IPR2017-00216
`U.S. Patent No. 8,013,732
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`PETITIONER’S OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PATENT OWNER’S RESPONSE
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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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`EMERSON ELECTRIC CO.,
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`Petitioner,
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`v.
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`SIPCO, LLC,
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`Patent Owner.
`______________________
`
`Case No. IPR2017-00216
`Patent Number 8,013,732
`________________________
`
`
`Before LYNNE E. PETTIGREW, STACEY G. WHITE, and CHRISTA P. ZADO,
`Administrative Patent Judges
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`U.S. Patent No. 8,013,732
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`
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`PETITIONER’S OBJECTIONS TO EVIDENCE
`SUBMITTED WITH PATENT OWNER’S RESPONSE
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`______________________
`
`EMERSON ELECTRIC CO.,
`
`Petitioner,
`
`v.
`
`SIPCO, LLC,
`
`Patent Owner.
`______________________
`
`Case No. IPR2017-00216
`Patent Number 8,013,732
`________________________
`
`
`Before LYNNE E. PETTIGREW, STACEY G. WHITE, and CHRISTA P. ZADO,
`Administrative Patent Judges
`
`
`
`
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), the undersigned, on behalf of and acting
`
`IPR2017-00216
`U.S. Patent No. 8,013,732
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`
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`in a representative capacity for Petitioner Emerson Electric Co. (“Petitioner”),
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`hereby submits the following objections to Patent Owner SIPCO, LLC’s (“Patent
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`Owner”) Exhibits as indicated below, and any reference thereto/reliance thereon,
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`without limitation. Petitioner’s objections below apply the Federal Rules of
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`Evidence (“F.R.E.”) as required by 37 C.F.R § 42.62.
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`These objections address evidentiary deficiencies in the material filed by
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`Patent Owner with its Response on August 16, 2017.
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`The following objections apply to the Exhibits indicated below as they are
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`actually presented by Patent Owner in the context of Patent Owner’s August 16,
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`2017 Response (Paper No. 21, “POR”) and not in the context of any other
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`substantive argument on the merits of the instituted grounds in this proceeding.
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`Petitioner expressly objects to any other purported use of these Exhibits, including
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`as substantive evidence in this proceeding, which would be untimely and improper
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`under the applicable rules, and Petitioner expressly asserts, reserves, and does not
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`waive any other objections that would be applicable in such a context.
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`-2-
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`I. Objections to Exhibit 2012 And Any Reference To/Reliance Thereon
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`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`Evidence”); F.R.E. 1002 (“Requirement of the Original”); F.R.E. 1003
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`(“Admissibility of Duplicates”); F.R.E. 801, 802 (Impermissible Hearsay); F.R.E.
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`401 (“Test for Relevant Evidence”); F.R.E. 402 (“General Admissibility of
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`Relevant Evidence”); F.R.E. 403 (“Excluding Relevant Evidence for Prejudice,
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`Confusion, Waste of Time, or Other Reasons”); 37 C.F.R. § 42.61
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`(“Admissibility”).
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`Petitioner objects to the use of Exhibit 2012 under F.R.E. 901, 1002, 1003
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`and 37 C.F.R. § 42.61 because Patent Owner fails to provide the authentication
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`required for this document, and Exhibit 2012 is not self-authenticating under
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`F.R.E. 902.
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`Petitioner also objects to Exhibit 2012 as impermissible hearsay under
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`F.R.E. 801 and 802 to the extent to which the out-of-court statements therein are
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`offered for the truth of the matters asserted and constitute impermissible hearsay
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`for which Patent Owner has not demonstrated any exception or exclusion to the
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`rule against hearsay (F.R.E. 801, 802). Accordingly, permitting reliance on this
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`document in Patent Owner’s Response or other submissions of Patent Owner
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`would be misleading and unfairly prejudicial to Petitioner (F.R.E. 403).
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`-3-
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`Petitioner further objects to the use of Exhibit 2012 under F.R.E. 401, 402,
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`and 403, and 37 C.F.R. § 42.61 because Patent Owner has not shown that this
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`Exhibit represents the state of the art in the time period relevant to the ’732 patent.
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`Petitioner also objects to Exhibit 2012 under F.R.E. 401, 402, and 403, and 37
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`C.F.R. § 42.61, for failure to show that this Exhibit makes any fact of consequence
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`in determining this action more or less probable than it would be without this
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`Exhibit and is thus irrelevant and not admissible (F.R.E. 401, 402); permitting
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`reference to/reliance on the Exhibit would also be misleading, irrelevant, and
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`unfairly prejudicial to Petitioner (F.R.E. 402, 403).
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`II.
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` Objections to Exhibit 2014 And Any Reference to/Reliance Thereon
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`Grounds for objection: F.R.E. 401 (“Test for Relevant Evidence”); F.R.E.
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`402 (“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding
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`Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”);
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`F.R.E. 702 (“Testimony by Expert Witness”); F.R.E. 703 (“Bases of an Expert’s
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`Opinion Testimony”); 37 C.F.R. § 42.61 (“Admissibility”).
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`Petitioner objects to Exhibit 2014 under F.R.E. 702 and 703, and 37 C.F.R.
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`§ 42.61. The declarant of Exhibit 2014, Dr. Kevin C. Almeroth, fails to provide
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`sufficient underlying facts or data upon which the statements contained therein
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`could legitimately be based, in violation of F.R.E. 702. Dr. Almeroth has also not
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`“reliably applied the principles and methods to the facts of the case,” and his
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`-4-
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`opinions in Exhibit 2014 are not “the product of reliable principles and methods,”
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`in violation of F.R.E. 702. Petitioner further objects to Exhibit 2014 under F.R.E.
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`401, 402, and 403, and 37 C.F.R. § 42.61, for failure to show that this Exhibit
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`makes any fact of consequence in determining this action more or less probable
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`than it would be without the Exhibit and is thus irrelevant and not admissible
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`(F.R.E. 401, 402); permitting reference to/reliance on the Exhibit would also be
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`misleading, irrelevant, and unfairly prejudicial to Petitioner (F.R.E. 402, 403).
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`III.
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` Objections to Exhibit 2016 And Any Reference to/Reliance Thereon
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`Grounds for objection: 37 C.F.R. § 42.61 (“Admissibility”); 37 C.F.R. §
`
`42.64(a) (“Deposition evidence”); 37 C.F.R. § 42.53(f)(8) (Objections in
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`depositions).
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`Exhibit 2016 appears to be the deposition transcript of Stephen B. Heppe
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`taken on August 9, 2017 in this proceeding. Petitioner hereby expressly repeats
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`and incorporates by reference all of its objections stated on the record during that
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`deposition, and affirmatively maintains all such objections.
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`IV.
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` Objections to Exhibits 2017-2022 And Any Reference to/Reliance
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`Thereon
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`Grounds for objection: F.R.E. 401 (“Test for Relevant Evidence”); F.R.E.
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`402 (“General Admissibility of Relevant Evidence”); F.R.E. 403 (“Excluding
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`-5-
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`Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons”);
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`37 C.F.R. § 42.61 (“Admissibility”).
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`Petitioner objects to the use of Exhibits 2017-2022 under F.R.E. 401, 402,
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`and 403, and 37 C.F.R. § 42.61 because Patent Owner does not cite or rely on these
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`exhibits in its Patent Owner Response. Petitioner further objects to the use of
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`Exhibits 2017, 2020, and 2022 under F.R.E. 401, 402, and 403, and 37 C.F.R.
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`§ 42.61 as Patent Owner has not shown that these exhibits represent the state of the
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`art in the time period relevant to the ’732 patent. Petitioner thus objects to Exhibits
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`2017-2022 under F.R.E. 401, 402, and 403, and 37 C.F.R. § 42.61, for failure to
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`show that these Exhibits make any fact of consequence in determining this action
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`more or less probable than it would be without these Exhibits and are thus
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`irrelevant and not admissible (F.R.E. 401, 402); permitting reference to/reliance on
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`these Exhibits would also be misleading, irrelevant, and unfairly prejudicial to
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`Petitioner (F.R.E. 402, 403).
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`V. Additional Objections to Exhibits 2019 And 2021 And Any Reference
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`To/Reliance Thereon
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`Grounds for objection: F.R.E. 901 (“Authenticating or Identifying
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`Evidence”); F.R.E. 1002 (“Requirement of the Original”); F.R.E. 1003
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`(“Admissibility of Duplicates”); F.R.E. 801, 802 (Impermissible Hearsay).
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`
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`-6-
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`Petitioner additionally objects to the use of Exhibits 2019 and 2021 under
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`F.R.E. 901, 1002, 1003 and 37 C.F.R. § 42.61 because Patent Owner fails to
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`provide the authentication required for these documents, and Exhibits 2019 and
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`2021 are not self-authenticating under F.R.E. 902.
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`Petitioner also objects to Exhibits 2019 and 2021 as impermissible hearsay
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`under F.R.E. 801 and 802 to the extent to which the out-of-court statements therein
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`are offered for the truth of the matters asserted and constitute impermissible
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`hearsay for which Patent Owner has not demonstrated any exception or exclusion
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`to the rule against hearsay (F.R.E. 801, 802). Accordingly, permitting reliance on
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`these documents would be misleading and unfairly prejudicial to Petitioner (F.R.E.
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`403).
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`Respectfully submitted,
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` August 23, 2017
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`/s/ Donald L. Jackson
`
`
`Donald L. Jackson (Reg. No. 41,090)
`DAVIDSON BERQUIST JACKSON &
`GOWDEY, LLP
`8300 Greensboro Dr., Suite 500
`McLean, VA 22102
`Tel: 571-765-7700
`Fax: 571-765-7200
`djackson@dbjg.com
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`Counsel for Petitioner
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`-7-
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`IPR2017-00216
`U.S. Patent No. 8,013,732
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a copy of the foregoing PETITIONER’S
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`OBJECTIONS TO EVIDENCE SUBMITTED WITH PATENT OWNER’S
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`RESPONSE was served on August 23, 2017 in its entirety by causing the
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`aforementioned document to be electronically mailed, pursuant to the parties’
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`agreement, to the following attorneys of record:
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`Dr. Gregory J. Gonsalves
`Reg. No. 43,639
`2216 Beacon Lane
`Falls Church, VA 22043
`Email: Gonsalves@gonsalveslawfirm.com
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`Thomas F. Meagher
`Reg. No. 29,831
`Meagher Emanuel Laks Goldberg & Liao, LLP
`One Palmer Square, Suite 325
`Princeton, NJ 08542
`Email: tmeagher@meagheremanuel.com
`Counsel for Patent Owner SIPCO, LLC
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`Respectfully submitted,
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`/s/ Donald L. Jackson
`Donald L. Jackson
`Registration No. 41,090
`Counsel for Petitioner
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`-8-
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