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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_______________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_______________
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`APPLE INC.,
`Petitioner
`
`v.
`
`REALTIME DATA, LLC D/B/A/ IXO,
`Patent Owner
`
`_______________
`
`Case IPR2016-01738
`Patent 8,880,862
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`_______________
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`
`PATENT OWNER REALTIME DATA, LLC D/B/A IXO’S REPLY TO
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE PURSUANT TO 37 C.F.R. § 42.64
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`
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`I.
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`Exhibit 1038 Comprises Inadmissible, Irrelevant Hearsay.
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`Apple argues that Exhibit 1038 is not hearsay because Apple offers it for
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`what it describes to an ordinary artisan, and not to prove the truth of the matters
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`asserted in the document.1 The record shows otherwise. Apple and Dr. Neuhauser
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`rely on Exhibit 1038 to prove Zwiegincew’s “scenario files” are “operational and
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`useful during operating system boot.”2 This is the very matter addressed in the
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`document. And Dr. Neuhauser conceded at deposition that Exhibit 1038 is not
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`prior art to the ‘862 Patent and relates, at best, to the understanding of an ordinary
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`artisan after the relevant February 2000 timeframe:
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`Q. And the [Ex. 1038] Zwiegincew ‘968, in fact, is not prior art, right?
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`A. That’s correct.
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`Q. So whatever the [Ex. 1038] Zwiegincew ‘968 reference may have
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`taught one of ordinary skill in the art would not be relevant to any kind
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`of determination of obviousness as to the ‘862 patent, right?
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`[A.] Well, the best I can say is it does tell you something about
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`[inventor] Zwiegincew’s thinking, but the thinking, as far as I can tell,
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`might have been after the fact of February 2000.3
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`1 Opp’n to Mot. at 2 (internal quotations omitted).
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`2 Reply (Paper 24) at 10-11; Neuhauser Dec. (Ex. 1043) at ¶ 78.
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`3 Nov. 21, 2017 Neuhauser Tr. (Ex. 2026) at 164:21-165:9 (objection omitted); see
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`also id. at 166:22-167:1, 168:8-12; Sept. 27, 2017 Neuhauser Tr. (Ex. 2024) at
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`1
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`
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`This same testimony also shows that Exhibit 1038 is irrelevant. Because Dr.
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`Neuhauser acknowledges that Exhibit 1038 isn’t prior art and doesn’t describe the
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`understanding of a POSITA during the relevant timeframe, this exhibit doesn’t
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`make a fact in this proceeding more or less probable.4 Indeed, this admission
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`illustrates that Exhibit 1038 does not support Dr. Neuhauser’s opinions, despite
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`Apple’s contention to the contrary.
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`The Board has excluded similar evidence in other proceedings, and should
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`do so here. For instance, the Board in Microsoft v. Bradium Technology rejected
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`the argument that a valuation summary was being offered to show the occurrence
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`and timing of acquisition discussions between the parties—not the truth of what
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`said in the exhibit, i.e., that the technology had any particular worth.5
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`103:3-12, 106:5-11 (testifying Zwiegincew doesn’t talk about using scenario files
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`in the context of booting an operating system like Settsu’s).
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`4 See Opp’n to Mot. at 6; but see Ex. 2026 at 164:21-65:9; 168:8-12.
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`5 IPR2016-00448, Paper No. 67 at 3 (PTAB July 24, 2017). Contrary to Apple’s
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`assertion, Exhibit 1038 doesn’t qualify under the residual hearsay exception
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`because the Zwiegincew reference (Ex. 1010) is more probative on what the prior
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`art teaches than Exhibit 1038.
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`2
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`
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`II. Exhibits 1048 and 1049 Comprise Inadmissible, Irrelevant Hearsay.
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`In support of its argument that Exhibits 1048 and 1049 are relevant and
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`admissible, Apple asserts that Dr. Neuhauser relied on Exhibits 1048 and 1049 “in
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`formulating his opinion that cost would have motivated a POSITA to use RAM
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`over flash memory,” citing nine paragraphs of his last declaration.6 This is untrue.
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`Dr. Neuhauser never refers to these exhibits in his declaration nor to any data
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`purportedly described in them.7 Instead, Dr. Neuhauser relied only on Dye for his
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`opinion regarding the cost differential between RAM and flash memory. He
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`affirmed this at deposition:
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`Q. Throughout your two declarations, the only citation that you have
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`to external evidence about the relative cost of flash and RAM as of
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`around February 2000 is this reference to Dye [Ex. 1008], right?
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`[A] That’s – let me just look at one thing here.
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`(Witness peruses document.)
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`[A.] Yes, I think that’s correct.
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`. . .
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`Q. All right. In your declarations, you didn’t undertake a systematic
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`analysis of the literature in the late ‘90s and early 2000s to specifically
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`identify the cost difference between flash and RAM on a per-
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`megabyte basis, true?
`
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`6 Opp’n to Mot. at 9.
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`7 See, e.g., Ex. 1043 at ¶¶ 4, 25; see also Ex. 1003 at ¶ 4; Ex. 1030 at ¶ 4.
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`3
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`
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`A. That’s not in my declaration, that’s correct.8
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`Hence, Dr. Neuhauser’s testimony confirms the irrelevance of Exhibits 1048 and
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`1049. And Apple’s misrepresentation of Dr. Neuhauser’s opinion is sanctionable,
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`including via an order excluding evidence, as set forth under 37 C.F.R. § 42.12.
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`Apple also argues that Exhibits 1048 and 1049 are not hearsay because they
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`prove the existence of a cost difference between RAM and flash memory during
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`the relevant timeframe.9 But again, Apple offers these exhibits to prove the truth of
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`the matters asserted within them, and they thus comprise inadmissible hearsay.
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`Apple’s fallback assertions that Exhibits 1048 and 1049 fall into a hearsay
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`exception similarly lack merit.10 That a document provides purported financial data
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`for a particular time period does not render it a “market report” under FRE
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`803(17), as Apple avers. And the record contains no evidence that persons of
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`ordinary skill in the art relied upon either exhibit. Exhibit 1048, moreover, does not
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`8 Ex. 2026 at 76:16-77:15 (objection omitted); see also id. at 141:8-12 (“Q. In your
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`declarations you say, based on Dye only, that the price differential as of February
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`2000 was significantly in favor of RAM, such that it was significantly less for
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`RAM, true? A. That’s correct.”)
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`9 Opp’n to Mot. at 9.
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`10 Id. at 10-11.
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`4
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`
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`cite any sources used in compiling data.11 So no hearsay exception applies here,
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`and the trustworthiness of these documents cannot be gauged to qualify for a
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`residual exception.
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`Finally, Apple’s supplemental affidavit from the Internet Archive Office
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`Manager fails to render Exhibits 1048 and 1049 properly authenticated. The
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`affidavit does not provide any additional evidence that shows these exhibits are
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`what they purport to be, or that the information contained within these exhibits is
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`accurate and reliable. Thus, these exhibits should be excluded for lack of proper
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`authentication.12
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`III. Conclusion
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`The record establishes that Exhibits 1038, 1048, and 1049 comprise
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`irrelevant hearsay that doesn’t comply with 37 C.F.R. § 42.64(b) and the Federal
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`Rules of Evidence. These exhibits are thus inadmissible and should be excluded.
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`
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`11 While the portion of Exhibit 1049 cited by Apple refers to the source “IC
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`Insights,” the referenced “IC Insights” don’t appear to have been available during
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`the relevant February 2000 timeframe. See Ex. 1049 at 10, 21-22.
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`12 Opp’n to Mot. at App. A; contra Biomarin Pharm., Inc. v. Genzyme Therapeutic
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`Prod., Ltd. P’ship, IPR20100534, Paper 81 at 23-24 (PTAB Feb. 23, 2015).
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`5
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`
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`Respectfully Submitted,
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`Date: January 4, 2018
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`
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`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`Richard Z. Zhang (Reg. No. 73,397)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: (202) 362-3527
`Fax: (202) 362-3501
`Email: Joe.Edell.IPR@fischllp.com
`Email: Richard.Zhang.IPR@fischllp.com
`
`Desmond S. Jui (pro hac vice)
`Fisch Sigler LLP
`96 North Third Street
`Suite 260
`San Jose, CA 95112
`Phone: (650) 362-8209
`Email: Desmond.Jui.IPR@fischllp.com
`
`William P. Rothwell (Reg. No. 75,522)
`Noroozi PC
`2245 Texas Drive, Suite 300
`Sugar Land, TX 77479
`Phone: (281) 566-2685
`Email: William@noroozipc.com
`
`Kayvan B. Noroozi (pro hac vice)
`Noroozi PC
`1299 Ocean Avenue, Suite 450
`Santa Monica, CA 90401
`Phone: (310) 975-7074
`Email: Kayvan@noroozipc.com
`
`6
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on January 4, 2018, a true and correct copy of the
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`foregoing Patent Owner’s Reply to Petitioner’s Opposition to Patent Owner’s
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`Motion to Exclude is being served electronically to the Petitioner at the
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`correspondence email addresses of record provided in the Petition as follows:
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`W. Karl Renner (Lead Counsel) IPR39521-0025IP2@fr.com
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`
`
`
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`Respectfully Submitted,
`
`Date: January 4, 2018
`
`
`
`
` /Joseph F. Edell/
`Joseph F. Edell (Reg. No. 67,625)
`Fisch Sigler LLP
`5301 Wisconsin Avenue NW
`Fourth Floor
`Washington, DC 20015
`Phone: (202) 362-3527
`Fax: (202) 362-3501
`Email: Joe.Edell.IPR@fischllp.com
`
`
`
`
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