huizinga-
`
`IEEE combination teaches the powered-off limitations. (Reply Br. at 27-28, 28
`
`n.8.)
`
`However, Petitioners’ supplemental evidence is late. Indeed, Petitioners had
`
`the burden to fully argue invalidity in their Petition—not belatedly in a Reply. See
`
`37 C.F.R. § 42.22(a) (“Each petition . . . must include . . . [a] full statement of the
`
`reasons for the relief requested, including a detailed explanation of the evidence
`
`including material facts” (emphasis added)); 35 U.S.C. § 312(a)(3) (requiring that
`
`7
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`

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`Petition “identifies, in writing and with particularity, each claim challenged, the
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`Atty. Dkt. No.: CHRMC0110IPR1
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`grounds on which the challenge to each claim is based, and the evidence that
`
`supports the grounds for the challenge to each claim”); MaxLinear, Inc. v. Cresta
`
`Tech. Corp., IPR2015-00594, Paper No. 90 at 28-30 (PTAB Aug. 15, 2016)
`
`(refusing to consider Petitioner’s new argument where Petitioner knew of potential
`
`issue but chose not to assert argument in Petition, because considering argument
`
`added only in Reply would “deprive Patent Owner of due process”, as “Patent
`
`Owner would have chosen a different response and the evidence in this proceeding
`
`would have developed differently” had argument been raised initially); Nestlé
`
`Purina PetCare Co. v. Oil-Dri Corp. of Am., IPR2015-00737, Paper No. 37 at 24
`
`(PTAB June 20, 2016) (refusing to consider Petitioner’s new argument as to why
`
`combination of references rendered claim obvious where “Petitioner could have
`
`presented this argument and evidence with the Petition, and has not contended or
`
`offered any evidence to show otherwise” and because considering new arguments
`
`and evidence “would not serve the interests of justice”). Here, Petitioners
`
`improperly waited to supplement evidence on their isoEthernet and powered-off
`
`theories until after Chrimar’s response and with it the ability to respond had lapsed.
`
`Exhibits 1032 and 1035 should be excluded.
`
`Exhibit 1033 is a dictionary that Petitioners use in Reply to assert a new
`
`claim construction argument for the phrase “terminal equipment.” (Reply at 13.)
`
`8
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`The Petition does not identify “terminal equipment” as a term that required
`
`Atty. Dkt. No.: CHRMC0110IPR1
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`construction. (Pet. at 5-7.) It is untimely for Petitioners to raise a new claim
`
`construction argument in their Reply, when Chrimar cannot respond.
`
`Exhibit 1034 is improper because it is a drawing Dr. Madisetti, Chrimar’s
`
`expert, was forced to draw under duress in response to questions far outside the
`
`scope of his declaration. (Ex. 1020 at 307:14-316:19.) “For cross-examination
`
`testimony, the scope of the examination is limited to the scope of the direct
`
`testimony.” 37 C.F.R. § 42.53, emphasis added. Exhibit 1034 is Dr. Madisetti’s
`
`attempt to show where the “terminal equipment” is located in Fig. 4 of the Chrimar
`
`patents. Dr. Madisetti offered no direct testimony on that issue, so the questioning
`
`and instructions by Petitioners’ counsel were improper and repeatedly objected to.
`
`(Ex. 1020 at 307:14-316:19.) Furthermore, Dr. Madisetti testified that the request
`
`to draw the figure was outside the scope of his declaration. (See, e.g., Ex. 1020 at
`
`307:14-18.) Because Petitioner’s efforts to obtain Ex. 1034 were improper and
`
`exceeded the scope of cross-examination, Dr. Madisetti’s testimony and drawing
`
`must be excluded.
`
`Accordingly, Exhibits 1032-1035, as well as the portions of the Reply Brief
`
`and the Crayford Reply Declaration (Ex. 1046) that rely on those exhibits, should
`
`be excluded.
`
`9
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`Atty. Dkt. No.: CHRMC0110IPR1
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`B.
`
`Exhibits 1021-1029, 1031, and 1035 are inadmissible hearsay
`
`In their Reply Brief, Petitioners rely on newly proffered Exhibits 1021-1029,
`
`1031, and 1035 as truthful, accurate depictions of the state of the art at particular
`
`times. Critically, this reliance on the dates, and content, of each Exhibit is
`
`inadmissible hearsay. E.g., ServiceNow, Inc. v. Hewlett-Packard Co., IPR2015-
`
`00716, Paper No. 12 at 16 (PTAB Aug. 26, 2015) (finding dates and indicia of
`
`availability on exhibits to be inadmissible hearsay to the extent that Petitioner
`
`relied on same for truth of that information); Apple, Inc. v. DSS Tech. Mgmt., Inc.,
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`IPR2015-00369, Paper No. 14 at 6 (PTAB Aug. 12, 2015) (finding date to be
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`inadmissible hearsay to the extent relied upon for truth of date of availability, even
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`where stamped by library); Standard Innovations Corp. v. Lelo, Inc., IPR2014-
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`00148, Paper No. 41 at 13-18 (PTAB Apr. 23, 2015) (finding date on exhibit to be
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`inadmissible hearsay); see also Fed. R. Evid. 801, 802 (hearsay); In re Epstein, 32
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`F.3d 1559, 1565 (Fed. Cir. 1994) (holding that under Federal Rules of Evidence,
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`dates on publications are generally hearsay as out-of-court written assertions
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`offered to prove the truth of availability of art at a particular date). Despite these
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`clear hearsay deficiencies, Petitioners have made no attempt to establish any
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`hearsay exclusion or exception under Fed. R. Evid. 803 for any of Exhibits 1021-
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`1029, 1031 and 1035.
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`For example, Petitioners rely on Exhibits 1021-1024 to argue that a person
`
`having ordinary skill in the art would know in April 1998 “that CMCs were
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`available that would not saturate from the application of power” and about “ways
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`to satisfy the territorial FCC emissions regulations without BSTs or CMCs.”
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`(Reply Br. at 3-4.) The second Crayford Declaration asserts that Exhibit 1025
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`shows that a person having ordinary skill in the art would, in April 1998,
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`“understand that . . . center tapped inductors essentially form the auto-
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`transformers.” (Ex. 1046 [Crayford-2], ¶ 25.) The declaration also relies on
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`Exhibits 1025-1028 to argue that “Ethernet phantom power was well known by
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`April 1998.” (Id., ¶¶ 28, 31, 32.) Petitioners rely on Exhibit 1029 to assert the
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`relevance of BSTs in 1994. (Id., ¶ 13.)
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`Moreover, Petitioners rely on Exhibit 1031 to assert that “[i]n April 1998,
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`there were Cat-3 and Cat-5 cables with only 2 pairs, which were both used for
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`data” and that a “POSITA would not assume that an RJ-45 connector with 8 pins
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`necessarily has 8 wires (4 pairs) connected.” (Reply Br. at 10.) Likewise,
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`Petitioners rely on the date from Exhibit 1035 for the assertion that a “POSITA in
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`April 1998 understood, for example, that cordless telephone equipment was in a
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`‘powered off’ state, although the display, charger, radio module, and other
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`components of such equipment received power to perform their functions, until the
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`‘ON/OFF’ button was pressed to ‘ON’ to answer a ringing telephone.” (Reply Br.
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`Atty. Dkt. No.: CHRMC0110IPR1
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`at 28 n.8.)
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`Although Petitioners rely on these exhibits for the truth of the matter being
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`asserted, Petitioners have made no attempt to show that they are not hearsay.
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`Accordingly, the extent that Petitioners rely—directly or through their expert—on
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`these Exhibits as a truthful depiction of the state of the art at a particular time, or
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`for the truth of any other matters asserted with respect to the Exhibits, Chrimar
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`moves to exclude these Exhibits as hearsay.
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`III. Conclusion
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`For the reasons set forth above, Chrimar respectfully requests that the Board
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`exclude the Challenged Exhibits, and the portions of the Reply Brief and
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`Crayford’s reply declaration (Ex. 1046) that rely on the Challenged Exhibits.
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`Chrimar also respectfully requests that the Board preclude Petitioners from using
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`the Challenged Exhibits or the reliant portions of the Reply Brief and second
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`Crayford declaration at any hearing or in any paper in this proceeding.
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`Dated: August 2, 2017
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`
`
`
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`Respectfully submitted,
`
`
` /Christopher C. Smith/
`Frank A. Angileri (Reg. No. 36,733)
`Thomas A. Lewry (Reg. No. 30,770)
`Marc Lorelli (Reg. No. 43,759)
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.
`1000 Town Center, 22nd Floor
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`12
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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
`
`
`
`
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`
`
`Atty. Dkt. No.: CHRMC0110IPR1
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`Southfield, MI 48075
`(248) 358-4400
`
`Richard W. Hoffmann (Reg. No. 33,711)
`Reising Ethington PC
`755 West Big Beaver Rd., Suite 1850
`Troy, Michigan 48084
`248.786.0163
`
`Attorneys for Patent Owner
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`13
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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
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`
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`Atty. Dkt. No.: CHRMC0110IPR1
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`Certificate of Service
`
`On August 2, 2017, a copy of this PATENT OWNER’S MOTION TO
`EXCLUDE EVIDENCE has been served on Petitioner’s counsel via electronic
`mail at the email addresses shown below:
`
`
`Lead Counsel & Back-up Counsel for Juniper
`Talin Gordnia, Reg. No. 76,214
`Michael Fleming, Reg. No. 67,933
`Jonathan Kagan, pro hac vice
`IRELL & MANELLA, LLP
`1800 Avenue of the Stars, Suite 900
`IRELL & MANELLA, LLP
`Los Angeles, CA 90067
`1800 Avenue of the Stars, Suite 900
`Juniper-ChrimarIPR@irell.com
`Los Angeles, CA 90067
`Juniper-ChrimarIPR@irell.com
`
`Nima Hefazi Reg. No. 63,658
`IRELL & MANELLA, LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Juniper-ChrimarIPR@irell.com
`
`Lead Counsel & Back up Counsel for Ruckus Wireless, Inc., Brocade
`Communication Systems, Inc., & Netgear, Inc.
`Joseph Powers (Reg. No. 47,006)
`Christopher Tyson (Reg. No. 63,850)
`Duane Morris LLP
`Duane Morris LLP
`30 South 17th Street
`505 9th St. NW, Ste 1000
`Philadelphia PA 19103-4196
`Washington DC 20004
`JAPowers@duanemorris.com
`CJTyson@duanemorris.com
`
`
`Matthew S. Yungwirth
`DUANE MORRIS LLP
`1075 Peachtree Street, NE, Suite 2000
`Atlanta, Georgia 30309
`msyungwirth@duanemorris.com
`
`
`
`
`Respectfully submitted,
`
` /Christopher C. Smith/
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.
`
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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
`
`
`
`Atty. Dkt. No.: CHRMC0110IPR1
`
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`(248) 358-4400
`
`Attorneys for Patent Owner
`
`
`
`15
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`Case No.: IPR2016-01399
`Patent No.: 8,902,760
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`
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`Atty. Dkt. No.: CHRMC0110IPR1
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`Certificate of Compliance Pursuant to 37 C.F.R. § 42.24
`
`
`
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`This paper complies with the type-volume limitation of 37 C.F.R. § 42.24.
`
`The paper contains no more than 15 pages, excluding the parts of the paper
`
`exempted by §42.24(a).
`
`This paper also complies with the typeface requirements of 37 C.F.R.
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`§ 42.6(a)(ii) and the type style requirements of § 42.6(a)(iii) & (iv).
`
`
`Dated: August 2, 2017
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
` /Christopher C. Smith/
`Frank A. Angileri (Reg. No. 36,733)
`Thomas A. Lewry (Reg. No. 30,770)
`Marc Lorelli (Reg. No. 43,759)
`Christopher C. Smith (Reg. No. 59,669)
`Brooks Kushman P.C.
`1000 Town Center, 22nd Floor
`Southfield, MI 48075
`(248) 358-4400
`
`Richard W. Hoffmann (Reg. No. 33,711)
`Reising Ethington PC
`755 West Big Beaver Rd., Suite 1850
`Troy, Michigan 48084
`248.786.0163
`
`Attorneys for Patent Owner
`
`
`16
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