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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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`INTUITIVE SURGICAL, INC.
`Petitioner
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`v.
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`ETHICON LLC
`Patent Owner
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`Case IPR2018-01254
`Patent 8,479,969
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`Proceeding No. IPR2018-01254
` Attorney docket No. 11030-0049IPA
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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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`Response dated April 19, 2019, in connection with IPR2018-01254. These
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`objections are being submitted within ten business days of service of the Response.
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`Petitioner objects to Exhibit No. 2005 (Declaration of Dr. Shorya Awtar).
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`The bases for objecting to this Exhibit include the following Federal Rules of
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`Evidence:
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`FRE 801-805: Hearsay. Petitioner objects to this Exhibit 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.
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`FRE 401, 402, & 403: Relevant Evidence and Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. This
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`Exhibits contain irrelevant information, and to the extent this Exhibit is
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`deemed to be relevant, Petitioner objects to this Exhibit because it contains
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`conclusory and unsupported opinions and the probative value of the
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`statements are outweighed by the danger of unfair prejudice or confusion of
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`the issues.
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`FRE 702 & 703: Testimony by Expert Witnesses and Bases of an
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`Expert’s Opinion Testimony. Petitioner objects to this Exhibit because the
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`1
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`Proceeding No. IPR2018-01254
`Attorney docket No. 11030-0049IPA
`opinions are not based on sufficient facts or data and the expert has not
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`reliably applied accepted principals and methods to the facts at issue.
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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
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`(LPS)(CJB) (District of Delaware)). The bases for objecting to this Exhibit include
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`the following Federal Rules of Evidence:
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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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`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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`Proceeding No. IPR2018-01254
`Attorney docket No. 11030-0049IPA
`litigation involving unrelated patents; (2) appears to contains 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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`Petitioner objects to Exhibit No. 2009 (Mucksavage et al., “Differences in
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`Grip Forces Among Various Robotic Instruments and da Vinci Surgical
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`Platforms”)
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`FRE 801-805: Hearsay. Petitioner objects to Exhibit 2009 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. There is no declarant with personal
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`knowledge of the experiments described in the Exhibit.
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`FRE 401, 402, & 403: Relevant Evidence and Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.
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`Exhibit 2006 is a published patent application by Petitioner having no
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`apparent relevance to the issues presented in this proceeding, and its content
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`does not appear probative to the issues presented in Patent Owner’s
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`Response.
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`Proceeding No. IPR2018-01254
`Attorney docket No. 11030-0049IPA
`Petitioner objects to Exhibit Nos. 2014 and 2019 (International WIPO
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`Publication Nos. WO 2015/153642 and US Patent Application Publication No.
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`2012/0209314). The bases for objecting to these Exhibits include the following
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`Federal Rules of Evidence:
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`FRE 801-805: Hearsay. Petitioner objects to these Exhibits as
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`inadmissible hearsay to the extent Patent Owner intends to offer these
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`Exhibits for the truth of the matters asserted.
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`FRE 401, 402, & 403: Relevant Evidence and Excluding Relevant
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`Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. These
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`Exhibits are patents and published applications by Petitioner having little to
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`no relevance to any issue presented by the petition or otherwise present in
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`this proceeding. To the extent that these Exhibits are relevant at all, any
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`probative value of the articles is outweighed by the danger of unfair
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`prejudice or confusion of the issues.
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`Dated: April 25, 2019
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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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`4
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`Proceeding No. IPR2018-01254
` Attorney docket No. 11030-0049IPA
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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 April 25, 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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`/Jessica K. Detko/
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`Jessica K. Detko
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`(612) 337-2516
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