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`Paper No. ___
`Filed: March 5, 2018
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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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`—————————————————
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`APPLE INC.,
`Petitioner,
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`v.
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`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
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`—————————————————
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`Cases IPR2017-00210
`Patents 7,116,710
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`PATENT OWNER’S MOTION TO EXCLUDE
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`I.
`II.
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`TABLE OF CONTENTS
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`Page
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`Exhibits 1044-1049, 1057-1061, 1065, and 1068 should be
`excluded for being new evidence used to support new
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`Exhibit 1065 should further be excluded as an improper
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`INTRODUCTION ....................................................................................... 1
`ARGUMENT............................................................................................... 1
`A.
`arguments .......................................................................................... 1
`B.
`replacement attempt of Dr. Davis ....................................................... 5
`C.
`as out-of-scope testimony .................................................................. 9
`D.
`lack of relevance and undue prejudice ............................................... 9
`E.
`Exhibit 1067 should be excluded under FRE 106 ............................. 13
`F.
`relevance as they are uncited ............................................................ 14
`III. CONCLUSION ......................................................................................... 15
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`Certain portions of Exhibits 1062 and 1064 should be excluded
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`Exhibits 1032-1034 and 1037 are related to Petitioner’s revised
`and belated publication date theory and should be excluded for
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`Exhibits 1013, 1029-1031, 1035, 1036, 1038-1045, 1047-1049,
`1053, 1055, 1059, and 1060 should be excluded for lack of
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`I.
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`INTRODUCTION
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`Pursuant to 37 C.F.R. §§ 42.62 and 42.64(c) and the Federal Rules of
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`Evidence, Caltech respectfully moves to exclude Exhibits 1013, 1029-1049, 1053,
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`1055, 1057-1061, 1065, 1067, 1068 and portions of Exhibits 1062 and 1064. The
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`Federal Rules of Evidence apply to inter partes proceedings. 37 C.F.R. § 42.62;
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`LKQ Corp. v. Clearlamp, LLC, IPR2013-00020, Paper 17, at 3 (Mar. 5, 2013).
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`These exhibits are part of a larger pattern of Petitioner’s contravention of
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`Board rules. Having recognized that the petition’s arguments and evidence cannot
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`sustain a finding of unpatentability, Petitioner has engaged in an improper
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`rehabilitation campaign with new arguments, new evidence, and testimony elicited
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`from out-of-scope questions. Several of these issues have already been briefed in
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`Petitioner’s motion for sanctions. Paper 50. But the Federal Rules of Evidence
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`and the Board’s Trial Practice rules forbid Petitioner’s “shifting-sands” approach.
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`The new exhibits must be excluded because they largely lack relevance to any
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`instituted ground, and they are unduly prejudicial to Caltech because Caltech lacks
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`any meaningful opportunity respond to the new evidence. FRE 401; 402; 403.
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`II. ARGUMENT
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`A. Exhibits 1044-1049, 1057-1061, 1065, and 1068 should be excluded
`for being new evidence used to support new arguments
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`Exhibits 1044-1049, 1057-1061, 1065, and 1068 were not submitted until
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`after Caltech had filed its Patent Owner Response. To the extent those exhibits
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`were cited in Petitioner’s reply, they were cited in support of arguments that were
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`not made in the petition and were therefore improper to raise for the first time in
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`Petitioner’s reply. 37 CFR §42.23(b); Intelligent Bio-Systems, Inc. v. Illumina
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`Cambridge, 821 F. 3d 1359, 1370 (Fed. Cir. 2016). As such, they are not relevant
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`to the instituted grounds of review. FRE 401; FRE 402.
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`Exhibits 1044-1049 and 1057-1060 are various diagrams, including Tanner
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`graphs, that were admittedly created by Petitioner’s lawyers (see, e.g., Ex. 1046,
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`415:14-18) and purport to depict the prior art. These exhibits were first introduced
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`in the depositions of Dr. Mitzenmacher (Exs. 1044-1049) and Dr. Divsalar (Exs.
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`1057-1060), and have no relevance to the witnesses’ direct testimony. The
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`questions relating to these exhibits were largely attempts to authenticate the
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`exhibits so that Petitioner could rely on them in its reply to support new arguments.
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`For example, Petitioner cites to Exhibit 1046 in its reply, claiming that “Caltech’s
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`expert was unable to identify any inaccuracies with this graph.” Reply 9-10.
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`However, Dr. Mitzenmacher made it clear that “since I’ve just been handed this
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`without prior examination I shouldn’t be taken as vouching for its accuracy.” Ex.
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`1046, 417:12-15. Petitioner also relies on Exhibit 1046 for the argument that it
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`illustrates a “POSA’s reasonable expectation of success.” Reply 9. But the
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`petition never discusses reasonable expectation of success (much less a POSA’s
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`reasonable expectation of success with respect to the graph depicted in Exhibit
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`1046), and so the evidence lacks relevance to any of the instituted grounds.
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`Petitioner could have, and should have, introduced Exhibit 1046 in its petition if it
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`wanted to rely on the document with respect to necessary aspects of an
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`obviousness challenge.
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`Exhibit 1061 is a 2005 paper by Dr. Divsalar, et al. Not being prior art, this
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`paper has zero relevance to any issues in this case. Petitioner’s reply relies on this
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`exhibit to argue that it is inconsistent with Dr. Divsalar’s declaration (though does
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`not identify which section of his declaration). Reply 11-12. But whatever Dr.
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`Divsalar may have said in his 2005 paper has no relevance to his testimony
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`regarding what he knew at the time of the patent.
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`Exhibit 1068 is purportedly a “[s]imulation of Regular and Irregular
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`Divsalar Codes” conducted by Dr. Frey. Petitioner relies on this exhibit to show
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`its proposed modification to Divsalar “would not have been difficult” and “would
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`have had a reasonable expectation of success.” Reply 10. As explained above, the
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`petition never argued that any proposed modification would have had a reasonable
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`expectation of success, and there is simply no reason why such evidence or
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`arguments could not have been made in the petition. In addition, the simulation
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`purports to test a Divsalar repeat-5 code that has been modified to repeat some bits
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`3 times and some bits 7 times. The petition never presented such a proposed
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`modification—instead, Petitioner proposed that a Tanner graph in inventor
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`Khandekar’s thesis (which is not prior art) be modified such that “some
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`information nodes hav[e] four connections and other information nodes hav[e]
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`two.” Pet. 47. Thus, the new simulation data must be excluded as it is a
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`completely new and untimely theory not relevant to any instituted grounds.
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`Exhibit 1065 is Dr. Frey’s declaration in support of Petitioner’s reply. A
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`number of portions relate to new arguments and new evidence, including the
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`portions discussing experimental data and attorney created graphs/figures, as
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`explained above. Since the Board “will not attempt to sort proper from improper
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`portions of the reply,” the declaration should be excluded in its entirety. Office
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`Patent Trial Practice Guide, 77 Fed.Reg. 48,756, 48,767 (Aug. 14, 2012); see also
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`Intelligent Bio-Systems v. Illumina Cambridge, 821 F. 3d 1359, 1370 (Fed. Cir.
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`2016) (holding that the Board did not abuse its discretion in excluding Petitioner’s
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`reply and accompanying declaration because it presented new issues).
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`These exhibits should also be excluded for being unduly prejudicial to
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`Caltech. FRE 403. Because the exhibits were introduced in Petitioner’s reply,
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`Caltech will have no meaningful opportunity to rebut them. Although the Board
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`has granted Caltech a short surreply, Caltech will not be able to introduce any new
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`evidence to adequately rebut Petitioner’s new evidence, such as expert testimony
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`that explains why the new Tanner graphs are inaccurate, why a POSA would not
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`have used such a Tanner graph to depict the prior art, and how the testing data used
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`cherry-picked parameters and does not show a reasonable expectation of success.
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`See Paper 51.
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`B.
`Exhibit 1065 should further be excluded as an improper
`replacement attempt of Dr. Davis
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`As mentioned above, Exhibit 1065 is a declaration of Dr. Frey. In addition
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`to the reasons above, to the extent Petitioner is attempting to execute a last-minute
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`replacement of experts, Exhibit 1065 should also be excluded because Caltech
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`would be unduly prejudiced. Petitioner’s original expert was Dr. Davis who now
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`claims to have been unavailable to provide a declaration for Petitioner’s reply.
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`Instead, Petitioner submitted a declaration from Dr. Frey.
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`As an initial matter, it is unclear exactly what role Dr. Frey serves relative to
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`Dr. Davis. While Dr. Frey states that he “agree[s] with [the Petition and the
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`declaration of Dr. Davis],” this does not appear to formally adopt Dr. Davis’s
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`testimony as his own. Ex. 1065, ¶16. Indeed, Dr. Frey does not state that he
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`considered Dr. Davis’s cross-examination transcript or include it in the list of
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`materials he reviewed. Id., ¶12 Despite Petitioner’s attempt to rehabilitate its
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`petition expert by presenting a second witness to “agree” with the direct testimony,
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`Dr. Frey cannot adopt or credibly address Dr. Davis’s declaration without at least
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`addressing—or at minimum at least considering—Dr. Davis’s cross-examination.
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`In any event, the problems with Dr. Davis’s testimony and the petition case
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`remain regardless of whether Dr. Frey incorporates it or not. As explained in
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`Caltech’s Patent Owner response, Dr. Davis’s testimony parrots attorney argument
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`from the petition, but fails to address critical aspects of the cited references,
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`ignores the unpredictability in the art, and contains various basic errors. For
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`example, Dr. Davis ignores the puncturing and error floors described in the Frey
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`reference, proposing a degree profile that is inconsistent with the statement in the
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`Divsalar reference that repeating bits less than three times would result in poor
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`performance, and failing to address reasonable expectation of success. PO
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`Response (Paper 35) pp. 11-12, 46-50. Nothing about Dr. Frey’s eleventh hour
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`declaration or his conclusory assertion that he agrees with Dr. Davis’s declaration
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`remedies any of these issues.
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`In addition, Caltech has been prejudiced by this late substitution of experts.
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`For example, because Dr. Frey has not addressed or considered Dr. Davis’s cross-
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`examination testimony, Caltech is effectively denied meaningful opportunity to
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`now cross-examine Dr. Frey. While Petitioner may wish to insulate Dr. Frey from
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`impeachment with this material (or simply wish Dr. Davis’s cross-examination
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`testimony to disappear), Petitioner cannot have it both ways—i.e., cherry picking
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`direct testimony prior to the scrutiny of cross-examination.
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`Moreover, Petitioner’s stated reasons for replacing Dr. Davis strain
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`credulity. Despite ample opportunity, Petitioner never informed Caltech in
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`advance that they intended to replace Dr. Davis as a witness. Rather, Petitioner
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`first stated in its reply that as a result of “relocat[ing] to Europe pursuant to a
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`Fulbright Scholar Award …, he was unavailable to work on the Reply. Reply 2
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`n.1. But Petitioner fails to mention that Dr. Davis received the Fulbright award in
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`February 2017, and his European obligations to the award began in September
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`2017.1 Indeed, by early September 2017, Dr. Davis appears to have already began
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`lecturing in Germany,2 yet Petitioner still was able to make him available for a 3-
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`day deposition in September. Given that Dr. Davis was aware of his obligations
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`months before his deposition, there was no reason that Petitioner had to surprise
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`Caltech by replacing its expert with its reply brief.
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`In addition, neither Petitioner nor Dr. Davis provide any explanation as to
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`1 See, e.g., https://news.richmond.edu/releases/article/-/14096/ur-math-
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`professor-jim-davis-selected-for-fulbright-global-award-
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`.html?sma=sm.000008x8mclgv5czryfee9s17g82n (article dated February 2017
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`describing Dr. Davis’s Fulbright responsibilities in Germany, France and Canada);
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`https://www.cies.org/grantee/james-davis (showing a start date of September
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`2017).
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`2 See, e.g., http://cage.ugent.be/~ml/irsee5/abstract_book.pdf at 4.
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`why Dr. Davis could not have assisted in the Reply while in Europe. Dr. Davis’s
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`responsibilities appear to be “meet[ing] with other local experts and giv[ing]
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`seminar talks and public lectures.”3 There is no indication such activities would
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`prevent Dr. Davis from assisting in the reply, especially in light of the requirement
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`that the reply is to “only respond to arguments raised in the corresponding
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`opposition or patent owner response” (37 CFR §42.23(b)) and Dr. Davis’s
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`testimony that “the typing [for the petition declarations] was done at the law firm’s
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`end.” Ex. 2033; 12:6-7. Moreover, just a few days ago, Petitioner submitted a
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`new declaration from Dr. Davis that states he is fully available for deposition in the
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`United States. Ex. 1073, ¶3 (“I will appear for cross-examination within the
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`United States…”). Thus, there appears to be no legitimate reason for Petitioner to
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`have needed to prejudice Caltech by replacing its expert so late in the game. For
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`these reasons, Exhibit 1065 in its entirety should be excluded.
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`3 https://news.richmond.edu/releases/article/-/14096/ur-math-professor-jim-
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`davis-selected-for-fulbright-global-award-
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`.html?sma=sm.000008x8mclgv5czryfee9s17g82n
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`C. Certain portions of Exhibits 1062 and 1064 should be excluded as
`out-of-scope testimony
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`Exhibits 1062 and 1064 are the deposition transcripts of Caltech witnesses
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`Dr. Mitzenmacher and Dr. Divsalar, respectively. Certain portions of their
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`testimony were elicited from questions that were beyond the scope of the witness’s
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`direct testimony and should therefore be excluded. FRE 611(b). Some portions
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`were also elicited from questions relating to theories that were not presented in the
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`petition, and therefore lack relevance to any instituted grounds of review. FRE
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`401; FRE 402. Many questions appeared to have been attempts to elicit
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`“additional discovery” in circumvention of 35 U.S.C. §316(a)(5) and 37 CFR
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`§42.51(b)(2)(i). The offending portions are listed in Exhibit 2037. Such testimony
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`should be excluded. See 1964 Ears, LLC v. Jerry Harvey Audio Holding, LLC,
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`IPR2016-00494, Paper 56, p. 21 (July 19, 2017).
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`These portions of Exhibits 1062 and 1064 should also be excluded because
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`of their undue prejudice to Caltech. Caltech’s witnesses were ambushed with out-
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`of-scope and irrelevant questions, and Caltech will have no meaningful opportunity
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`to address the testimony.
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`D. Exhibits 1032-1034 and 1037 are related to Petitioner’s revised
`and belated publication date theory and should be excluded for lack of
`relevance and undue prejudice
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`Exhibits 1032-1034 are declarations of Dr. Hajek, Dr. Basar, and Dr.
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`Sreenivas, respectfully. They are largely identical in substance. Exhibit 1037 is a
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`letter from Dr. Sreenivas to Ms. Anderson of the UIUC Purchasing Division,
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`purportedly dated December 8, 1999. Identical copies of Exhibit 1037 are also
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`attached to Exhibits 1032-1034. Petitioner cited to these exhibits in its reply as
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`evidence of a February 16, 2000 publication date for the Frey reference (Ex. 1002),
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`as part of the 37th Annual Allerton Conference Proceedings.
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`These exhibits should be excluded because they lack relevance. First, they
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`are cited to support an improper new argument. The petition claimed that Exhibit
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`1002 was “published on or before March 20, 2000,” and relied on a “March 20,
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`2000” stamp in Exhibit 1002. Exhibits 1032-1034 and 1037 were then submitted
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`after the petition, but with no explanation for what position Petitioner intended to
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`use. It was not until Petitioner’s reply that it changed its position to a publication
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`date of February 16, 2000. IPR’s do not accommodate notice pleading, and this is
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`an improper new argument. There is no reason (other than the assertion being
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`unsubstantiated on the merits) why the petition could not have argued for a
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`February 2000 publication date using these exhibits.
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`These exhibits are also irrelevant because they do not even support
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`Petitioner’s new publication date. Nothing within these exhibits establish that
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`Exhibit 1002 was received by Cornell University and available to the public by
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`February 2000. First, none of the declarants have specific recollections about the
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`timing of Frey’s publication—they merely speak in general terms about the
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`Allerton Conference’s general publication practices. See, e.g., Ex. 1032, ¶10 (“[I]t
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`only takes about 10 weeks for the publisher to print and ship the Conference
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`Proceedings.”) (emphasis added).
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`Second, all three declarations state that “from the time that conference staff
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`sends the assembled papers to the local publisher for publication, it only takes
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`about 10 weeks for the publisher to print and ship the Conference Proceedings”
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`and that the 37th Annual Allerton Conference Proceedings were “print[ed and]
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`shipped, about 10 weeks after the date of [Exhibit 1037].” Notwithstanding that
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`Exhibit 1037 does not in any way establish when the publisher received the papers
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`(it only shows when Dr. Sreenivas approved the order), the testimony at best only
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`establishes the Proceedings were shipped by February 2000. There is no indication
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`when the Proceedings were received by Cornell University and if or when it was
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`available to the public.
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`Third, Exhibits 1032-1034 and 1037 are inconsistent with Exhibit 1038. As
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`mentioned above, all three declarations state that the Proceedings were shipped
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`“about 10 weeks after” December 8, 1999, which would be February 16, 2000.
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`Petitioner cites to February 16, 2000 in its reply brief as the date the Proceedings
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`were shipped. See Reply 17. Yet Exhibit 1038, which Petitioner does not cite to,
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`indicates that the printer in Ann Arbor, Michigan shipped the copies of the
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`Proceeding to the conference hosts on February 21, 2000. Thus, it is impossible
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`for Exhibit 1002 to have been publicly available by February 16 as Petitioner now
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`asserts. Further, in order for it to have been available to the public, the
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`Proceedings would have needed to be shipped from Michigan to the conference
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`hosts in Illinois and then shipped to Cornell University. Petitioner has not
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`provided any evidence that this happened by the end of February 2000.
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`Fourth, Petitioner’s February 2000 publication date does not pre-date the
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`conception of the invention. Since a publication date of February 16, 2000 is
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`rebutted by Petitioner’s own evidence, at best Petitioner must be held to the last
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`date of February (February 29, since 2000 was a leap year). [case cite]. However,
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`Dr. Jin testified that he and his co-inventors had conceived of the invention
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`“several weeks” before March 10, 2000, which would put the conception date
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`squarely in February. Ex. 2020, ¶8; see also Ex. 1063, 48:17 (“I remember that it
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`took me several weeks to design [the parameter file dated March 13]”). Even
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`assuming conception did not occur until February 29, the tie would go to the patent
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`owner. See 35 U.S.C. §102(a) (“[D]escribed in a printed publication … before the
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`invention thereof.”) (emphasis added).
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`Separately, Exhibits 1032-1034 and 1037 should be excluded and expunged
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`from the record because they are unduly prejudicial to Caltech. FRE 403. In
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`reliance on the petition claiming a March 20, 2000 publication date, Caltech
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`produced testimony and documentary evidence from the inventors of the ’710
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`patent that shows the invention was conceived prior to March 20, 2000 and
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`diligently reduced to practice. Caltech now has no meaningful opportunity to
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`address Petitioner’s new date. Although the Board has granted Caltech a short
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`surreply, the Board has not authorized Caltech to enter new evidence to rebut
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`Petitioner’s new publication date, including additional evidence regarding the date
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`of conception.
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`E.
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`Exhibit 1067 should be excluded under FRE 106
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`Exhibit 1067 is a decision from Judge Pfaelzer in the case California
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`Institute of Technology v. Hughes Communications Inc., No. 2:13-cv-07245-MRP-
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`JEM, 2015 WL 11089495 (C.D. Cal. May 5, 2015). Per FRE 106, the Board
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`should in fairness consider other writings, or otherwise exclude the exhibit,
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`because the decision relies on a narrow claim construction that would be improper
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`for the Board to adopt under the “broadest reasonable interpretation” standard.
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`In particular, the Board should consider that Judge Pfaelzer’s decision was
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`in reliance on a narrow construction of “repeat.” While the court adopted the
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`“plain meaning” of repeat, it explained that this plain meaning requires “creation of
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`new bits corresponding to or reflecting the value of the original bits” and precludes
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`“the re-use of a bit.” California Institute of Technology v. Hughes
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`Communications Inc., No. 2:13-cv-07245-MRP-JEM, Dkt. 105, p. 10-11 (C.D.
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`Cal. Aug. 6, 2014).
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`The Board should also consider that in the more recent district court
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`litigation against Petitioner, the same court expressly rejected the argument that the
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`plain meaning of “repeat” would exclude reuse. California Institute of Technology
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`v. Broadcom Limited, et al., No. 2:16-cv-03714-GW-AGRx, Dkt. 213, p. 1 (C.D.
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`Cal. Jul. 12, 2017) (“[T]he term ‘repeat’ may encompass duplication and reuse.”).
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`The Board should also consider that it is to give claims their “broadest reasonable
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`interpretation.” See Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131 (2016).
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`F.
`Exhibits 1013, 1029-1031, 1035, 1036, 1038-1045, 1047-1049, 1053,
`1055, 1059, and 1060 should be excluded for lack of relevance as they
`are uncited
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`Petitioner moves to exclude Exhibits 1013, 1029-1031, 1035, 1036, 1038-
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`1045, 1047-1049, 1053, 1055, 1059, and 1060. These exhibits are not cited in the
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`petition or Petitioner’s reply and are therefore not relevant to any instituted
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`grounds of review. FRE 401; FRE 402. Admission of these exhibits would be
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`unduly prejudicial to Caltech, as Caltech lacks notice as to if and how Petitioner
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`intends to rely on these exhibits in this proceeding or any future appeal. FRE 403.
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`For the same reasons, these exhibits should be expunged from the record, since
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`Caltech would have no meaningful opportunity to respond if Petitioner were to rely
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`on these exhibits in this or a later proceeding.
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`With regard to Exhibit 1035, it is a declaration from Dr. Frey submitted in
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`an earlier district court litigation. The reply does not cite to any of Dr. Frey’s
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`testimony, but it does cite to Appendix A of the exhibit, which is purportedly an
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`email from Dr. Frey to Dr. Divsalar. However, this email is identical in substance
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`with one found in Exhibit 1017. Thus, the entirety of Exhibit 1035 should be
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`excluded—but in the alternative, Exhibit 1035 should be excluded with the
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`exception of Appendix A.
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`Furthermore, Exhibits 1029-1031, 1035, 1036, and 1038-1043 should be
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`excluded because they were not submitted until October 27, 2017, less than two
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`weeks prior to the due date for Caltech’s Patent Owner Response. Caltech will be
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`prejudiced by the lack of any opportunity to meaningfully respond to any reliance
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`on those exhibits.
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`III. CONCLUSION
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`For these reasons, Exhibits 1013, 1029-1049, 1053, 1055, 1057-1061, 1065,
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`1067, 1068 and portions of Exhibits 1062 and 1064 should be excluded.
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`Date: March 5, 2018
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`Respectfully submitted,
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`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
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`CERTIFICATE OF SERVICE
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`I certify that the foregoing Patent Owner’s Motion to Exclude was served on
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`this 5th day of March, 2018, on the Petitioner at the electronic service addresses of
`
`the Petitioner as follows:
`
`Richard Goldenberg
`Dominic Massa
`Michael H. Smith
`James M. Dowd
`Mark D. Selwyn
`Arthur Shum
`WILMER CUTLER PICKERING HALE AND DORR LLP
`richard.goldenberg@wilmerhale.com
`dominic.massa@wilmerhale.com
`michaelh.smith@wilmerhale.com
`james.dowd@wilmerhale.com
`mark.selwyn@wilmerhale.com
`arthur.shum@wilmerhale.com
`
`
`
`Date: March 5, 2018
`
`
`
`
`Respectfully submitted,
`
`
`/ Michael T. Rosato /
`Michael T. Rosato, Lead Counsel
`Reg. No. 52,182
`
`
`
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`-16-
`
`
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