UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SLING TV, L.L.C., et al.,
`Petitioners
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`v.
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`REALTIME ADAPTIVE STREAMING LLC,
`Patent Owner
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`Case IPR2018-01342
`Patent 8,934,535
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SLING TV, L.L.C., et al.,
`Petitioners
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`v.
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`REALTIME ADAPTIVE STREAMING LLC,
`Patent Owner
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`Case IPR2018-01342
`Patent 8,934,535
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`PETITIONER’S OBJECTIONS TO EVIDENCE
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
`Petitioners Sling TV L.L.C., Sling Media, L.L.C., DISH Network L.L.C.,
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`and DISH Technologies, L.L.C. (collectively “Petitioner” or “DISH”) submit the
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`following objections to evidence filed by Realtime Adaptive Streaming LLC
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`(“Patent Owner” or “Realtime”) in conjunction with the Patent Owner’s Response
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`filed on May 30, 2019 (Paper 19). Pursuant to 37 C.F.R. § 42.64(b)(1), these
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`objections are made within five business days from service of the Patent Owner’s
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`Response. See Paper 19 (confirming that the “document was served on May 30,
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`2019, by filing this document through the Patent Trial and Appeal Board End to
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`End System as well as delivering a copy via electronic mail”).
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`Pursuant to FRE 401, 402, and 403, Petitioner objects to the admissibility of
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`Exhibit 2012 and Exhibit 2013 as irrelevant and prejudicial to Petitioner in the
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`context of this proceeding. Exhibit 2012 is a declaration filed by Dr. Alan Bovik
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`in connection with a federal litigation currently pending in the U.S. District Court
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`for the District of Colorado, in which Dr. Bovik offers opinions based on a claim
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`construction of one of the terms of the challenged claims under a different claim
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`construction standard than is applied in this proceeding.1 Exhibit 2013 is a
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`1 Patent Owner also introduced Exhibit 2012 as Exhibit 2 to the deposition of Dr.
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`Scott Acton in IPR2018-01331 held on May 10, 2019. Ex. 2015 at 47:19-48:6.
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`Petitioner timely objected to the introduction and use of this Exhibit during Dr.
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`1
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
`Markman order from the same litigation in the District of Colorado, in which the
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`district court sets forth its claim construction analysis and adopts various claim
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`constructions, again under a different claim construction standard. Realtime’s and
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`Dr. Zeger’s reliance upon and citation to certain opinions of Dr. Bovik and the
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`district court’s claim construction analysis are entirely irrelevant to this
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`proceeding, because the analyses provided therein are premised on an entirely
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`different claim construction standard that is inapplicable to the instant proceeding.
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`Specifically, Exhibits 2012 and 2013 apply the claim construction standard
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`required by 35 U.S.C. § 282(b), as set forth in Phillips v. AWH Corp., 415 F.3d
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`1303 (Fed. Cir. 2005) (en banc), rather than the broadest reasonable interpretation
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`(“BRI”) standard applied in this proceeding. See 37 C.F.R. § 42.100; In re Morris,
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`127 F.3d 1048, 1054 (Fed. Cir. 1997). Further, any limited probative value offered
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`by Realtime’s and Dr. Zeger’s reliance upon Exhibits 2012 and 2013 is
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`substantially outweighed by the likely confusion caused by the analysis provided in
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`those Exhibits under a different claim construction standard. Realtime’s and Dr.
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`Zeger’s specific reliance upon certain citations to Exhibits 2012 and 2013 are
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`Acton’s deposition in IPR2018-01331 pursuant to 37 C.F.R. § 42.64(a), on the
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`basis that the Exhibit was outside of the scope of the record of that proceeding,
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`and relies upon different legal and claim construction standards than applied in that
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`proceeding. See Ex. 2015 at 50:5-9, 58:20-59:9.
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
`therefore highly prejudicial to Petitioner. Exhibits 2012 and 2013 should therefore
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`be excluded under FRE 401, 402, and 403.
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`Pursuant to FRE 801 and 802, Petitioner further objects to the admissibility
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`of Exhibit 2012 as hearsay. Realtime relies on Dr. Bovik’s statements in Exhibit
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`2012 for the truth of its contentions that the ’535 patent provides an express
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`definition of an “asymmetrical compression algorithm,” and that this definition
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`provides the proper constructions of the terms “asymmetric compressors” and
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`“asymmetric data compression” appearing in the challenged claims of the ’535
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`patent. Paper 19 at 12. As noted above, Exhibit 2012 is a declaration offered by
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`Dr. Bovik in an entirely different and unrelated case under different legal and
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`claim construction standards. Therefore, Exhibit 2012 constitutes hearsay for the
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`purpose Patent Owner relies upon it. See FED. R. EVID. 802-804, 807.
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`Pursuant to FRE 702, Petitioner objects to the admissibility of all
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`paragraphs of Exhibit 2010 that reference Exhibit 2012 or Exhibit 2013. See, e.g.,
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`Ex. 2010 at ¶¶ 55-56. Exhibit 2010 is the Expert Declaration of Kenneth A. Zeger.
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`Dr. Zeger’s Declaration relies on Exhibits 2012 and 2013 to support his position
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`regarding the proper claim construction of the terms “asymmetric compressors”
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`and “asymmetric data compression.” Id. In doing so, Dr. Zeger relies on evidence
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`that addresses a different claim construction standard than is applied in this
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`proceeding. Specifically, Exhibits 2012 and 2013 relied on by Dr. Zeger address
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
`the Phillips standard for claim construction applied in the federal district courts,
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`rather than the BRI standard applied in this proceeding. Accordingly, these
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`paragraphs of Exhibit 2010 are inadmissible under FRE 702, because the legal
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`conclusions that Dr. Zeger purports to reach are not based on a reliable application
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`of the proper principles and methods, and therefore will not help the Board to
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`understand the evidence or to determine any fact in issue.
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`Petitioner further objects to the admissibility of all paragraphs of Exhibit
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`2010 that reference Exhibit 2012 or Exhibit 2013 pursuant to FRE 703,. See, e.g.,
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`Ex. 2010 at ¶¶ 55-56. As discussed above, Exhibits 2012 and 2013 should be
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`excluded, as their limited probative value does not outweigh their prejudice to
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`Petitioner or the confusion resulting from their analysis under a different claim
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`construction standard than is applied in this proceeding. As a result, FRE 703
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`prohibits all paragraphs of Exhibit 2010 that reference Exhibit 2012 or Exhibit
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`2013 from being disclosed to the finder of fact.
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`Petitioner further objects to the admissibility of all paragraphs of Exhibit
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`2010 that reference Exhibit 2012 or Exhibit 2013 pursuant to FRE 401, 402, and
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`403. See, e.g., Ex. 2010 at ¶¶ 55-56. The opinions provided in Exhibits 2012 and
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`2013 are based on a different claim construction standard than applied in this
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`proceeding. As a result, any limited probative value conferred by Dr. Zeger’s
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`reliance upon Exhibits 2012 and 2013 in his Declaration is substantially
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
`outweighed by the dangers of confusing the issues, misleading the fact finder, and
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`prejudicing Petitioner.
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
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`Respectfully submitted,
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`/Adam R. Shartzer/
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`Adam R. Shartzer, Reg. No. 57,264
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`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
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`Attorney for Petitioners
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`June 6, 2019
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`Dated:
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`6
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`Attorney Docket: 45035-0002IP4
`IPR2018-01342
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e), the undersigned certifies that on June 6,
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`2019, a complete and entire copy of this Petitioner’s Objections to Evidence were
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`provided via email, to the Patent Owner by serving the email correspondence
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`addresses of record as follows:
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`Neil A. Rubin
`Kent Shum
`Philip X. Wang
`Reza Mirzaie
`C. Jay Chung
`Russ August & Kabat
`12424 Wilshire Blvd., 12th Floor
`Los Angeles, CA 90025
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`Email: nrubin@raklaw.com
`Email: kshum@raklaw.com
`Email: pwang@raklaw.com
`Email: rmirzaie@raklaw.com
`Email: jchung@raklaw.com
`Email: rak_realtimedata@raklaw.com
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`/Edward G. Faeth /
`Edward G. Faeth
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(202) 626-6420
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