Paper 9 
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`APPLE, INC.,
`
`Petitioner,
`
`v.
`
`QUALCOMM INCORPORATED,
`
`Patent Owner.
`
`______________
`Case IPR2018-01281
`U.S. Patent No. 8,768,865
`______________
`
`
`
`PATENT OWNER’S OBJECTIONS TO PETITION EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64
`
`
`
`
` 
`
`

`

`Case IPR2018-01281
`Patent 8,768,865
`Pursuant to 37 C.F.R. § 42.64(b), Patent Owner Qualcomm Incorporated,
`
`respectfully asserts the following objections to the evidence proffered with
`
`Petitioner’s Petition for Inter Partes Review submitted on June 29, 2018
`
`(“Petition”). These objections are being provided within ten business days from the
`
`institution of the trial, and are thus timely pursuant to 37 C.F.R. § 42.64(b)(1). The
`
`Federal Rules of Evidence (FRE) apply to these proceedings according to the
`
`provisions of 37 C.F.R. § 42.62(a), and these rules form the basis of the objections
`
`contained herein.
`
`Ex. Number and
`Petitioner’s Description
`1005: Wang et al, “A
`Framework of Energy
`Efficient Mobile Sensing
`for Automatic User State
`Recognition”,
`Proceedings of the 7th
`international conference
`on Mobile
`systems,
`applications,
`and
`services, pp. 179-192 ,
`Kraków, Poland — June
`22 - 25, 2009 (“Wang”)
`
`Objections
`
`Authentication. Fed. R. Evid. 901(a). Petitioner has
`not produced evidence sufficient to support a finding
`that this exhibit is what Petitioner purports it to be:
`e.g., an ACM conference article published in 2009.
`Petition at 5-6.
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that Ex.
`1005 “provides a copyright notice indicating a 2009
`publication date” and “presents a ‘design framework
`for an Energy Efficient Mobile Sensing System
`(EEMSS).’” See Petition at 5-6, 16. Petitioner has not
`offered evidence sufficient to demonstrate that this
`exhibit falls within any exception to the rule against
`hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`
`- 2 -
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`

`

`Ex. Number and
`Petitioner’s Description
`
` Webpage of
`1010:
`“Nokia N95 8GB - Full
`phone
`specifications”
`(Archive.org
`version
`dated
`05/26/2009,
`http://web.archive.org/w
`eb/20090526054459/http
`://www.gsmarena.com:8
`0/nokia_n95_8gb-
`2088.php)
`(“Nokia
`N95”)
`
`1016: Declaration of Mr.
`Scott
`Delman
`for
`Wang/APPLE-1005
`
`Case IPR2018-01281
`Patent 8,768,865
`
`Objections
`
`because it is inadmissible under FRE 801, 802, and 901
`as explained above.
`
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that
`“the Nokia N95 includ[ed] ‘CPU Dual ARM 11 332
`MHz processor; 3D Graphics HW Accelerator.’”
`Petition at 20.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801 and 802 as
`explained above.
`
`Hearsay. Fed. R. Evid. 801(c) and 802. The
`statements in Mr. Delman’s declaration are hearsay
`because the declaration does not establish that Mr.
`Delman’s
`statements
`are based on personal
`knowledge, and does not sufficiently establish that the
`business records exception of FRE 803(6) or any other
`exception would apply, and expressly indicates that at
`least some such statements are based on second-hand
`hearsay statements from others. See, e.g., Ex. 1016 at
`¶ 1 (“I make this declaration based on my personal
`knowledge, information contained in the business
`records of ACM, or confirmation with other
`responsible ACM personnel with such knowledge.”)
`Thus, to the extent that Petitioner relies on this exhibit
`to prove the truth of matters described therein, it is
`hearsay: e.g., “that the earliest online publication date
`for [Ex. 1005] was June 23, 2009.” Ex. 1016 at ¶ 2;
`Petition at 6 (citing Ex. 1010). Petitioner has not
`offered evidence sufficient to demonstrate that this
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`

`

`Ex. Number and
`Petitioner’s Description
`
`1017: Cohn, D., Caruana,
`R., & McCallum, A.
`Semi-supervised
`user
`clustering with
`feedback in Constrained
`Clustering: Advances in
`Algorithms, Theory, and
`Applications, 4(1), 17-32
`(2009). (“Cohn”)
`
`Case IPR2018-01281
`Patent 8,768,865
`
`Objections
`
`exhibit falls within any exception to the rule against
`hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801 and 802 as
`explained above.
`
`Authentication. Fed. R. Evid. 901(a). Petitioner has
`not produced evidence sufficient to support a finding
`that this exhibit is what Petitioner purports it to be:
`e.g., an excerpt of a book published in 2009. Petition
`at 3, 66.
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that Ex.
`1017 was published in 2009 and “involving user input
`or feedback in identifying an irrelevant pattern is a
`well-known implementation among a finite number of
`identified, predictable solutions in pattern recognition
`(i.e.,
`identifying
`the
`irrelevant pattern either
`automatically or manually) and have been known to
`improve recognition accuracy and save computational
`resource and improve computational efficiency.”
`Petition at 3, 66. Petitioner has not offered evidence
`sufficient to demonstrate that this exhibit falls within
`any exception to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801, 802, and 901
`as explained above.
`
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`

`

`Ex. Number and
`Petitioner’s Description
`1018: Ruzzelli, A.,
`Nicolas, C. Schoofs, A.,
`O’Hare, G. Real-time
`recognition and profiling
`of appliances through a
`single electricity sensor,
`Proc. 7th Annual IEEE
`Conference on Sensor
`Mesh (SECON), Boston.
`MA 2010. (“Ruzzelli”)
`
`Case IPR2018-01281
`Patent 8,768,865
`
`Objections
`
`Authentication. Fed. R. Evid. 901(a). Petitioner has
`not produced evidence sufficient to support a finding
`that this exhibit is what Petitioner purports it to be:
`e.g., an IEEE conference paper published in 2010.
`Petition at 3, 46, 66. Similarly, Petitioner has not
`produced evidence sufficient to authenticate the
`purported “ResearchGate” or “Research Repository
`UCD” documents at pages 10/11 and 11/11,
`respectively, of Ex. 1018.
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that Ex.
`1018 was published in 2010 and that “[s]uch an
`implementation is a well-known, commonly adopted
`practice in the art to implement pattern recognition to
`perform the same function (e.g., storing the pre-trained
`pattern for
`later comparison and matching)
`in
`substantially the same way, and produce substantially
`the same results.” Petition at 3, 44-45; see also Petition
`at 66. Similarly, to the extent Petitioner relies on the
`purported “ResearchGate” or “Research Repository
`UCD” documents at pages 10/11 and 11/11,
`respectively, of Ex. 1018 to prove the truth of the
`matters asserted, it is also hearsay: e.g., that Ex. 1018
`was dated “July 2010” or published in “2010-06”.
`Petitioner has not offered evidence sufficient to
`demonstrate that this exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801, 802, and 901
`as explained above.
`
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`

`

`Ex. Number and
`Petitioner’s Description
`1019: Cilla, R., Particio,
`M., Garcia, J., Berlanga,
`A.,
`and Molina,
`J.
`Recognizing
`Human
`Activities from Sensors
`Using Hidden Markov
`Models Constructed by
`Feature
`Selection,
`2009,
`2:
`Algorithms
`pp282-300. (“Cilla”)
`
`Seventh
`The
`1020:
`the
`of
`Edition
`Authoritative Dictionary
`of IEEE Standards Terms
`(2000)
`
`Case IPR2018-01281
`Patent 8,768,865
`
`Objections
`
`Authentication. Fed. R. Evid. 901(a). Petitioner has
`not produced evidence sufficient to support a finding
`that this exhibit is what Petitioner purports it to be:
`e.g., an Algorithms 2009 article. Petition at 3.
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that Ex.
`1019 was published in 2009 and that “[d]etecting such
`a time, event, state, or action based on at least one
`monitored input sensor signals (step 404) would again
`be a routine, commonsensical technique, well within
`the knowledge of a POSITA.” Petition at 3, 9.
`Petitioner has not offered evidence sufficient to
`demonstrate that this exhibit falls within any exception
`to the rule against hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801, 802, and 901
`as explained above.
`
`Authentication. Fed. R. Evid. 901(a). Petitioner has
`not produced evidence sufficient to support a finding
`that this exhibit is what Petitioner purports it to be:
`e.g., an excerpt of an IEEE dictionary published in
`2000. Petition at 3.
`Hearsay. Fed. R. Evid. 801(c) and 802. To the extent
`that Petitioner relies on this exhibit to prove the truth
`of matters described therein, it is hearsay: e.g., that Ex.
`1020 was published in 2000 and that “a POSITA
`would have readily understood that the XML file that
`includes all the user states and patterns (and hence the
`second pattern) would have been stored in a database
`because the XML file is used as an ‘input’ and ‘parsed’
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`Ex. Number and
`Petitioner’s Description
`
`Case IPR2018-01281
`Patent 8,768,865
`
`Objections
`
`by the system.” Petition at 51. Petitioner has not
`offered evidence sufficient to demonstrate that this
`exhibit falls within any exception to the rule against
`hearsay.
`Relevance. Fed. R. Evid. 401-403. This exhibit is
`irrelevant under FRE 401, and thus inadmissible under
`FRE 402, or inadmissible as unfairly prejudicial,
`confusing, and/or a waste of time under FRE 403,
`because it is inadmissible under FRE 801, 802, and 901
`as explained above.
`
`
`
`Dated: March 11, 2019
`
`Respectfully submitted,
`
`NORTON ROSE FULBRIGHT US LLP
`
`/Eagle H. Robinson/
`Eagle H. Robinson (Reg. No. 61,361)
`
`Lead Counsel for Patent Owner
`
`
`
`
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`Case IPR2018-01281
`Patent 8,768,865
`
`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that on March 11,
`
`2019, a complete copy of this PATENT OWNER’S OBJECTIONS TO PETITION
`
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64 was served on Lead and Backup
`
`Counsel for Petitioner via email (by consent) to:
`
`IPR39521-0042IP1@fr.com
`
`PTABInbound@fr.com
`
`axf-ptab@fr.com
`
`rozylowicz@fr.com
`
`riffe@fr.com
`
`Respectfully submitted,
`/Eagle H. Robinson/
`Eagle H. Robinson (Reg. No. 61,361) 
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