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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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`APPLE INC.
`Petitioner
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`v.
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`VALENCELL, INC.
`Patent Owner
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`Case IPR2017-00321
`U.S. Patent No. 8,923,941
`_____________________
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`PETITIONER APPLE INC.’S OBJECTIONS TO EVIDENCE SUBMITTED
`WITH PATENT OWNER’S PRELIMINARY RESPONSE
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`Petitioner Apple Inc. (“Apple”) hereby objects under the Federal Rules of
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`Evidence (“FRE”) and 37 C.F.R. § 42.62 to Exhibits 2001, 2002, 2003, 2004,
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`2005, 2006, 2007, and 2008 (the “Challenged Exhibits”) cited in Valencell, Inc.’s
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`Patent Owner Preliminary Response (Paper 6). Petitioner timely objects within the
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`allowed ten business days of the June 6, 2017 Institution of the Trial in this matter
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`under 37 C.F.R. § 42.64(b)(1). 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
`Valencell Exhibit 2001: Skip West, Valencell and RapidSOS
`1.
`Honored with CTA’s 2016 Innovation Entrepreneur Awards
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`consequence in determining the action, and also is dated too far past the relevant
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`date as to be probative. Apple also objects to this document as prejudicial,
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`confusing, and potentially misleading under FRE 403 because this document is not
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`relevant to any issue in this proceeding, such as patentability of the subject matter,
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`broadest reasonable interpretation of the claims, or obviousness of the claims in
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`view of the prior art, and also appears to be incomplete.
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`- 1 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`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 objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
`
`2.
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`Valencell Exhibit 2002: Biometrics Lab: Performance of Leading
`Optical Heart Rate Monitors During Interval Exercise Conditions
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`consequence in determining the action, and also is dated too far past the relevant
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`date as to be probative. Apple also objects to this document as prejudicial,
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`confusing, and potentially misleading under FRE 403 because this document is not
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`relevant to any issue in this proceeding, such as patentability of the subject matter,
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`broadest reasonable interpretation of the claims, or obviousness of the claims in
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`view of the prior art, and because the document was created by a biased party.
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`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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`- 2 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`Apple objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
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`3.
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`Valencell Exhibit 2003: Valencell Website
`(http://valencell.com/customers/)
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`consequence in determining the action, and also is dated too far past the relevant
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`date as to be probative. Apple also objects to this document as prejudicial,
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`confusing, and potentially misleading under FRE 403 because this document is not
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`relevant to any issue in this proceeding, such as patentability of the subject matter,
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`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.
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`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 objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
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`- 3 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`Valencell Exhibit 2004: Electrical (ECG) vs. Optical-based (PPG)
`Biosensors in Wearable Devices
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`4.
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`consequence in determining the action, and also is dated too far past the relevant
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`date as to be probative. Apple also objects to this document as prejudicial,
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`confusing, and potentially misleading under FRE 403 because this document is not
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`relevant to any issue in this proceeding, such as patentability of the subject matter,
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`broadest reasonable interpretation of the claims, or obviousness of the claims in
`
`view of the prior art.
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`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
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`under FRE 801 and 802 that does not fall under any exception.
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`Apple objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
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`5.
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`Valencell Exhibit 2005: Estimating Respiratory and Heart Rates
`from the Correntropy Spectral Density of the
`Photoplethysmogram
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it is dated too far past the relevant date as to
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`be probative.
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`- 4 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`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
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`under FRE 801 and 802 that does not fall under any exception.
`
`Apple objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
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`6.
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`Valencell Exhibit 2006: Continuous Blood Pressure Measurement
`by Using the Pulse Transit Time: Comparison to a Cuff-Based
`Method
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`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,
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`confusing, and potentially misleading under FRE 403 because this document
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`includes “PROOF ONLY” and “In Press” watermarks. This document thus appears
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`to be a non-public draft.
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`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 objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`- 5 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`that the document is self-authenticating under FRE 902, and the document appears
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`to be a non-final draft.
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`Valencell Exhibit 2007: How an LDV/LDA works
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`7.
`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it does not relate to a fact that is of
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`consequence in determining the action, and also is dated too far past the relevant
`
`date as to be probative.
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`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
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`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
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`that the document is self-authenticating under FRE 902.
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`8.
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`Valencell Exhibit 2008: A New Look at the Essence of the Imaging
`Photoplethysmography
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`Apple objects to this document as irrelevant under FRE 401 and thus
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`inadmissible under FRE 402 because it is dated too far past the relevant date as to
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`be probative. Apple also objects to this document as prejudicial, confusing, and
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`potentially misleading under FRE 403 because this document appears to be
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`incomplete.
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`- 6 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`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 objects to this document as not properly authenticated under FRE 901
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`because Valencell has not presented any evidence that the document is authentic or
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`that the document is self-authenticating under FRE 902.
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`II. CONCLUSION
`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.
`/Michelle K. Holoubek, Reg. # 54,179/
`Michelle K. Holoubek
`Registration No. 54,179
`Attorney for Petitioner
`
`
`Date: June 20, 2017
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`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
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`- 7 -
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`IPR2017-00321
`U.S. Patent No. 8,923,941
`CERTIFICATION OF SERVICE (37 C.F.R. § 42.6(e))
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`
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`The undersigned hereby certifies that on June 20, 2017, a true and correct
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`copy of the foregoing PETITIONER APPLE INC.’S OBJECTIONS TO
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`EVIDENCE SUBMITTED WITH PATENT OWNER’S PRELIMINARY
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`RESPONSE was served electronically via email in its entirety on the following
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`counsel of record for Patent Owner:
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`
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`Justin B. Kimble (Lead Counsel)
`Nicholas C. Kliewer (Back-up Counsel)
`Jonathan H. Rastegar (Back-up Counsel)
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`JKimble-IPR@bcpc-law.com
`nkliewer@bcpc-law.com
`jrastegar@bcpc-law.com
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`BRAGALONE CONROY PC
`2200 Ross Avenue, Suite 4500 – West
`Dallas, TX 75201
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`
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`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 20, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C.20005-3934
`(202) 371-2600
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`5374931.docx
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