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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. and FITBIT, INC.
`Petitioner
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`v.
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`VALENCELL, INC.
`Patent Owner
`____________
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`Case IPR2017-003181
`U.S. Patent No. 8,886,269
`__________________
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`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
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`1 Case IPR2017-01554 has been joined with this proceeding.
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`Case IPR2017-00318
`U.S. Patent No. 8,886,269
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner Apple Inc. (“Apple”) hereby
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`objects under the Federal Rules of Evidence (“FRE”) and 37 C.F.R. § 42.62 to
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`Exhibits 2151-2153 (the “Challenged Exhibits”) cited in Valencell, Inc.’s Patent
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`Owner’s Reply in Support of its Conditional Motion to Amend (Paper 37). Apple
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`timely objects under 37 C.F.R. § 42.64(b)(1) within the allowed five business days
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`from of service of evidence.2 Apple files and serves Valencell with these
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`objections to provide notice that Apple may move to exclude the Challenged
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`Exhibits under 37 C.F.R. § 42.64(c).
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`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
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`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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`2 Monday, January 1, 2018 was a Federal holiday.
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`- 1 -
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`Case IPR2017-00318
`U.S. Patent No. 8,886,269
`In addition, at least ¶¶ 5, 10-18, 25-27, 36, and 38 are inadmissible as
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`irrelevant pursuant to FRE 401, 402, and 403 because they have not been relied
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`upon in support of any argument made in the Patent Owner’s Reply in Support of
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`its Conditional Motion to Amend.
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`Petitioner further objects to Exhibit 2151 to the extent it relies on any other
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`exhibit objected to as set forth herein.
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`B. Exhibit 2152: Analog Devices Datasheet for ADXL311 Rev A
`To the extent Valencell relies on the contents of this document for the truth
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`of the matter asserted, Apple objects to such contents as inadmissible hearsay
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`under FRE 801 and 802 that does not fall under any exception.
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`Apple further objects to this document as not properly authenticated under
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`FRE 901 because Valencell has not presented evidence sufficient to support a
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`finding that the document in question is what Valencell claims. There is no
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`evidence that the document is self-authenticating under FRE 902.
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`C. Exhibit 2153: Analog Devices Datasheet for ADXL311 Rev B
`Apple objects to this document as prejudicial, confusing, and potentially
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`misleading under FRE 403. In particular, the document includes a watermark
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`indicating that it is “OBSOLETE.”
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`- 2 -
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`Case IPR2017-00318
`U.S. Patent No. 8,886,269
`To the extent Valencell relies on the contents of this document for the truth
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`of the matter asserted, Apple objects to such contents as inadmissible hearsay
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`under FRE 801 and 802 that does not fall under any exception.
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`Apple further objects to this document as not properly authenticated under
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`FRE 901 because Valencell has not presented evidence sufficient to support a
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`finding that the document in question is what Valencell claims. There is no
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`evidence that the document is self-authenticating under FRE 902.
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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 Exhibits in view of Apple’s objections herein, Apple may file one or
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`more motions to exclude the Challenged Exhibits under 37 C.F.R. § 42.64(c).
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`Respectfully submitted,
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`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Michael D. Specht/
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`Michael D. Specht
`Registration No. 54,463
`Attorney for Petitioner Apple Inc.
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`Date: January 8, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
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`- 3 -
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`Case IPR2017-00318
`U.S. Patent No. 8,886,269
`CERTIFICATION OF SERVICE (37 C.F.R. §§42.6(e))
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`The undersigned hereby certifies that a true and correct copy of the above-
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`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:
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`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.)
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`
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`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
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`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
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`/Michael D. Specht/
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`Michael D. Specht
`Registration No. 54,463
`Attorney for Petitioner Apple Inc.
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`Date: January 8, 2018
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
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