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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
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`Paper No.
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________________
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`APPLE INC.,
`Petitioner,
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`v.
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`UNILOC LUXEMBOURG, S.A.,
`Patent Owner
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`_____________________
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`Case IPR2018-00289
`Patent No. 8,872,646
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`_____________________
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`PETITIONER’S MOTION TO STRIKE THE DECLARATION OF
`WILLIAM EASTTOM
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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
`PETITIONER’S UPDATED EXHIBIT LIST
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`September 19, 2018
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`APPL-1001 U.S. Patent No. 8,872,646.
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`APPL-1002 Prosecution History of U.S. Patent No. 8,872,646.
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`APPL-1003 U.S. Patent No. 7,409,291 to Pasolini et al.
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`APPL-1004 Using the LIS3L02AQ Accelerometer, Ron Goldman, Sun
`Microsystems Inc. Dated February 23, 2007.
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`APPL-1005 U.S. Patent No. 7,204,123 to McMahan et al.
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`APPL-1006 U.S. Patent Publication No. 2006/0161377 to Rakkola et al.
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`APPL-1007 Using Gravity to Estimate Accelerometer Orientation,” David
`Mizell, Proceedings of the Seventh IEEE International
`Symposium on Wearable Computers (ISWC ’03) 2003.
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`APPL-1008 Declaration of Chris Butler, Under 37 C.F.R. § 1.68.
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`APPL-1009 Dictionary of Scientific and Technical Terms,” McGraw-Hill.
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`APPL-1010 Declaration of Joe Paradiso, Ph.D, Under 37 C.F.R. § 1.68.
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`APPL-1011 Curriculum Vitae of Joe Paradiso.
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`APPL-1012 Declaration of Ingrid Hsieh-Yee, Under 37 C.F.R. § 1.68.
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`APPL-1013 Reserved.
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`APPL-1014 U.S. Patent No. 7,028,220 to Park et al.
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`APPL-1015 Email Correspondence between Petitioner’s Counsel and the
`Board.
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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
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`Pursuant to the Board’s authorization made through an email on September
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`10, 2018 (APPL-1015), Petitioner files this unopposed motion to strike Exhibit
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`2001, the Easttom Declaration, in its entirety from the record of this proceeding.
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`I. STATEMENT OF FACTS
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`On March 12, 2018, Uniloc submitted the Declaration of William C.
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`Easttom II (Exhibit 2001) in connection with its Patent Owner Preliminary
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`Response (Paper 6). On August 13, 2018, Uniloc filed its Patent Owner Response
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`(Paper 11). The Patent Owner Response does not cite Exhibit 2001.
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`On August 24, 2018, Petitioner requested that Patent Owner make Mr.
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`Easttom available for deposition. Patent Owner, however, chose not make Mr.
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`Easttom available for cross-examination. The parties conferred on September 5,
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`2018 to further discuss the deposition of Mr. Easttom. In light of the discussions
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`held during that call, and subsequent email exchanges, it was agreed that Petitioner
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`would file an Unopposed Motion to Strike. On September 7, 2018, Petitioner
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`emailed the Board to request permission to file this motion. See APPL-1015. On
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`September 10, 2018, the Board granted Petitioner’s request by email. See id.
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`II. DISCUSSION
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`The rules of discovery explicitly allow Petitioner to cross-examine Mr.
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`Easttom. See 37 C.F.R. 42.51(b)(1)(ii); 37 C.F.R. 42.53(b)(2). And, the Board has
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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
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`made clear: “[a]s a guiding principle of routine discovery, as defined by our Rules,
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`if a party proffers a witness’s testimony, that party must make that witness
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`available for cross-examination by the other party.” HTC Corp. v. NFC
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`Technology, LLC, IPR2014-01198, Paper 41, at 3 (PTAB Nov. 6, 2015) (emphasis
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`added on “must”). The Board may exercise its authority to strike a declaration
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`when the declarant is not made available for cross-examination. See id at 4.
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`Further, “little to no weight is given to testimony of declarants who are not subject
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`to cross-examination, even if the testimony is not excluded as hearsay.” The
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`Mangrove Partners Master Fund, LTD, et al., v. Virnetx Inc., IPR2015-01047,
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`Paper 52 at 6-7 (PTAB Apr. 15, 2016); see also Kolmes v. World Fibers Corp. 107
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`F.3d 1534, 1542 (Fed. Cir. 1997) (holding that evidence was properly disregarded
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`since no opportunity to cross-examine declarant).
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`Accordingly, because (i) Mr. Easttom has not been made available for cross-
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`examination, (ii) Patent Owner’s Response does not cite to Exhibit 2001, the
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`Easttom declaration, (iii) Mr. Easttom’s testimony would be given little to no
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`weight, and (iv) Patent Owner does not oppose this Motion to Strike, Petitioner
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`respectfully requests that this motion be granted and that Exhibit 2001 expunged
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`from the record.
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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
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`Dated: September 19, 2018
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`Respectfully submitted,
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`/Andrew S. Ehmke/
`Andrew S. Ehmke
`Registration No. 50,271
`Lead Counsel for Petitioner
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`Petitioner’s Motion to Strike the Declaration of William Easttom
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`IPR2018-00289 (Patent No. 8,872,646)
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6(e) and 42.105(a), this is to certify that I
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`caused to be served a true and correct copy of the foregoing “PETITIONER’S
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`MOTION TO STRIKE THE DECLARATION OF WILLIAM EASTTOM” as detailed
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`below:
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`Date of service September 19, 2018
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`Manner of service Email:
`ryan@etheridgelaw.com; brett@etheridgelaw.com;
`jim@etheridgelaw.com; jeff@etheridgelaw.com
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`Documents served Petitioner’s Motion to Strike the Declaration of William
`Easttom
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`Persons Served Ryan Loveless
`Brett Mangrum
`James Etheridge
`Jeffrey Huang
`Etheridge Law Group
`2600 E. Southlake Blvd., Ste 120-324
`Southlake, TX 76092
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`By: /Andrew S. Ehmke/
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`Andrew S. Ehmke
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`Registration No. 50,271
`Lead Counsel for Petitioner
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