UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`TWITTER, INC.,
`Petitioner,
`
`v.
`
`VIDSTREAM LLC,
`Patent Owner.
`
`_________________
`
`Case IPR2017-01131
`Patent 8,464,304
`
`_________________
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`TWITTER, INC.,
`Petitioner,
`
`v.
`
`VIDSTREAM LLC,
`Patent Owner.
`
`_________________
`
`Case IPR2017-01131
`Patent 8,464,304
`
`_________________
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`I.
`
`INTRODUCTION
`
`Pursuant to 37.C.F.R. § 42.64 and the Federal Rules of Evidence, Petitioner
`
`Twitter, Inc. (“Twitter”) respectfully moves to exclude certain evidence presented
`
`by Patent Owner VidStream LLC (“PO”) in this proceeding. Petitioner respectfully
`
`moves to exclude Exhibits 2003 - 2007 as containing inadmissible hearsay, not
`
`subject to any exception.
`
`Petitioner’s motion is based on timely filed objections (Paper No. 51), the
`
`Federal Rules of Evidence (“FRE”), relevant case law, and the PTAB’s Rules.
`
`II. APPLICABLE LAW
`
`The FRE apply to proceedings relating to a petition for inter partes review
`
`(“IPR”). 37 C.F.R. § 42.62. Hearsay is defined as “a statement that: (1) the declarant
`
`does not make while testifying at the current trial or hearing; and (2) the party offers
`
`in evidence to prove the truth of the matter asserted in the statement.” FRE 801(c).
`
`Hearsay is not admissible unless other rules or statutes provide otherwise. FRE 802.
`
`III. EXS. 2003 - 2007 SHOULD BE EXCLUDED
`
`Patent Owner submitted five exhibits in an attempt to show that mobile phones
`
`available around the time of the publication of one of Petitioner’s prior art references
`
`had uniform native recording capabilities and that setting recording parameters via
`
`a server-provided application would therefore be illogical. The exhibits appear to be
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 1
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`items found on the internet, which Patent Owner has submitted to support its
`
`argument. Each exhibit is hearsay for the reasons set forth below.
`
`A. Ex. 2003: “Review GSM Phone Nokia 6270”
`
`Patent Owner filed Exhibit 2003 in support of Patent Owner’s Response
`
`Under 37 C.F.R. § 42.120. Paper 50 (Patent Owner’s Response) (“POR”). Petitioner
`
`objected to Exhibit 2003 under Rule 802 for containing inadmissible hearsay. Paper
`
`51. Specifically, PO relies on Exhibit 2003 as evidencing certain characteristics of
`
`the Nokia 6270 device. In so doing, PO is offering Exhibit 2003 for the truth of the
`
`matter asserted, namely that “the Nokia 6270 captured video data in a ‘3GP [file]
`
`format’ at a ‘clip resolution of 176x144 pixels’ and a frame rate of ‘15 fps’ (i.e.
`
`‘frames per second’).” POR, p. 16. This is classic hearsay and should be excluded.
`
`Because Patent Owner cannot establish any exceptions to the hearsay rule, Exhibit
`
`2003 is inadmissible. FRE 801-803, 805, 807; see Microsoft Corp. v. Bradium Techs.
`
`LLC, IPR2016-00449, Paper 65 at 2-7 (P.T.A.B. July 26, 2017) (excluding out of
`
`court statements offered for the truth of the matter asserted); Google Inc. v.
`
`Meiresonne, IPR2014-01188, Paper 38 at 10 (P.T.A.B. January 20, 2016) (same).
`
`B.
`
`Ex. 2004: “Nokia E50 Hands-On Preview”
`
`Patent Owner filed Exhibit 2004 in support of Patent Owner’s Response
`
`Under 37 C.F.R. § 42.120. Petitioner objected to Exhibit 2004 under Rule 802 for
`
`containing inadmissible hearsay. Paper 51. Specifically, Patent Owner relies upon
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 2
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`Exhibit 2004 as evidencing certain characteristics of the Nokia E50 device. In so
`
`doing, PO is offering Exhibit 2004 for the truth of the matter asserted, namely that
`
`the Nokia E50 “captured video at a resolution of ‘176x144 [pixels]’ and a frame rate
`
`of ‘15 fps.’” POR, p. 17. This is classic hearsay and should be excluded. Because
`
`Patent Owner cannot establish any exceptions to the hearsay rule, Exhibit 2004 is
`
`inadmissible. FRE 801-803, 805, 807; see Microsoft Corp. v. Bradium Techs. LLC,
`
`IPR2016-00449, Paper 65 at 2-7 (P.T.A.B. July 26, 2017) (excluding out of court
`
`statements offered for the truth of the matter asserted); Google Inc. v. Meiresonne,
`
`IPR2014-01188, Paper 38 at 10 (P.T.A.B. January 20, 2016) (same).
`
`C. Ex. 2005: “Nokia – Phone Features Nokia 6630”
`
`Patent Owner filed Exhibit 2005 in support of Patent Owner’s Response
`
`Under 37 C.F.R. § 42.120. Petitioner objected to Exhibit 2005 under Rule 802 for
`
`containing inadmissible hearsay. Paper 51. Specifically, PO relies on Exhibit 2005
`
`as evidencing certain characteristics of the Nokia 6630 device. In so doing, PO is
`
`offering Exhibit 2005 for the truth of the matter asserted, namely that “the Nokia
`
`6630’s native video capture parameters, including: ‘.3gp file format, H.263 video
`
`and AMR radio [audio]” at a resolution of “174 x 144 pixels or 128 x 96 pixels.’”
`
`POR, p. 19. This is classic hearsay and should be excluded. Because Patent Owner
`
`cannot establish any exceptions to the hearsay rule, Exhibit 2005 is inadmissible
`
`FRE 801-803, 805, 807; see Microsoft Corp. v. Bradium Techs. LLC, IPR2016-
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 3
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`00449, Paper 65 at 2-7 (P.T.A.B. July 26, 2017) (excluding out of court statements
`
`offered for the truth of the matter asserted); Google Inc. v. Meiresonne, IPR2014-
`
`01188, Paper 38 at 10 (P.T.A.B. January 20, 2016) (same).
`
`D. Ex. 2006: “Nokia 6630 (Nokia Charlie) Detailed Tech Specs”
`
`Patent Owner filed Exhibit 2006 in support of Patent Owner’s Response
`
`Under 37 C.F.R. § 42.120. Petitioner objected to Exhibit 2006 under Rule 802 for
`
`containing inadmissible hearsay. Paper 51. Specifically, PO relies on Exhibit 2006
`
`as evidencing certain characteristics of the Nokia 6630 device. In so doing, PO is
`
`offering Exhibit 2006 for the truth of the matter asserted, namely that “the Nokia
`
`6630 captured video in ‘3GP’ format, with a resolution of ‘176x144 pixel[s],’ at a
`
`frame rate of ‘15 [frames per second]’”:
`
`
`POR, p. 19. This is classic hearsay and should be excluded. Because Patent Owner
`
`
`
`cannot establish any exceptions to the hearsay rule, Exhibit 2006 is inadmissible.
`
`FRE 801-803, 805, 807; see Microsoft Corp. v. Bradium Techs. LLC, IPR2016-
`
`00449, Paper 65 at 2-7 (P.T.A.B. July 26, 2017) (excluding out of court statements
`
`offered for the truth of the matter asserted); Google Inc. v. Meiresonne, IPR2014-
`
`01188, Paper 38 at 10 (P.T.A.B. January 20, 2016) (same).
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 4
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`E.
`
`Ex. 2007: “Nokia 6630 –
`Smartphone – GSM / UMTS Series Specs”
`
`Patent Owner filed Exhibit 2007 in support of Patent Owner’s Response
`
`Under 37 C.F.R. § 42.120. Petitioner objected to Exhibit 2007 under Rule 802 for
`
`containing inadmissible hearsay. Paper 51. Specifically, PO relies on Exhibit 2007
`
`as evidencing certain characteristics of the Nokia 6630 device. In so doing, PO is
`
`offering Exhibit 2007 for the truth of the matter asserted, namely that the Nokia 6630
`
`captured video in 3GP format, with H.263 video encoding and AMR audio encoding.
`
`POR, p. 20. This is classic hearsay and should be excluded. Because Patent Owner
`
`cannot establish any exceptions to the hearsay rule, Exhibit 2007 is inadmissible
`
`FRE 801-803, 805, 807; see Microsoft Corp. v. Bradium Techs. LLC, IPR2016-
`
`00449, Paper 65 at 2-7 (P.T.A.B. July 26, 2017) (excluding out of court statements
`
`offered for the truth of the matter asserted); Google Inc. v. Meiresonne, IPR2014-
`
`01188, Paper 38 at 10 (P.T.A.B. January 20, 2016) (same).
`
`IV. CONCLUSION
`
`For the above reasons, the Board should grant Petitioner’s Motion to Exclude
`
`Evidence as to each of Exhibits 2003-2007.
`
`Respectfully submitted,
`
`
`Dated: September 14, 2018 By: /Todd M. Siegel/
`Todd M. Siegel (Registration No. 73,232)
`todd.siegel@klarquist.com
`KLARQUIST SPARKMAN, LLP
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 5
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`One World Trade Center, Suite 1600
`121 S.W. Salmon Street
`Portland, Oregon 97204
`Tel: 503-595-5300
`Fax: 503-595-5301
`
`Counsel for Petitioner
`
`
`
`
`
`PETITIONER’S MOTION TO EXCLUDE EVIDENCE
`
`Page 6
`
`
`
`IPR2017-01131
`Patent 8,464,304
`
`CERTIFICATE OF SERVICE
`IN COMPLIANCE WITH 37 C.F.R. § 42.6(e)(4)
`
`The undersigned certifies that on September 14, 2018, a complete copy of
`
`Petitioner’s Motion to Exclude Evidence was served on counsel for VidStream
`
`LLC via electronic mail as follows:
`
`Eagle Robinson – Lead Counsel
`eagle.robinson@nortonrosefulbright.com
`Eric Green – Back-Up Counsel
`eric.green@nortonrosefulbright.com
`Norton Rose Fulbright US LLP
`98 San Jacinto Blvd., Suite 1100
`Austin, TX 78701
`
`Eric Hall – Back-Up Counsel
`Norton Rose Fulbright US LLP
`1301 McKinney St., Ste. 5100
`Houston, TX 77010
`eric.hall@nortonrosefulbright.com
`
`
`
`
`
`
`By: /Todd M. Siegel/
`Todd M. Siegel (Registration No. 73,232)
`todd.siegel@klarquist.com
`KLARQUIST SPARKMAN, LLP
`One World Trade Center, Suite 1600
`121 S.W. Salmon Street
`Portland, Oregon 97204
`Tel: 503-595-5300
`Fax: 503-595-5301
`
`Counsel for Petitioner
`
`
`
`CERTIFICATE OF SERVICE
`
`Page 1
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
