UNITED STATES PATENT AND TRADEMARK OFFICE
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`LG ELECTRONICS INC.,
`Petitioner,
`
`v.
`
`IMMERVISION, INC.,
`Patent Owner.
`____________
`
`Case No. IPR2020-00179
`
`U.S. Patent No. 6,844,990
`____________
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64(b)(1)
`
`DB1/ 115447230.1
`
`
`________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`LG ELECTRONICS INC.,
`Petitioner,
`
`v.
`
`IMMERVISION, INC.,
`Patent Owner.
`____________
`
`Case No. IPR2020-00179
`
`U.S. Patent No. 6,844,990
`____________
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`UNDER 37 C.F.R. § 42.64(b)(1)
`
`DB1/ 115447230.1
`
`
`
`Petitioner’s Objections to Evidence
`Case IPR2020-00179
`U.S. Patent No. 6,844,990
`
`Petitioner LG Electronics Inc. (“Petitioner” or “LGE”) hereby serve the
`
`following objections pursuant to 37 C.F.R. § 42.64(b)(1) and the Federal Rules of
`
`Evidence (“FRE”) to evidence submitted by Patent Owner ImmerVision, Inc.
`
`(“Patent Owner” or “ImmerVision”) with its Patent Owner Response. These
`
`objections are timely presented as they are being served and filed within five
`
`business days of service of the exhibits to the Response on August 4, 2020. (See
`
`Paper No. 12).
`
`IDENTIFICATION OF CHALLENGED EVIDENCE AND GROUNDS FOR
`OBJECTIONS
`
`A.
`
`Exhibit 2007
`LGE objects to Exhibit 2007 as not being accompanied by a proper
`
`translation as required by 37 C.F.R. § 42.63(b). Rule 42.63(b) states: “[w]hen a
`
`party relies on a document or is required to produce a document in a language
`
`other than English, a translation of the document into English and an affidavit
`
`attesting to the accuracy of the translation must be filed with the document.” Id.
`
`Although Patent Owner filed what purports to be a translation of Exhibit 2007 as
`
`Exhibit 2008, the translation (Exhibit 2008) should be excluded for the reasons
`
`stated below. Once Exhibit 2008 is removed, there is no translation in the record
`
`for Exhibit 2007. In light of the foregoing issues, Exhibit 2007 also fails to meet
`
`the requirements of the Federal Rules of Evidence. Without a proper translation,
`
`DB1/ 115447230.1
`
`1
`
`
`
`Petitioner’s Objections to Evidence
`Case IPR2020-00179
`U.S. Patent No. 6,844,990
`
`Exhibit 2007 is irrelevant and inadmissible under FRE 402. The document is also
`
`prejudicial under FRE 403 for similar reasons. Finally, regardless of whether
`
`Exhibit 2007 is properly translated, Patent Owner provides no basis for
`
`authenticating Exhibit 2007 under FRE 901. For example, if Exhibit 2007 is a
`
`foreign public record, Patent Owner has failed to provide a certified copy under
`
`FRE 902(3) or FRE 902(4).
`
`B.
`
`Exhibit 2008
`LGE objects to Exhibits 2008 because it fails to comply with 37 C.F.R. §
`
`42.63(b), which requires that “[w]hen a party relies on a document or is required to
`
`produce a document in a language other than English, a translation of the
`
`document into English and an affidavit attesting to the accuracy of the translation
`
`must be filed with the document.” Id. An affidavit is defined as an “affidavit or
`
`declaration under §1.68 of this chapter.” 37 C.F.R. § 42.2. Rule 1.68 requires,
`
`among other things, that the statements be made under oath, that the declarant is
`
`“warned that willful false statements and the like are punishable by fine or
`
`imprisonment” and that “all statements made of the declarant’s own knowledge are
`
`true and that all statements made on information and belief are believed to be true.”
`
`Exhibit 2008 fails to include a sworn statement of the accuracy of the translation.
`
`In addition, the person who “verified” the translation does not appear to be the one
`
`DB1/ 115447230.1
`
`2
`
`
`
`Petitioner’s Objections to Evidence
`Case IPR2020-00179
`U.S. Patent No. 6,844,990
`
`who actually translated the document. The verification page appears to be signed
`
`by the Director of the Foreign Language Institute, Inc. and avers that the
`
`translation “is a true and accurate translation performed to the best of our ability.”
`
`Ex. 2008 at 1 (emphasis added). The particular translator(s) are not identified and
`
`there is no indication that Mr. Lichtman was involved in the translation or can
`
`competently translate from Japanese to English.
`
`In light of the foregoing issues, Exhibit 2008 also fails to meet a number of
`
`requirements under the Federal Rules of Evidence. Because it appears the
`
`translation is not attested to by someone with personal knowledge of the
`
`translation, Exhibit 2008 is irrelevant and inadmissible under FRE 402. The
`
`translation is also prejudicial under FRE 403 for similar reasons. In addition, the
`
`translation and its “verification” are inadmissible heresy under FRE 802 because
`
`they are statements from a non-testifying witness (i.e., the actual translator) that are
`
`offered for the truth of the matter asserted and not subject to any hearsay
`
`exception. Finally, Exhibit 2008 is not authenticated under FRE 901 because Mr.
`
`Lichtman does not appear to have any basis for authenticating the translation.
`
`Dated: August 11, 2020
`
`Respectfully Submitted,
`
`
` /Dion M. Bregman/
`Dion M. Bregman (Reg. No. 45,645)
`
`DB1/ 115447230.1
`
`3
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Petitioner’s
`
`Objections to Evidence Under 37 C.F.R. § 42.64(b)(1) was served on August 11,
`
`2020 via email on Patent Owner’s counsel at the email addresses below:
`
`Stephen E. Murray
`smurray@panitchlaw.com
`Keith A. Jones
`kjones@panitchlaw.com
`PANITCH SCHWARZE BELISARIO
`& NADEL LLP
`Two Commerce Square
`2001 Market Street, Suite 2800
`Philadelphia, PA 19103
`(215) 965-1307
`(215) 965-1331 (Fax)
`
`John D. Simmons
`jsimmons@panitchlaw.com
`Dennis J. Butler
`dbutler@panitchlaw.com
`PANITCH SCHWARZE BELISARIO
`& NADEL LLP
`Wells Fargo Tower
`2200 Concord Pike, Suite 201
`Wilmington, DE 19803
`(302) 394-6001
`
`Dated: August 11, 2020
`
`Respectfully Submitted,
`
`
` /Dion M. Bregman/
`Dion M. Bregman (Reg. No. 45,645)
`
`DB1/ 115447230.1
`
`
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