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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’ MOTION TO EXCLUDE EXHIBIT 2024
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`TABLE OF CONTENTS
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`Introduction ...................................................................................................... 1
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`Teleflex has not authenticated Exhibit 2024. .................................................. 1
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`A.
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`Exhibit 2024 is unreliable on its face. ........................................................ 2
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`B.
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`Peterson cannot authenticate Exhibit 2024. ............................................... 5
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`1.
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`2.
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`Peterson lacks personal knowledge of Exhibit 2024. ........................... 6
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`Peterson lacks knowledge of VSI’s record-keeping
`procedures. ............................................................................................ 7
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`C. No other witness can authenticate Exhibit 2024. ....................................... 7
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` Conclusion ....................................................................................................... 9
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`ii
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`TABLE OF AUTHORITIES
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` Page(s)
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`Cases
`
`Ingenico Inc. v. Iogene, LLC,
`IPR2019-00929, Paper 53 (PTAB Sept. 21, 2020)............................................... 5
`
`Linear Technology Corp. v. Micrel, Inc.,
`275 F.3d 1040 (Fed. Cir. 2001) .................................................................... 5, 6, 8
`
`Riverbed Tech., Inc. v. Realtime Data LLC,
`IPR2016-00978, Paper 67 (PTAB Oct. 30, 2017) ................................................ 1
`
`Schroeder v. Smith’s Food & Drug Centers, Inc.,
`No. 2:12-CV-02024-APG, 2014 WL 548149 (D. Nev. Feb. 11,
`2014) ..................................................................................................................... 8
`
`Standard Innovation Corp. v. Lelo, Inc.,
`IPR2014-00148, Paper 41 (PTAB Apr. 23, 2015) ........................................... 3, 5
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`Other Authorities
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`Fed. R. Evid. 802 ....................................................................................................... 1
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`Fed. R. Evid. 901 ....................................................................................................... 1
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`
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`iii
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`INTRODUCTION
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`In an attempt to antedate Medtronic’s primary prior art reference, Itou
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`(Ex-1007), Teleflex filed and relies on a “Product Requirements: Guideliner
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`Catheter System” document (Ex-2024). Teleflex attempts to authenticate Exhibit
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`2024 using Dean Peterson, a Principle Research and Design Engineer formerly at
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`VSI, now at Teleflex. Teleflex served a declaration from Peterson as supplemental
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`evidence in response to Medtronic’s objections to Exhibit 2024 under Federal Rules
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`of Evidence 802 and 901. See Ex-1923. Exhibit 2024, though, lacks critical indicia
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`of reliability on its face, and Teleflex’s attempt to authenticate the document using
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`Peterson’s conclusory declaration fails. Peterson does not know the circumstances
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`of the creation of the document and cannot speak to VSI’s record-keeping practices.
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`Indeed, none of Teleflex’s witnesses appear to have personal knowledge of
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`Exhibit 2024. Gregg Sutton, Deborah Schmalz, and Howard Root all mention
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`Exhibit 2024 in their declarations and depositions. See Ex-1762, 116:11 et seq.;
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`Ex-1757, 79:20 et seq.; Ex-1766, 56:9 et seq. But none provides information
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`necessary to verify that the document is what Teleflex says it is. The Board should
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`exclude Exhibit 2024.
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` TELEFLEX HAS NOT AUTHENTICATED EXHIBIT 2024.
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`Under Federal Rule of Evidence 901, Teleflex “must produce evidence
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`sufficient to support a finding that [Exhibit 2024] is what the proponent [Teleflex]
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`1
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`
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`claims it is.” Fed. R. Evid. 901; Riverbed Tech., Inc. v. Realtime Data LLC,
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`IPR2016-00978, Paper 67 at 41 (PTAB Oct. 30, 2017) (“The burden is on Patent
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`Owner to produce evidence sufficient to support a finding that [the exhibit] is what
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`the Patent Owner claims it is.”). Teleflex cannot prove that Exhibit 2024 is what it
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`claims: a VSI document created as of a particular date—August 24, 2005—that
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`“signaled VSI’s transition to the formal Quality process for bringing [the GuideLiner
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`RX] to market.” Paper 39 at 17.1 Teleflex contends that VSI created Exhibit 2024
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`on August 24, 2005, and that the document “discuss[ed] both the rapid exchange and
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`OTW version of GuideLiner” as of that date. Id. If Teleflex (i) cannot date the
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`document, or (ii) cannot show that the document addressed RX Product
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`Requirements as of August 24, 2005, the document is not what Teleflex claims. For
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`either reason, the Board should exclude Exhibit 2024.
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`A. Exhibit 2024 is unreliable on its face.
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`Exhibit 2024 lacks critical indicia of reliability. First, the document does not
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`provide a reliable date. The “8/24/05” on the face of the document is an unexplained
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`“effective” date:
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`1 This quotation is found in Paper 39 for the following cases: IPR2020-00126,
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`IPR2020-00128, IPR2020-00129, IPR2020-00132, IPR2020-00135,
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`IPR2020-00137. For IPR2020-00134, see Paper 36 at 17.
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`2
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`Ex-2024, 1, 4. The date—“8/24/05”—is neither a “date created” nor a “date last
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`modified.” It provides no information about when the author prepared or revised the
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`document. The document’s metadata also includes no “Date Created” or “Date Last
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`Modified.” Ex-1924. Teleflex cannot rely on the date on the face of the document
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`“as proof of date[] of creation, modification, or publication”—the date is
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`inadmissible hearsay if Teleflex “has not established that the dates [on the face of
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`the document] are automatically generated.” See Standard Innovation Corp. v.
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`Lelo, Inc., IPR2014-00148, Paper 41 at 18 (PTAB Apr. 23, 2015). Thus, Teleflex
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`cannot rely on “8/24/05” to date the document.
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`Still, even if the author created the document on “8/24/05,” the document’s
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`metadata suggests that the author created the document to address only GuideLiner
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`OTW, not GuideLiner RX. The document’s file name is “PS1068 rev 01 Product
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`3
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`User Requirements for GuideLiner OTW Support Catheter.” Ex-1924. No evidence
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`of record—no witness, no document—provides information regarding when, or
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`how, the author added GuideLiner RX to the document. Indeed, VSI tracked
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`versions of the document only in hard copy. See Ex-1766, 53:22-54:5. It is entirely
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`plausible that the document did not reference GuideLiner RX when created. Thus,
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`Teleflex cannot prove that VSI created the document on August 24, 2005, and even
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`if it did, it cannot prove that the author included mention of GuideLiner RX on this
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`date.
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`Second, the document is an incomplete draft. See Ex-1762, 117:14-118:3. The
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`document is missing most of its substance (no product specifications, no test
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`methods), is marked “Rev. 01,” and includes a note that the document is “Pre-
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`release.” Ex-2024. According to Root, revision “01” would not require “formal sign-
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`off” or institutional approval under VSI’s general scheme. Id., 117:21-25.
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`Third, the document does not identify its author. The document identifies
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`“J. Kauphusman” as “Reviewer” and “J. Kujawa” for “Documentation.” Ex-2024,
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`1. The document does not identify either person as the author. Both Root and
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`Schmalz identified Kauphusman as the document’s “Reviewer,” but neither could
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`identify the author. Ex-1762, 116:21-117:2; Ex-1766, 56:17-25 (“He was clearly the
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`person that reviewed and approved this document, but I cannot say for certain that
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`4
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`he was the one that actually wrote it.”). The document’s metadata indicates only that
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`the author is “Preferred Customer.” Ex-1924.
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`The document provides no reliable date, substance, or author. The August 24,
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`2005, date on the face of the document is neither reliable nor meaningful on the
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`current record. Exhibit 2024 is an incomplete draft. It is, on its face, not reliable.
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`B.
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`Peterson cannot authenticate Exhibit 2024.
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`Even if Exhibit 2024 did not present reliability issues on its face, Teleflex still
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`must authenticate it to rely on it. Teleflex relies on Peterson’s declaration, but he
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`cannot authenticate the document. Peterson does not speak to the creation of the
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`document, and his testimony regarding VSI’s document maintenance practices is
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`contrary to other record evidence.
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`Failure to authenticate warrants exclusion. Linear Technology Corp. v.
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`Micrel, Inc., 275 F.3d 1040, 1055-56 (Fed. Cir. 2001); see also Standard Innovation
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`Corp., IPR2014-00148, Paper 41 at 10-23 (excluding documents on hearsay and
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`authentication grounds where no witness in the proceeding had personal knowledge
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`of the documents); Ingenico Inc. v. Iogene, LLC, IPR2019-00929, Paper 53 at 97-98
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`(PTAB Sept. 21, 2020) (patent owner did not meet authentication burden in absence
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`of any testimony about the document). Here, Peterson offers only conclusory
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`statements about Exhibit 2024 and the systems used to prepare and maintain it. He
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`cannot speak to the document’s authorship, date of creation, method of creation, or
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`5
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`maintenance, and the limited information that he does provide is contrary to other
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`record evidence.
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`1.
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`Peterson lacks personal knowledge of Exhibit 2024.
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`The sum total of Peterson’s testimony purportedly authenticating Exhibit
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`2024 is as follows:
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`Ex-1926 ¶ 18. Peterson does not purport to have personal knowledge of the
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`document, testifying only that it “was made by VSI personnel with knowledge of the
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`issues contained therein on or near the date of the document.” Id. He does not say
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`who authored the document, how or why they had relevant knowledge, or when the
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`author created or modified the document. Peterson does not explain how he
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`identified the author or confirmed that he or she had the requisite knowledge to do
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`the drafting. Peterson does not explain “8/24/05” or whether it qualifies as a reliable
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`creation date. There is no record evidence that Peterson has personal knowledge of
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`the document, especially considering he joined VSI only one month before the
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`6
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`purported creation date. Ex-1925, 1. Peterson’s testimony is conclusory, and for that
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`reason, it cannot authenticate Exhibit 2024. See Linear Technology Corp., 275 F.3d
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`at 1055-56 (exhibit properly excluded where authenticating witness had only
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`knowledge of a file type generally, and not specific knowledge of the challenged
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`documents).
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`2.
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`Peterson lacks knowledge of VSI’s record-keeping procedures.
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`The conclusory testimony that Peterson does provide is inconsistent with
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`other evidence of record. Peterson testifies that the document was maintained “on
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`[VSI’s] network.” Ex-1926 ¶ 18. But Schmalz’s testimony contradicts Peterson’s.
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`See Ex-2039 ¶ 8; Ex-1766, 53:22-54:5 (testifying that the “doc control system” at
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`VSI was not electronic and that “[w]e maintained hard copies of all documents”). If
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`anything, Peterson leaves Exhibit 2024 less reliable than when he found it.
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`C. No other witness can authenticate Exhibit 2024.
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`Teleflex cannot rely on any other witness to authenticate Exhibit 2024.
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`Sutton lacks personal knowledge. Sutton’s declaration states that a product
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`requirements document, in general, is “one of the first documents that is part of the
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`design history process” and that VSI did not create product requirements documents
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`“unless or until we had gone through feasibility and prototyping of a device and were
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`ready to move forward with commercialization efforts.” Ex-2119 ¶ 44. That is it. He
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`does not discuss the particular product requirements document that Teleflex filed.
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`7
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`Sutton does not even swear that Exhibit 2024 is a “true and correct” copy of a
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`product requirements document. But Sutton should have been able to say more about
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`the document. In August 2005, Sutton was VSI’s Vice President of Research and
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`Development. Id. ¶ 2. Yet Teleflex did not and cannot use Sutton to authenticate the
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`document.
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`Schmalz lacks personal knowledge. Schmalz’s testimony is limited to
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`product requirements documents in general, too. She has no personal knowledge of
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`Exhibit 2024. Ex-2039 ¶ 6 (describing “[s]uch a document” rather than this
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`particular document). She describes information found on the face of the document.
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`Id. ¶ 7. Like Sutton, she cannot confirm that the document is “true and correct.”
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`Id. ¶ 6. She admits that she lacks first-hand knowledge of the document’s creation.
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`Id. ¶¶ 6-8; Ex-1766, 44:24-45:17 (testifying that someone in VSI’s R&D department
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`authored the document and that no one on Schmalz’s team authored the document);
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`56:17-25 (testifying that she did not know if the “J. Kauphusman listed at the top of
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`this document” authored the document); 48:2-7 (testifying that she did not know if
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`engineers revised product requirements documents). Schmalz’s second-hand
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`knowledge and testimony related to a category of documents rather than a particular
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`document is insufficient to authenticate Exhibit 2024. See, e.g., Linear Technology
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`Corp., 275 F.3d at 1055-56 (knowledge of a file type generally, without knowledge
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`of specific documents, not sufficient); Schroeder v. Smith’s Food & Drug Centers,
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`8
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`Inc., No. 2:12-CV-02024-APG, 2014 WL 548149, at *2 (D. Nev. Feb. 11, 2014)
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`(excluding videos and photographs under Federal Rule of Evidence 901 where
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`authenticating witness only “received” them and otherwise had no personal
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`knowledge of them).
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`Root lacks personal knowledge. Root has no personal knowledge of the
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`creation or maintenance of Exhibit 2024, either. Like Sutton and Schmalz, Root
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`discusses only product requirements documents in general—he offers no specifics
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`about Exhibit 2024. Ex-2118 ¶ 54. Root did not provide any further information to
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`authenticate Exhibit 2024 during his deposition, admitting that he did not draft the
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`document and that he did not know if there were subsequent drafts or revisions.
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`Ex-1762, 116:21-24, 117:14-18.
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`Authentication requires personal knowledge about the particular document in
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`question, yet Teleflex’s witnesses offer only conclusory statements regarding a
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`category of documents.
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` CONCLUSION
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`Teleflex relies on Exhibit 2024 and the date on the face of the document to
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`make sweeping statements about prototyping and testing work at VSI in 2005.
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`Teleflex must prove that Exhibit 2024 is what it claims. But Teleflex cannot
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`authenticate the facially unreliable document. Not one witnesses has personal
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`9
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`knowledge of the document. Medtronic requests that the Board exclude Exhibit
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`2024.
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`Dated: February 23, 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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`10
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`
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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 February
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`23, 2021, a copy of PETITIONERS’ MOTION TO EXCLUDE EXHIBIT 2024 was
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`served in its entirety by electronic mail on Patent Owner’s counsel at the following
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`addresses indicated in Patent Owner’s Mandatory 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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`
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`Dated: February 23, 2021
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`Respectfully submitted,
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`/Cyrus A. Morton/
`Cyrus A. Morton
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`11
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`Reg. No. 44,954
`Robins Kaplan LLP
`2800 LaSalle Plaza
`800 LaSalle Avenue
`Minneapolis, MN 55402
`Attorney for Petitioners
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`12
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