Paper No. 10
`Filed: December 26, 2018
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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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`SONOS, INC.
`Petitioner
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`v.
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`IMPLICIT, LLC
`Patent Owner
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`IPR2018-00767
`U.S. Patent No. 8,942,252
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`Filed: December 26, 2018
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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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`
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`
`
`SONOS, INC.
`Petitioner
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`v.
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`IMPLICIT, LLC
`Patent Owner
`
`
`
`
`IPR2018-00767
`U.S. Patent No. 8,942,252
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner objects to the following
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`Exhibits submitted with the Patent Owner Response:
`
`2001
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`2002
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`2003
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`2004
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`2005
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`2006
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`2007
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`2008
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`2009
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`2010
`
`Declaration of Edward Balassanian
`
`“Technical Presentation.ppt” from BeComm files
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`“demo000.html” from BeComm files
`
`“index.html” from BeComm files re: DEMO 2000
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`“P0000542.jpg” from BeComm files
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`“web_tablet.html” from BeComm files
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`“strsings_audio.html” from BeComm files
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`“index.html” from BeComm files re: Project Juno
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`“Phase0Formatted.doc” from BeComm files re: Project Juno
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`Joint Claim Construction Statement in Implicit, LLC v. Sonos,
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`Inc., No. 17-259-LPS-CJB (D. Del.)
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`2011
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`“Juno Phase 1.doc” from BeComm files re: Project Juno
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`1
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`
`
`2012
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`2013
`
`2014
`
`2015
`
`2016
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`2017
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`2018
`
`2019
`
`2020
`
`2021
`
`2022
`
`2023
`
`IPR2018-00767
`U.S. Pat. 8,942,252
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`“Project Juno Status 021601.msg” from BeComm files re:
`
`Project Juno
`
`Strings Source Code CVS log excerpts for avsync.c file.
`
`Strings Source Code CVS log excerpts for timesync.c file.
`
`Strings Source Code CVS log excerpts for video.rule file within
`
`remotesync package.
`
`Strings Source Code CVS log excerpts for audiosync.c file.
`
`Source code for audiosync.c from BeComm files
`
`“clocksync.htm” from BeComm files
`
`Source code for timesync.c from BeComm files
`
`Source code for clocksync.c from BeComm files
`
`“Using Strings to Compose Applications from Reusable
`
`Componen.pdf” from BeComm files
`
`“rulesfiles.htm” from BeComm files
`
`Source code for source.pl from BeComm files re: test/demo
`
`2
`
`
`
`2024
`
`2025
`
`2026
`
`2027
`
`2028
`
`2029
`
`2030
`
`2031
`
`IPR2018-00767
`U.S. Pat. 8,942,252
`
`Screen capture of “fightclubrgb.avi” from BeComm files in
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`bdk/test/demo directory
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`“Strings_Audio_Player.htm” from BeComm files
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`“overview.htm” from BeComm files re: Strings Audio Player
`
`“usage.htm” from BeComm files re: Strings Audio Player
`
`Source code for audioplayerapp.rule from BeComm files re:
`
`test/demo2
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`“DMPCaseStudy.doc” from BeComm files
`
`Strings Source Code CVS log excerpts for clocksync.c file
`
`Strings Source Code CVS log excerpts for audio.rule file re:
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`tes/taudiosync
`
`2032
`
`Strings Source Code CVS log excerpts for makefile file for
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`test/demo directory
`
`2033
`
`“ipaqperformance.html” from BeComm files
`
`3
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`
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`Strings Source Code CVS log excerpts for audioplayerapp.rule
`
`2034
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`file
`
`2035
`
`Strings Source Code CVS log excerpts for makefile for
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`bdk/packages/videoclient/ directory
`
`2036
`
`Strings Source Code CVS log excerpts for videomulti.rule in the
`
`2037
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`2038
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`2039
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`2040
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`2041
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`2042
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`2043
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`2044
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`2045
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`videoserver package
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`“synchronization.doc” from BeComm files
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`December 16, 2001 email chain re: synchro patent
`
`“BeComm Comcast RFI Response.doc” from BeComm files
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`“Tatung Proposal Final.pdf” from BeComm files
`
`“Philips Proposal.pdf” from BeComm files
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`“Philips Proposal.pdf” from BeComm files
`
`Source code for avidemux.c from BeComm files
`
`Source code for bmpdecoder.c from BeComm files
`
`Source code for bmptorgb.c from BeComm files
`
`4
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`
`
`2046
`
`2047
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`2048
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`2049
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`2050
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`2051
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`2052
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`2053
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`2054
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`2055
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`2056
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`2057
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`Source code for fanout.c from BeComm files
`
`IPR2018-00767
`U.S. Pat. 8,942,252
`
`
`Source code for framer.c from BeComm files
`
`Source code for ipv4.c from BeComm files
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`Source code for rgbalterencoding.c from BeComm files
`
`Source code for rgbvideo.c from BeComm files
`
`Source code for speaker.c from BeComm files
`
`Source code for tcp.c from BeComm files on POSIX
`
`Source code for udp.c from BeComm files on POSIX
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`Source code for tcp.c from BeComm files on Win32
`
`Source code for udp.c from BeComm files on Win32
`
`Source code for audio.rule from BeComm files re: test/audiosync
`
`Source code for
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`timesync.rule from BeComm files re:
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`test/audiosync
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`2058
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`Source code for video.rule from BeComm files re: test/audiosync
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`5
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`
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`2059
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`Source code
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`for video2.rule
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`test/audiosync
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`re:
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`files
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`from BeComm
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`2060
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`2061
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`Source code for ipaqvideo.rule from BeComm files re: test/demo
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`Source code for localaudio.rule from BeComm files re:
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`test/demo
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`2062
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`Source code for localvideo.rule from BeComm files re:
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`test/demo
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`2063
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`Source code for mp3serveraudio.rule from BeComm files re:
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`test/demo
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`2064
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`2065
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`2066
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`2067
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`2068
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`Source code for network.rule from BeComm files re: test/demo
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`Source code for pcmserveraudio.rule from BeComm files re:
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`test/demo
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`Source code for syncaudio.rule from BeComm files re: test/demo
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`Source code for syncmp3.rule from BeComm files re: test/demo
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`Source code for timesync.rule from BeComm files re: test/demo
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`6
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`
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`Source code for unsyncaudio.rule from BeComm files re:
`
`2069
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`test/demo
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`2070
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`Source code for unsyncmp3.rule from BeComm files re:
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`test/demo
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`2071
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`Source code for videoclient.rule from BeComm files re:
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`test/demo
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`2072
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`Source code for videomulti.rule from BeComm files re:
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`test/demo
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`2073
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`Source code for videoserver.rule from BeComm files re:
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`test/demo
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`2074
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`Copy of source code for clocksync.rule from BeComm files re:
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`test/demo2
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`2075
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`Copy of source code for syncaudio.rule from BeComm files re:
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`test/demo2
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`2076
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`2077
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`Source code for mp3decoder.c from BeComm files
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`Screen captures of metadata information for various exhibits
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`7
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`
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`Strings Source Code CVS log excerpts for synchronization.doc
`
`2078
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`file.
`
`2079
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`LinkedIn Profile of Angel Janevski, downloaded December 17,
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`2080
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`2081
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`2082
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`2083
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`2084
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`2085
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`2086
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`2087
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`2088
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`2089
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`2001.
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`Declaration of Atif Hashmi, Ph.D and Appendix 1
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`Dr. Hashmi ’791 Patent Claim Chart
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`Dr. Hashmi ’252 Patent Claim Chart
`
`Source code for timesync.rule from BeComm files re: test/demo2
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`Source code for audiosync.c from BeComm files
`
`Source code for fanout.c from BeComm files
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`Source code for sampleclock.c from BeComm files
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`Source code for clocksync.c from BeComm files
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`Source code for sampleclock.c from BeComm files
`
`2018 Annual Report of Sonos, Inc.
`
`8
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`
`
`I.
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`OBJECTIONS TO EXHIBIT 2001
`
`IPR2018-00767
`U.S. Pat. 8,942,252
`
`
`Petitioner objects to paragraph 21 of Exhibit 2001 as containing testimony
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`that lacks any tendency to make any fact at issue in this proceeding more or less
`
`probable. This paragraph is therefore inadmissible under FRE 401 and 402, or in
`
`the alternative, under FRE 403 as prejudicial and a waste of time.
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`Petitioner objects to paragraphs 11, 13-19, 23-24, 26, 28, 31-32, 34-72, 75-
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`86, and 90-166 of Exhibit 2001 as containing insufficient evidence and/or foundation
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`to establish that the declarant has personal knowledge of the matter(s) asserted
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`therein. These paragraphs are therefore inadmissible under FRE 602.
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`Petitioner objects to paragraphs 12-18, 23-24, 26, 28, 34-41, 47-50, 52, 56,
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`58-59, 63-64, 66-73, 77-79, and 85-89 of Exhibit 2001 as containing improper expert
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`testimony by a lay witness. The testimony contained in these paragraphs lacks
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`sufficient foundation to establish that the testimony is rationally based on the
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`witness’s perception and appears to be based on scientific, technical, or other
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`specialized knowledge within the scope of FRE 702. These paragraphs are therefore
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`inadmissible under FRE 701.
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`Petitioner objects to paragraphs 12, 16, 24, 26-27, 29-30, 35-41, 51, 56, 58,
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`61-62, 67, 69-70, 73-75, 87-89, and 91 of Exhibit 2001 to the extent that the
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`testimony contained in these paragraphs contains or relies on an out of court
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`statement (such as an alleged date contained within another exhibit or a statement
`
`9
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`IPR2018-00767
`U.S. Pat. 8,942,252
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`quoted or paraphrased from another exhibit) to establish the truth of the matter
`
`asserted. To this extent, these paragraphs contain inadmissible hearsay under FRE
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`801 and 802, and no exception applies.
`
`Petitioner further objects to the recitation “CONTAINS PROTECTIVE
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`ORDER MATERIAL” in the header of each page of Exhibit 2001. No protective
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`order has been entered or applied for in this proceeding or the related IPR2018-
`
`00766 proceeding. This exhibit, and every other exhibit in this proceeding, was filed
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`such that the public can fully access the exhibit. Accordingly, no portion of Exhibit
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`2001 contains any material that is subject to a protective order.
`
`II. OBJECTIONS UNDER FRE ARTICLE VIII -- HEARSAY
`
`Petitioner objects to Exhibits 2002-2079, and 2083-2089 to the extent that
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`Patent Owner relies on the contents in these Exhibits for the truth of any matters
`
`asserted therein, including, but not limited to, relying on a date presented in a
`
`document as establishing the date the document was created or last edited. These
`
`Exhibits are inadmissible hearsay under FRE 801 and 802 that does not fall under
`
`any exceptions, including those of FRE 803, 804, 805, or 807.
`
`III. OBJECTIONS UNDER FRE ARTICLE IX – AUTHENTICATION
`AND IDENTIFICATION
`
`Petitioner objects to Exhibits 2002-2009, 2011-2079, and 2083-2088 as not
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`properly authenticated under FRE 901 because Patent Owner has not presented
`
`10
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`
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`IPR2018-00767
`U.S. Pat. 8,942,252
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`sufficient evidence that these documents are authentic nor that the documents are
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`self-authenticating under FRE 902.
`
`Petitioner further objects to Exhibits 2002-2009, 2011-2079, and 2083-2088
`
`as Patent Owner relies on these Exhibits to corroborate the testimony presented in
`
`Exhibit 2001 in an attempt to prove early conception and reduction to practice to
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`antedate the Janevski prior art reference, yet Patent Owner relies on the testimony
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`presented in Exhibit 2001 (the testimony of the inventor, an interested witness) to
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`authenticate these Exhibits. This is improper under FRE 901 and Neste Oil OYJ v.
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`REG Synthetic Fuels, LLC, IPR2013-00578, Paper 52 (PTAB Mar. 12, 2015) (citing
`
`In re NTP, Inc., 654 F.3d 1279, 1291 (Fed. Cir. 2011); Chen v. Bouchard, 347 F.3d
`
`1299, 1308 (Fed. Cir. 2003)), and these Exhibits are inadmissible for this additional
`
`reason.
`
`IV. OBJECTIONS UNDER FRE ARTICLE IV – RELEVANCE AND ITS
`LIMITS
`
`Petitioner further objects to Exhibits 2004-2005, 2010, 2024, and 2079 as
`
`lacking any tendency to make any fact at issue in this proceeding more or less
`
`probable. These Exhibits are therefore inadmissible under FRE 401 and 402, or in
`
`the alternative, under FRE 403 as prejudicial and a waste of time.
`
`11
`
`
`
`V. OBJECTIONS UNDER FRE ARTICLE X – CONTENTS OF
`WRITINGS, RECORDINGS, AND PHOTOGRAPHS
`
`IPR2018-00767
`U.S. Pat. 8,942,252
`
`
`To the extent Patent Owner relies on the contents of Exhibits 2004-2005 to
`
`prove the content of an original document, Petitioner objects to these Exhibits as not
`
`being original documents under FRE 1002, authentic duplicates under FRE 1003,
`
`nor documents that fall under any exceptions to the original-document requirement,
`
`including those of FRE 1004.
`
`Further, Petitioner objects to Exhibits 2013-2016, 2030-2032, 2034-2036, and
`
`2077-2078 under FRE 1006 as being summaries used to prove the contents of an
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`underlying document or documents, the originals or duplicates of which have not
`
`been introduced in this proceeding nor been made available for examination or
`
`copying.
`
`VI. OBJECTIONS UNDER FRE ARTICLE I – GENERAL OBJECTIONS
`
`Petitioner objects to Exhibits 2013-2020, 2022-2028, 2030-2036, 2043-2079,
`
`2083-2088 under FRE 106 as each is a part of a writing or recorded statement or a
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`set of writings or recorded statements that have not been introduced in this
`
`proceeding. These Exhibits are inadmissible in the absence of the whole writing or
`
`recorded statement or set of writings or recorded statements being introduced.
`
`12
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`
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`VII. FURTHER OBJECTIONS TO EXHIBITS 2003-2005, 2007, 2014, 2023,
`2035-2036, 2039-2049, 2052-2055, 2058-2059, 2061-2062, 2064, 2069-
`2073, 2079, 2088
`
`In addition to the objections set forth above for Exhibits 2003-2005, 2007,
`
`2014, 2023, 2035-2036, 2039-2049, 2052-2055, 2058-2059, 2061-2062, 2064,
`
`2069-2073, 2079, and 2088, Petitioner further objects to these Exhibits as not having
`
`been cited in Patent Owner’s Response. As such, these Exhibits are inadmissible
`
`under FRE 401 and 402, as irrelevant, lacking any tendency to make any fact at
`
`issue in this proceeding more or less probable, or in the alternative, under FRE 403
`
`as prejudicial and a waste of time.
`
`VIII. OBJECTIONS TO EXHIBITS 2080-2082
`
`Petitioner objects to Exhibit 2080-2082 because they contain unreliable
`
`testimony under FRE 401, 402, 403, and 702, and Daubert v. Merrell Dow Pharm.,
`
`Inc., 509 U.S. 579 (1993), and 37 C.F.R. § 42.23(b). In particular, Mr. Hashmi’s
`
`testimony includes numerous purported “expert” opinions on matters about which
`
`Mr. Hashmi is not qualified to offer such “expert” testimony. Mr. Hashmi has
`
`insufficient knowledge, skill, experience, training, and education regarding
`
`networked systems and networked-based applications or regarding the development,
`
`interpretation, and/or analysis of source code for these applications. As such, this
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`testimony is inadmissible as irrelevant and misleading and not the result of scientific,
`
`13
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`technical, or other specialized knowledge that will help the trier of fact to understand
`
`the evidence or to determine a fact in issue.
`
`Petitioner further objects to the recitation “CONTAINS PROTECTIVE
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`ORDER MATERIAL” in the header of each page of Exhibits 2080-2082. No
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`protective order has been entered or applied for in this proceeding or the related
`
`IPR2018-00766 proceeding. These exhibits, and every other exhibit in this
`
`proceeding, were filed such that the public can fully access the exhibits.
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`Accordingly, no portion of Exhibits 2080-2082 contains any material that is subject
`
`to a protective order.
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`IX. FURTHER OBJECTIONS TO EXHIBITS 2081-2082
`
`In addition to the objections set forth above for Exhibits 2081-2082, Petitioner
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`further objects to these Exhibits as having been improperly incorporated by
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`reference in the Patent Owner Response in violation of 37 C.F.R. § 42.6(a)(3) and
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`the word limits imposed by 37 C.F.R. § 42.24(b)(2).
`
`X.
`
`FURTHER OBJECTIONS TO EXHIBITS 2034-2089
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`In addition to the objections set forth above for Exhibits 2034-2089, Petitioner
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`further objects to these Exhibits as having been untimely filed in violation of the
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`Board’s Scheduling Order (Paper 7), and Patent Owner has failed to either request
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`an extension from Petitioner or seek leave from the Board to consider these untimely
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`filed Exhibits.
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`
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`14
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`Dated: December 26, 2018
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`
`
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`IPR2018-00767
`U.S. Pat. 8,942,252
`
`
`Respectfully submitted,
`
`By:
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Petitioner
`Reg. No. 65,398
`
`
`
`
`
`Lee Sullivan Shea & Smith LLP
`656 W Randolph St, Ste. 5W
`Chicago, Illinois 60661
`Tel: (312) 754-9602
`Fax: (312) 754-9603
`richter@ls3ip.com
`
`15
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`
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`CERTIFICATE OF SERVICE
`
`IPR2018-00767
`U.S. Pat. 8,942,252
`
`
`In accordance with 37 CFR §42.6(e)(4), I hereby certify that on December
`
`26, 2018, a true copy of the accompanying OBJECTIONS TO EVIDENCE, was
`
`served via electronic mail to the following counsel at the email addresses
`
`designated for service by Patent Owner:
`
`Implicit258.service@singerbea.com
`
`James Hopenfeld
`SINGER BEA, LLP
`601 Montgomery Street, Suite 1950
`San Francisco, CA 94111
`jhopenfeld@singerbea.com
`Lead Counsel
`
`Christian Hurt
`THE DAVIS FIRM, PC
`213 N. Fredonia Street, Suite 230
`Longview, Texas 75601
`churt@bdavisfirm.com
`Back-Up Counsel
`
`
`Date: December 26, 2018
`
`
`
`
`
`
`
`
`
`/Cole B. Richter/
`By:
`Cole B. Richter,
`Counsel for Petitioner
`Reg. No. 65,398
`
`Lee Sullivan Shea & Smith LLP
`656 W Randolph St, Ste. 5W
`Chicago, Illinois 60661
`Tel: (312) 754-9602
`Fax: (312) 754-9603
`richter@ls3ip.com
`
`
`
`
`
`
`
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