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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`INTUITIVE SURGICAL, INC.
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`Petitioner
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`v.
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`ETHICON LLC
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`Patent Owner
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`Case IPR2018-01248
`Patent 8,479,969
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`Proceeding No. IPR2018-01248
`Attorney docket No. 11030-0049IP9
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`Pursuant to 37 C.F.R. § 42.64(b)(1), Petitioner, Intuitive Surgical, Inc.
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`(“Petitioner”), hereby submits its notice of objections to certain evidence that
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`Patent Owner, Ethicon LLC (“Patent Owner”), submitted with its Patent Owner
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`Preliminary Response dated November 9, 2018, in connection with IPR2018-
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`01248. These objections are being submitted within ten business days of the
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`Institution Decision.
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`Petitioner objects to Exhibit No. 2001 (Excerpts from Technology Tutorial
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`filed in Ethicon LLC, et al. v. Intuitive Surgical, Inc., et al., C.A. No. 17-871 (LPS)
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`(CJB) (District of Delaware)). The bases for objecting to this exhibit include the
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`following Federal Rules of Evidence and PTAB decision:
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`FRE 801, 802 & 803: Hearsay. Petitioner objects to Exhibit 2001 as
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`inadmissible hearsay to the extent Patent Owner intends to offer this Exhibit
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`for the truth of the matters asserted, including the attorneys’ arguments
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`regarding alleged facts to which they have no first-hand knowledge.
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`FRE 401 & 402: General Admissibility of Relevant Evidence.
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`Petitioner objects to Exhibit 2001 as irrelevant to the extent it concerns a
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`proceeding involving patents not at issue here. Furthermore, Exhibit 2001
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`has not been shown to be a recognized authority for any of the subject matter
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`contained therein.
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`1
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`Proceeding No. IPR2018-01248
`Attorney docket No. 11030-0049IP9
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`FRE 106 & 403: Remainder of or Related Writings or Recorded
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`Statements and Excluding Relevant Evidence for Prejudice, Confusion,
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`Waste of Time, or Other Reasons. To the extent Exhibit 2001 is deemed to
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`be relevant, Petitioner objects to Exhibit 2001 because it: (1) concerns a
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`litigation involving unrelated patents; (2) appears to contain excerpts of
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`documents that are not part of this record; and (3) is itself a partial
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`document. Thus, the probative value of Exhibit 2001 (if any), would be
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`substantially outweighed by the dangers of unfair prejudice, wasting time,
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`and confusing the issues.
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`St. Jude Medical, Cardiology Division, Inc. v. The Board of Regents
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`of the University of Michigan, Case No. IPR2013-00041, slip op. at 2-3
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`(PTAB Jan. 27, 2014) (Paper 65) (explaining that demonstrative exhibits are
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`not evidence and that demonstrative exhibits are not an opportunity for
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`additional briefing). Petitioner objects to Exhibit 2001 because it is a set of
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`demonstrative slides that contain excerpts from documents that are not cited
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`and not part of this record as well as additional attorney arguments that are
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`not included in Patent Owner’s Preliminary Response. Thus, Exhibit 2001
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`is not evidence, but rather an improper attempt to submit additional attorney
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`arguments along with incomplete and unidentified documentary evidence.
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`Proceeding No. IPR2018-01248
`Attorney docket No. 11030-0049IP9
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`Respectfully submitted,
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`/Steven R. Katz/
`Steven R. Katz, Reg. No. 43,706
`Fish & Richardson P.C.
`One Marina Park Drive
`Boston, MA 02210
`Tel: 617-521-7803
`Email: katz@fr.com
`Attorney for Petitioner
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`Dated: February 22, 2019
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`Proceeding No. IPR2018-01248
`Attorney docket No. 11030-0049IP9
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(1) and 42.6(e)(4)(iii), the undersigned
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`certifies that on February 22, 2019, a complete and entire copy of this Petitioner’s
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`Objections to Evidence was provided via email to the Patent Owner by serving
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`the email correspondence addresses of record as follows:
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`Anish R. Desai
`Elizabeth Stotland Weiswasser
`Adrian Percer
`Christopher T. Marando
`Christopher M. Pepe
`Weil, Gotshal & Manges LLP
`767 Fifth Avenue
`New York, NY 10153
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`Email: Ethicon.IPR.Service@weil.com
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`/Diana Bradley/
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`Diana Bradley
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(858) 678-5667
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