Filing: June 29, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`INTEL CORP., CAVIUM, INC., WISTRON CORP., and DELL, INC.
`Petitioners,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`
`Case IPR2017-014061
`U.S. Patent No. 7,673,072
`Title: FAST-PATH APPARATUS FOR TRANSMITTING DATA
`CORRESPONDING TO A TCP CONNECTION
`
`PETITONER’S REPLY IN SUPPORT OF MOTION TO EXCLUDE
`PATENT OWNER EXHIBIT 2026
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`1 Cavium, Inc., which filed a Petition in Case IPR2017-01707, Wistron Corp.,
`
`which filed a Petition in Case IPR2018-00329, and Dell Inc., which filed a Petition
`
`in Case IPR2018-00375, have been joined as petitioners in this proceeding.
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`INTEL CORP., CAVIUM, INC., WISTRON CORP., and DELL, INC.
`Petitioners,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`
`Case IPR2017-014061
`U.S. Patent No. 7,673,072
`Title: FAST-PATH APPARATUS FOR TRANSMITTING DATA
`CORRESPONDING TO A TCP CONNECTION
`
`PETITONER’S REPLY IN SUPPORT OF MOTION TO EXCLUDE
`PATENT OWNER EXHIBIT 2026
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`1 Cavium, Inc., which filed a Petition in Case IPR2017-01707, Wistron Corp.,
`
`which filed a Petition in Case IPR2018-00329, and Dell Inc., which filed a Petition
`
`in Case IPR2018-00375, have been joined as petitioners in this proceeding.
`
`
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`Patent Owner’s opposition misses the point. It is true that Patent Owner’s
`
`expert declaration (Almeroth Declaration, Ex. 2026), on its face, is entitled to little
`
`or no weight. But Patent Owner and its expert’s errors were compounded by
`
`Patent Owner’s improper deposition instruction which prevented Petitioner and the
`
`Board from assessing the source and basis of Dr. Almeroth’s purported opinions.
`
`As such, the appropriate remedy is exclusion of Ex. 2026.
`
`Patent Owner claims that Dr. Almeroth’s declaration reflects his “clear and
`
`well resonated [sic] opinions” which were “faithfully reproduced in Patent
`
`Owner’s briefs.” Opp. at 3. But Patent Owner’s claim is belied by the record. Not
`
`only are many of Dr. Almeroth’s alleged opinions verbatim copies of Patent
`
`Owner’s attorneys’ arguments, often without any attribution (see, e.g., Paper 34 at
`
`2-3 repeating paragraph 61 of Ex. 2026 verbatim without citation to Ex. 2026), Dr.
`
`Almeroth’s alleged declaration in the 036 Patent IPR2 twice includes the phrase
`
`“[a]s explained by Dr. Almeroth . . .” strongly suggesting that these portions were
`
`2 Dr. Almeroth’s declaration for the 036 Patent (Ex. 2026) was submitted
`
`simultaneously with his declaration for this IPR (Ex. 2026) and includes
`
`substantially identical paragraphs for both the background and secondary
`
`consideration sections.
`
`
`
`
`
`
`copied and pasted from the Patent Owner Response. See Intel v. Alacritech, Case
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`IPR 2017-01391 (Feb. 24, 2018), Ex. 2026 at ¶110, 114.
`
`The multiple verbatim copies, particularly those without attribution, raise a
`
`serious question of the extent to which Dr. Almeroth actually participated in the
`
`drafting of his purported declaration and/or Patent Owner’s Response that demands
`
`explanation. Patent Owner’s representation to the Board that “Dr. Almeroth’s
`
`opinions do not parrot any attorney argument” (Opp. at 4) is directly contradicted
`
`by the record.
`
`Because Petitioner had well-founded doubts that Dr. Almeroth’s declaration
`
`actually reflects his own work and opinions, Petitioner questioned Dr. Almeroth on
`
`this point. Patent Owner does not, and cannot, dispute that Petitioner is entitled to
`
`explore the source of and basis for Dr. Almeroth’s opinions. See 37 C.F.R.
`
`§ 42.51(b)(1)(i)-(ii) (routine discovery permitted of “any exhibit cited in a paper or
`
`in testimony” and “[c]ross examination of affidavit testimony”).
`
`Neither Dr. Almeroth’s Declaration as filed nor the Patent Owner’s
`
`Response are protected communications under Fed. R. Civ. P. 26(b)(4)(C).
`
`Instead, the duplicated portions are the opinions Patent Owner seeks to present as
`
`evidence.
`
`By directing Dr. Almeroth not to answer questions concerning this verbatim
`
`copying, Patent Owner prevented Petitioner and the Board from learning the true
`
`2
`
`
`
`
`source of the alleged opinion evidence Patent Owner seeks to introduce into the
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`record. Patent Owner tries to brush off this error by claiming that its counsel
`
`“permitted Dr. Almeroth to answer a substantially similar question.” Opp. at 6
`
`(citing Almeroth Depo.3 at 181:20-182:23). However, Patent Owner’s counsel
`
`cautioned the witness on the basis of privilege, and Dr. Almeroth did not actually
`
`answer the question. See Ex. 1224 at 182:2:183:6. Patent Owner then gave its
`
`unjustified instruction not to answer in response to Petitioner’s attempt to follow
`
`up. Ex. 1224 at 185:7-23. Although Patent Owner suggests that Petitioner could
`
`have “rephrase[d] the question,” this is disingenuous. Id. As the direction not to
`
`answer made clear, Patent Owner would simply have directed Dr. Almeroth not to
`
`answer questions concerning the verbatim copying, however phrased. There is no
`
`requirement that Petitioner ask a third time, only to have the instruction not to
`
`answer repeated.
`
`At bottom, Patent Owner’s expert offered alleged opinions that are in many
`
`cases word-for-word identical to Patent Owner’s attorney arguments in its Patent
`
`Owner Response, and Patent Owner improperly prevented the Petitioner and the
`
`
`3 Patent Owner’s motion erroneously cites Ex. 2018, however Patent Owner is
`
`referring to the Almeroth deposition transcript, Ex. 1224, in which the cited
`
`question actually appears.
`
`3
`
`
`
`
`Board from learning the source and basis of these identical and nearly identical
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`arguments. Because the source and basis of these alleged opinions has been
`
`effectively concealed from Petitioner and the Board, these passages should not be
`
`permitted into the evidence of record.
`
`Therefore, Petitioner requests that the identical and nearly-identical portions
`
`of Dr. Almeroth’s declaration be excluded from evidence because of Patent
`
`Owner’s improper instruction not to answer.
`
`4
`
`
`
`Dated: June 29, 2018
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`
`
`
`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
`justin.constant@weil.com
`Anne M. Cappella, Reg. No. 43,217
`Adrian Percer, Reg. No. 46,986
`Weil, Gotshal & Manges LLP
`201 Redwood Shores Parkway
`Redwood Shores, CA 94065
`Tel: (650) 802-3000
`Fax: (650) 802-3100
`anne.cappella@weil.com
`adrian.percer@weil.com
`William S. Ansley, Reg. No. 67,828
`Weil, Gotshal & Manges LLP
`2001 M Street, N.W, Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`sutton.ansley@weil.com
`
`
`
`Attorneys for Petitioner Intel Corporation
`
`5
`
`
`
`
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 29, 2018, a copy of PETITONER’S REPLY
`
`IN SUPPORT OF MOTION TO EXCLUDE PATENT OWNER EXHIBIT
`
`2026 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
`
`
`
`
`6
`
`
`
`
`
`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: June 29, 2018
`
`
`
`
`Case IPR2017-01406
`U.S. Patent No. 7,673,072
`
`/s/ Garland T. Stephens
`Garland T. Stephens
`Reg. No. 37,242
`
`
`
`7
`
`
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
