`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`
`
`APPLE INC.
`Petitioner
`
`v.
`
`VALENCELL, INC.
`Patent Owner
`
`
`
`
`
`
`
`
`Case IPR2017-00317
`U.S. Patent No. 8,989,830
`_____________________
`
`
`
`
`
`
`
`PETITIONER APPLE INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
`WITH PATENT OWNER’S PRELIMINARY RESPONSE
`
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`Petitioner Apple Inc. (“Apple”) hereby objects under the Federal Rules of
`
`Evidence (“FRE”) and 37 C.F.R. § 42.62 to Exhibits 2001, 2002, 2003, and 2004
`
`(the “Challenged Exhibits”) cited in Valencell, Inc.’s Patent Owner Preliminary
`
`Response (Paper 6). Apple timely objects within the allowed ten business days of
`
`the June 5, 2017 Institution of the Trial in this matter under 37 C.F.R. §
`
`42.64(b)(1). Apple files and serves Valencell with these objections to provide
`
`notice that Apple may move to exclude the Challenged Exhibits under 37 C.F.R. §
`
`42.64(c).
`
`I.
`
`IDENTIFICATION OF CHALLENGED EXHIBITS AND GROUNDS
`FOR OBJECTIONS
`Valencell Exhibit 2001: S. LeBoeuf, et al., Earbud-Based Sensor
`1.
`for the Assessment of Energy Expenditure, HR, and VO2max,
`OFFICIAL J. AM. C. SPORTS M., 2014, 1046–1052
`
`Apple objects to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402 because it does not relate to a fact that is of
`
`consequence in determining the action and also is dated too far past the relevant
`
`date as to be probative. Apple also objects to this document as prejudicial,
`
`confusing, and potentially misleading under FRE 403 because this document is not
`
`relevant to any issue in this proceeding, such as patentability of the subject matter,
`
`broadest reasonable interpretation of the claims, or obviousness of the claims in
`
`view of the prior art, and because the document was created by a biased party.
`
`- 1 -
`
`
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`To the extent Valencell relies on the contents of this document for the truth
`
`of the matter asserted, Apple objects to such contents as inadmissible hearsay
`
`under FRE 801 and 802 that does not fall under any exception.
`
`Apple objects to this document as not properly authenticated under FRE 901
`
`because Valencell has not presented any evidence that the document is authentic or
`
`that the document is self-authenticating under FRE 902.
`
`2.
`
`Valencell Exhibit 2002: Biometrics Lab: Performance of Leading
`Optical Heart Rate Monitors During Interval Exercise Conditions
`
`Apple objects to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402 because it does not relate to a fact that is of
`
`consequence in determining the action, and also is dated too far past the relevant
`
`date as to be probative. Apple also objects to this document as prejudicial,
`
`confusing, and potentially misleading under FRE 403 because this document is not
`
`relevant to any issue in this proceeding, such as patentability of the subject matter,
`
`broadest reasonable interpretation of the claims, or obviousness of the claims in
`
`view of the prior art, and because the document was created by a biased party.
`
`To the extent Valencell relies on the contents of this document for the truth
`
`of the matter asserted, Apple objects to such contents as inadmissible hearsay
`
`under FRE 801 and 802 that does not fall under any exception.
`
`- 2 -
`
`
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`Apple objects to this document as not properly authenticated under FRE 901
`
`because Valencell has not presented any evidence that the document is authentic or
`
`that the document is self-authenticating under FRE 902.
`
`3.
`
`Valencell Exhibit 2003: Valencell Website
`(http://valencell.com/customers/)
`
`Apple objects to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402 because it does not relate to a fact that is of
`
`consequence in determining the action, and also is dated too far past the relevant
`
`date as to be probative. Apple also objects to this document as prejudicial,
`
`confusing, and potentially misleading under FRE 403 because this document is not
`
`relevant to any issue in this proceeding, such as patentability of the subject matter,
`
`broadest reasonable interpretation of the claims, or obviousness of the claims in
`
`view of the prior art, and because the document was created by a biased party.
`
`To the extent Valencell relies on the contents of this document for the truth
`
`of the matter asserted, Apple objects to such contents as inadmissible hearsay
`
`under FRE 801 and 802 that does not fall under any exception.
`
`Apple objects to this document as not properly authenticated under FRE 901
`
`because Valencell has not presented any evidence that the document is authentic or
`
`that the document is self-authenticating under FRE 902.
`
`- 3 -
`
`
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`Valencell Exhibit 2004: CTA - It Is Innovation (i3) Magazine 2016
`Innovation Entrepreneur Awards
`
`4.
`
`Apple objects to this document as irrelevant under FRE 401 and thus
`
`inadmissible under FRE 402 because it does not relate to a fact that is of
`
`consequence in determining the action, and also is dated too far past the relevant
`
`date as to be probative. Apple also objects to this document as prejudicial,
`
`confusing, and potentially misleading under FRE 403 because this document is not
`
`relevant to any issue in this proceeding, such as patentability of the subject matter,
`
`broadest reasonable interpretation of the claims, or obviousness of the claims in
`
`view of the prior art, and also appears to be incomplete.
`
`To the extent Valencell relies on the contents of this document for the truth
`
`of the matter asserted, Apple objects to such contents as inadmissible hearsay
`
`under FRE 801 and 802 that does not fall under any exception.
`
`Apple objects to this document as not properly authenticated under FRE 901
`
`because Valencell has not presented any evidence that the document is authentic
`
`nor that the document is self-authenticating under FRE 902.
`
`
`
`
`
`- 4 -
`
`
`
`II. CONCLUSION
`To the extent that Valencell fails to correct the defects associated with the
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`
`Challenged Exhibits in view of Apple’s objections herein, Apple may file one or
`
`more motions to exclude the Challenged Exhibits under 37 C.F.R. § 42.64(c).
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`/Michelle K. Holoubek, Reg. # 54,179/
`Michelle K. Holoubek
`Registration No. 54,179
`Attorney for Petitioner
`
`
`Date: June 19, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`- 5 -
`
`
`
`IPR2017-00317
`U.S. Patent No. 8,989,830
`CERTIFICATION OF SERVICE (37 C.F.R. § 42.6(e))
`
`
`
`The undersigned hereby certifies that on June 19, 2017, a true and correct
`
`copy of the foregoing PETITIONER APPLE INC.’S OBJECTIONS TO
`
`EVIDENCE SUBMITTED WITH PATENT OWNER’S PRELIMINARY
`
`RESPONSE was served electronically via email in its entirety on the following
`
`counsel of record for Patent Owner:
`
`
`
`Justin B. Kimble (Lead Counsel)
`Nicholas C. Kliewer (Back-up Counsel)
`Jonathan H. Rastegar (Back-up Counsel)
`
`JKimble-IPR@bcpc-law.com
`nkliewer@bcpc-law.com
`jrastegar@bcpc-law.com
`
`BRAGALONE CONROY PC
`2200 Ross Avenue, Suite 4500 – West
`Dallas, TX 75201
`
`
`
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`/Michelle K. Holoubek, Reg. # 54,179/
`Michelle K. Holoubek
`Registration No. 54,179
`Attorney for Petitioner
`
`Date: June 19, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
`
`5374642.docx
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