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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`
`APPLE INC. and FITBIT, INC.
`Petitioner
`
`v.
`
`VALENCELL, INC.
`Patent Owner
`____________
`
`Case IPR2017-003171
`U.S. Patent No. 8,989,830
`__________________
`
`
`PETITIONER APPLE INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
`WITH PATENT OWNER’S REPLY TO PETITIONER’S OPPOSITION TO
`PATENT OWNER’S CONDITIONAL MOTION TO AMEND
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`1 Case IPR2017-01553 has been joined with this proceeding.
`
`
`
`Case IPR2017-00317
`U.S. Patent No. 8,989,830
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Apple Inc. (“Apple”) hereby
`
`objects under the Federal Rules of Evidence (“FRE”) and 37 C.F.R. § 42.62 to
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`Exhibit 2151 (the “Challenged Exhibit”) cited in Valencell, Inc.’s Patent Owner’s
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`Reply in Support of its Conditional Motion to Amend (Paper 32). Apple timely
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`objects under 37 C.F.R. § 42.64(b)(1) within the allowed five business days from
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`of service of evidence.2 Apple files and serves Valencell with these objections to
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`provide notice that Apple may move to exclude the Challenged Exhibit under 37
`
`C.F.R. § 42.64(c).
`
`I.
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`IDENTIFICATION OF CHALLENGED EXHIBITS AND GROUNDS
`FOR OBJECTIONS
`A. Exhibit 2151: Supplemental Declaration of Albert H. Titus in Support
`of Valencell’s Motions to Amend under 37 C.F.R. § 42.121
`
` Apple objects to Exhibit 2151, specifically at least ¶¶ 5, 11, 14, 17, 18, 25,
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`30, 31, and 38 as improper expert testimony under FRE 702 and 703. The
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`testimony is conclusory, based on insufficient facts or data, is not the product of
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`reliable principles and methods, and the expert has not reliably applied the
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`appropriate principles and methods to the facts of the case. Apple further objects to
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`these conclusory paragraphs as prejudicial, confusing, and potentially misleading
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`under FRE 403.
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`
`
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`2 Monday, January 1, 2018 was a Federal holiday.
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`
`
`- 1 -
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`
`
`Case IPR2017-00317
`U.S. Patent No. 8,989,830
`In addition, at least ¶¶ 19-38 are inadmissible as irrelevant pursuant to FRE
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`401, 402, and 403 because they have not been relied upon in support of any
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`argument made in the Patent Owner’s Reply in Support of its Conditional Motion
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`to Amend.
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`II. CONCLUSION
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`To the extent that Valencell fails to correct the defects associated with the
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`Challenged Exhibit in view of Apple’s objections herein, Apple may file one or
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`more motions to exclude the Challenged Exhibit under 37 C.F.R. § 42.64(c).
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`
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`
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`Respectfully submitted,
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Michael D. Specht/
`
`Michael D. Specht
`Registration No. 54,463
`Attorney for Petitioner Apple Inc.
`
`Date: January 8, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`- 2 -
`
`
`
`Case IPR2017-00317
`U.S. Patent No. 8,989,830
`CERTIFICATION OF SERVICE (37 C.F.R. §§42.6(e))
`
`The undersigned hereby certifies that a true and correct copy of the above-
`
`captioned PETITIONER APPLE INC.’S OBJECTIONS TO EVIDENCE
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`SUBMITTED WITH PATENT OWNER’S REPLY TO PETITIONER’S
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`OPPOSITION TO PATENT OWNER’S CONDITIONAL MOTION TO
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`AMEND was served electronically via email in its entirety on January 8, 2018 on
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`the following:
`
`Justin B. Kimble (Lead Counsel)
`Jeffrey R. Bragalone (Back-up Counsel)
`Nicholas C. Kliewer (Back-up Counsel)
`T. William Kennedy (Back-up Counsel)
`Jonathan H. Rastegar (Back-up Counsel)
`Brian P. Herrmann (Back-up Counsel)
`Marcus Benavides (Back-up Counsel)
`R. Scott Rhoades (Back-up Counsel)
`Sanford E. Warren, Jr. (Back-up Counsel)
`
`Harper Batts (Counsel for Fitbit, Inc.)
`Jeremy Taylor (Counsel for Fitbit, Inc.)
`
`
`
`JKimble-IPR@bcpc-law.com
`jbragalone@bcpc-law.com
`nkliewer@bcpc-law.com
`bkennedy@bcpc-law.com
`jrastegar@bcpc-law.com
`bherrmann@bcpc-law.com
`mbenavides@bcpc-law.com
`srhoades@wriplaw.com
`swarren@wriplaw.com
`
`harper.batts@bakerbotts.com
`jeremy.taylor@bakerbotts.com
`dlfitbit-valencell@bakerbotts.com
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Michael D. Specht/
`Michael D. Specht
`Registration No. 54,463
`Attorney for Petitioner Apple Inc.
`
`
`
`
`
`
`
`Date: January 8, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`
`
`
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