Paper 54
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`
`TWITTER, INC.
`
`
`
`Petitioner
`
`
`v.
`
`
`VIDSTREAM, LLC
`
`Patent Owner
`
`_____________________________
`
`
`Case IPR2017-01131
`U.S. Patent No. 8,464,304
`(Claims 1, 4-5, 8-9, 11-17, 19-26, and 28-30)
`_____________________________
`
`
`
`PATENT OWNER’S EVIDENTIARY OBJECTIONS
`
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`73329230.1
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________________
`
`
`TWITTER, INC.
`
`
`
`Petitioner
`
`
`v.
`
`
`VIDSTREAM, LLC
`
`Patent Owner
`
`_____________________________
`
`
`Case IPR2017-01131
`U.S. Patent No. 8,464,304
`(Claims 1, 4-5, 8-9, 11-17, 19-26, and 28-30)
`_____________________________
`
`
`
`PATENT OWNER’S EVIDENTIARY OBJECTIONS
`
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`73329230.1
`
`
`
`IPR2017-01131
`U.S. Patent No. 8,464,304
`Pursuant to 37 C.F.R. § 42.64(b), Patent Owner, VidStream, LLC,
`
`respectfully asserts the following objections to the evidence proffered with
`
`Petitioner’s Reply filed August 10, 2018 (“Reply”). These objections are being
`
`provided within five business days from the date of service of the Reply, and are
`
`thus timely pursuant to 37 C.F.R. § 42.64(b)(1). The Federal Rules of Evidence
`
`(FRE) apply to these proceedings according to the provisions of 37 C.F.R.
`
`§ 42.62(a), and these rules form the basis of the objections contained herein.
`
`Ex. Number and
`Petitioner Description
`1033. Fonearena.com Nokia E50
`specifications, October 21, 2006
`
`73329230.1
`
`
`
`Objections
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “the E50 was capable of
`recording at multiple resolutions,” and that
`the exhibit “indicates that the E50 could
`also record video using at least two
`different resolutions.” See Reply at 9 and
`Exhibit 1052 at ¶ 12. Petitioner has not
`offered evidence sufficient to demonstrate
`that the exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`
`- 2 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1034. CNET.com document
`entitled “Nokia E50-1 -
`smartphone - GSM Series Specs” -
`(Identified at Dr. Olivier’s
`Deposition on July 24, 2018. Not
`Filed)
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`
`73329230.1
`
`- 3 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1035. Mobile88.com Nokia N73
`Specification - (Identified at Dr.
`Olivier’s Deposition on July 24,
`2018. Not Filed)
`
`1036. Article entitled “Samsung
`Starts Selling World’s First 10
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`
`73329230.1
`
`- 4 -
`
`
`
`Ex. Number and
`Petitioner Description
`Megapixel Camera Phone”,
`October 10, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`described therein, the statements are
`hearsay: e.g., that “the Samsung SCH-
`V770 and the Samsung SCH-B600 each
`could record video at 15-30 fps,” and “by
`2006 [Samsung] was selling at least two
`mobile phones that could record video at
`15-30 frames per second.” See Reply at
`13, Exhibit 1052 at ¶ 15. Petitioner has not
`offered evidence sufficient to demonstrate
`that the exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`
`73329230.1
`
`- 5 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1037. Letsgodigital.com article
`referencing Samsung SCH-V7770,
`March 10, 2008
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “the Samsung SCH-
`V770 and the Samsung SCH-B600 each
`could record video at 15-30 fps,” and “by
`2006 [Samsung] was selling at least two
`mobile phones that could record video at
`15-30 frames per second.” See Reply at
`13, Exhibit 1052 at ¶ 15. Petitioner has not
`offered evidence sufficient to demonstrate
`that the exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`
`73329230.1
`
`- 6 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1038. Cypress Semiconductor
`Corporation Advance Information
`for CYIWCDC1300AA -
`(Identified at Dr. Olivier’s
`Deposition on July 24, 2018. Not
`Filed)
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`1039. “Multimedia on Symbian
`OS, Inside the Convergence
`Device” - (Identified at Dr.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`
`73329230.1
`
`- 7 -
`
`
`
`Ex. Number and
`Petitioner Description
`Olivier’s Deposition on July 24,
`2018. Not Filed)
`
`1040. Document from Symbian
`Developer Library entitled “Class
`TCameraInfo” - (Identified at Dr.
`Olivier’s Deposition on July 24,
`2018. Not Filed)
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`
`73329230.1
`
`- 8 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1041. Document entitled
`“Class·CCamera” from Symbian
`Developer Library (2007) -
`(Identified at Dr. Olivier’s
`Deposition on July 24, 2018. Not
`Filed)
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (3) the purported date this
`exhibit was available is after the alleged
`February 2006 date of publication of Ex.
`1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`
`73329230.1
`
`- 9 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1042. Document entitled
`“Class·CCamera” from Symbian
`Developer Library (2006) -
`(Identified at Dr. Olivier’s
`Deposition on July 24, 2018. Not
`Filed)
`
`1043. Document entitled
`“Class·CCamera” from Symbian
`Developer Network, S60 SDKs”,
`February 9, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that listed “versions of the
`Symbian OS had been released by 2006.”
`See Exhibit 1052 at ¶ 14 & fn. 6. Petitioner
`has not offered evidence sufficient to
`
`73329230.1
`
`- 10 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1044. Document entitled “Symbian
`Phones”, December 20, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`demonstrate that the exhibit falls within
`any exception to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, and (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “Nokia models, as well
`as other leading devices ran on the
`Symbian OS.” See Reply at 13. Petitioner
`has not offered evidence sufficient to
`
`73329230.1
`
`- 11 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1045. Article from Wire.com
`entitled “By Open Sourcing
`Symbian, Nokia Kicks off the
`Mobile Age”, June 24, 2008
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`demonstrate that the exhibit falls within
`any exception to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “Symbian had a
`dominant share of the smartphone
`operating system market in the early to
`
`73329230.1
`
`- 12 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`mid-2000’s and maintained a large share
`through 2010 and 2011.” See Exhibit 1052
`at ¶ 7. Petitioner has not offered evidence
`sufficient to demonstrate that the exhibit
`falls within any exception to the rule
`against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`1046. Article from Mobile-
`Review.com·entitled “The
`company of Sharp - models of
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`
`73329230.1
`
`- 13 -
`
`
`
`Ex. Number and
`Petitioner Description
`2005 and strategy” - (Identified at
`Dr. Olivier’s Deposition on July
`24, 2018. Not Filed)
`
`1047. Symbian OS SDK v8.1
`from·Symbian Developer Library,
`February 8, 2008
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`the exhibit is substantially outweighed by
`unfair prejudice and/or a waste of time,
`particularly because: (1) this exhibit is not
`cited in Petitioner’s Reply or in any
`declaration paragraph cited in Petitioner’s
`Reply, and (2) Petitioner has not
`demonstrated this exhibit was available
`prior to the alleged February 2006 date of
`publication of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “Prior to starting to
`record video, the developer must use the
`PrepareVideoCaptureL() API function7 to
`specify both a frame size and a frame rate
`at which to record.” See Exhibit 1052 at ¶
`14 & fn. 7. Petitioner has not offered
`evidence sufficient to demonstrate that the
`exhibit falls within any exception to the
`rule against hearsay.
`
`73329230.1
`
`- 14 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1048. Document entitled
`“CCamera in Multimedia ECam”
`Symbian OS SDK V8.1 from
`Symbian Developer Library,
`September 17, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. Patent Owner objected to this
`exhibit during Dr. Olivier’s deposition
`because it was not authenticated, was
`untimely offered as supplemental
`information, and was not shown to have
`been published; yet Petitioner failed to
`offer any supplemental evidence during the
`deposition as required by 37 C.F.R.
`§ 42.64(a). Also, to the extent this exhibit
`is relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Authentication. Fed. R. Evid. 901(a).
`Petitioner has not produced evidence
`sufficient to support a finding that this
`exhibit is a true and correct copy of what
`Petitioner purports it to be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`
`73329230.1
`
`- 15 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`hearsay: e.g., that “[b]y 2006, the Symbian
`OS provided mobile phones with APIs that
`supported a variety of multimedia
`functions, including video capture at
`varying resolutions and frame rates;” and
`that “[p]rior to starting to record video, the
`developer must use the
`PrepareVideoCaptureL() API function to
`specify both a frame size and a frame rate
`at which to record.” See Reply at 13,
`Exhibit 1052 at ¶ 14 & fn. 7. Petitioner has
`not offered evidence sufficient to
`demonstrate that the exhibit falls within
`any exception to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, and (3) the purported
`date this exhibit was available is after the
`alleged February 2006 date of publication
`of Ex. 1006.
`Untimely. To the extent this exhibit is
`relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`1049. Article from Samsung
`Mobile News entitled “SAMSUNG
`Launches the World’s First 10
`
`Authentication. Fed. R. Evid. 901(a).
`Petitioner has not produced evidence
`sufficient to support a finding that this
`
`73329230.1
`
`- 16 -
`
`
`
`Ex. Number and
`Petitioner Description
`Megapixel Camera Phone”,
`October 10, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`exhibit is a true and correct copy of what
`Petitioner purports it to be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “the Samsung SCH-
`V770 and the Samsung SCH-B600 each
`could record video at 15-30 fps,” and “by
`2006 [Samsung] was selling at least two
`mobile phones that could record video at
`15-30 frames per second.” See Reply at
`13, Exhibit 1052 at ¶ 15. Petitioner has not
`offered evidence sufficient to demonstrate
`that the exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, (3) the substantive
`portions of this exhibit appear to be
`identical or nearly identical to Exhibit
`1050, and (4) the purported date this
`exhibit was available is after the alleged
`February 2006 date of publication of Ex.
`1006.
`Untimely. To the extent this exhibit is
`relied upon to support the grounds for
`rejection, Petitioner’s submission of
`
`73329230.1
`
`- 17 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1050. Article entitled “Samsung
`SCH-B600 10 Megapixel Camera
`Phone, October 10, 2006
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Authentication. Fed. R. Evid. 901(a).
`Petitioner has not produced evidence
`sufficient to support a finding that this
`exhibit is a true and correct copy of what
`Petitioner purports it to be.
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay: e.g., that “the Samsung SCH-
`V770 and the Samsung SCH-B600 each
`could record video at 15-30 fps,” and “by
`2006 [Samsung] was selling at least two
`mobile phones that could record video at
`15-30 frames per second.” See Reply at
`13, Exhibit 1052 at ¶ 15. Petitioner has not
`offered evidence sufficient to demonstrate
`that the exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is irrelevant under FRE 401, and
`thus inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403, because: (1) it is inadmissible
`under FRE 801, 802, and 901 as explained
`above, (2) Petitioner has not shown the
`exhibit to be prior art or otherwise a
`reliable reference, (3) the substantive
`portions of this exhibit appear to be
`identical or nearly identical to Exhibit
`1049, and (4) the purported date this
`exhibit was available is after the alleged
`
`73329230.1
`
`- 18 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`1051. Deposition Transcript of
`James Olivier, Ph.D., July 24, 2018
`
`1052. Supplemental Declaration of
`Henry Houh
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`February 2006 date of publication of Ex.
`1006.
`Untimely. To the extent this exhibit is
`relied upon to support the grounds for
`rejection, Petitioner’s submission of
`supplemental information is untimely and
`unauthorized. 37 C.F.R. § 42.123.
`
`Relevance. Fed. R. Evid. 401-403. To the
`extent Petitioner relies on testimony in this
`exhibit concerning an opinion not rendered
`or reasonably related to an opinion
`rendered in Ex. 2002, such testimony is
`irrelevant under FRE 401, and thus
`inadmissible under FRE 402, or
`inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under
`FRE 403.
`
`Hearsay. Fed. R. Evid. 801(c) and Fed. R.
`Evid. 802. To the extent Petitioner relies
`on this exhibit to prove the truth of matters
`described therein, the statements are
`hearsay, for example at:
`
` Fn. 1 and ¶ 7 (citing Ex. 1045 and
`https://www.statista.com/statistics/21
`9966/global-smartphone-market-
`shareforecast-of-symbian-and-
`microsoft/ and
`https://www.digitaltrends.com/mobil
`e/symbian-captures-88-market-share/
`and
`http://www.metrics2.com/blog/2007/
`03/26/nokia_leads_smarphone_mark
`et_with_56_share_symbian.html for
`the contention that “Symbian had a
`
`73329230.1
`
`- 19 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`dominant share of the smartphone
`operating system market in the early
`to mid-2000’s and maintained a
`large share through 2010 and
`2011”);
`
` ¶ 12 (citing Ex. 1033 for the
`proposition “that the E50 could also
`record video using at least two
`different resolutions”);
`
` ¶ 14 (citing Ex. 1043 for the
`proposition that listed “versions of
`the Symbian OS had been released
`by 2006”);
`
` ¶ 14 & fn. 7 (citing Ex. 1047, Ex.
`1048, and the URL:
`http://web.archive.org/web/2006051
`7210803/http://www.symbian.com:8
`0/developer/techlib/v9.1docs/doc_so
`urce/guide/Multimedia-subsystem-
`guide/N100DE/HowToUse.guide.ht
`ml#OnboardCameraGuide%2eHowT
`oUse for the proposition that “[p]rior
`to starting to record video, the
`developer must use the
`PrepareVideoCaptureL() API
`function to specify both a frame size
`and a frame rate at which to
`record”);
`
` ¶ 14 & fn. 8 (citing the URL:
`http://web.archive.org/web/2005041
`1000225/http://www.symbian.com:8
`0/developer/techlib/v70sdocs/doc_so
`urce/reference/cpp/OnboardCamera
`Ref/CCameraClass.html for the
`
`73329230.1
`
`- 20 -
`
`
`
`Ex. Number and
`Petitioner Description
`
`Case IPR2017-01131
`Patent 8,464,304
`Objections
`
`proposition that “[a]fter the video
`camera is prepared in such a fashion,
`the video capture can be started
`using the StartVideoCapture() API
`function”);
`
` ¶ 15 (citing Ex. 1036, Ex. 1037, Ex.
`1049, and Ex. 1050 for the
`proposition that “by 2006 [Samsung]
`was selling at least two mobile
`phones that could record video at 15-
`30 frames per second”).
`Petitioner has not offered evidence
`sufficient to demonstrate that the exhibit, or
`documents cited and quoted therein, fall
`within any exception to the rule against
`hearsay.
`Relevance. Fed. R. Evid. 401-403. This
`exhibit is not relevant to any issue in this
`IPR proceeding, and any probative value of
`the exhibit is substantially outweighed by
`unfair prejudice and a waste of time,
`particularly because: (1) it is inadmissible
`under FRE 801 and 802 as explained
`above, and (2) Dr. Houh’s reliance upon
`inadmissible and unreliable evidence in an
`attempt to demonstrate lack of novelty
`renders the opinions expressed therein
`unreliable. See, for example, ¶ 12 (reliance
`upon Ex. 1033); ¶14 and Fn. 6 (reliance
`upon Ex. 1043); ¶14 and Fn. 7 (reliance
`upon Ex. 1047); ¶14 and Fn. 7 (reliance
`upon Ex. 1048); ¶15 (reliance upon Ex.
`1036); ¶15 (reliance upon Ex. 1037); ¶15
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