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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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`MEDTRONIC, INC., AND MEDTRONIC VASCULAR, INC.,
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`Petitioners,
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`v.
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`TELEFLEX INNOVATIONS S.À.R.L.,
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`Patent Owner.
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`IPR2020-00126
`IPR2020-00128
`IPR2020-00129
`IPR2020-00132
`IPR2020-00134
`IPR2020-00135
`IPR2020-00137
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`PETITIONERS’ REPLY IN SUPPORT OF MOTION TO EXCLUDE
`EXHIBIT 2024
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`TABLE OF CONTENTS
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`Page
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`I.
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`TELEFLEX CONFUSES WITNESS ASSUMPTIONS AND OPINIONS
`ABOUT THE DOCUMENT FOR FACTS AUTHENTICATING THE
`DOCUMENT. .................................................................................................. 1
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`II. NO WITNESS SPEAKS TO EXHIBIT 2024’S CREATION OR
`MAINTENANCE—NO ONE ESTABLISHES THAT IT IS A
`RELIABLE “BUSINESS RECORD.” ............................................................ 2
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`III. MEDTRONIC TIMELY OBJECTED TO EXHIBIT 2024 UNDER
`RULES 901 AND 802 AND PRESERVED THOSE OBJECTIONS. ........... 5
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`ii
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
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`Comcast Cable Commc’ns, LLC v. Veveo, Inc.,
`IPR2019-00237, Paper 59, at 75 (PTAB Aug. 12, 2020).....................................4
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`Conoco Inc. v. Dep’t of Energy,
`99 F.3d 387 (Fed. Cir. 1996) ................................................................................ 3
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`McKay v. Town and Country Cadillac, Inc.,
`No. 97 C 2102, 2002 WL 318295 (N.D. Ill. Feb. 26, 2002) ................................ 3
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`Rambus, Inc. v. Infineon Techs. AG,
`348 F. Supp. 2d 698, 703 (E.D. Va. 2004) ........................................................... 3
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`Court Rules
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`Fed. R. Evid. 802 ....................................................................................................... 5
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`Fed. R. Evid. 901 ................................................................................................... 2, 5
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`Fed. R. Evid. 902 ....................................................................................................... 2
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`Other Authorities
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`37 C.F.R. § 42.64(b)(1) ............................................................................................5
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`iii
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`Teleflex’s reduction-to-practice case balances on assumptions about Exhibit
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`2024 and a presumption of its reliability. Teleflex witnesses assume that Exhibit
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`2024 is what Teleflex claims, and then offer additional assumptions regarding VSI’s
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`prototype efforts. This is not a “goes to weight” case. If Teleflex cannot prove that
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`Exhibit 2024 is what it claims—a document created on August 24, 2005, and
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`addressing RX as of that date—its witnesses’ assumptions regarding the document
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`are irrelevant.
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`Teleflex argues against excluding Exhibit 2024 because, according to
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`Teleflex, Exhibit 2024 is “highly relevant” and “potentially case-dispositive.”
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`PO’s Opposition at 1. But a document’s purported relevance does not obviate its
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`proponent’s authentication obligations. Teleflex does not dispute that some critical
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`information is missing from the document on its face and from the document’s
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`metadata. Instead of providing that missing information, however, Teleflex offers
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`only its witnesses’ opinions on the relevance and purpose of the document and other
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`records like it.
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`I.
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`TELEFLEX CONFUSES WITNESS ASSUMPTIONS AND OPINIONS
`ABOUT THE DOCUMENT FOR FACTS AUTHENTICATING THE
`DOCUMENT.
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`None of Teleflex’s purported authenticating witnesses offer evidence
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`sufficient to prove that Exhibit 2024 is what Teleflex claims: a document created on
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`August 24, 2005, addressing GuideLiner RX as of that date. Teleflex in fact reverses
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`1
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`the authenticity analysis. It looks through the wrong end of the telescope. A witness
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`does not authenticate a document if she understands what the document might
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`represent assuming the document is what she believes. A witness authenticates a
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`document by having personal knowledge of its creation and maintenance (see
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`Section III, infra), by providing information showing what the document is, and by
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`confirming that the document is reliable. Fed. R. Evid. 901.
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`Teleflex assumes Exhibit 2024’s “authenticity” using information it pulls
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`from the face of the document. See, e.g., PO’s Opposition at 2 (“As shown on the
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`face of the document, Exhibit 2024 is . . . .”). Indeed, Teleflex argues that because
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`the “August 24, 2005 date of this document is consistent throughout,” it must be
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`accurate. PO’s Opposition at 2. But Exhibit 2024 is not self-authenticating. See Fed.
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`R. Evid. 902. And further, the document supplies only indicia of unreliability.
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`Motion to Exclude at 2-5. Teleflex does not dispute that Exhibit 2024 is missing
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`critical information, including: (1) a reliable, non-hearsay date; (2) an author; (3) an
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`“RX” file name; and (4) content. Nothing and no one supplies this missing
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`information.
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`II. NO WITNESS SPEAKS TO EXHIBIT 2024’S CREATION OR
`MAINTENANCE—NO ONE ESTABLISHES THAT IT IS A
`RELIABLE “BUSINESS RECORD.”
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`Teleflex suggests that the Board should consider Exhibit 2024 because it is a
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`business record. Yet Teleflex offers no witness to speak to the document’s creation
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`2
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`or maintenance, information critical to establishing that a document is a business
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`record. See Conoco Inc. v. Dep’t of Energy, 99 F.3d 387, 391 (Fed. Cir. 1996)
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`(requiring a document custodian or other witness who understands “the system used
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`to prepare the records” to establish that a document is a reliable business record);
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`Rambus, Inc. v. Infineon Techs. AG, 348 F. Supp. 2d 698, 703 (E.D. Va. 2004) (for
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`a witness to serve as a document custodian, they “must have knowledge of the
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`procedures under which the record was created”); see also McKay v. Town and
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`Country Cadillac, Inc., No. 97 C 2102, 2002 WL 318295, at *1 (N.D. Ill. Feb. 26,
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`2002) (conclusory affidavit insufficient under 803(6) because the court could not
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`“infer from [the witness’s] affidavit that she has knowledge of the procedures
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`governing the creation of a record such as [the submitted exhibit]”) (emphasis in
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`original). Teleflex has not shown that any of its witnesses are familiar with Exhibit
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`2024’s creation or maintenance.
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`No Teleflex witness offers any details explaining the “8/24/05” date. No
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`witness states who would have dated Exhibit 2024. Teleflex provides only witness
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`conclusions and attorney argument about how the date fits within Teleflex’s
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`invention story. For example, Teleflex argues that the document is necessarily
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`authentic because at some point, Root and Schmalz reviewed it. But Root and
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`Schmalz do not state when they reviewed the document. Neither explains whether
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`the document was dated when they reviewed it. Neither has information about its
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`3
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`creation.
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`Still, even if the unknown author created the document on “8/24/05,” the
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`document’s metadata suggests that the author created the document to address only
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`GuideLiner OTW, not GuideLiner RX. See Ex-1924. Teleflex does not explain the
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`file name or offer evidence proving that the document addressed RX as of a
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`particular date. It merely repeats that VSI would have created a Products
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`Requirement document at a specific point in its research and regulatory process.
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`PO’s Opposition at 5, 6.
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`Notably, the document is missing most automatically generated metadata (see
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`Ex-1924), a fact that lies in stark contrast to the case law cited by Patent Owner in
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`support of its position. See Comcast Cable Commc’ns, LLC v. Veveo, Inc., IPR2019-
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`00237, Paper 59, at 75 (PTAB Aug. 12, 2020) (finding that a non-author witness
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`authenticated a document because he testified as to “metadata associated with the
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`documents as part of [Veveo’s] regular course of business”).
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`And the fact that witnesses have personal knowledge of other documents (e.g.,
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`Exhibit 2025) is irrelevant. If anything, the fact that Sutton testifies that he drafted
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`Exhibit 2036 in July 2005 cuts against Exhibit 2024’s authenticity. No one claims
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`to have drafted Exhibit 2024, least of all Sutton, who cannot even confirm that the
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`document is true and correct.
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`Teleflex’s witnesses do not speak to the maintenance of Exhibit 2024, either.
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`4
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`Indeed, Schmalz’s maintenance of a separate hard copy document does not prove
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`anything about the maintenance of Exhibit 2024—a document “created and
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`maintained in Word,” PO’s Opposition at 3, on a computer in the R&D Department.
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`Schmalz never states when her department received a hard copy document for
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`version control. She does not state whether VSI’s version control procedures
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`required that Quality Control receive a copy of the Products Requirement document
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`contemporaneously or eventually. Schmalz testified only to her review and
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`maintenance of a hard copy. Root confirms only that the document was updated over
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`time as part of VSI’s regulatory process. Id. at 9. Peterson and Sutton are silent as to
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`the record’s maintenance, except to provide conclusory assertions that the document
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`was maintained in the regular course of business at VSI.
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`III. MEDTRONIC TIMELY OBJECTED TO EXHIBIT 2024 UNDER
`RULES 901 AND 802 AND PRESERVED THOSE OBJECTIONS.
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`Under 37 C.F.R. § 42.64(b)(1), an objection to non-deposition evidence “must
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`identify the grounds for the objection with sufficient particularity to allow correction
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`in the form of supplemental evidence.” Teleflex does not dispute that Medtronic
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`timely objected to Exhibit 2024 under Rules 901 and 802. Indeed, Teleflex served
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`supplemental evidence in response to Medtronic’s objections, to try to patch the
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`holes in its record (using Peterson’s declaration). Ex-1923. Medtronic timely
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`objected with sufficient particularity and preserved its objections.
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`5
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`Dated: March 4, 2021
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`Respectfully submitted,
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`/Cyrus A. Morton/
`Cyrus A. Morton
`Reg. No. 44,954
`Robins Kaplan LLP
`2800 LaSalle Plaza
`800 LaSalle Avenue
`Minneapolis, MN 55402
`Attorney for Petitioners
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`6
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. § 42.6(e)(4), the undersigned certifies that on March 4,
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`2021, a copy of PETITIONERS’ REPLY IN SUPPORT OF MOTION TO
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`EXCLUDE EXHIBIT 2024 was served in its entirety by electronic mail on Patent
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`Owner’s counsel at the following addresses indicated in Patent Owner’s Mandatory
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`Notices:
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`J. Derek Vandenburgh, Reg. No. 32,179
`dvandenburgh@carlsoncaspers.com
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`Dennis C. Bremer, Reg. No. 40,528
`dbremer@carlsoncaspers.com
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`Joseph W. Winkels
`jwinkels@carlsoncaspers.com
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`Peter M. Kohlhepp
`pkohlhepp@carlsoncaspers.com
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`Tara C. Norgard (pro hac vice pending)
`tnorgard@carlsoncaspers.com
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`Alexander S. Rinn (pro hac vice pending)
`arinn@carlsoncaspers.com
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`Megan E. Christner, Reg. No. 78,979
`mchristner@carlsoncaspers.com
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`Kenneth E. Levitt, Reg. No. 39,747
`levitt.kenneth@dorsey.com
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`Dated: March 4, 2021
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`Respectfully submitted,
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`7
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`/Cyrus A. Morton/
`Cyrus A. Morton
`Reg. No. 44,954
`Robins Kaplan LLP
`2800 LaSalle Plaza
`800 LaSalle Avenue
`Minneapolis, MN 55402
`Attorney for Petitioners
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`8
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