`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`WALMART INC.
`Petitioner
`
`v.
`
`CARAVAN CANOPY INTERNATIONAL, INC.
`Patent Owner
`
`
`
`
`Case IPR2020-01026
`Patent No. 5,944,040
`
`
`
`
`PETITIONER’S OBJECTIONS TO EVIDENCE
`SERVED BY PATENT OWNER IN INTER PARTES REVIEW
`
`
`
`
`
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`
`
`Pursuant to 37 C.F.R. § 42.64(b), Petitioner Walmart Inc. (“Petitioner”)
`
`objects as follows to the admissibility of evidence served with the Patent Owner’s
`
`Preliminary Response and Sur-Reply filed by Patent Owner Caravan Canopy
`
`International, Inc. (“Patent Owner”). The applicable rules specifically provide that
`
`“[t]he Board may exclude or give no weight to the evidence where a party has
`
`failed to state its relevance or to identify specific portions of the evidence that
`
`support the challenge.” 37 C.F.R. § 42.104(b)(5). Petitioner specifically objects to
`
`Patent Owner’s failure to specifically describe the relevance of its exhibits and
`
`Patent Owner’s failure to identify specific portions of evidence that support its
`
`challenge. Petitioner further objects to the admissibility of evidence as follows.
`
`Evidence
`Ex. 2001 – Caravan Canopy Int’l, Inc.
`v. Home Depot U.S.A., et al., No.
`SACV 19-01072, Order Consolidating
`Cases, dated December 13, 2019
`
`Ex. 2002 – Caravan Canopy Int’l, Inc.
`v. Costco Wholesale Corporation, et
`
`Objections
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`
`2
`
`
`
`Evidence
`al., No. SACV 19-01072, Scheduling
`Order, dated January 27, 2020
`
`
`Ex. 2003 – Caravan Canopy Int’l, Inc.
`v. Walmart Inc., et al., No. 19-06978
`Consolidated with 19-01072,
`Walmart’s Memorandum in Support of
`its Motion to Stay Litigation Pending
`Inter Partes Review, dated June 18,
`2020
`
`
`Ex. 2004 – Caravan Canopy Int’l, Inc.
`v. Lowe’s Home Centers, LLC et al.,
`No. 19-06952 Consolidated with 19-
`01072, Request for Clarification re
`Stay of Litigation, dated August 26,
`2020
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`
`3
`
`
`
`Evidence
`
`Ex. 2005 – Caravan Canopy Int’l, Inc.
`v. Home Depot U.S.A., Inc., et al., No.
`SACV 19-01072, Order Denying
`Defendants’ Request for Clarification,
`dated August 28, 2020
`
`
`Ex. 2006 – Claim Chart for Walmart’s
`Ozark Trial Canopy, dated December
`9, 2019
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`
`4
`
`
`
`Evidence
`Ex. 2007 – Caravan Canopy Int’l, Inc.
`v. Walmart Inc., et al., No. 19-06978
`Consolidated with 19-01072,
`Defendant Walmart Inc.’s Preliminary
`Invalidity Contentions, dated March
`16, 2020
`
`
`Ex. 2008 - Walmart’s Initial Invalidity
`Contentions Claim Chart – Ex. D
`
`
`Ex. 2009 – Walmart’s Initial Invalidity
`Contentions Claim Chart – Ex. A
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`
`5
`
`
`
`Evidence
`
`Ex. 2010 – Caravan Canopy Int’l, Inc.
`v. Costco Wholesale Corporation, et
`al., No. 19-01072, Costco Wholesale
`Corporation’s Invalidity Contentions
`and Accompanying Document
`Production, dated November 4, 2019
`
`
`Ex. 2011 – Caravan Canopy Int’l, Inc.
`v. Z-Shade Co. LTD., et al., No. 19-
`06224, Z-Shade Co., LTD.’s Invalidity
`Contentions and Accompanying
`Document Production, dated
`November 4, 2019
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`
`6
`
`
`
`Evidence
`
`Ex. 2012 – Caravan Canopy Int’l, Inc.
`v. Shelterlogic Corp., et al., No. 19-
`01224 Consolidated with 19-01072,
`Invalidity Contentions of Shelterlogic
`Corp., dated January 21, 2020
`
`
`Ex. 2013 – Caravan Canopy Int’l, Inc.
`v. Lowe’s Home Centers, LLC et al.,
`No. 19-06952, Lowe’s Invalidity
`Contentions and Accompanying
`Document Production, dated
`November 4, 2019
`
`
`Ex. 2014 – Declaration of Lance Rake,
`¶¶ 47, 55, 56, 80, 82, 86–90
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 702/703: These paragraphs of Mr.
`Rake’s declaration are not (1) based on
`sufficient facts or data; and (2) the
`product of reliable principles and
`methods. Mr. Rake relies on Losi based
`
`7
`
`
`
`Evidence
`
`Ex. 2014 – Declaration of Lance Rake
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`on his understanding that Losi
`discloses “the same or substantially the
`same tent frame as Tsai” contrary to
`the Board’s finding that there are
`“substantial differences” between Losi
`and Tsai. Paper 12 at 30.
`
`FRE 402: Losi does not form the basis
`of any of the grounds in the Petition.
`The Board found that there are
`“substantial differences” between Losi
`and Tsai. Paper 12 at 30. Thus these
`paragraphs of Mr. Rake’s declaration
`include information that is not relevant
`to any ground upon which trial was
`instituted.
`
`FRE 403: For the same reason, these
`paragraphs of Mr. Rake’s declaration
`includes information whose probative
`value to any ground upon which trial
`was instituted is substantially
`outweighed by the danger of unfair
`prejudice, confusing the issues, undue
`delay, wasting time, or needlessly
`presenting cumulative evidence.
`37 C.F.R. § 42.65: The exhibit
`contains expert testimony that does not
`disclose the underlying facts or data on
`which the opinion is based.
`
`FRE 702/703 (Unreliable Expert
`Testimony): The exhibit contains
`statements and opinions that are not
`admissible under FRE 702 or 703. For
`example, the witness lacks specialized
`knowledge in the relevant field of art
`(mechanical engineering) that will help
`the trier of fact to understand the
`
`8
`
`
`
`Evidence
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`evidence or to determine a fact in issue.
`Further, the exhibit fails to identify
`facts or data supporting the witness’s
`conclusory testimony, and that
`testimony thus is not the based on
`sufficient facts or data. Further the
`testimony is not the product of reliable
`principles and methods, and the
`witness fails to reliably apply the
`principles and methods of the facts of
`the case.
`
`The exhibit contains opinions for
`which the factual bases have not been
`disclosed, including numerous broad
`and/or conclusory statements made
`without analysis or sufficient citation to
`evidence or explanation. For example,
`the declarant purportedly analyzes
`motivation to combine elements of the
`prior art references without identifying
`the meaning of or any constructions for
`disputed claim terms, such as “center
`pole.” Ex. 1003, ¶¶ 45, 46, 52, 58-65,
`67, 74-82. 84, 88-90, 92, 94-100.
`
`FRE 402: The exhibit includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: The exhibit includes
`information whose probative value to
`any ground upon which trial was
`instituted is substantially outweighed
`by the danger of unfair prejudice,
`confusing the issues, undue delay,
`wasting time, or needlessly presenting
`cumulative evidence.
`
`9
`
`
`
`Evidence
`Ex. 2015 – U.S. Patent No. 5,701,923
`to Losi, Jr. et al.
`
`Ex. 2016 – U.S. Patent No. 5,275,188
`to Tsai
`
`Ex. 2017 – U.S. Patent No. 5,421,356
`to Lynch
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`FRE 402: Losi does not form the basis
`of any of the grounds in the Petition.
`The Board found that there are
`“substantial differences” between Losi
`and Tsai. Paper 12 at 30. Thus the
`exhibit includes information that is not
`relevant to any ground upon which trial
`was instituted.
`
`FRE 403: Patent Owner submits that
`Tsai and Losi are “substantially the
`same,” contrary to the Board’s finding.
`Prelim. Resp. 66-69. The exhibit thus
`includes information whose probative
`value to any ground upon which trial
`was instituted is substantially
`outweighed by the danger of unfair
`prejudice, confusing the issues, undue
`delay, wasting time, or needlessly
`presenting cumulative evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`
`10
`
`
`
`Evidence
`
`Ex. 2018 – U.S. Patent No. 5,634,483
`to Gwin
`
`Ex. 2019 – U.S. Patent No. 5,794,640
`to Jang
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`
`11
`
`
`
`Evidence
`
`Ex. 2022 – Caravan Canopy Int’l, Inc.
`v. Costco Wholesale Corp., et al., No.
`SACV 19-01072, Response to
`“Request for Clarification re Stay of
`Litigation,” dated August 27, 2020
`
`
`Ex. 2023 – Caravan Canopy Int’l, Inc.
`v. Costco Wholesale Corp., et al., No.
`SACV 19-01072, Amended Scheduling
`Order, dated August 11, 2020
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`
`12
`
`
`
`Evidence
`Ex. 2024 – Caravan Canopy Int’l, Inc.
`v. Costco Wholesale Corp., et al., No.
`SACV 19-01072, Costco Wholesale
`Corporation’s Final Invalidity
`Contentions and Accompanying
`Document Production, dated August
`18, 2020
`
`
`Ex. 2025 – Caravan Canopy Int’l, Inc.
`v. Z-Shade Co. LTD, et al., No. SACV
`19-06224, Z-Shade Co. LTD’s Final
`Invalidity Contentions and
`Accompanying Document Production,
`dated August 18, 2020
`
`
`Ex. 2026 – Caravan Canopy Int’l, Inc.
`v. ShelterLogic Corp. No. SACV 19-
`01072, Invalidity Contentions of
`ShelterLogic Corp., dated March 16,
`2020
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`
`13
`
`
`
`Evidence
`
`Ex. 2027 – Caravan Canopy Int’l, Inc.
`v. Lowe’s Home Centers, LLC, No.
`SACV 19-006952, Lowe’s Invalidity
`Contentions and Accompanying
`Document Production, dated
`November 4, 2019
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`
`Objections
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`FRE 402: The exhibit was cited by
`Patent Owner only in arguments
`regarding discretionary denial of
`institution. The exhibit thus includes
`information that is not relevant to any
`ground upon which trial was instituted.
`
`FRE 403: For the same reason, the
`exhibit also includes information
`whose probative value to any ground
`upon which trial was instituted is
`substantially outweighed by the danger
`of unfair prejudice, confusing the
`issues, undue delay, wasting time, or
`needlessly presenting cumulative
`evidence.
`
`
`
`
`Dated: December 30, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/ David A. Reed /
`David A. Reed
`Reg. No. 61,226
`Counsel for Petitioner
`
`
`
`
`
`
`
`
`
`
`
`
`14
`
`
`
`Case IPR2020-01026
`U.S. Patent No. 5,944,040
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on the date below copies of this
`
`PETITIONER’S OBJECTIONS TO EVIDENCE SERVED BY PATENT
`
`OWNER IN INTER PARTES REVIEW were served electronically via e-mail
`
`upon the following:
`
`Kyle W. Kellar
`KKellar@lrrc.com
`
`Jason C. Martone
`Jmartone@lrrc.com
`
`Sami I. Schilly
`SSchilly@lrrc.com
`
`
`
`
`Dated: December 30, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`/ David A. Reed /
`David A. Reed
`Reg. No. 61,226
`Counsel for Petitioner
`
`15
`
`
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