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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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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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`INTEL CORP., CAVIUM, INC.,
`WISTRON CORPORATION, and DELL INC.
`Petitioners,
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`v.
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`ALACRITECH, INC.,
`Patent Owner
`________________
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`Case IPR2017-014061
`U.S. Patent No. 7,673,072
`________________
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE EVIDENCE
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`1 Cavium, Inc., which filed a Petition in Case IPR2017-01718, Wistron
`Corporation, which filed a Petition in Case IPR2018-00327, and Dell Inc., which
`filed a Petition in Case IPR2018-00371, have been joined as petitioners in this
`proceeding.
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`Petitioner’s Opposition to Patent Owner’s (“PO”) Motion to Exclude
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`(“Motion”) does not pass scrutiny. PO challenges the admissibility of evidence
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`(e.g., copyright and CIP dates and a declaration) Petitioner relies on as alleged
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`proof that a reference (e.g, Ex. 1006 (“Tanenbaum96”)) was publicly available. To
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`be clear, Petitioner bears the burden of showing that Tanenbaum96 was publicly
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`available, and it cannot rely on inadmissible evidence to establish this predicate
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`fact.2 Petitioner’s evidence of Tanenbaum96’s availability is not admissible.
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`I. Tanenbaum96’s Copyright and CIP Dates Are Inadmissible
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`Patent Owner timely objected to the copyright and CIP dates in
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`Tanenbaum96 as hearsay. See Paper 14 at 3 (“FRE 801: . . . To the extent that
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`Petitioner attempts to rely on any date that appears on this exhibit to establish
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`public accessibility, the date is hearsay under FRE 801 and does not fall within the
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`hearsay exceptions under FRE 803.” (emphasis added)).3
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`2 See In re Magnum Oil Tools Int’l, Ltd, 829 F.3d 1364, 1375 (Fed. Cir. 2016)
`(“that burden never shifts to the patentee” as suggested by Petitioner, Opp. at 4, 9).
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`3 Petitioner does not dispute that PO’s objections to Tannenbaum96 (and the
`Majors Declaration) were timely filed in IPR2017-01736/37 and consolidated with
`IPR2017-01409/10, or that the objections are the same as those timely filed in
`Petitioner’s 072, 036 and 241 IPRs to which Petitioner filed supplemental
`evidence. Petitioner has not previously contested PO’s objections in IPR2017-
`01736/37, and has not been deprived of an opportunity to submit supplemental
`evidence to PO’s objections. It makes no sense for the board to rule on PO’s
`objections and deem them waived for a subset of the consolidated IPRs.
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`As a matter of law, such dates are hearsay and reliance on them for the truth
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`of the matter asserted is properly excluded through this Motion.4 See Standard
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`Innovation, Case IPR2014-00148, Paper 41 at 13-17 (holding that “dates
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`presented … [and] relied upon as proof of dates relevant to the creation or
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`publication date … are inadmissible hearsay”) (citing Hilgraeve, Inc. v. Symantex
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`Corp., 271 F.Supp.2d 964, 974 (E.D. Mich. 2003) (“dates imprinted on . . .
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`documents are hearsay when offered to prove the truth of the matter asserted.”)).
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`Petitioner fails to address its improper reliance on these dates for this
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`purpose. Instead, it attempts to bootstrap the inadmissible dates by arguing that the
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`reference is relevant and authentic. Opp. at 4-7. However, the alleged relevance
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`and authenticity of Tanenbaum96 (both of which PO disputes) do not remedy the
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`hearsay nature of the dates.5 As Petitioner raises no legitimate hearsay exception,
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`Tanenbaum96’s dates should be excluded as inadmissible hearsay.
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`4 The statement in Ex. 2501.002, “the CIP [p]rogram is limited to publishers with
`an established history of producing works that are widely acquired by the nation’s
`libraries,” says nothing about when such works are acquired and does not lessen
`the impact of exhibit’s statement that “CIP data is available only for works that are
`not yet published.” (emphasis added).
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`5 Petitioner’s alleged relevance and authenticity assertions also lack merit. For
`example, Petitioner asserts without analysis that Tanenbaum96 is authentic
`because it is and has the unique identifiers of a book that is at least 20 years old
`“based on the copyright date and receipt and cataloging dates in [Ex. A of] Exhibit
`1011.” Petitioner stating that Tanenbaum96 is a book is of no moment and
`Petitioner cannot rely on inadmissible hearsay dates to prove authenticity.
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`II. The Majors Declaration Is Inadmissible
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`The Majors Declaration is also inadmissible under Rule 602, 701, 702, and
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`801, and each of these grounds was previously raised in PO’s timely Objections,
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`see Paper 14 at 5-6, and Motion. See Paper 60 at 6-9. First, Petitioner does not
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`dispute Mr. Major’s lack of personal knowledge to support his testimony that
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`Tanenbaum96 would have been available before the critical date. There is no
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`evidence that he worked for the library in 1996-97 or had access to the reference in
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`that timeframe. Mr. Major’s knowledge regarding the library’s current (or even
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`past) cataloging procedures, Opp. at 8, does not impart him with any personal
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`knowledge as to when Tanenbaum was publically available during the relevant
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`time period. As such, his testimony on this subject is inadmissible under Rule 602.
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`Second, Mr. Majors declaration is inadmissible opinion testimony. Mr.
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`Majors did not attest that the Tanenbaum reference he opined on is Tanenbaum96,
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`or that he has even reviewed Tanenbaum96. As such, his lay opinion on the
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`availability of “Tanenbaum” is inadmissible to establish the fact at issue in these
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`proceedings, i.e., availability of Tanenbaum96. See FRE 701 (requiring opinion to
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`be “helpful to … determining a fact in issue”). In addition, Mr. Major’s opinion
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`requires specialized knowledge and therefore cannot be admitted absent a showing
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`beyond that of “the average lay person.” See United States v. White, 492 F.3d 380,
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`389, 403 (6th Cir. 2007). However, Petitioner has not qualified Mr. Majors as an
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`expert and thus his Declaration is properly excluded under Rule 701 and 702.
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`Lastly, Exhibit A attached to the Majors Declarations is also inadmissible
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`hearsay offered for the truth of the matter asserted, i.e., the dates the “Tanenbaum”
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`reference identified therein was ordered, received, cataloged and otherwise
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`publicly available, and Petitioner’s purported hearsay exceptions have no merit.6
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`Exhibit A is not a business record because that exception requires evidence
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`showing “(A) the record was made at or near the time,” “(B) the record was kept in
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`the course of a regularly conducted activity of a business,” and “(C) making the
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`record was a regular practice of that activity.” FRE 803(6). The Majors
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`Declaration provides none of this evidence regarding Exhibit A, stating only: “The
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`catalog date ("Cat Date") for Tanenbaum is November 1, 1996 (see Exhibit A).”7
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`And since Petitioner could have but failed to obtain such evidence despite the
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`availability of a declarant that could provide answers to these questions through
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`reasonable efforts, Petitioner cannot rely on the residual hearsay exception. FRE
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`807(a)(3). Exhibit A is also not an ancient document because it was last updated
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`6 The Majors Declarations and its Exhibit A were filed as one document, Exhibit
`1011. Patent Owner’s objections were directed to Ex. 1011 in its entirety.
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`7 Exhibit A’s “Created Date” is actually the alleged “order date” according to Mr.
`Majors and he does not attest to the other two requirements of the exception.
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`on February 24, 2015 (after 26 revisions), and there is no indication what
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`information was updated and what information was in the original. Ex. 1011.003.
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`III. Dr. Almeroth’s Course Material Is Untimely and Inadmissible
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`Petitioner also attempts for the first time to rely on Dr. Almeroth’s out-of-
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`context testimony and alleged course material on a website (Ex. 1234) to show
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`public availability of Tanenbaum96. However, Petitioner did not identify Ex. 1234
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`as supplemental evidence, even though it was available, and therefore waived any
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`right to rely on it (and testimony about it). See TRW Automotive U.S. LLC v.
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`Magna Electronics Inc., Case IPR2014-01348, Paper 25 at 7 n.9 (excluding
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`evidence not filed timely as supplemental evidence). Ex. 1234 is also inadmissible
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`because it is an unauthenticated webpage and hearsay. There is no evidence of
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`when, where, or who obtained Ex. 1234, how or why it was created or stored, or
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`how printing it from the web provides authentication to be what it purports to be.
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`Rule 901; Xactware Sols., Inc. v. Pictometry Int’l Corp., Case IPR2016-00594,
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`Paper 46 at 11-12 (Aug. 24, 2017). Moreover, it is inadmissible hearsay because
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`Petitioner relies on the dates stated in it as the truth of the matter asserted, i.e.,
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`when Tanenbaum96 was publically available. Id.; Rule 802. There are no
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`applicable exceptions and Petitioner’s reliance on Dr. Almeroth’s testimony is
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`misplaced since Ex. 1234 and the testimony are not “submissions” by PO and he
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`did not testify that Ex. 1006 (Tanenbaum96) was available before the critical date.
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`IV. Conclusion
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`For the reasons stated above and in PO’s Motion, PO requests the Board find
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`Tanenbaum96’s dates and the Majors Declaration inadmissible.
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`Date: June 29, 2018
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` Respectfully submitted,
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`By: /s/ James M. Glass, Reg. No. 46,729
` James M. Glass (Reg. No. 46,729)
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`Tel: (212) 849-7000
`Fax: (212) 849-7100
`Email: jimglass@quinnemanuel.com
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`Lead Attorney for Patent Owner –
`Alacritech, Inc.
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), the undersigned hereby certify that
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`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
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`EXCLUDE EVIDENCE was served on June 29, 2018 by filing it through the
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`Patent Review Processing System, as well as by e-mailing copies to:
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`
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`Garland T. Stephens (Reg. No. 37,242)
`garland.stephens@weil.com
`intel.alacritech.ipr@weil.com
`WEIL, GOTSHAL & MANGES LLP
`700 LOUISIANA, SUITE 1700
`HOUSTON, TX 77002-2784
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`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
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`Patrick McPherson (Reg. No. 46,255)
`David T. Xue
`Karineh Khachatourian
`DUANE MORRIS LLP
`PDMcPherson@duanemorris.com
`DTXue@duanemorris.com
`karinehk@duanemorris.com
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`Christopher TL Douglas (Reg. No. 56,950)
`Kirk Bradley
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`Case No. IPR2017-01406
`U.S. Patent No. 7,673,072
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`ALSTON & BIRD LLP
`101 South Tryon Street, Suite 4000
`Charlotte, North Carolina 28280
`christopher.douglas@alston.com
`kirk.bradley@alston.com
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`Benjamin E. Weed
`Erik J. Halverson
`K&L GATES LLP
`benjamin.weed.ptab@klgates.com
`erik.halverson@klgates.com
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`Date: June 29, 2018
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`
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`Respectfully submitted,
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`By: /s/ James M. Glass, Reg. No. 46,729
` James M. Glass (Reg. No. 46,729)
`QUINN EMANUEL URQUHART &
`SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`jimglass@quinnemanuel.com
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`Lead Attorney for Patent Owner –
`Alacritech, Inc.
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