Filed: March 2, 2018
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`INTEL CORP., and CAVIUM, INC.
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2017-013921
`U.S. Patent No. 7,337,241
`______________________
`
`PETITIONER’S OBJECTIONS TO DOCUMENTS SERVED WITH
`PATENT OWNER’S CORRECTED RESPONSE
`
`
`
` 1
`
` Cavium, Inc., who filed a Petition in Case IPR2017-01728, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`INTEL CORP., and CAVIUM, INC.
`Petitioner,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2017-013921
`U.S. Patent No. 7,337,241
`______________________
`
`PETITIONER’S OBJECTIONS TO DOCUMENTS SERVED WITH
`PATENT OWNER’S CORRECTED RESPONSE
`
`
`
` 1
`
` Cavium, Inc., who filed a Petition in Case IPR2017-01728, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`Pursuant to 37 C.F.R. § 42.64(b), Petitioner Intel Corporation, hereby makes
`
`the following objections to the admissibility of documents submitted with Patent
`
`Owner’s Corrected Response.
`
`Evidence
`
`Exhibit 2004
`
`Corrected
`Exhibit 2026
`
`Exhibit 2030
`
`
`
`Objections
`
`FRE 801, 802: Patent Owner uses Ex. 2004 in support of its
`position regarding how a person of ordinary skill in the art
`would understand the term “kernel.” The document’s
`authors are not subject to cross-examination in this
`proceeding. Because Ex. 2004 is an out of court statement
`offered for its truth, and does not fall within any exception
`to the rule against hearsay, it is inadmissible hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 701/702/703: Intel objects to Ex. 2026 as being
`improper expert testimony because paragraphs 83-90, 101-
`145 and 147-157 are not based on sufficient facts or data,
`are irrelevant, are not based on a reliable foundation, and
`constitute conclusory opinions without sufficient support. It
`includes include opinions that are not admissible under FRE
`701, 702, or 703 or Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993).
`
`For example, paragraphs 101-109 are not based on sufficient
`facts or data because they provide no basis or evidence that
`Alteon was not publicly available.
`
`For example, paragraphs 147-157 are not based on sufficient
`facts or data because they provide no evidence of nexus to
`the invention.
`
`FRE 401/402: This evidence is not relevant because it does
`not reflect the broadest reasonable interpretation of the
`
`1
`
`
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`claims. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d
`1359, 1364 (Fed. Cir. 2004).
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged long-felt, yet unresolved need in
`the art.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged long-felt, yet unresolved need in
`the art.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged long-felt, yet unresolved need in
`the art.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged long-felt, yet unresolved need in
`the art.
`
`2
`
`Exhibit 2031
`
`Exhibit 2032
`
`Exhibit 2033
`
`Exhibit 2034
`
`
`
`Exhibit 2035
`
`Exhibit 2036
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged commercial success.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged commercial success.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`
`3
`
`
`
`Exhibit 2037
`
`Exhibit 2038
`
`Exhibit 2039
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged commercial success.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the licenses in Exhibit 2038.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged praise in the industry.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`
`4
`
`
`
`Exhibit 2040
`
`Exhibit 2041
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged praise in the industry.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged people who tried and failed.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`
`5
`
`
`
`Exhibit 2042
`
`Exhibit 2043
`
`Exhibit 2300
`
`
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown this information was available
`to one of ordinary skill in the art at the time of the invention.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown this information was available
`to one of ordinary skill in the art at the time of the invention.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`FRE 801, 802: This exhibit is an out of court statement
`offered for its truth, and because it does not fall within any
`exception to the rule against hearsay, it is inadmissible
`hearsay.
`FRE 901: This exhibit is an unauthenticated document and
`is not self-authenticating under FRE 902.
`FRE 401/402: This evidence is not relevant because the
`Patent Owner has not shown any nexus between the
`invention and the alleged skepticism.
`FRE 403: The exhibit’s probative value to any ground upon
`which trial was instituted is substantially outweighed by the
`danger of unfair prejudice, confusing the issues, undue
`delay, and wasting time.
`
`
`6
`
`
`
`Dated: March 2, 2017
`
`
`
`
`
`
`Case IPR2017-01392
`U.S. Patent No. 7,337,241
`Respectfully submitted,
`
`
`/s/ Garland T. Stephens
`Garland T. Stephens, Reg. No. 37,242
`Justin L. Constant, Reg. No. 66,883
`Weil, Gotshal & Manges LLP
`700 Louisiana, Suite 1700
`Houston, TX 77002
`Tel: (713) 546-5000
`Fax: (713) 224-9511
`garland.stephens@weil.com
`
`Anne M. Cappella, Reg. No. 43,217
`Adrian Percer, Reg. No. 46,986
`Jeremy Jason Lang, Reg. No. 73,604
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3141
`Fax: (650) 802-3100
`anne.cappella@weil.com
`adrian.percer@weil.com
`jason.lang@weil.com
`
`William S. Ansley, Reg. No. 67,828
`Weil, Gotshal & Manges LLP
`2001 M Street, NW Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`sutton.ansley@weil.com
`
`
`Attorneys for Petitioner Intel Corporation
`
`
`7
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on March 2, 2017, a copy of PETITIONER’S
`
`OBJECTIONS TO ADMISSIBILITY OF EVIDENCE SERVED WITH
`
`PATENT OWNER’S CORRECTED RESPONSE was served by filing this
`
`document through the PTAB’s E2E Filing System as well as delivering a copy via
`
`electronic mail upon the following:
`
`James M. Glass
`Registration No. 46,729
`Quinn Emanuel Urquhart & Sullivan LLP
`51 Madison Ave., 22nd Fl.
`New York, NY 10010
`Tel.: (212) 849-7000
`Email: jimglass@quinnemanuel.com
`
`Joseph M. Paunovich
`Registration No. 59,033
`Quinn Emanuel Urquhart & Sullivan LLP
`865 S. Figueroa Street, 10th Fl.
`Los Angeles, CA 90017
`Tel.: (213) 443-3000
`Email: joepaunovich@quinnemanuel.com
`
`Brian E. Mack
`Registration No. 57,189
`Quinn Emanuel Urquhart & Sullivan LLP
`50 California Street, 22nd Fl.
`San Francisco, CA 94111
`Tel.: (415) 875-6600
`Email: brianmack@quinnemanuel.com
`
`
`
`
`
`
`
`
`Mark Lauer
`Registration No. 36,578
`Silicon Edge Law Group LLP
`7901 Stoneridge Dr., Ste. 528
`Pleasanton, CA 94588
`Tel.: (925) 621-2121
`Email: mark@siliconedgelaw.com
`
`
`
`Dated: March 2, 2017
`
`/s/ Garland T. Stephens
`Garland T. Stephens
`Reg. No. 37,242
`
`
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