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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________________
`
`FLEX LOGIX TECHNOLOGIES, INC.
`Petitioner
`
`v.
`
`
`KONDA TECHNOLOGIES INC.
`Patent Owner
`
`____________________
`
`
`Case PGR2019-00037
`Patent 10,003,553
`____________________
`
`OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE EVIDENCE
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`Page 1 of 11 IPR2020-00261
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`VENKAT KONDA EXHIBIT 2021
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`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`II. ARGUMENT ................................................................................................... 1
`Patent Owner Failed to Timely Object to Dr. Baker’s Declaration
`A.
`Within the Timeframe Allowed by the Board’s Rules ......................... 2
`The Motion Is Directed to the Sufficiency of the Evidence and Not to
`Its Admissibility .................................................................................... 4
`C. Dr. Baker Is More Than Qualified to Provide Opinions from the
`Perspective of a PHOSITA Here ........................................................... 6
`III. CONCLUSION ................................................................................................ 8
`
`
`B.
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`PGR2019-00037
`Patent 10,003,553
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`I.
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`INTRODUCTION
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`Patent Owner’s admissibility challenge to the Declaration of Dr. R. Jacob
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`Baker (Ex. 1002) and Dr. Baker’s CV (Ex. 1003) is procedurally improper and lacks
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`merit. Patent Owner failed to timely object to the evidence it references in its Motion
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`to Exclude (Paper 27, “Motion”), which is titled “Patent Owner’s Objections to
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`Evidence Pursuant to 37 C.F.R. § 42.64” and deprived Petitioner of the ability to
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`address Patent Owner’s challenges with, for example, supplemental evidence. The
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`Motion also fails on the merits because it is directed to the sufficiency of the
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`evidence as opposed to its admissibility, as it relates to Dr. Baker’s credibility. In
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`any event, the motion overlooks Dr. Baker’s relevant qualifications and experience.
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`It should be summarily denied.1
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`II. ARGUMENT
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`The Board should deny the Motion for three independent reasons. First, the
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`Motion is procedurally improper because Patent Owner failed to timely object to the
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`evidence within the timeframe mandated by the Board’s rules. Second, the Motion
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`is directed to the sufficiency of the evidence, which cannot be addressed with a
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`1 Petitioner raised the impropriety of the motion on a conference call with the Board
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`on May, 27, 2020. The Board indicated that Petitioner should just address the motion
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`through its opposition. See Ex. 1043 at 27:25-28:11.
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`1
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`Patent 10,003,553
`motion to exclude. Finally, even if the Board considers the merits of Patent Owner’s
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`attacks, Dr. Baker’s qualifications and experience demonstrate that he is more than
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`qualified to provide opinions in this proceeding from the perspective of a person
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`having ordinary skill in the art (“PHOSITA”).
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`A. Patent Owner Failed to Timely Object to Dr. Baker’s
`Declaration Within the Timeframe Allowed by the Board’s Rules
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`Patent Owner’s Motion should be denied because Patent Owner failed to
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`timely object to Dr. Baker’s Declaration within the timeframe allowed by the
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`Board’s rules.2 See 37 C.F.R. § 42.64(b)(1) (requiring that “[a]ny objection to
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`evidence submitted during a preliminary proceeding must be filed within ten
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`business days of the institution of the trial.”) (emphasis added). Indeed, in order
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`to preserve a non-moving party’s right to serve supplemental evidence, the Board
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`requires parties to strictly comply with the timeliness requirement under
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`§ 42.64(b)(1). See, e.g., Apple Inc. v. Achates Reference Publ’g, Inc., IPR2013-
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`2 Patent Owner’s Motion also references Exhibit 1003, Dr. Baker’s CV, but does not
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`explain why the CV is inadmissible. See generally Motion. Thus, any attempt to
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`exclude Exhibit 1003 should be rejected. Moreover, Petitioner’s arguments herein
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`regarding Dr. Baker’s Declaration (Ex. 1002) are equally applicable to the CV (Ex.
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`1003), as there was no timely objection to the CV, and the Motion relates to the
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`evidence’s sufficiency.
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`2
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`Page 4 of 11 IPR2020-00261
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`PGR2019-00037
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`00080, Paper 90 at 48-49 (PTAB June 2, 2014) (denying patent owner’s motion to
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`exclude expert testimony because patent owner failed to object to evidence sought
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`to be excluded within ten business days of the institution of trial under
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`§ 42.64(b)(1)).
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`Here, Dr. Baker’s Declaration was served with the petition on March 18, 2019.
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`The Board, after considering the petition and Patent Owner’s preliminary response,
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`instituted trial on September 19, 2019. Paper 13. Under 37 C.F.R. § 42.64(b)(1),
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`Patent Owner was required to file its objections to the evidence by October 3, 2019,
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`i.e., “within ten business days of the institution of the trial.” Patent Owner never did
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`so.3
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`During a conference call with the Board, Patent Owner admitted that it
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`“wasn’t aware” of the objection deadlines under the Board’s rules and was “learning
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`this,” Ex. 1043 at 12-13, but ignorance of the Board’s rules is no excuse. And the
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`Board’s rules require that the Motion itself “must identify the objections in the
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`record in order and must explain the objections.” See 37 C.F.R. § 42.64(c). Having
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`3 Patent Owner’s failure to timely object to the evidence also deprived Petitioner any
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`opportunity to supplement the evidence (to the extent Petitioner deemed doing so an
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`appropriate course of action). See 37 C.F.R. § 42.64(b)(2).
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`3
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`never previously objected to the evidence, the Motion could not have and does not
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`identify the objections in the record, let alone explain them. Motion at 3-5.
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`Therefore, the Motion is procedurally improper under the plain language of
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`§§ 42.64(b)(1) and 42.64(c), as there was no timely objection to the evidence and
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`the Motion does not (as it could not) identify the objections in the record.
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`Accordingly, Patent Owner’s belated attempt to exclude evidence, more than six
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`months after the objections were due, should be rejected. The motion should be
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`denied for this reason alone.
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`B. The Motion Is Directed to the Sufficiency
`of the Evidence and Not to Its Admissibility
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`The Motion should be denied also because the Motion is directed to the
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`sufficiency of evidence and not to the admissibility of evidence. During post-grant
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`proceedings, “[a] motion to exclude . . . may not be used to challenge the sufficiency
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`of the evidence to prove a particular fact” and “is not a vehicle for addressing the
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`weight to be given evidence.” See Patent Trial and Appeal Board Consolidated Trial
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`Practice Guide (November 2019) (“TPG”) at 79; see also Laird Techs., Inc. v.
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`GrafTech, IPR2014-00025, Paper 45 at 42 (PTAB March 25, 2015) (denying a
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`motion to exclude because “[a] motion to exclude . . . is not an appropriate
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`mechanism for challenging the sufficiency of evidence or the proper weight that
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`should be afforded an argument.”). Indeed, the Board routinely denies motions to
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`4
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`exclude challenging an expert testimony based on the theory that the expert is not
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`qualified because such motions “address the weight to be given the testimony, as
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`opposed to its admissibility.” See MindGeek, s.a.r.l. v. Skky Inc., IPR2014-01236,
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`Paper 45 at 23 (PTAB January 29, 2016) (denying motion to exclude expert
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`testimony on the basis of the expert’s qualification and instead “assign[ing] the
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`weight to which [the Board] believe [the testimony of the expert] is entitled”); see
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`also AVX Corp. v. Greatbatch, Ltd., IPR2014-00697, Paper 57 at 26 (PTAB October
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`21, 2015) (similar), CaptionCall, LLC v. Ultratec, Inc., IPR2013-00550, Paper 57 at
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`11-12 (PTAB March 3, 2015) (similar).
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`Here, Patent Owner attempts to exclude Dr. Baker’s Declaration alleging that
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`Dr. Baker is unqualified as an expert. See Motion at 4; see also Ex. 1043 at 10-11.
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`Such a challenge is directed to the sufficiency of the challenged evidence, as opposed
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`to its admissibility because it essentially addresses the credibility of Dr. Baker’
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`testimony (i.e., the weight to be given to the testimony by the Board). See
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`MindGeek, Paper 45 at 23. In MindGeek, the moving party similarly made an
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`argument that Dr. Almeroth only had expertise in computer science and therefore is
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`not qualified in wireless device hardware and architecture. MindGeek, Paper 35 at
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`2-4 (PTAB August 12, 2015). However, the Board rejected this argument and
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`denied the motion, finding that “[m]ost of [p]etitioner’s arguments . . . appear to
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`address the weight to be given the testimony, as opposed to its admissibility.”
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`5
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`MindGeek, Paper 45 at 23. The Board should similarly deny the Motion here.4
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`C. Dr. Baker Is More Than Qualified to Provide
`Opinions from the Perspective of a PHOSITA Here
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`Finally, even if the Board considers the merits of the motion, it should be
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`denied for another independent reason. Patent Owner essentially attacks Dr. Baker’s
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`qualifications. Motion at 3-4; see also Ex. 1043 at 10-11. In doing so, Patent Owner
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`identifies only one paragraph of Dr. Baker’s declaration and mischaracterizes that
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`paragraph as being the sole statement of Dr. Baker regarding his experience. Motion
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`at 3-4. Patent Owner ignores other parts of the Declaration which describe, for
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`example, Dr. Baker’s education in Electrical Engineering and experience in “circuit
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`designs for networks and communications” and “communications systems, and fiber
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`optics.” See e.g., Ex. 1002 at ¶¶ 7-9. Indeed, Dr. Baker has considerable experience
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`and knowledge in field programmable gate array (“FPGA”) technology as well as
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`4 Additionally, Patent Owner could have, but did not, cross-examine Dr. Baker
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`regarding his credentials and experience. Ex. 1043 at 17:4-20 (J. Boucher inquiring
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`Patent Owner “why are these not issues directed more to the sufficiency of Dr.
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`Baker's testimony and its persuasiveness that you could explore on cross-
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`examination?”); see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596
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`(1993) (noting that “[v]igorous cross-examination,” amongst other things, is an
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`appropriate means for challenging expert testimony).
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`6
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`interconnected networks. See Ex. 1002 at ¶¶ 7, 9, 14; see generally Ex. 1003. For
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`instance, Dr. Baker authored and coauthored numerous papers in the area of FPGAs
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`(Ex. 1002 at ¶9; Ex. 1003 at 17) and has industrial experience with memory modules
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`and controllers implemented with FPGAs and application specific integrated circuits
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`(“ASICs”) (Ex. 1003 at 3).
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`Based on his extensive education and experience, Dr. Baker is more than
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`qualified to testify from a perspective of PHOSITA, who was defined in the petition
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`as someone having “a master’s degree in electrical engineering or a similar field,
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`and at least two to three years of experience with integrated circuits and networks.”
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`Pet. at 6 (citing Ex. 1002, ¶18.) The petition further noted that more education can
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`supplement practical experience and vice versa. Id. In instituting trial, the Board
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`adopted this level of skill and noted that it was unopposed. Patent Owner has not
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`challenged this skill level in this proceeding.
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`In any event, even if Patent Owner identifies the skill level differently at this
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`stage, which it should not be allowed to do, the law does not require “a complete
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`overlap between the witness’s technical qualifications and the problem confronting
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`the inventor or the field of endeavor for a witness to qualify as an expert.”
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`CaptionCall at 11; see also TPG at 34. Dr. Baker is at least “qualified in the pertinent
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`art” even if it is defined somewhat differently from how Petitioner defined it in the
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`petition (Ex. 1002 at ¶¶2, 7-9). See CaptionCall at 11-12 (PTAB Mar. 3, 2015)
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`7
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`(citing SEB S.A. v. Montgomery Ward & Co., 594 F.3d 1360, 1372-73 (Fed. Cir.
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`2010)). For this additional reason, the Board should deny the Motion.
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`III. CONCLUSION
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`Petitioner respectfully requests that the Board deny Patent Owner’s Motion.
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`Dated: July 30, 2020
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`Respectfully submitted,
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`
`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
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`8
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 30, 2020, 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:
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`Venkat Konda (venkat@kondatech.com)
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`Respectfully submitted,
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`By: /Naveen Modi/
` Naveen Modi (Reg. No. 46,224)
` Counsel for Petitioner
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`Dated: July 30, 2020
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