UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`YITA LLC,
`Petitioner
`
`v.
`
`MACNEIL IP LLC,
`Patent Owner
`
`_____________________
`
`Case No. IPR2020-01139
`U.S. Patent No. 8,382,186
`_____________________
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`_____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_____________________
`
`YITA LLC,
`Petitioner
`
`v.
`
`MACNEIL IP LLC,
`Patent Owner
`
`_____________________
`
`Case No. IPR2020-01139
`U.S. Patent No. 8,382,186
`_____________________
`
`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
`PURSUANT TO 37 C.F.R. § 42.64(b)(1)
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`Petitioner Yita LLC objects under the Federal Rules of Evidence to the
`
`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`
`
`admissibility of Exhibits 2023-2038, 2041-2051, and 2053-2112, which Patent
`
`Owner MacNeil IP LLC filed with its Patent Owner’s Response on May 5, 2021.
`
`37 C.F.R. § 42.64(b)(1).
`
`Yita timely objects within the allowed five business days of service of
`
`Exhibits 2023-2038, 2041-2051, and 2053-2112. Yita files and serves MacNeil
`
`with these objections to provide notice that Yita may move to exclude Exhibits
`
`2023-2038, 2041-2051, and 2053-2112 under 37 C.F.R. § 42.64(c).
`
`I. Exhibit 2023-2029, 2032-2038, 2049:
`FRE 106: Yita objects to Exhibit 2026 because it is incomplete. For
`
`example, page 1 of the document appears to be missing content at the bottom of
`
`the page.
`
`FRE 401, 402, and 403: Yita objects to Exhibits 2023-2029, 2032-2038, and
`
`2049 for including information that is irrelevant. These documents lack any
`
`tendency to make a fact that is of consequence in determining the action more or
`
`less probable than it would be without this document. In addition, to the extent
`
`these documents have any probative value to any ground upon which trial was
`
`instituted, it is substantially outweighed by the danger of unfair prejudice,
`
`confusing the issues, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence.
`
`
`
`- 1 -
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`
`FRE 603: Yita objects to Exhibits 2023 and 2024 under FRE 603, and under
`
`37 C.F.R. §§ 1.68, 42.53(a), and 42.63(a). These documents are not proper
`
`evidence under FRE 603 and 37 C.F.R. §§ 1.68, 42.53(a), and 42.63(a). As such,
`
`these documents are also irrelevant under FRE 401, 402, and 403. Yita also objects
`
`to Exhibit 2023 under 37 C.F.R. § 42.63(b) because it does not include an affidavit
`
`attesting to the accuracy of the translation.
`
`FRE 602 and 701: Yita objects to Exhibit 2024, including at least ¶ 26,
`
`under FRE 602 because MacNeil did not introduce sufficient evidence to establish
`
`that the witness has personal knowledge of the matters discussed. Yita objects to
`
`Exhibit 2024, including at least ¶ 26, as improper opinion testimony by a lay
`
`witness under FRE 701. MacNeil has not established the declarant as an expert
`
`witness in the subject matter discussed in ¶ 26.
`
`FRE 702 and 703: Yita objects to Exhibit 2024, including at least ¶¶ 14-26,
`
`as improper expert testimony under FRE 702 and 703. The testimony is based on
`
`insufficient facts or data, is not the product of reliable principles and methods, and
`
`does not reliably apply the appropriate principles and methods to the facts of the
`
`case.
`
`FRE 801 and 802: To the extent MacNeil relies on the contents of these
`
`documents for the truth of the matter asserted, Yita objects to Exhibits 2023-2029,
`
`- 2 -
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`2032-2035, 2038 and 2049 as inadmissible hearsay under FRE 801 and 802 that
`
`does not fall under any exception.
`
`FRE 901 and 902: Yita objects to Exhibits 2023, 2025-2029, 2032-2038, and
`
`2049 as not properly authenticated under FRE 901 because MacNeil has not
`
`presented evidence sufficient to support a finding that the documents in question
`
`are what MacNeil claims. There is no evidence that the documents are self-
`
`authenticating under FRE 902.
`
`37 C.F.R. § 42.63(b): Yita objects to Exhibit 2023 under 37 C.F.R. §
`
`42.63(b) because it does not include an affidavit attesting to the accuracy of the
`
`translation. Yita also objects to Exhibits 2025-2027 and 2029 under 37 C.F.R. §
`
`42.63(b) because these documents include words in a language other than English
`
`that are not translated into English.
`
`II. Exhibit 2041:
`Yita objects to Exhibit 2041 to the extent it relies on Exhibits 2023-2038,
`
`2042-2051, and 2053-2112 for the same reasons Yita objects to those documents as
`
`provided herein.
`
`FRE 401, 402, and 403: Yita objects to Exhibit 2041, including at least ¶¶
`
`86-94, 99, 101, 106-108, 118-127, 139-141, and 164-165, for including
`
`information that is irrelevant. These paragraphs lack any tendency to make a fact
`
`that is of consequence in determining the action more or less probable than it
`
`- 3 -
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`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`would be without this document. In addition, to the extent these paragraphs have
`
`any probative value to any ground upon which trial was instituted, it is
`
`substantially outweighed by the danger of unfair prejudice, confusing the issues,
`
`undue delay, wasting time, or needlessly presenting cumulative evidence. Yita also
`
`objects to ¶¶ 41-47, 49-55, 64-78, 106-112, 128-130, 153, 155-157, 159-160, 167,
`
`175-176, and 180-182 as irrelevant under FRE 401, 402, and 403 because they
`
`have not been relied upon in support of any argument made in the Patent Owner
`
`Response.
`
`FRE 702 and 703: Yita objects to Exhibit 2041, including at least ¶¶ 81-91,
`
`94-96, 101-105, 114-117, 119-127, 129, 132-141, 143, 145, 147-178, and 181, as
`
`improper expert testimony under FRE 702 and 703. The testimony is based on
`
`insufficient facts or data, is not the product of reliable principles and methods, and
`
`does not reliably apply the appropriate principles and methods to the facts of the
`
`case.
`
`III. Exhibits 2030, 2058-2061, 2072, 2076-2077:
`FRE 106: Yita objects to Exhibit 2072 and 2076-2077 because they are
`
`incomplete.
`
`FRE 401, 402, and 403: Yita objects to Exhibits 2030, 2058-2061, 2072, and
`
`2076-2077 for including information that is irrelevant. These documents lack any
`
`tendency to make a fact that is of consequence in determining the action more or
`
`- 4 -
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`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`less probable than it would be without this document. In addition, to the extent
`
`these documents have any probative value to any ground upon which trial was
`
`instituted, it is substantially outweighed by the danger of unfair prejudice,
`
`confusing the issues, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence.
`
`FRE 801 and 802: To the extent MacNeil relies on the contents of these
`
`documents for the truth of the matter asserted, Yita objects to Exhibits 2058-2061,
`
`2072, and 2076-2077 as inadmissible hearsay under FRE 801 and 802 that does not
`
`fall under any exception.
`
`FRE 901 and 902: Yita objects to Exhibits 2030, 2072, and 2076-2077 as
`
`not properly authenticated under FRE 901 because MacNeil has not presented
`
`evidence sufficient to support a finding that the documents in question are what
`
`MacNeil claims. There is no evidence that the documents are self-authenticating
`
`under FRE 902.
`
`IV. Exhibit 2042:
`Yita objects to Exhibit 2042 to the extent it relies on Exhibits 2023-2038,
`
`2041, 2043-2051, and 2053-2112 for the same reasons Yita objects to those
`
`documents as provided herein.
`
`FRE 401, 402, and 403: Yita objects to Exhibit 2042, including at least ¶¶
`
`86-179, for including information that is irrelevant. These paragraphs lack any
`
`- 5 -
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`tendency to make a fact that is of consequence in determining the action more or
`
`less probable than it would be without this document. In addition, to the extent
`
`these paragraphs have any probative value to any ground upon which trial was
`
`instituted, it is substantially outweighed by the danger of unfair prejudice,
`
`confusing the issues, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence. Yita also objects to ¶¶ 43-48, 86-91, 93-94, 118-124, and
`
`127-154 as irrelevant under FRE 401, 402, and 403 because they have not been
`
`relied upon in support of any argument made in the Patent Owner Response.
`
`FRE 603: Yita objects to Exhibits 2042 under FRE 603, and under 37 C.F.R.
`
`§§ 1.68, 42.53(a), and 42.63(a). This document is not proper evidence under FRE
`
`603 and 37 C.F.R. §§ 1.68, 42.53(a), and 42.63(a). As such, this document is also
`
`irrelevant under FRE 401, 402, and 403.
`
`FRE 602 and 701: Yita objects to Exhibit 2042, including at least ¶¶ 33-42,
`
`44-85, 91-101, 103-109, 111, 113, 117-133, 135-154, 156-165, and 168-179, under
`
`FRE 602 because MacNeil did not introduce sufficient evidence to establish that
`
`the witness has personal knowledge of the matters discussed. Yita objects to
`
`Exhibit 2042, including at least ¶¶ 33-42, 44-85, 91-101, 103-109, 111, 113, 117-
`
`133, 135-154, 156-165, and 168-179, as improper opinion testimony by a lay
`
`witness under FRE 701. MacNeil has not established the declarant as an expert
`
`witness in the subject matter discussed in these paragraphs.
`
`- 6 -
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`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`FRE 702 and 703: Yita objects to Exhibit 2042, including at least ¶¶ 30-72,
`
`73-85, and 86-179, as improper expert testimony under FRE 702 and 703. The
`
`testimony is based on insufficient facts or data, is not the product of reliable
`
`principles and methods, and does not reliably apply the appropriate principles and
`
`methods to the facts of the case.
`
`V. Exhibits 2031, 2044-2048, 2078-2107:
`FRE 106: Yita objects to Exhibit 2106 because it is incomplete.
`
`FRE 401, 402, and 403: Yita objects to Exhibits 2031, 2044-2048, and 2078-
`
`2107 for including information that is irrelevant. These documents lack any
`
`tendency to make a fact that is of consequence in determining the action more or
`
`less probable than it would be without this document. In addition, to the extent
`
`these documents have any probative value to any ground upon which trial was
`
`instituted, it is substantially outweighed by the danger of unfair prejudice,
`
`confusing the issues, undue delay, wasting time, or needlessly presenting
`
`cumulative evidence.
`
`FRE 603: Yita objects to Exhibit 2031 under FRE 603, and under 37 C.F.R.
`
`§§ 1.68, 42.53(a), and 42.63(a). This document is not proper evidence under FRE
`
`603 and 37 C.F.R. §§ 1.68, 42.53(a), and 42.63(a). As such, this document is also
`
`irrelevant under FRE 401, 402, and 403. Yita also objects to Exhibit 2023 under 37
`
`- 7 -
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`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`C.F.R. § 42.63(b) because it does not include an affidavit attesting to the accuracy
`
`of the translation.
`
`FRE 602 and 701: Yita objects to Exhibit 2031, including at least ¶¶ 5-16 of
`
`the Kaminskiene declaration, under FRE 602 because MacNeil did not introduce
`
`sufficient evidence to establish that the witness has personal knowledge of the
`
`matters discussed. Yita objects to Exhibit 2041, including at least ¶¶ 5-16 of the
`
`Kaminskiene declaration, as improper opinion testimony by a lay witness under
`
`FRE 701. MacNeil has not established the declarant as an expert witness in the
`
`subject matter discussed in ¶¶ 5-16.
`
`FRE 801 and 802: To the extent MacNeil relies on the contents of these
`
`documents for the truth of the matter asserted, Yita objects to Exhibits 2031, 2044-
`
`2048, 2078-2095, and 2107 as inadmissible hearsay under FRE 801 and 802 that
`
`does not fall under any exception.
`
`FRE 901 and 902: Yita objects to Exhibits 2031, 2046, 2048, and
`
`2078-2107 as not properly authenticated under FRE 901 because MacNeil has not
`
`presented evidence sufficient to support a finding that the documents in question
`
`are what MacNeil claims. There is no evidence that the documents are self-
`
`authenticating under FRE 902.
`
`- 8 -
`
`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`37 C.F.R. § 42.63(b): Yita objects to Exhibit 2106 under 37 C.F.R. §
`
`42.63(b) because this document includes words in a language other than English
`
`that are not translated into English.
`
`VI. Exhibit 2043:
`Yita objects to Exhibit 2043 to the extent it relies on Exhibits 2023-2038,
`
`2041-2042, 2044-2051, and 2053-2112 for the same reasons Yita objects to those
`
`documents as provided herein.
`
`FRE 401, 402, and 403: Yita objects to Exhibit 2043, including at least ¶¶
`
`70, 72, 75-86, 100-107, 115-122, 137, 140-149, and 161, for including information
`
`that is irrelevant. These paragraphs lack any tendency to make a fact that is of
`
`consequence in determining the action more or less probable than it would be
`
`without this document. In addition, to the extent these paragraphs have any
`
`probative value to any ground upon which trial was instituted, it is substantially
`
`outweighed by the danger of unfair prejudice, confusing the issues, undue delay,
`
`wasting time, or needlessly presenting cumulative evidence. Yita also objects to ¶¶
`
`48-68, 71-74, 85, 87-91, 95-97, 99-107, 133, 135-140, 157-159, 166, 168, and 172
`
`as irrelevant under FRE 401, 402, and 403 because they have not been relied upon
`
`in support of any argument made in the Patent Owner Response.
`
`FRE 702 and 703: Yita objects to Exhibit 2043, including at least ¶¶ 70, 72,
`
`75-86, 92-107, 110-114, 118-156, 163-168, and 170-171, as improper expert
`
`- 9 -
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`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`testimony under FRE 702 and 703. The testimony is based on insufficient facts or
`
`data, is not the product of reliable principles and methods, and does not reliably
`
`apply the appropriate principles and methods to the facts of the case.
`
`VII. Exhibits 2050-2051, 2053-2057, 2062-2071, 2073-2075, 2108-2112:
`FRE 106: Yita objects to Exhibits 2054 and 2062 because they are
`
`incomplete. For example, content appears to be missing towards the end of each
`
`document.
`
`FRE 401, 402, and 403: Yita objects to Exhibits 2050-2051, 2053-2057,
`
`2062-2071, 2073-2075, and 2108-2112 for including information that is irrelevant.
`
`These documents lack any tendency to make a fact that is of consequence in
`
`determining the action more or less probable than it would be without this
`
`document. In addition, to the extent these documents have any probative value to
`
`any ground upon which trial was instituted, it is substantially outweighed by the
`
`danger of unfair prejudice, confusing the issues, undue delay, wasting time, or
`
`needlessly presenting cumulative evidence.
`
`FRE 801 and 802: To the extent MacNeil relies on the contents of these
`
`documents for the truth of the matter asserted, Yita objects to Exhibits 2050-2051,
`
`2053-2057, 2062-2065, 2071, 2109, and 2112 as inadmissible hearsay under FRE
`
`801 and 802 that does not fall under any exception.
`
`- 10 -
`
`
`
`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`FRE 901 and 902: Yita objects to Exhibits 2050-2051, 2053-2057, 2062-
`
`2065, 2071, 2109, and 2112 as not properly authenticated under FRE 901 because
`
`MacNeil has not presented evidence sufficient to support a finding that the
`
`documents in question are what MacNeil claims. There is no evidence that the
`
`documents are self-authenticating under FRE 902.
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/ R. Wilson Powers III /
`
`R. Wilson Powers III (Reg. No. 63,504)
`Counsel for Petitioner
`
`Date: May 12, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`- 11 -
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`
`
`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that a true and correct copy of the
`
`foregoing PETITIONER’S OBJECTIONS TO PATENT OWNER’S
`
`EVIDENCE PURSUANT TO 37 C.F.R. § 42.64(B)(1) was electronically served
`
`via e-mail in its entirety on May 12, 2021, upon the following counsel of record for
`
`Patent Owner:
`
`David G. Wille (Lead Counsel)
`Chad C. Walters (Back-up Counsel)
`Clarke W. Stavinoha (Back-up Counsel)
`BAKER BOTTS L.L.P.
`david.wille@bakerbotts.com
`chad.walters@bakerbotts.com
`clarke.stavinoha@bakerbotts.com
`
`Jefferson Perkins (Back-up Counsel)
`PERKINS IP LAW GROUP LLC
`jperkins@perkinsip.com
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
` /
`
` R. Wilson Powers III /
`
`
`R. Wilson Powers III (Reg. No. 63,504)
`Counsel for Petitioner
`
`Date: May 12, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
`
`
`
`
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