`Filed: May 22, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ZTE (USA) Inc.,
`Samsung Electronics Co., Ltd., and
`Samsung Electronics America, Inc.,
`Petitioner
`
`v.
`
`Fundamental Innovation Systems International LLC,
`Patent Owner.
`
`
`
`
`Case IPR2018-00111
`Patent 8,624,550 B2
`
`
`PETITIONER’S OBJECTIONS UNDER 37 C.F.R. § 42.64(b)(1) TO
`PATENT OWNER’S EXHIBITS 2002 AND 2005
`
`
`
`Before RAE LYNN P. GUEST, JO-ANNE M. KOKOSKI, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`
`
`
`
`
`IPR2018-00111
`Patent 8,624,550 B2
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner objects to the admissibility of
`
`Patent Owner’s exhibits 2002 and 2005 as follows.
`
`EXHIBIT 2002
`(DECLARATION OF MR. STEVEN ROGERS)
`
`
`
`Exhibit 2002 is a purported declaration from Mr. Steven Rogers, the sole
`
`named inventor of the primary prior art reference (Ex. 1005, U.S. Patent No.
`
`6,556,564) at issue in this IPR proceeding. Petitioner objects to the admissibility of
`
`paragraphs 7-22 of Exhibit 2002 under FED. R. EVID. 401, 402, 701, and 702.
`
`Paragraphs 7-22 of Exhibit 2002 purport to offer opinions from the
`
`perspective of a person of ordinary skill in the art (POSITA). Mr. Rogers is not a
`
`POSITA at least under Patent Owner’s own standard of a POSITA (see Paper 12 at
`
`15) and is thus unqualified to give these opinions under FED. R. EVID. 702. The
`
`opinions in paragraphs 7-22 of Exhibit 2002 also do not qualify as lay opinion
`
`under FED. R. EVID. 701. Because Mr. Rogers is unqualified to offer opinions from
`
`the perspective of a POSITA at least under Patent Owner’s own standard of a
`
`POSITA, the opinions in Exhibit 2002 are irrelevant to the issue of obviousness
`
`and are thus further inadmissible under FED. R. EVID. 401-402.
`
`EXHIBIT 2005
`(DISTRICT COURT DEPOSITION TRANSCRIPT EXCERPTS)
`
`
`
`Exhibit 2005 contains excerpts from the transcript of Mr. John Garney’s
`
`deposition taken in connection with the district court action Fundamental
`
`1
`
`
`
`IPR2018-00111
`Patent 8,624,550 B2
`Innovation Systems Int’l LLC v. Samsung Elec. Co., Case No. 2:17-cv-00145-JRG
`
`(E.D. Tex.). Petitioner objects to the admissibility of Exhibit 2005 under FED. R.
`
`EVID. 802.
`
`In this IPR proceeding, Mr. Garney’s testimony meets both prongs of the
`
`hearsay rule (see FED. R. EVID. 801(c)): (1) his testimony was not taken in this IPR
`
`(i.e., it contains statements “not ma[de] while testifying at the current trial or
`
`hearing”); and (2) Patent Owner offers Exhibit 2005 solely to prove the truth of
`
`Patent Owner’s incorrect and misleading assertions, including the assertions in
`
`Paper 12 at 5-6, 41, 47-48, 53, 60. Exhibit 2005 does not qualify for any hearsay
`
`exclusion or exception, and Patent Owner, as its proponent, has not demonstrated
`
`otherwise.
`
`
`
`Dated: May 22, 2018
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`/Charles M. McMahon/
`Charles M. McMahon (Reg. 44,926)
`MCDERMOTT WILL & EMERY LLP
`Attorney for Petitioner
`
`2
`
`
`
`IPR2018-00111
`Patent 8,624,550 B2
`
`CERTIFICATE OF SERVICE
`
`On May 22, 2018, this document was sent by electronic mail to the attorneys
`
`of record for the Patent Owner at the following e-mail addresses:
`
`Hong Zhong (hzhong@irell.com)
`
`Michael Fleming (mfleming@irell.com)
`
`Patent Owner’s e-mail distribution list (FundamentalIPRs@irell.com)
`
`
`
`
`/Hersh H. Mehta/
`Hersh H. Mehta
`
`3
`
`
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