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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ADVANCED MICRO DEVICES, INC.
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`Petitioner
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`v.
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`AQUILA INNOVATIONS INC.
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`Patent Owner
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`Case IPR2019-01526
`U.S. Patent No. 6,895,519
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`PATENT OWNER’S MOTION TO EXCLUDE
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`In accordance with the Board’s scheduling order, Paper No. 4, and 37 C.F.R.
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`§ 42.64(c), Patent Owner Aquila Innovations Inc. (“Aquila”) requests that the
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`Board exclude Exhibit 1005 as unauthenticated under FRE 901. Patent Owner also
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`requests that the Board exclude paragraphs 56-62 of Exhibit 1028 as untimely
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`supplemental evidence.
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`The Petition asserts that “the Internet Archive Wayback machine captured
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`the Window ACPI document itself as of May 4, 1999 from the Microsoft.com
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`website.” Paper No. 2 at 12, citing Ex. 1021. Petitioner relies on Exhibit 1005 as a
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`reference in Ground 2. Paper No. 2 at 2. Patent Owner previously objected to
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`Exhibit 1005 based upon the lack of authentication under FRE 901 and hearsay
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`under FRE 801. Paper No. 16. Petitioner did not timely submit supplemental
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`evidence under 37 C.F.R. § 42.64(b)(2).
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`Exhibit 1005 is inadmissible under FRE 901 because Petitioner has not
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`presented evidence showing that the document is what Petitioner claims it to be – a
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`document archived by the Wayback machine “as of May 4, 1999.” FRE 901(a); see
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`also TRW Automotive U.S. LLV v. Magna Electronics Inc., Case IPR2014-01347,
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`Paper No. 25, 2016 Pat. App. LEXIS 814, *8 (P.T.A.B. January 6, 2016) (“Thus,
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`we first look to what TRW claimed Exhibit 1005 to be.”). The Petition relies only
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`upon Ex. 1021, the declaration of Christopher Butler, to support Exhibit 1005’s
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`admissibility. The Butler Declaration does not show that the Internet Archive
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`-2-
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`captured Exhibit 1005 as of “May 4, 1999.” Instead, Mr. Butler testifies that the
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`Wayback Machine generates archive URLs according to the date and time it
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`archives the files located at the URL. Ex. 1021 ¶ 5. Mr. Butler testifies that
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`“Exhibit A” of his declaration “are true and correct copies of the Internet Archive’s
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`records of the .zip files,” but Ex. 1021 does not contain an “Exhibit A.” Id. ¶ 6. Ex.
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`1021 provides no evidence that the purported .zip files actually contained Exhibit
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`1005. Mr. Butler has no personal knowledge of the contents of the .zip file, and
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`his testimony does not connect the alleged .zip files to their alleged contents. FRE
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`601. Petitioner has presented no evidence that the Internet Archive actually
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`archived Exhibit 1005 itself as of May 4, 1999, as asserted in the Petition.
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`Having realized that it failed to authenticate Exhibit 1005, Petitioner
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`attempts to use Dr. Albonesi’s reply declaration to cure the defect. See Ex. 1028 ¶¶
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`56-62. Petitioner submitted this declaration months after it let its deadline to
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`submit supplemental evidence lapse without any attempt to cure Patent Owner’s
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`objections. Dropbox, Inc. v. Synchronoss Technologies, Inc., Case IPR2016-00850,
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`Paper 41, 2016 Pat. App. LEXIS 13489, *31-32 (P.T.A.B. October 5, 2016)
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`(“Categorizing supplemental evidence as a proper or timely reply to Patent
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`Owner's arguments [] does not shield Petitioner's evidence from the requirements
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`that it comply with the rules regarding supplemental evidence.”) Petitioner’s
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`untimely supplemental evidence should be excluded.
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`-3-
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`Petitioner has not shown that Exhibit 1005 is what Petitioner asserts it is – a
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`document archived by the Wayback Machine as early as May 1999. Patent Owner
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`respectfully requests that the Board exclude Exhibit 1005 under FRE 901(a) and
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`exclude paragraphs 56 to 62 of Exhibit 1028 as untimely supplemental evidence.
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`Date: November 20, 2020
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`/Jing H. Cherng/
`Jing H. Cherng
`Reg. No. 68,144
`Counsel for Patent Owner
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`CERTIFICATE OF SERVICE
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`It is certified that a copy of the foregoing has been served on Petitioner via
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`electronic mail transmission addressed to the person(s) at the address below:
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`Daniel S. Block
`dblock-PTAB@sternekessler.com
`Michael B. Ray
`mray-PTAB@sternekessler.com
`Jonathan Tuminaro
`jtuminar-PTAB@sternekessler.com
`Michael D. Specht
`mspecht-PTAB@sternekessler.com
`Lauren C. Schleh
`lschleh-PTAB@sternekessler.com
`PTAB@sternekessler.com
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`Date: November 20, 2020
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`/Jing H. Cherng/
`Jing H. Cherng
`Reg. No. 68,144
`Counsel for Patent Owner
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`-5-
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