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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`FLEX LOGIX TECHNOLOGIES, INC.
`Petitioner
`
`v.
`
`
`KONDA TECHNOLOGIES INC.
`Patent Owner
`
`____________________
`
`
`Case IPR2020-00261
`Patent 8,269,523
`____________________
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
`
`
`
`
`
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`II. ARGUMENT ................................................................................................... 2
`The Motion Is Directed to the Sufficiency of Petitioner’s Evidence
`A.
`and Not to Its Admissibility .................................................................. 3
`B. Dr. Baker Is More Than Qualified to Provide Opinions from the
`Perspective of a POSITA Here .............................................................. 5
`The Motion Fails to Identify Where Each Objection That Forms the
`Basis for the Motion Was Raised .......................................................... 8
`III. CONCLUSION ..............................................................................................11
`
`
`C.
`
`
`
`IPR2020-00261
`Patent 8,269,523
`
`I.
`
`INTRODUCTION
`
`Patent Owner’s Motion to Exclude Evidence (“Motion”) (Paper 50),
`
`challenging the Declaration of Dr. R. Jacob Baker (Ex. 1002) and Dr. Baker’s
`
`curriculum vitae (Ex. 1003), lacks merit because it relates to Dr. Baker’s credibility
`
`and therefore is directed to the sufficiency of the evidence, as opposed to its
`
`admissibility. In addition, Patent Owner’s arguments in the Motion overlook Dr.
`
`Baker’s relevant qualifications and experience.
`
`Patent Owner’s Motion is nothing more than a re-packaged version of the
`
`same arguments that Patent Owner has previously advanced twice in this proceeding,
`
`first in Patent Owner’s Preliminary Response (Paper 9) and then in Patent Owner’s
`
`Request for Rehearing (Paper 26). The Board previously rejected Patent Owner’s
`
`attempts to undermine Dr. Baker’s testimony (Decision Granting Institution of Inter
`
`Partes Review (“Institution Decision”) (Paper 22) at 7-8; Decision Denying Patent
`
`Owner’s Requests for Rehearing of Decisions Granting Institution of Inter Partes
`
`Review (“Rehearing Decision”) (Paper 32) at 5-8) and should do so again here.
`
`Patent Owner also makes some additional arguments based on alleged
`
`secondary considerations and relies on new evidence never introduced before.
`
`(Motion at 10-15 (citing Exs. 2030-2032); see also Motion at 1 (citing Ex. 2033).)
`
`But a motion to exclude is not the mechanism to raise such arguments or evidence.
`
`The new arguments and evidence should not even be considered, especially given
`
`1
`
`
`
`IPR2020-00261
`Patent 8,269,523
`Patent Owner failed to object to Dr. Baker’s testimony on that basis before. Even if
`
`the new arguments and evidence are considered, they do not require exclusion of Dr.
`
`Baker’s testimony. The Motion should be denied.
`
`II. ARGUMENT
`
`The Board should deny the Motion for three independent reasons. First, the
`
`Motion is directed to the sufficiency of the evidence, which cannot be addressed
`
`with a motion to exclude. Second, even if the Board considers the merits of Patent
`
`Owner’s attacks, Dr. Baker’s qualifications and experience demonstrate that he is
`
`more than qualified to provide opinions in this proceeding from the perspective of a
`
`person of ordinary skill in the art (“POSITA”).1 Third, Patent Owner’s Motion fails
`
`to comply with the rules, as it does not identify where each objection that forms the
`
`basis of the Motion was previously raised. For example, Patent Owner fails to
`
`
`1 Patent Owner’s Motion also references Exhibit 1003, Dr. Baker’s curriculum vitae
`
`(CV), but does not explain why the CV is inadmissible. (See generally Motion.)
`
`Thus, any attempt to exclude Exhibit 1003 should be rejected. Moreover,
`
`Petitioner’s arguments herein regarding Dr. Baker’s Declaration (Ex. 1002) are
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`equally applicable to the CV (Ex. 1003), as the Motion relates to the evidence’s
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`sufficiency.
`
`2
`
`
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`IPR2020-00261
`Patent 8,269,523
`identify where it raised objections as they relate to Dr. Baker’s knowledge of alleged
`
`secondary considerations.
`
`A. The Motion Is Directed to the Sufficiency of Petitioner’s Evidence
`and Not to Its Admissibility
`
`The Motion should be denied because the Motion is directed to the sufficiency
`
`of evidence and not to the admissibility of evidence. During post-grant proceedings,
`
`“[a] motion to exclude . . . may not be used to challenge the sufficiency of the
`
`evidence to prove a particular fact” and “is not a vehicle for addressing the weight
`
`to be given evidence.” See Patent Trial and Appeal Board Consolidated Trial
`
`Practice Guide (November 2019) (“TPG”) at 79; see also Laird Techs., Inc. v.
`
`GrafTech Int’l oldings, Inc., IPR2014-00025, Paper 45 at 42 (P.T.A.B. Mar. 25,
`
`2015) (denying a motion to exclude because “[a] motion to exclude . . . is not an
`
`appropriate mechanism for challenging the sufficiency of evidence or the proper
`
`weight that should be afforded an argument.”). Indeed, the Board routinely denies
`
`motions to exclude challenging an expert testimony based on the theory that the
`
`expert is not qualified because such motions “address the weight to be given the
`
`testimony, as opposed to its admissibility.” See MindGeek, s.a.r.l. v. Skky Inc.,
`
`IPR2014-01236, Paper 45 at 23 (P.T.A.B. Jan. 29, 2016) (denying motion to exclude
`
`expert testimony on the basis of the expert’s qualification and instead “assign[ing]
`
`the weight to which [the Board] believe [the testimony of the expert] is entitled”);
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`3
`
`
`
`IPR2020-00261
`Patent 8,269,523
`see also AVX Corp. v. Greatbatch, Ltd., IPR2014-00697, Paper 57 at 26 (P.T.A.B.
`
`Oct. 21, 2015) (similar), CaptionCall, LLC v. Ultratec, Inc., IPR2013-00550, Paper
`
`57 at 11-12 (P.T.A.B. Mar. 3, 2015) (similar).
`
`Here, Patent Owner attempts to exclude Dr. Baker’s Declaration, alleging that
`
`Dr. Baker is unqualified as an expert. (See Motion at 1-10.) Such a challenge is
`
`directed to the sufficiency of the challenged evidence, as opposed to its admissibility,
`
`because it essentially addresses the credibility of Dr. Baker’ testimony (i.e., the
`
`weight to be given to the testimony by the Board). See MindGeek, Paper 45 at 23.
`
`In MindGeek, the moving party similarly made an argument that Dr. Almeroth only
`
`had expertise in computer networking and therefore is not qualified in wireless
`
`device hardware and architecture. MindGeek, Paper 35 at 2-4 (P.T.A.B. Aug. 12,
`
`2015). However, the Board rejected this argument and denied the motion, finding
`
`that “[m]ost of [p]etitioner’s arguments . . . appear to address the weight to be given
`
`the testimony, as opposed to its admissibility.” MindGeek, Paper 45 at 23.
`
`Patent Owner asserts that it is challenging admissibility, not the sufficiency of
`
`the evidence, and attempts to distinguish the above mentioned cases like MindGeek.
`
`(Motion at 3-6.) But a simple review of the Motion and cases shows otherwise.
`
`What’s more, Patent Owner fails to mention, much less distinguish, the Board’s final
`
`written decisions in PGR2017-00037 and -00042, where the Board denied similar
`
`motions filed by Patent Owner for reasons similar to those Petitioner is raising here.
`
`4
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`
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`IPR2020-00261
`Patent 8,269,523
`For instance, in denying Patent Owner’s motion there, the Board stated “[w]e also
`
`agree with Petitioner that Patent Owner’s challenge is directed to the sufficiency of
`
`Dr. Baker’s testimony, rather than articulating a sufficient basis why it is
`
`inadmissible.” Flex Logix Techs. Inc. v. Konda, PGR2019-00037, Paper 37 at 43
`
`(P.T.A.B. Mar. 16, 2021); see also Flex Logix Techs. Inc. v. Konda, PGR2019-
`
`00042, Paper 35 at 52 (P.T.A.B. Mar. 16, 2021) (same).
`
`The Board should similarly deny Patent Owner’s Motion here.2
`
`B. Dr. Baker Is More Than Qualified to Provide Opinions from the
`Perspective of a POSITA Here
`
`Secondly, even if the Board considers the merits of Patent Owner’s Motion,
`
`the Motion should be denied for another independent reason—namely, Dr. Baker is
`
`more than qualified to provide relevant testimony in the present proceeding. Patent
`
`Owner attacks Dr. Baker’s qualifications in the same manner as in Patent Owner’s
`
`Preliminary Response and Request for Rehearing. (Motion at 1-10; Preliminary
`
`Response (Paper 9) at 6-15; Patent Owner’s Request for Rehearing (Paper 26) at 4-
`
`6.) But the Board already rejected Patent Owner’s arguments that Dr. Baker is
`
`
`2 Additionally, Patent Owner could have cross-examined Dr. Baker regarding his
`
`credentials and experience, but did not do so. Daubert v. Merrell Dow Pharms.,
`
`Inc., 509 U.S. 579, 596 (1993) (noting that “[v]igorous cross-examination,” amongst
`
`other things, is an appropriate means for challenging expert testimony).
`
`5
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`
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`IPR2020-00261
`Patent 8,269,523
`unqualified to provide relevant testimony in the present proceedings. (Institution
`
`Decision at 7-8 (“There is no requirement, however, that the expert’s experience
`
`perfectly match the relevant field, or that the expert is a person of ordinary skill in
`
`the art.”) (citing Notice of Update to Office Patent Trial Practice Guide, 83 Fed. Reg.
`
`156, (Aug. 13, 2018)); Rehearing Decision at 5-8.) Specifically, the Board noted
`
`that “Patent Owner has made this argument previously and we addressed it in our
`
`Decision on Institution.” (Rehearing Decision at 6.) The Board noted that “we
`
`evaluated the record and determined that, at this stage of the proceeding, it does not
`
`support Patent Owner’s argument that we should disregard Dr. Baker’s testimony.”
`
`(Id. at 8.) Patent Owner chose not to cross-examiner Dr. Baker and fails to point to
`
`any additional evidence in the record that would support the assertion that Dr.
`
`Baker’s testimony should be excluded.
`
`Patent Owner focuses on one paragraph of Dr. Baker’s declaration and makes
`
`baseless assertions regarding Dr. Baker’s purported lack of experience or skill with
`
`respect to FPGAs and networks. (Motion at 1-8.) Dr. Baker’s education in electrical
`
`engineering and experience in “circuit designs for networks and communications”
`
`and “communications systems, and fiber optics” demonstrate his ability to provide
`
`relevant testimony. (See, e.g., Ex. 1002 at ¶¶5-9.) Indeed, Dr. Baker has
`
`considerable experience and knowledge in field programmable gate array (“FPGA”)
`
`technology as well as interconnected networks. (See id. at ¶¶7, 9, 14; see generally
`
`6
`
`
`
`IPR2020-00261
`Patent 8,269,523
`Ex. 1003.) For instance, Dr. Baker authored and coauthored numerous papers in the
`
`area of FPGAs (Ex. 1002 at ¶9; Ex. 1003 at 17) and has industrial experience with
`
`memory modules and controllers implemented with FPGAs and application specific
`
`integrated circuits (“ASICs”) (Ex. 1003 at 3).3
`
`Based on his extensive education and experience, Dr. Baker is more than
`
`qualified to testify from the perspective of a POSITA, regardless as to whether
`
`Petitioner’s, Patent Owner’s, or the Board’s skill level for a POSITA is applied. In
`
`the Institution Decision, the Board found that “[w]e agree with the parties that a
`
`POSITA would have a master’s degree in electrical engineering or a similar field,
`
`and experience in the field of integrated networks.” (Institution Decision at 7.) The
`
`Board also found that “[o]ur determination regarding Petitioner’s challenge does not
`
`turn on the differences between Petitioner’s and Patent Owner’s definitions, and we
`
`note that our conclusion would be the same under either definition.” (Id.) Dr. Baker
`
`is at least “qualified in the pertinent art” even if it is defined somewhat differently
`
`
`3 Patent Owner’s speculation as to the limits of Dr. Baker’s experience based on the
`
`mere presence or absence of specific words in Dr. Baker’s CV cannot substantiate
`
`Patent Owner’s claims that “Dr. Baker has no experience in the implementation of
`
`‘networks’ or ‘interconnection networks’ for a ‘Field Programmable Gate Array
`
`(‘FPGA’)’ which is the ‘pertinent art’ in the current case.” (Motion at 8.)
`
`7
`
`
`
`IPR2020-00261
`Patent 8,269,523
`from how Petitioner defined it in the petition (Petition (Paper 1) at 24; Ex. 1002 at
`
`¶¶2, 7-9). See CaptionCall, Paper 57 at 11-12 (P.T.A.B. Mar. 3, 2015) (citing SEB
`
`S.A. v. Montgomery Ward & Co., Inc., 594 F.3d 1360, 1372-73 (Fed. Cir. 2010)).
`
`In fact, in the Board’s final written decisions in PGR2017-00037 and -00042,
`
`which again Patent Owner does not even acknowledge, the Board agreed with
`
`arguments similar to those made here regarding Dr. Baker’s qualifications. For
`
`instance, the Board stated that “[w]e agree with Petitioner, particularly in light of the
`
`sparse record in support of Patent Owner’s position vis-à-vis the otherwise
`
`uncontested information in Dr. Baker’s Curriculum Vitae, that Dr. Baker has
`
`sufficient education and experience to qualify as an expert in this proceeding and for
`
`the Board to rely on his testimony in understanding the evidence presented.”
`
`PGR2019-00037, Paper 37 at 43; see also PGR2019-00042, Paper 35 at 51-52
`
`(same). The Board should make a similar finding here and deny the Motion for
`
`similar reasons.
`
`C. The Motion Fails to Identify Where Each Objection
`That Forms the Basis for the Motion Was Raised
`
`The Motion should be denied for the additional reason that it fails to identify
`
`where in the record each objection that Patent Owner now relies upon was made.
`
`See 37 C.F.R. § 42.64; TPG at 79. In fact, not only does Patent Owner fail to do so,
`
`the Motion shows that Patent Owner is making arguments and relying on evidence
`
`8
`
`
`
`IPR2020-00261
`Patent 8,269,523
`it never raised before. For example, Patent Owner fills nearly six pages with new
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`evidence and unsupported argument that Dr. Baker is somehow aware of various
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`unsubstantiated allegations that Patent Owner has advanced in state court
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`proceedings against Petitioner. (Motion at 11 (“Dr. Baker is aware that this is
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`validated in 2013 Ph.D dissertation ….”), 12 (“Dr. Baker knows that the same day
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`….”), 13 (“Dr. Baker is also aware that Exhibit 2030 ….”); see also id. at 10-15
`
`(additional similar allegations).) Patent Owner provides no evidence to support Dr.
`
`Baker’s purported awareness of any aspects of the unrelated litigation or any of the
`
`other material to which Patent Owner refers. As such, Patent Owner’s arguments
`
`are based on pure speculation and irrelevant hearsay. Such unsubstantiated
`
`arguments, along with Exhibits 2030-2033, that Patent Owner attempts to force into
`
`the present proceedings using a motion to exclude, deserve no consideration.4
`
`
`4 Petitioner objects to Exhibits 2030-2033 that were submitted with the Motion on
`
`the basis of hearsay and relevance. They are also untimely and highly prejudicial as
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`they were submitted with the Motion. They should be expunged from the record.
`
`Moreover, declarations by Dr. Konda (e.g., Ex. 2033) are self-serving inventor
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`testimony that should not be given any weight. See Stride Rite Children’s Group,
`
`LLC v. Shoes by Firebug, LLC, IPR2017-01810, Paper 66 at 52 (P.T.A.B. Jan. 16,
`
`2019) (giving less weight to testimony of interested witness). Patent Owner filed
`
`9
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`
`
`IPR2020-00261
`Patent 8,269,523
`Moreover, Patent Owner’s argument that “despite being aware of these well-
`
`known secondary considerations, the Board should note that Dr. Baker, under the
`
`penalty of perjury, provided a dishonest declaration in support of Petitioner’s
`
`Opposition to PO’s Contingent Motion to Amend argument that claim 49 was
`
`broadened and thus anticipated by Wong” makes little sense and is unjustly
`
`defamatory. (Motion at 15 (emphasis added).) No argument was ever advanced that
`
`claim 49 was broadened.5 Indeed, rather than being “dishonest,” the Board found in
`
`its Preliminary Guidance that Dr. Baker’s testimony supported anticipation of claim
`
`49 by Wong. (Preliminary Guidance (Paper 40) at 11.)
`
`
`Exhibits 2034-2037, which are identical to Exhibits 2030-2033 except for their label
`
`regarding the case number of this proceeding; Petitioner objects to Exhibits 2034-
`
`2037 for the same reasons, and they, too, should be expunged.
`
`5 Patent Owner’s argument seems to be based on a false belief that non-institution in
`
`related IPR2020-000262 was somehow a final determination by the Board that the
`
`features recited in claim 1 of the ’523 patent are not disclosed by Wong. But, the
`
`Board never ruled that “broader Claim 1 (i.e., y≥1) was neither anticipated or
`
`obvious over Wong” as Patent Owner contends. (Motion at 9.) As such, Dr. Baker’s
`
`declaration in no way conflicts with any final determination made by the Board.
`
`10
`
`
`
`IPR2020-00261
`Patent 8,269,523
`
`III. CONCLUSION
`
`For the reasons presented above, Petitioner respectfully requests that the
`
`Board deny Patent Owner’s Motion.
`
`Dated: April 20, 2021
`
`
`
`Respectfully submitted,
`
`
`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
`
`
`
`11
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`
`
`IPR2020-00261
`Patent 8,269,523
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on April 20, 2021, I caused a true and correct copy of the
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`foregoing Petitioner’s Opposition to Patent Owner’s Motion to Exclude Evidence to
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`be served via electronic mail to:
`
`Venkat Konda (venkat@kondatech.com)
`
`Respectfully submitted,
`
`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
`
`
`
`
`Dated: April 20, 2021
`
`
`
`
`
`
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