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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 AMERICA, INC.
`Petitioner
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`v.
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`UNILOC LUXEMBOURG, S.A.1
`Patent Owner
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`Case: IPR2017-01797
`U.S. Patent No. 8,724,622
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`
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`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
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`1 Uniloc’s updated mandatory notice filed on August 27, 2018, indicates that the
`owner of U.S. Patent No. 8,724,622 is now Uniloc 2017 LLC. (Paper 19.)
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`Case: IPR2017-01797
`U.S. Patent No. 8,724,622
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`TABLE OF CONTENTS
`INTRODUCTION .......................................................................................... 1
`I.
`II. ARGUMENT .................................................................................................. 2
`A. Uniloc’s Motion Fails to Meet the Requirements and Should Be
`Summarily Denied ................................................................................ 3
`B. Mr. Easttom Opined Broadly on the Challenged Patent and the
`Prior Art in His Direct Testimony ........................................................ 5
`Given the Breadth of Mr. Easttom’s Direct Testimony,
`Samsung’s Cross-Examination Questions Were Within the
`Scope .................................................................................................... 7
`III. CONCLUSION ............................................................................................. 13
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`C.
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`i
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` Case: IPR2017-01797
`U.S. Patent No. 8,724,622
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` TABLE OF AUTHORITIES
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` Page(s)
`
`Cases
`Canon Inc., v. Intellectual Ventures II LLC,
`IPR2014-00531, Paper 50 (P.T.A.B. Aug. 19, 2015) ........................................... 2
`Int’l Bus. Mach. Corp. v. Intellectual Ventures II LLC,
`IPR2014-00587, Paper No. 27 (P.T.A.B. Nov. 28, 2014) .................................. 13
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ............................................................................ 4
`Medtronic, Inc. v. Endotach, LLC,
`IPR2014-00100, Paper 32 (P.T.A.B. Aug. 28, 2014) ........................................... 2
`Microsoft Corp. v. Proxyconn, Inc.,
`IPR2012-00026, Paper No. 66 (P.T.A.B. Nov. 1, 2013) ...................................... 2
`Schering Corp. v. Roussel-UCLAF SA,
`104 F.3d 341 (Fed. Cir. 1997) .............................................................................. 8
`Sipnet EU S.R.O. v. Straight Path IP Group, Inc.,
`IPR2013-00246, Paper 63 (P.T.A.B. Oct. 9, 2014) .............................................. 3
`Sumitomo Elec. Indus., Ltd. v. United Techs. Corp.,
`IPR2017-00966, Paper 29 (P.T.A.B. Sept. 12, 2018) ........................................... 4
`United States v. Henderson,
`409 F.3d 1293 (11th Cir. 2005) ............................................................................ 8
`Regulations
`37 C.F.R. § 42.23(b) .................................................................................................. 4
`37 C.F.R. § 42.53(d)(5)(ii) ......................................................................................... 2
`37 C.F.R. § 42.64(c) ................................................................................................... 3
`77 Fed. Reg. 48,756, 47,867 (Aug. 14, 2012) ....................................................... 3, 4
`
`ii
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`
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`Petitioner Samsung Electronics America, Inc. (“Samsung”) submits the
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`Case: IPR2017-01797
`U.S. Patent No. 8,724,622
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`following response to Patent Owner Uniloc 2017 LLC’s (“Uniloc’s”) motion to
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`exclude (“Motion”). (Paper 21.)
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`I.
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`INTRODUCTION
`Uniloc’s perfunctory motion to exclude a substantial portion of the
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`deposition testimony of its own expert, Mr. Easttom, should be summarily denied
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`because it fails to satisfy the requirements of a motion to exclude. In particular, the
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`motion does not sufficiently explain the basis of each objection or identify where
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`in the record the objected-to deposition testimony is relied upon. Thus, its motion
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`should be rejected outright as facially deficient. Uniloc cannot cure these
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`deficiencies in its reply as it would be improperly presenting arguments in a reply
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`brief that should have been presented in its motion.
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`Regardless, even if the Board considers the merits, Samsung’s questions
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`were well within the scope of Mr. Easttom’s declarations. The notion that asking
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`about intrinsic evidence that contradicts direct testimony could be outside the
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`scope of that testimony fails on its face. In effect, Uniloc seeks to restrict the scope
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`of cross-examination to parroting material from the declaration. This is contrary to
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`1
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`
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`37 C.F.R. § 42.53(d)(5)(ii) and the Board’s practice.2 When a witness testifies on
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`U.S. Patent No. 8,724,622
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`direct that a prior art reference lacks a certain element of a patent claim, and bases
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`that testimony on an incorrect interpretation of the claim language, that opens the
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`door to cross examination on the correct interpretation of that claim language. See
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`Microsoft Corp. v. Proxyconn, Inc., IPR2012-00026, Paper No. 66 at 2-3 (P.T.A.B.
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`Nov. 1, 2013); Canon Inc., v. Intellectual Ventures II LLC, IPR2014-00531, Paper
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`50 at 45 (P.T.A.B. Aug. 19, 2015). That indisputable proposition and that
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`hypotheticals are certainly proper for an expert defeat Uniloc’s motion.
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`II. ARGUMENT
`Ignoring the requirements for a motion to exclude, Uniloc indiscriminately
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`seeks to exclude eighty-nine (89) portions of Mr. Easttom’s deposition testimony,
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`which amounts to hundreds of lines of deposition testimony. (Exs. 1040 (71
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`portions), 1041 (13 portions), 1042 (5 portions).) The cited portions of Mr.
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`Easttom’s deposition testimony, however, call into question his earlier opinions
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`2 For instance, the Board has held that limiting cross-examination to the scope of
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`direct testimony under 37 C.F.R. § 42.53(d)(5)(ii) does not necessarily limit such
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`cross-examination to documents cited in the direct testimony. See Medtronic, Inc.
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`v. Endotach, LLC, IPR2014-00100, Paper 32 at 2-3 (P.T.A.B. Aug. 28, 2014).
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`2
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`U.S. Patent No. 8,724,622
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`concerning the relation of the patent claims to the prior art (Ex. 2001), and thus are
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`relevant and within the scope of the subject matter to which Mr. Easttom testified.
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`For instance, his testimony that certain prior art does not disclose particular claim
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`elements, such as “instant voice messaging,” opened him to cross-examination of
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`the meaning he attaches to those terms.
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`A. Uniloc’s Motion Fails to Meet the Requirements and Should Be
`Summarily Denied
`Uniloc’s motion fails to satisfy the basic requirements for a motion to
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`exclude. See 37 C.F.R. § 42.64(c); USPTO Office Patent Trial Practice Guide, 77
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`Fed. Reg. 48,756, 47,867 (Aug. 14, 2012). Notably, other than a vague and broad
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`statement that hypothetical questions are outside the scope, Uniloc provides no
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`legal basis to support its motion seeking to exclude a substantial portion of the
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`deposition testimony of Mr. Easttom. Pursuant to 37 C.F.R. § 42.64(c) governing
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`motions to exclude, the moving party “must explain the objections.” See Sipnet EU
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`S.R.O. v. Straight Path IP Group, Inc., IPR2013-00246, Paper 63 at 2 (P.T.A.B.
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`Oct. 9, 2014) (“The party moving to exclude evidence bears the burden of proof to
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`establish that it is entitled to the relief requested—namely, that the material sought
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`to be excluded is inadmissible under the Federal Rules of Evidence.”). Uniloc has
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`utterly failed to do so here. Instead, without sufficient explanation or supporting
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`precedent, Uniloc generally argues that hundreds of lines of deposition testimony
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`3
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`U.S. Patent No. 8,724,622
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`should be excluded because of questions that were allegedly “outside the scope of
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`Mr. Easttom’s direct testimony.” (Mot. at 3.) Such a conclusory argument should
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`be rejected.
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`Similarly, “[a] motion to exclude evidence must: … (b) [i]dentify where in
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`the record the evidence sought to be excluded was relied upon by an opponent.”
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`Trial Practice Guide, 77 Fed. Reg. 48,756, 47,867. Instead of complying with this
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`mandate, Uniloc tasks the Board with figuring out whether and where the objected-
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`to portions of Mr. Easttom’s testimony are relied upon in the record, which is
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`improper.
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`For these reasons, Uniloc’s motion should be denied as facially deficient,
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`and Uniloc should not be permitted to back-fill its motion on reply. See 37 C.F.R. §
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`42.23(b) (“All arguments for the relief requested in a motion must be made in the
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`motion. A reply may only respond to arguments raised in the corresponding
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`opposition . . . .”); Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821
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`F.3d 1359, 1369 (Fed. Cir. 2016); Sumitomo Elec. Indus., Ltd. v. United Techs.
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`Corp., IPR2017-00966, Paper 29 at 27-28 (P.T.A.B. Sept. 12, 2018).
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`4
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`B. Mr. Easttom Opined Broadly on the Challenged Patent and the
`Prior Art in His Direct Testimony
`As demonstrated by Mr. Easttom’s declarations, the entire challenged patent
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`and the prior art cited by Samsung are within the scope of Mr. Easttom’s direct
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`testimony.
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`In his direct testimony, Mr. Easttom testified that, he reviewed, among other
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`things, the patents-at-issue and the prior art references cited by Samsung,
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`“including Zydney, Griffin, Aravamudan, and Vuori.” (Ex. 2001 at ¶ 4.) This was
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`confirmed during cross examination. (Ex. 1040 at 13:15-15:5 (discussing materials
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`reviewed in preparation of declaration); 33:13-16 (confirming he considered “the
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`meaning of all the terms that I [sic; are] recited in the claims of the ’622 patent”);
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`66:24-67:4 (same); 180:3-181:4.) He also affirmed in his direct testimony that his
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`conclusions were “[b]ased on” the challenged patents and the cited prior art
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`references, as well as his “familiarity with those having ordinary skill in the art at
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`the time the application was filed.” (Ex. 2001 at ¶ 5.) Furthermore, he
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`unequivocally testified that “every determination on obviousness requires a review
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`of the scope and content of the asserted references, analysis of the differences
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`between those references and the patent claim at issue, and the level of ordinary
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`skill in the pertinent art at the time the invention was conceived” (Id. at ¶ 11), thus
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`implying that his analysis and conclusions regarding obviousness involved the
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`5
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`same review. Mr. Easttom also acknowledged the importance of the state of the art
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`at the time of the purported invention in the obviousness analysis, again implying
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`that his opinions took account of the state of the art. (Id. at ¶¶ 14, 16.) His direct
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`testimony further included an “overview of the ’622 patent” and the prior art. (Id.
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`at ¶¶ 19-35.)
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`As one example, Mr. Easttom opines that the primary reference in
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`Samsung’s petitions (Griffin) does not disclose an “instant voice message.” (Id. at
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`¶ 28; see also id. at ¶ 36 (“Griffin does not disclose instant voice messaging.”).)
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`Mr. Easttom’s opinion relies on an implicit interpretation of this term. (Id. at ¶¶ 24-
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`30, 36-39.) In particular, with respect to the ’622 patent, Mr. Easttom opined that
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`Griffin does not disclose “instant voice message” because “[t]he system described
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`in Griffin has no knowledge of, or interest in, and no way to know whether a
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`device is ready and able to ‘hear’ a message.” (Id. at ¶ 36.)
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`Thus, Mr. Easttom put his understanding of the entire disclosures of the
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`challenged patent and the prior art asserted by Samsung at issue by providing an
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`overview of each, testifying on the level of skill in the art, and analyzing whether
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`the prior art discloses the limitations of the claims.
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`U.S. Patent No. 8,724,622
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`C. Given the Breadth of Mr. Easttom’s Direct Testimony, Samsung’s
`Cross-Examination Questions Were Within the Scope
`While attempting to probe the boundaries of Mr. Easttom’s understanding of
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`the claim terms at issue and why the prior art purportedly does not disclose those
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`terms, Uniloc repeatedly disrupted the deposition with a barrage of improper
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`objections to “scope,” and ultimately—in a long speaking objection in the presence
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`of the witness—threatened to “shut down the deposition.” (Ex. 1040 at 57:2-60:6.)
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`The objections Uniloc cites in its motion are in fact improper “scope”
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`objections to Samsung’s questions probing the expert’s basic understanding of the
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`prior art, challenged patents themselves, and specific claim terms at issue (about
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`each of which Mr. Easttom testified). The following examples illustrate some of
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`Uniloc’s improper objections:
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` “Q: Okay. If we can just go to figure 1 of the Griffin patent. And can
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`you tell me what’s shown in Figure 1?
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`MR LOVELESS: Objection, form, scope.” (Ex. 1040 at 148:22-25.)
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`“Q. Would a person of ordinary skill in the art understand instant
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`voice message in the context of the ’622 patent to be any data that’s --
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`any voice data that’s communicated from one client to another client?
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`MR. LOVELESS: Objection, form, scope.” (Id. at 85:6-10.)
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`7
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`Q. “What does ‘messaging’ mean here in this sentence [in the ’622
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`U.S. Patent No. 8,724,622
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`patent specification]?
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`MR. LOVELESS: Objection, form, scope.” (Id. at 92:7-9.)
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`“Q. In order for it to be an instant voice messaging system as recited
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`in the claims of the ‘622 patent, must the message be received by the
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`client’s device?
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`MR. LOVELESS: Objection, form, scope.” (Id. at 96:11-15.)
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`These are clearly not objectionable questions.
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`In its motion, the only basis Uniloc asserts that the questions purportedly
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`were “outside the scope” of Mr. Easttom’s declaration is that Samsung asked
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`hypothetical questions. (Mot. at 2-3.) Uniloc provides no authority for its assertion
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`that hypothetical questions are prohibited in a cross examination, presumably
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`because there is no such authority. See United States v. Henderson, 409 F.3d 1293,
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`1300 (11th Cir. 2005) (holding the “essential difference” between expert and lay
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`opinion witnesses is the expert’s ability to answer hypothetical questions);
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`Schering Corp. v. Roussel-UCLAF SA, 104 F.3d 341, 346 (Fed. Cir. 1997)
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`(considering the merits of counsel’s hypothetical scenario and answer by expert).
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`Hypothetical questions can elicit relevant evidence regarding the expert’s
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`understanding of the scope of certain claim terms and how they apply to the prior
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`art. Here, a majority of the hypotheticals that Uniloc complains about were
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`8
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`directed toward Mr. Easttom’s understanding of the term “instant voice message,”
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`U.S. Patent No. 8,724,622
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`and therefore went directly to testing the veracity of his statement that “Griffin
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`does not disclose instant voice messaging.” (Ex. 2001 at ¶ 36; see also id. at ¶ 28.)
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`For example, during his deposition, Mr. Easttom was asked a series of questions
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`about his understanding of what the terms “instant” and “message” mean in the
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`context of the challenged patent. (See Ex. 1040 at 20:6-85:24.) In response to these
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`questions, Mr. Easttom enumerated several additional criteria of instant voice
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`messaging that are not identified in his declaration or described in the challenged
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`patent, including time lag, the intent of the end users, and whether messages must
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`be retrieved from a server. (Id. at 55:14-56:25.) Accordingly, this line of
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`questioning directly relates to the technological basis for Mr. Easttom’s conclusion
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`that Griffin allegedly does not disclose the “instant voice messaging” claim
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`limitation, and therefore is squarely within the scope of his direct testimony.
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`The remaining objected-to portions of the deposition transcripts similarly
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`explore Mr. Easttom’s opinions set forth in his declarations. Although it was
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`Uniloc’s burden to explain why each objected-to portion should be excluded,
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`which it plainly failed to do, Samsung presents the following table that indicates
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`why each objected-to portion is properly within the scope along with exemplary
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`citations to relevant portions of Mr. Easttom’s declarations.
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`9
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`
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`Depo Citation
`31:25 – 32:6
`32:13 – 32:24
`33:6 – 33:12
`34:21 – 35:18
`35:20 – 36:16
`36:22 – 37:22
`38:2 – 38:17
`38:22 – 39:5
`39:19 – 39:21
`40:3 – 40:15
`41:5 – 41:12
`41:23 – 42:6
`42:15 – 42:24
`44:6 – 44:15
`45:3 – 45:7
`45:11 – 45:17
`47:11 – 48:4
`52:3 – 52:15
`52:22 – 53:6
`53:10 – 53:12
`53:17 – 53:23
`54:11 – 54:17
`55:9 – 55:13
`55:25 – 57:1
`57:10 – 57:17
`60:24 – 61:3
`61:17 – 61:23
`65:17 – 65:23
`66:2 – 66:9
`66:18 – 66:23
`67:8 – 67:13
`71:3 – 71:6
`83:5 – 84:5
`84:13 – 85:5
`85:10 – 85:16
`92:9 – 92:19
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`U.S. Patent No. 8,724,622
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`Exhibit 1040
`Exemplary Scope of Direct
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`Meaning of term “instant voice message”
`(e.g., IPR2017-01797, Ex. 2001, ¶¶ 24-31, 36-39; IPR2017-
`01798, Ex. 2001, ¶¶ 24-31, 44-47; IPR2017-01799, Ex. 2001,
`¶¶ 27-35, 42-49; IPR2017-01800, Ex. 2001, ¶¶ 41-49;
`IPR2017-01801, Ex. 2001, ¶¶ 32-40, 42-51; IPR2017-01802,
`Ex. 2001, ¶¶ 22-30)
`
`10
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`U.S. Patent No. 8,724,622
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`
`101:17 – 101:20
`105:20 – 106:2
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`121:20 – 122:4
`126:12 –127:1
`128:15 – 129:4
`129:8 – 130:6
`131:11 – 131:19
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`132:19 – 133:12
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`Meaning of term “attaching one or more files to the instant
`voice message” (e.g., IPR2017-01797, Ex. 2001, ¶¶ 50-58)
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`93:2 – 93:7
`93:16 – 94:13
`94:24 – 95:8
`95:12 – 95:19
`95:25 – 96:3
`96:15 – 96:23
`109:11 – 109:22
`113:25 – 114:9
`115:10 – 115:15
`86:3 – 86:9
`86:16 – 86:23
`87:20 – 87:22
`100:14 – 100:18 Discussion of “IVM client” in the specification of the
`challenged patents (e.g., IPR2017-01797, Ex. 2001, ¶¶ 22, 51)
`101:6 – 101:10
`Meaning of term “network interface connected to a packet-
`switched network” (e.g., IPR2017-01797, Ex. 2001, ¶¶ 19-20,
`40-49)
`Meaning of term “field” (e.g., IPR2017-01797, Ex. 2001, ¶¶
`56-57)
`110:21 – 111:9
`119:3 – 119:18 Discussion of “availabile” as described in the prior art and
`discussion of the displayed list of IVM recipients described in
`119:23 – 120:1
`the challenged patents (e.g., IPR2017-01797, Ex. 2001, ¶¶ 27,
`37, 61-63, 66)
`Discussion of the challenged patents (e.g., IPR2017-01797, Ex.
`2001, ¶¶ 19-22) and meaning of term “generating an instant
`voice message” (e.g., IPR2017-01799, Ex. 2001, ¶¶ 39, 42-49,
`62-67)
`Discussion of “IVM client” in the specification and discussion
`of the challenged patent (e.g., IPR2017-01797, Ex. 2001, ¶¶
`19-22, 51)
`Discussion of “IVM client” in the specification and the term
`“document handler system for attaching one or more files to
`the instant voice message” (e.g., IPR2017-01797, Ex. 2001, ¶¶
`19-22, 50-58; IPR2017-01799, Ex. 2001, ¶¶ 42-49; IPR2017-
`01800, Ex. 2009, ¶¶ 67-72)
`Discussion of the challenged patents (e.g., IPR2017-01797, Ex.
`2001, ¶¶ 19-22; IPR2017-01798, Ex. 2001, ¶¶ 19-22, 48-57)
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`133:19 – 134:09
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`140:4 -140:15
`141:22 – 141:22
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`11
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`and meaning of the terms “local network” and “connected to”
`(e.g., IPR2017-01802, Ex. 2001, ¶¶ 18-21, 42)
`
`Discussion of Griffin (e.g., IPR2017-01797, Ex. 2001, ¶¶ 23-
`31)
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`Discussion of Zydney (e.g., IPR2017-01797, Ex. 2001, ¶¶ 32-
`35, 61-63; IPR2017-01798, Ex. 2001, ¶¶ 32-35, 82; IPR2017-
`01801, Ex. 2001, ¶¶ 41-51, 54)
`Exhibit 1041
`
`Discussion of the challenged patents and the meaning of the
`terms “local network” and “external network” (e.g., IPR2017-
`01802, Ex. 2001, ¶¶ 18-21, 42)
`
`Exhibit 1042
`Discussion of Zydney and its software agent (e.g., IPR2017-
`01799, Ex. 2001, ¶¶ 36-40, 54-55, 65)
`Discussion of Zydney and its intercom and pack-and-send
`modes of generating instant voice messages (e.g., IPR2017-
`01799, Ex. 2001, ¶¶ 36-40, 62-67)
`Meaning of the term “controlling a method of generating the
`instant voice message based upon the connectivity status of
`said one or more recipient” (e.g., IPR2017-01799, Ex. 2001, ¶¶
`62-67; IPR2017-01800, Ex. 2009, ¶¶ 73-78)
`
`144:2 – 144:9
`148:25- 149:1
`149:19 – 150:2
`154:15 – 155:2
`152:25 – 153:8
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`191:2 – 191:20
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`19:6 – 19:11
`20:14 – 20:19
`21:6 – 21:24
`22:16 – 22:21
`22:24 – 23:21
`23:22 – 24:4
`26:5 – 26:18
`27:2 – 27:5
`28:9 – 28:15
`28:20 – 29:8
`29:12 – 29:14
`29:19 – 30:1
`30:6 – 30:20
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`21:6 – 21:24
`31:5 – 31:9
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`59:9 – 60:3
`68:3 – 68:9
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`68:15 – 68:18
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`12
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`Finally, in addition to being within the scope of Mr. Easttom’s direct
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`testimony, the fact that Mr. Easttom purportedly had not “considered” or
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`“contemplated” the subject matter of the patents-at-issue or prior art (Mot. at 2-3,
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`5) is relevant to the credibility of his direct testimony, and therefore should not be
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`excluded. See Int’l Bus. Mach. Corp. v. Intellectual Ventures II LLC, IPR2014-
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`00587, Paper No. 27 at 3 (P.T.A.B. Nov. 28, 2014).
`
`III. CONCLUSION
`Uniloc’s motion to exclude its own expert’s testimony should be denied in
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`its entirety. Notwithstanding that Uniloc’s motion is deficient on its face, Samsung
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`properly examined Mr. Easttom’s opinions regarding his understanding of the
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`claim terms on which he opined and the prior art that he considered in forming his
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`opinion. At the end of the day, it appears that Uniloc does not like the answers Mr.
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`Easttom provided during cross-examination, but that is no basis to exclude his
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`testimony from the record.
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`
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`Dated: October 12, 2018
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`Respectfully submitted,
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`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
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`13
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e), I certify that I caused to be served on the
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` Case: IPR2017-01797
`U.S. Patent No. 8,724,622
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`counsel for Patent Owner a true and correct copy of the foregoing Petitioner’s
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`Opposition to Patent Owner’s Motion to Exclude Evidence by electronic means on
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`October 12, 2018, at the following address of record:
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`Brett Mangrum (brett@etheridgelaw.com)
`Sean D. Burdick (sean.burdick@unilocusa.com)
`Ryan Loveless (ryan@etheridgelaw.com)
`James Etheridge (jim@etheridgelaw.com)
`Jeffrey Huang (jeff@etheridgelaw.com)
`Etheridge Law Group
`2600 E. Southlake Blvd., Ste. 120-324
`Southlake, TX 76092
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`Dated: October 12, 2018
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`Respectfully submitted,
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`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
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