`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`
`
`SIRIUS XM RADIO INC.,
`
`Petitioner,
`
`v.
`
`
`FRAUNHOFER-GESELLSCHAFT ZUR FÖRDERUNG DER
`ANGEWANDTEN FORSCHUNG E.V.,
`Patent Owner.
`
`____________________
`
`Case IPR2018-00690
`U.S. Patent No. 6,314,289
`__________________________________________________________
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64
`
`
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`Sirius XM Radio Inc. (“Petitioner”), objects under the Federal Rules of
`
`Evidence and 37 C.F.R. § 42.64(b)(1) to the admissibility of the following
`
`documents submitted by Fraunhofer-Gesellschaft Zur Forderung der Angewandten
`
`Forschung E.V. (“Patent Owner”) in Patent Owner’s Sur-Reply to Petitioner’s
`
`Reply. Paper No. 43.
`
`The evidence in support of Patent Owner’s Sur-Reply to Patent Owner’s
`
`Response was served on April 1, 2020. Paper No. 42. Petitioner’s objections are
`
`timely under 37 C.F.R. § 42.64(b)(1). Petitioner serves Patent Owner with these
`
`objections to provide notice that Petitioner will move to exclude these exhibits as
`
`improper evidence.
`
`
`
`Eberlein Declaration (Ex. 2050)
`
`Petitioner objects to the admissibility of Patent Owner’s Exhibit 2050
`
`(“Eberlein Declaration”) for at least the following reasons:
`
`1.
`
`Petitioner objects to the Eberlein Declaration as untimely because the
`
`“sur-reply may not be accompanied by new evidence other than deposition
`
`transcripts of the cross-examination of any reply witness.” 2018 Revised Trial
`
`Practice Guide.
`
`2.
`
`The Eberlein Declaration is not relevant under FRE 401 and is
`
`inadmissible under FRE 402. Moreover, Patent Owner’s use of the Eberlein
`
`- 1 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`Declaration is confusing, of minimal probative value, outweighed by prejudice,
`
`and/or a waste of time and is therefore inadmissible under FRE 403.
`
`3.
`
`The Eberlein Declaration is inadmissible under FRE 602 because the
`
`witness has not indicated that he has personal knowledge to testify about the
`
`matter.
`
`4.
`
`The Eberlein Declaration is inadmissible under FRE 701 and FRE
`
`702 because the opinions therein are that of a lay witness, and they are conclusory,
`
`do not disclose underlying facts or data in support of his opinions, and are
`
`unreliable.
`
` Diversity Combining within Viterbi Memo (Ex. 2051)
`
`Petitioner objects to the admissibility of Patent Owner’s Exhibit 2051
`
`(“Diversity Memo”) for at least the following reasons:
`
`1.
`
`Petitioner objects to the Diversity Memo as untimely because the
`
`“sur-reply may not be accompanied by new evidence other than deposition
`
`transcripts of the cross-examination of any reply witness.” 2018 Revised Trial
`
`Practice Guide.
`
`2.
`
`The Diversity Memo is not relevant under FRE 401 and is
`
`inadmissible under FRE 402. Moreover, Patent Owner’s use of the Diversity
`
`Memo is confusing, of minimal probative value, outweighed by prejudice, and/or a
`
`waste of time and is therefore inadmissible under FRE 403.
`
`- 2 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`3.
`
`The Puncturing Pattern Memo is also hearsay under FRE 801 and
`
`inadmissible under FRE 802 and FRE 803.
`
`4.
`
`Patent Owner has also failed to establish that the Diversity Memo is
`
`what Patent Owner claims it is, and has failed to authenticate Exhibit 2051 under
`
`FRE 901.
`
` Eberlein et al. PCT App. Pub. WO 00/36783 (Ex. 2052)
`
`Petitioner objects to the admissibility of Patent Owner’s Exhibit 2051
`
`(“Eberlein PCT”) for at least the following reasons:
`
`1.
`
`Petitioner objects to Eberlein PCT as untimely because the “sur-reply
`
`may not be accompanied by new evidence other than deposition transcripts of the
`
`cross-examination of any reply witness.” 2018 Revised Trial Practice Guide.
`
`2.
`
`Eberlein PCT is not relevant under FRE 401 and is inadmissible
`
`under FRE 402. Moreover, Patent Owner’s use of the Eberlein PCT is confusing,
`
`of minimal probative value, outweighed by prejudice, and/or a waste of time and is
`
`therefore inadmissible under FRE 403.
`
` Puncturing Pattern Memo (Ex. 2053)
`
`Petitioner objects to the admissibility of Patent Owner’s Ex. 2053
`
`(“Puncturing Pattern Memo”) for at least the following reasons:
`
`1.
`
`Petitioner objects to the Puncturing Pattern Memo as untimely
`
`because the “sur-reply may not be accompanied by new evidence other than
`
`- 3 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`deposition transcripts of the cross-examination of any reply witness.” 2018
`
`Revised Trial Practice Guide.
`
`2.
`
`The Puncturing Pattern Memo is not relevant under FRE 401 and is
`
`inadmissible under FRE 402. Moreover, Patent Owner’s use of the Puncturing
`
`Pattern Memo is confusing, of minimal probative value, outweighed by prejudice,
`
`and/or a waste of time and is therefore inadmissible under FRE 403.
`
`3.
`
`The Puncturing Pattern Memo is also hearsay under FRE 801 and
`
`inadmissible under FRE 802 and FRE 803.
`
`4.
`
`Patent Owner has also failed to establish that the Diversity Memo is
`
`what Patent Owner claims it is, and has failed to authenticate Exhibit 2051 under
`
`FRE 901.
`
` DARS Simulation Plan (Ex. 2054)
`
`Petitioner objects to the admissibility of Patent Owner’s Ex. 2054 (“DARS
`
`Simulation Plan”) for at least the following reasons:
`
`1.
`
`Petitioner objects to the DARS Simulation Plan as untimely because
`
`the “sur-reply may not be accompanied by new evidence other than deposition
`
`transcripts of the cross-examination of any reply witness.” 2018 Revised Trial
`
`Practice Guide.
`
`2.
`
`The DARS Simulation Plan is not relevant under FRE 401 and is
`
`inadmissible under FRE 402. Moreover, Patent Owner’s use of the DARS
`
`- 4 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`Simulation Plan is confusing, of minimal probative value, outweighed by
`
`prejudice, and/or a waste of time and is therefore inadmissible under FRE 403.
`
`3.
`
`The DARS Simulation Plan is also hearsay under FRE 801 and
`
`inadmissible under FRE 802 and FRE 803.
`
`4.
`
`Patent Owner has also failed to establish that the Diversity Memo is
`
`what Patent Owner claims it is, and has failed to authenticate Exhibit 2051 under
`
`FRE 901.
`
` File History of U.S. Patent No. 6,247,158 (Ex. 2054)
`
`Petitioner objects to the admissibility of Patent Owner’s Ex. 2055 (“’158
`
`Patent File History”) for at least the following reasons:
`
`1.
`
`Petitioner objects to the ’158 Patent File History as untimely because
`
`the “sur-reply may not be accompanied by new evidence other than deposition
`
`transcripts of the cross-examination of any reply witness.” 2018 Revised Trial
`
`Practice Guide.
`
`2.
`
`The ’158 Patent File History is not relevant under FRE 401 and is
`
`inadmissible under FRE 402. Moreover, Patent Owner’s use of the ’158 Patent
`
`File History is confusing, of minimal probative value, outweighed by prejudice,
`
`and/or a waste of time and is therefore inadmissible under FRE 403.
`
`- 5 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
` Conclusion
`
`Petitioner reserves its right to file motions to exclude these exhibits and
`
`evidence under 37 C.F.R. § 42.64(c).
`
`Dated: April 8, 2020
`
`
`
`
`
`Respectfully submitted,
`
`
`
`/Jonathan S. Caplan/
`
`Jonathan S. Caplan (Reg. No. 38,094)
`Mark Baghdassarian (pro hac vice
`forthcoming)
`Shannon Hedvat (Reg. 68,417)
`Jeffrey H. Price (Reg. No. 69,141)
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.9488
`
`(Case No. IPR2018-00690)
`
`Attorneys for Petitioner
`Sirius XM Radio Inc.
`
`
`
`
`
`- 6 -
`
`
`
`Petitioner’s Objections to Evidence
`IPR2018-00690 (U.S. Patent No. 6,314,289)
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
`
`service was made on the Patent Owner as detailed below.
`
`Date of service April 8, 2020
`
`Manner of service Electronic Mail
`(byorks@irell.com; bredjaian@irell.com;
`dmcphie@irell.com; kvakili@irell.com)
`
`
`
`Documents served PETITIONER’S OBJECTIONS TO EVIDENCE
`
`Persons Served (Ben J. Yorks; Babak Redjaian; David McPhie; Kamran
`Vakili)
`
`
`
`
`/Jonathan S. Caplan /
`Jonathan S. Caplan
`Registration No. 38,094
`Counsel for Petitioner
`
`
`- 7 -
`
`
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