`U.S. Patent No. 8,611,404
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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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`DISH NETWORK L.L.C.
`Petitioner
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`v.
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`TQ DELTA LLC
`Patent Owner
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`Case IPR2016-01470
`Patent 8,611,404
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`PETITIONER’S RESPONSE TO PATENT OWNER’S OBJECTIONS TO
`EVIDENCE
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`IPR2016-01470
`U.S. Patent No. 8,611,404
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`Pursuant to 37 C.F.R. section 42.64(b)(2), Petitioner DISH Network, L.L.C.
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`(“Petitioner”) hereby responds
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`to Patent Owner’s Objections
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`to Evidence
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`(“Objections”) served on February 24, 2017 as follows:
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`Exhibits 1023-1049 and 1051-1052 are Relevant.
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`Patent Owner objects that “[n]one of [exhibits 1023-1049, 1051-1052] are
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`relevant under FRE 402, given that none of them were specifically cited or discussed
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`in the Petition or Hoarty declaration.” Objections at 2. This is incorrect. At least
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`the following exhibits were cited in the declaration of Leo Hoarty (“Hoarty Decl.”)
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`(Ex. 1002) in at least the following pages or paragraphs:
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`Exhibit
`1029
`1030
`1031
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`1032
`1033
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`1034
`1036
`1037
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`1038
`1042
`1043
`1044
`1046
`1049
`1052
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`Cited in Hoarty Decl. (Ex. 1002) at:
`¶ 68 (page 47)
`¶ 10, ¶ 68 (page 47)
`Page 39 (Figure 2), ¶ 53, Page 43
`(Figure 5), ¶ 63, Page 53 (Figure 8), ¶
`77, ¶ 148
`Page 53 (Figure 8), ¶ 77
`Page 57 (Figure 11), Page 58 (Figure
`12), Page 59 (Figure 13), ¶¶ 86-90
`¶ 75, ¶ 78
`Page 52 (Figure 7), ¶ 76
`Page 34 (Table 1), ¶ 46, Page 36
`(Figure 1), ¶¶ 49-50
`¶ 51, Page 37 (Figure 2)
`¶ 93
`¶ 93
`¶ 173
`¶ 176
`¶ 92
`¶ 168
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`1
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`Hoarty used these exhibits to corroborate facts regarding the state of the art at the
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`IPR2016-01470
`U.S. Patent No. 8,611,404
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`time of the invention. Therefore, these exhibits are relevant.
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`The remaining exhibits are listed in the declaration starting on page 14 and are
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`identified as relevant documents that Hoarty reviewed as part of preparing his
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`declaration. See, e.g., Ex. 1002 at ¶ 25.
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` Exhibits 1019, 1035, 1036 and 1052 are Admissible.
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`The above exhibits are authentic under FRE 901. Each is considered a
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`periodical and is self-authenticating because it was published by either Electronic
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`Products Magazine or EE Times, both of which are reputable publications. The fact
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`that the articles were found online is irrelevant.
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`Exhibits 1019, 1035, 1036 and 1052 are not hearsay under FRE 801-802. As
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`just discussed, these exhibits are periodicals. But even if these exhibits were
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`considered hearsay, experts in inter partes review proceedings may rely on hearsay
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`in their declarations. Fed. R. Evid. 703; Nestle Healthcare Nutrition, Inc. v. Steuben
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`Foods, Inc., Case IPR2015-00249, Paper 76 at 13-14 (P.T.A.B. June 2, 2016)
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`(agreeing that hearsay evidence relied upon by expert is admissible because “Federal
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`Rule of Evidence 703 permits an expert to base an opinion on facts or data in the
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`case that an expert has been made aware of it experts in the field would reasonably
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`IPR2016-01470
`U.S. Patent No. 8,611,404
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`have relied on such facts or data in forming an opinion”); Brose N. Am., Inc. and
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`Brose Fahrzeugteile GmBH & Co. Kg, Hallstadt v. Uusi, LLC, Case IPR2014-
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`00417, Paper 49 at 26 (P.T.A.B. July 20, 2015) (“… an expert may rely upon
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`evidence regardless of whether the evidence is admissible…”). Therefore, Patent
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`Owner’s hearsay objection has no merit.
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`Exhibits 1021-1031, 1033, 1038-1039, 1041-1043, 1046, 1047, and 1051 May Be
`Relied Upon.
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`For reasons just discussed, Petitioner’s expert, Leo Hoarty, is permitted to
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`rely upon the above-mentioned exhibits regardless of their admissibility. Fed. R.
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`Evid. 703; see also Brose N. Am., Case IPR2014-00417, Paper 49 at 26. Therefore,
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`Patent Owner’s objections related to these exhibits have no merit.
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`Dated: March 10, 2017
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`COOLEY LLP
`ATTN: Patent Group
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, DC 20004
`Tel: 650-843-5001
`Fax: 650-849-7400
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`3
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`By:
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`Respectfully submitted,
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`/Heidi L. Keefe/
`Heidi L. Keefe
`Reg. No. 40,673
`Counsel for Petitioner
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`IPR2016-01470
`U.S. Patent No. 8,611,404
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`CERTIFICATE OF SERVICE
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`I hereby certify, pursuant to 37 C.F.R. Sections 42.6, that a complete copy of
`the attached PETITIONER’S RESPONSE TO PATENT OWNER’S
`OBJECTIONS TO EVIDENCE is being served via electronic mail on the 10th
`day of March, 2017, upon counsel of record for the Patent Owner as follows:
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`Peter J. McAndrews
`pmcandrews@mcandrews-ip.com
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`Thomas J. Wimbiscus
`twimbiscus@ mcandrews-ip.com
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`Scott P. McBride
`smcbride@ mcandrews-ip.com
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`Christopher M. Scharff
`cscharff@ mcandrews-ip.com
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`Dated: March 10, 2017
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`COOLEY LLP
`ATTN: Patent Docketing
`1299 Pennsylvania Ave. NW, Suite 700
`Washington, D.C. 20004
`Tel: (650) 843-5001
`Fax: (650) 849-7400
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`/ Heidi L. Keefe /
`Heidi L. Keefe
`Reg. No. 40,673
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