UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.
`
`Petitioner
`
`v.
`
`PERSONALIZED MEDIA COMMUNICATIONS, LLC
`
`Patent Owner
`
`Case No.: IPR2016-01520
`
`Patent No.: 8,559,635
`
`PETITIONER’S OBJECTIONS TO EVIDENCE SUBMITTED BY PATENT
`OWNER WITH ITS PATENT OWNER RESPONSE AND MOTION TO
`AMEND
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC.
`
`Petitioner
`
`v.
`
`PERSONALIZED MEDIA COMMUNICATIONS, LLC
`
`Patent Owner
`
`Case No.: IPR2016-01520
`
`Patent No.: 8,559,635
`
`PETITIONER’S OBJECTIONS TO EVIDENCE SUBMITTED BY PATENT
`OWNER WITH ITS PATENT OWNER RESPONSE AND MOTION TO
`AMEND
`
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of Evidence
`
`(“FRE”), Petitioner Apple Inc. (“Apple”) objects to the admissibility of evidence
`
`served by Patent Owner Personalized Media Communications, LLC (“PMC”) on
`
`May 11, 2017 with its Patent Owner Response and its Contingent Motion to
`
`Amend as follows:
`
`Objections
`Exhibit
`2030 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit. Patent Owner has not cited this
`
`exhibit in its papers and it should be expunged.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit allegedly shows.
`
`2031 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit. Patent Owner has not cited this
`
`exhibit in its papers and it should be expunged.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`1
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Exhibit
`
`Objections
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit allegedly shows.
`
`2023 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`FRE 701: The lay witness’s opinion testimony is not helpful in
`
`determining a fact in issue.
`
`FRE 702: The witness offering declaration testimony is not
`
`qualified as an expert and thus cannot testify in the form of an
`
`opinion or otherwise in a manner that would assist the Board.
`
`FRE 703: The declaration relies on inadmissible facts or data, the
`
`probative value of which does not substantially outweigh the danger
`
`of unfair prejudice.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`2207 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit. Patent Owner has not cited this
`
`2
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Exhibit
`
`Objections
`exhibit in its papers and it should be expunged.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit allegedly shows.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`2213 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`FRE 701: The lay witness’s opinion testimony is not helpful in
`
`determining a fact in issue.
`
`FRE 702: The witness offering declaration testimony is not
`
`qualified as an expert and thus cannot testify in the form of an
`
`opinion or otherwise in a manner that would assist the Board.
`
`FRE 703: The declaration relies on inadmissible facts or data, the
`
`3
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Exhibit
`
`Objections
`probative value of which does not substantially outweigh the danger
`
`of unfair prejudice.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`2215 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`Lack of Foundation: Patent Owner has not provided sufficient
`
`explanation of what the exhibit allegedly shows.
`
`FRE 1002/1006: Patent Owner has not produced original
`
`documents and has not identified any reason why a summary chart,
`
`created for litigation, should be admissible.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`FRE 901: Patent Owner has not produced evidence sufficient to
`
`support a finding that the item is what Patent Owner claims it is.
`
`2222 FRE 401/402: Patent Owner has not identified any fact made more
`
`4
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Exhibit
`
`Objections
`or less probable by this exhibit.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`37 C.F.R. § 42.6(a)(3): Patent Owner improperly incorporates by
`
`reference arguments from the declaration.
`
`2223 FRE 401/402: Patent Owner has not identified any fact made more
`
`or less probable by this exhibit.
`
`FRE 403: Any probative value of this exhibit is substantially
`
`outweighed by a danger of unfair prejudice, confusing the issues,
`
`wasting time, or needlessly presenting cumulative evidence.
`
`FRE 701: The lay witness’s opinion testimony is not helpful in
`
`determining a fact in issue.
`
`FRE 702: The witness offering declaration testimony is not
`
`qualified as an expert and thus cannot testify in the form of an
`
`opinion or otherwise in a manner that would assist the Board.
`
`FRE 703: The declaration relies on inadmissible facts or data, the
`
`5
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`Exhibit
`
`Objections
`probative value of which does not substantially outweigh the danger
`
`of unfair prejudice.
`
`FRE 802: The exhibit relies upon inadmissible hearsay if offered to
`
`prove the truth of any matter allegedly asserted therein.
`
`37 C.F.R. § 42.6(a)(3): Patent Owner improperly incorporates by
`
`reference arguments from the declaration.
`
`
`
`Date: May 18, 2017
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Marcus E. Sernel
`Marcus E. Sernel (Reg. No. 55,606)
`Joel R. Merkin (Reg. No. 58,600)
`KIRKLAND & ELLIS LLP
`300 North LaSalle Street
`Chicago, Illinois 60654
`P: 312.862.2000; F: 312.862.2200
`marc.sernel@kirkland.com
`joel.merkin@kirkland.com
`
`Attorneys For Petitioner
`
`
`
`6
`
`
`
`Petitioner’s Objections to Evidence Submitted By Patent Owner: IPR2016-01520
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies
`
`that a copy of
`
`
`
`the
`
`foregoing
`
`PETITIONER’S OBJECTIONS TO EVIDENCE SUBMITTED BY PATENT
`
`OWNER WITH ITS PATENT OWNER RESPONSE AND MOTION TO
`
`AMEND was served on May 18, 2017 to the following attorneys of record by
`
`Douglas Kline
`GOODWIN PROCTER LLP
`Exchange Place, 53 State Street
`Boston, Massachusetts 02109
`dkline@goodwinlaw.com
`
`
`Sarah Fink, Reg. No. 64,886
`GOODWIN PROCTER LLP
`The New York Times Building
`620 Eighth Avenue
`New York, NY 10018
`sfink@goodwinlaw.com
`
`
`
`
`
`
`
`
`
`/s/ Marcus E. Sernel
`Marcus E. Sernel
`
`
`
`7
`
`electronic transmission:
`
`Jennifer Albert
`Stephen Schreiner
`GOODWIN PROCTER LLP
`901 New York Avenue N.W.
`Washington, D.C. 20001
`jalbert@goodwinprocter.com
`sschreiner@goodwinprocter.com
`
`
`Thomas J. Scott
`PERSONALIZED MEDIA
`COMMUNICATIONS, LLC
`14090 Southwest Freeway, Suite 450
`Sugar Land, TX 77478
`tscott@pmcip.com
`
`
`
`Date: May 18, 2017
`
`
`
`
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