Filed: September 26, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
`
`INTEL CORP., and CAVIUM, INC.
`Petitioners,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`______________________
`
`PETITIONER’S OBJECTIONS TO DOCUMENTS SERVED WITH
`PATENT OWNER’S RESPONSE
`
`
`
` 1
`
` Cavium, Inc., who filed a Petition in Case IPR2018-00403, 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.
`Petitioners,
`
`v.
`
`ALACRITECH, INC.,
`Patent Owner.
`______________________
`
`Case IPR2018-002341
`U.S. Patent No. 8,805,948
`______________________
`
`PETITIONER’S OBJECTIONS TO DOCUMENTS SERVED WITH
`PATENT OWNER’S RESPONSE
`
`
`
` 1
`
` Cavium, Inc., who filed a Petition in Case IPR2018-00403, has been joined as a
`
`petitioner in this proceeding.
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`Pursuant to 37 C.F.R. § 42.64(b), Petitioner Intel Corporation, hereby makes
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`the following objections to the admissibility of documents submitted with Patent
`
`Owner’s Response.
`
`
`
`Objections
`Evidence
`Exhibit 2026 FRE 701/702/703: Intel objects to Ex. 2026 as being improper
`expert testimony because paragraphs 110-119, 121-127, 130-145,
`and 147-158 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 147-158 are not based on sufficient facts
`or data because they provide no evidence of nexus to the
`invention.
`
`Exhibit 2031 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 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.
`
`1
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`
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`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`
`Exhibit 2032 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 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.
`Exhibit 2033 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 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.
`Exhibit 2034 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 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.
`
`2
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`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`FRE 901: This exhibit is an unauthenticated document and is not
`self-authenticating under FRE 902.
`Exhibit 2035 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.
`Exhibit 2036 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.
`Exhibit 2037 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.
`
`3
`
`
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`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`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.
`Exhibit 2038 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.
`Exhibit 2039 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.
`Exhibit 2040 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
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`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`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.
`Exhibit 2041 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.
`Exhibit 2042 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.
`Exhibit 2043 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.
`
`5
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`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`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.
`Exhibit 2057 FRE 401/402: This evidence is not relevant because it is an
`incomplete summary of the facts at issue.
`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, and being
`misleading. For example, this document provides an incomplete
`picture of the relevant facts and is thus misleading and confusing.
`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 1006: This exhibit is an improper summary or chart because
`it does not purport “to prove the content of voluminous writings,
`recordings, or photographs that cannot be conveniently examined
`in court.” It is attorney argument, not evidence, and is an attempt
`to circumvent the page limits established by the Board.
`Exhibit 2300 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.
`
`
`
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`6
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`
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`Dated: September 26, 2018
`
`
`
`
`
`
`Case IPR2018-00234
`U.S. Patent No. 8,805,948
`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) 802-3141
`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, NW Suite 600
`Washington, DC 20036
`Tel: (202) 682-7000
`Fax: (202) 857-0940
`sutton.ansley@weil.com
`
`
`
`Attorneys for Petitioner Intel Corporation
`
`
`7
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on September 26, 2018, a copy of PETITIONER’S
`
`OBJECTIONS TO ADMISSIBILITY OF EVIDENCE SERVED WITH
`
`PATENT OWNER’S 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
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`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
`
`
`
`
`
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`
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`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: September 26, 2018
`
`/s/ Garland T. Stephens
`Garland T. Stephens
`Reg. No. 37,242
`
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