Paper 13
`October 18, 2017
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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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`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioner
`v.
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`IMAGE PROCESSING TECHNOLOGIES LLC,
`Patent Owner
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`Case IPR2017-01190
`U.S. Patent No. 6,717,518 B1
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`PAPER NO. 13
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`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S EVIDENCE
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`NY01:4389215.2
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`October 18, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA, INC.,
`Petitioner
`v.
`
`IMAGE PROCESSING TECHNOLOGIES LLC,
`Patent Owner
`
`
`
`
`
`Case IPR2017-01190
`U.S. Patent No. 6,717,518 B1
`
`PAPER NO. 13
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`PATENT OWNER’S OBJECTIONS TO
`PETITIONER’S EVIDENCE
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`NY01:4389215.2
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`Paper 13
`October 18, 2017
`Pursuant to 37 C.F.R. § 42.64(b)(1), Patent Owner, Image Processing
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`Technologies LLC (“Image Processing”) objects to the admissibility of the
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`following exhibits filed by Petitioners.
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`In this paper, a reference to “F.R.E.” means the Federal Rules of Evidence
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`and “’518 patent” means U.S. Patent No. 6,717,518. “C.F.R.” means the Code of
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`Federal Regulations.
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`Image Processing’s objections are as follows:
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`Exhibit 1002 (Hart Declaration)
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`Patent Owner objects to ¶¶ 136-159 of Exhibit 1002 under F.R.E. 402
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`(relevance) and F.R.E. 403 (confusing, waste of time) because Ground 3 has not
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`been instituted by the Board.
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`Exhibit 1005 (Eriksson)
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`Patent Owner objects that Petitioner has failed to establish that Exhibit 1005
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`is a printed publication within the meaning of 35 U.S.C. §§ 102 and 311(b), and
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`that the reference is prior art to the ’518 Patent. In particular, Petitioner fails to
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`show in the Petition, or even otherwise, that the reference was “publicly
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`accessible,” prior to the critical date, i.e., that the reference has been “disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.”
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`Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016)
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`(quoting Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1350
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`(Fed. Cir. 2008)).
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`The Garrity declaration, Exhibit 1010, lacks foundations for its assertions
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`and therefore is irrelevant and prejudicial. See F.R.E. 602, 701, 402-03. For
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`example, the declarant admits he or she has worked at the library only since 2014.
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`The declarant’s assertions as to prior library practices and their asserted foundation
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`for familiarity with same are conclusory and insufficient.
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`The Umit Ozguner declaration, Exhibit 1011, lacks foundations for its
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`assertions and therefore is irrelevant and prejudicial. Se F.R.E. 602, 701, 402-03.
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`For example, the declarant does not explain the factual basis for his assertion that
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`“all of the Technical Papers listed on Pages 44–46 in Exhibit A were distributed to
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`registered conference attendees as part of the Proceedings” (Paragraph 3), or
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`whether he asserts that the “1998” stamped article is the same version of the
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`document that he says was made available in 1997.
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`Patent Owner also objects to this exhibit under F.R.E. 402 and 403, and
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`objects that a complete copy was required under F.R.E. 106 and an original was
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`required under F.R.E. 1002. The document is an incomplete copy of a larger
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`document lacking, for example, a rear cover page or any other copies of technical
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`papers that were purportedly included, and includes a “1998” date stamp on page
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`314 that contradicts Petitioner’s claimed date of availability. The document,
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`therefore, has not been shown to be a document that was provided to conference
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`participants in 1997.
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`Patent Owner also objects to Exhibit 1005 under F.R.E. 402 (relevance) and
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`F.R.E. 403 (unfairly prejudicial, confusing, waste of time) at least because the
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`document is not relevant to any issue in this IPR proceeding because the disclosure
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`is not prior art and/or Petitioner has not met its burden to show the exhibit to be
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`prior art.
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`Exhibit 1006 (Stringa)
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`Patent Owner objects that Petitioner has failed to establish that Exhibit 1006
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`is a printed publication within the meaning of 35 U.S.C. §§ 102 and 311(b), and
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`that the reference is prior art to the ’518 Patent. In particular, Petitioner fails to
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`show in the Petition, or even otherwise, that the reference was “publicly
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`accessible,” prior to the critical date, i.e., that the reference has been “disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.”
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`Blue Calypso, LLC, 815 F.3d at 1348 (Fed. Cir. 2016).
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`The Garrity declaration, Exhibit 1010, lacks foundations for its assertions
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`and therefore is irrelevant and prejudicial. See F.R.E. 602, 701, 402-03. For
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`example, the declarant admits he or she has worked at the library only since 2014.
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`The declarant’s assertions as to prior library practices and his or her asserted
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`foundation for familiarity with same are conclusory and insufficient.
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`Patent Owner objects to Exhibit 1006 under F.R.E. 802 (hearsay). Patent
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`Owner also objects to Exhibit 1006 under F.R.E. 402 (relevance) and F.R.E. 403
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`(unfairly prejudicial, confusing, waste of time) at least because the document is not
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`relevant to any issue in this IPR proceeding because the disclosure is not prior art
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`and/or Petitioner has not met its burden to show the exhibit to be prior art.
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`Exhibit 1010 (Garrity Declaration)
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`Patent Owner objects to Exhibit 1010 under F.R.E. 802 (hearsay). The
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`Garrity declaration, Exhibit 1010, lacks foundations for its assertions and therefore
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`is irrelevant and prejudicial. See F.R.E. 602, 701, 402-03. For example, the
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`declarant admits he or she has worked at the library only since 2014. The
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`declarant’s assertions as to prior library practices and his or her foundation for
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`familiarity with same are conclusory and insufficient.
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`Patent Owner objects to Exhibit 1010 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) and as not relevant and prejudicial under F.R.E. 402 and 403
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`because it is not sufficiently referenced or explained in the Petition. See 37 C.F.R.
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`§§ 42.22(a)(2) and 42.104(b)(4). Petitioner’s only reference is to cite Exhibit 1010
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`in single sentence of the Petition (Paper 2) at Page 15. Petitioner’s attempt to rely
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`upon Exhibit 1011 without referencing this exhibit in the Petition is an improper
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`attempt to circumvent the 60-page limit for Petitions. See 37 C.F.R. §§ 42.22(a)(2)
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`and 42.104(b)(4).
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`Exhibit 1010A
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`Patent Owner objects that Petitioner has failed to establish that Exhibit
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`1010A is a printed publication within the meaning of 35 U.S.C. §§ 102 and 311(b),
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`and that the reference is prior art to the ’518 Patent. In particular, Petitioner fails to
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`show in the Petition, or even otherwise, that the reference was “publicly
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`accessible,” prior to the critical date, i.e., that the reference has been “disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.”
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`Blue Calypso, LLC, 815 F.3d at 1348 (Fed. Cir. 2016).
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`Patent Owner also objects to this exhibit under F.R.E. 402 and 403, and
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`objects that a complete copy was required under F.R.E. 106 and an original was
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`required under F.R.E. 1002. The document is an incomplete copy of a larger
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`document.
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`Patent Owner objects to Exhibit 1010A because the requirement to
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`authenticate the document has not been satisfied. See F.R.E. 901, 902, 903.
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`Exhibit 1010B
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`Patent Owner objects that Petitioner has failed to establish that Exhibit
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`1010B is a printed publication within the meaning of 35 U.S.C. §§ 102 and 311(b),
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`and that the reference is prior art to the ’518 Patent. In particular, Petitioner fails to
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`show in the Petition, or even otherwise, that the reference was “publicly
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`accessible,” prior to the critical date, i.e., that the reference has been “disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.”
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`Blue Calypso, LLC, 815 F.3d at 1348 (Fed. Cir. 2016).
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`Patent Owner objects to Exhibit 1010B under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) and as not relevant and prejudicial under F.R.E. 402 and 403
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`because it is not referenced or explained in the Petition. See 37 C.F.R. §§
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`42.22(a)(2) and 42.104(b)(4). Petitioner’s attempt to rely upon Exhibit 1010B
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`without referencing this exhibit in the Petition is an improper attempt to
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`circumvent the 60-page limit for Petitions. See 37 C.F.R. §§ 42.22(a)(2) and
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`42.104(b)(4).
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`Patent Owner also objects to this exhibit under F.R.E. 402 and 403, and
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`objects that a complete copy was required under F.R.E. 106 and an original was
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`required under F.R.E. 1002. The document is an incomplete copy of a larger
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`document.
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`Patent Owner objects to Exhibit 1010B because the requirement to
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`authenticate the document has not been satisfied. See F.R.E. 901, 902, 903.
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`Exhibit 1011 (Ozguner Declaration)
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`Patent Owner objects to Exhibit 1011 under F.R.E. 802 (hearsay). The Umit
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`Ozguner declaration, Exhibit 1011, lacks foundations for its assertions and
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`therefore is irrelevant and prejudicial. See F.R.E. 602, 701, 402-03.
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`Patent Owner objects to Exhibit 1011 under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) and as not relevant and prejudicial under F.R.E. 402 and 403
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`because it is not sufficiently referenced or explained in the Petition. See 37 C.F.R.
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`§§ 42.22(a)(2) and 42.104(b)(4). Petitioner’s only reference is to cite Paragraphs
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`2-4 in single sentence of the Petition (Paper 2) at Page 11. Petitioner’s attempt to
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`rely upon Exhibit 1011 without referencing this exhibit in the Petition is an
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`improper attempt to circumvent the 60-page limit for Petitions. See 37 C.F.R. §§
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`42.22(a)(2) and 42.104(b)(4).
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`Exhibit 1011A
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`Patent Owner objects that Petitioner has failed to establish that Exhibit
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`1011A is a printed publication within the meaning of 35 U.S.C. §§ 102 and 311(b),
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`and that the reference is prior art to the ’518 Patent. In particular, Petitioner fails
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`to show in the Petition, or even otherwise, that the reference was “publicly
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`accessible,” prior to the critical date, i.e., that the reference has been “disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
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`skilled in the subject matter or art exercising reasonable diligence, can locate it.”
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`Blue Calypso, LLC, 815 F.3d at 1348 (Fed. Cir. 2016). The document bears a date
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`of “1998 IEEE” on page 314, which contradicts the “November 1997” claim made
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`by Petitioner on page 11 of the Petition.
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`Patent Owner objects to Exhibit 1011A under 37 C.F.R. §§ 42.6(a)(3) and
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`42.24(a)(1)(i) and as not relevant and prejudicial under F.R.E. 402 and 403
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`because it is not referenced or explained at all in the Petition. See 37 C.F.R. §§
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`42.22(a)(2) and 42.104(b)(4). Petitioner’s only reference is to cite Paragraphs 2-4
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`in single sentence of the Petition (Paper 2) at Page 11. Petitioner’s attempt to rely
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`upon Exhibit 1011 without referencing this exhibit in the Petition is an improper
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`attempt to circumvent the 60-page limit for Petitions. See 37 C.F.R. §§ 42.22(a)(2)
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`and 42.104(b)(4).
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`Patent Owner also objects to this exhibit under F.R.E. 402 and 403, and
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`objects that a complete copy was required under F.R.E. 106 and an original was
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`required under F.R.E. 1002. The document is an incomplete copy of a larger
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`document lacking, for example, a rear cover page or any other copies of technical
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`papers that were purportedly included, and includes a “1998” date stamp on page
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`314 that contradicts Petitioner’s claimed date of availability. The document
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`cannot, therefore, be a copy of a document that was provided to participants in
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`1997.
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`Exhibit 1012 (Bovik Exhibit P)
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`Patent Owner objects to Exhibit 1012 as an improper reply to Image
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`Processing’s Preliminary Patent Owner response. See 37 C.F.R. 42.71(d)(1).
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`Patent Owner objects to Exhibit 1012 because no motion seeking leave to file a
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`reply is of record in this proceeding. See 37 C.F.R. § 42.20(b).
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`Patent Owner objects to Exhibit 1012 under F.R.E. 106 as an incomplete
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`portion of a larger document. Patent Owner requested that Petitioner include at
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`least Paragraphs 246-250 of Dr. Bovik’s report to provide necessary context for
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`Exhibit 1012, but Petitioner did not provide these paragraphs.
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`Patent Owner objects to Exhibit 1012 under F.R.E. 802 as hearsay for which
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`Samsung has not shown that a hearsay exception applies and has not shown that
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`the Exhibit is inconsistent with Image Processing’s positions.
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`Patent Owner objects to Exhibit 1012 under F.R.E. 402 (relevance) and
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`F.R.E. 403 (confusing, waste of time). The content of the exhibit, which is a
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`portion of a document directed to infringement analysis, has not been shown by
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`Samsung to be relevant in this IPR. As an incomplete portion of a larger
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`document, Exhibit 1012 is misleading and lacks necessary context. The document
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`is not addressed by a paper or exhibit of record in this IPR, and is not discussed in
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`the Declaration of Dr. Hart (Exhibit 1002) nor cited to or discussed in the Petition.
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`Patent Owner objects to Exhibit 1012 because the requirement to
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`authenticate the document has not been satisfied. See F.R.E. 901, 902, 903.
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`/s/Chris J. Coulson
`Chris J. Coulson (Reg. No. 61,771)
`Lead Counsel for Patent Owner
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`chriscoulson@andrewskurthkenyon.com
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`Dated: October 18, 2017
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`Paper 13
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on October 18,
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`2017, the foregoing Patent Owner’s Objections to Petitioner’s Evidence was
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`served via electronic mail upon the following counsel of record for the Petitioner:
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`John Kappos (Reg. No. 37,861)
`O’Melveny & Myers LLP
`610 Newport Center Drive, 17th Floor
`Newport Beach, CA 92660
`jkappos@omm.com
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`Marc J. Pensabene (Reg. No. 37,416)
`O’Melveny & Myers LLP
`Times Square Tower
`7 Times Square
`New York, NY 10036
`mpensabene@omm.com
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`Nicholas J. Whilt (Reg. No. 72,081)
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`nwhilt@omm.com
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`Brian M. Cook (Reg. No. 59,356)
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`bcook@omm.com
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`Clarence Rowland (Reg. No. 73,775)
`O’Melveny & Myers LLP
`400 South Hope Street, 18th Floor
`Los Angeles, CA 90071
`crowland@omm.com
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`NY01:4389215.2
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`IPTSAMSUNGOMM@OMM.COM
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`Paper 13
`October 18, 2017
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`/s/Chris J. Coulson
`Chris J. Coulson
`ANDREWS KURTH KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
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