`
`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
`
`
`
`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 2114, 2115, 2126–2129, and 2132–2137, which Patent
`
`Owner MacNeil IP LLC filed as supplemental information on August 4, 2021. 37
`
`C.F.R. § 42.64(b)(1).
`
`Yita timely objects within the allowed five business days of service of
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`Exhibits 2114, 2115, 2126–2129, and 2132–2137. Yita files and serves MacNeil
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`with these objections to provide notice that Yita may move to exclude Exhibits
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`2114, 2115, 2126–2129, and 2132–2137 under 37 C.F.R. § 42.64(c).
`
`I. Exhibits 2114, 2115, 2128, 2129, and 2132-2137:
`FRE 401, 402, and 403: Yita objects to Exhibits 2114, 2115, 2128, 2129,
`
`and 2132–2137 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
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`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 2115 under FRE 603, and under 37 C.F.R.
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`§§ 1.68, 42.53(a), and 42.63(a). Exhibit 2115 is not proper evidence under FRE
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`
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`- 1 -
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`603 and 37 C.F.R. §§ 1.68, 42.53(a), and 42.63(a). As such, the document is also
`
`irrelevant under FRE 401, 402, and 403.
`
`FRE 702 and 703: Yita objects to Exhibit 2115, including at least ¶¶ 10–13,
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`15–17, 19–21, 23–25, 27–29, 31–33, 35–38, and 40–43, 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 2114, 2115,
`
`2128, 2129, and 2132–2137 as inadmissible hearsay under FRE 801 and 802 that
`
`does not fall under any exception.
`
`FRE 901 and 902: Yita objects to Exhibits 2114, 2128, 2129, and 2132–
`
`2137 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.
`
`II. Exhibits 2126:
`Yita objects to Exhibit 2126 to the extent it relies on Exhibits 2023–2038,
`
`2041, 2043–2051, and 2053–2112 for the same reasons Yita previously objected.
`
`See Paper 30.
`
`
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`- 2 -
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`FRE 401, 402, and 403: Yita objects to Exhibit 2126, including at least ¶¶
`
`86–179, 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 ¶¶ 43–48, 86–91, 93–94, 118–124, and
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`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 602 and 701: Yita objects to Exhibit 2126, including at least ¶¶ 33–42,
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`44–85, 91–101, 103–109, 111, 113, 117–133, 135–154, 156–165, and 168–179,
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`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
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`Exhibit 2126, including at least ¶¶ 33–42, 44–85, 91–101, 103–109, 111, 113,
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`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
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`witness in the subject matter discussed in these paragraphs.
`
`FRE 702 and 703: Yita objects to Exhibit 2126, including at least ¶¶ 30–72,
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`73–85, and 86–179, as improper expert testimony under FRE 702 and 703. The
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`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. Exhibit 2127:
`Yita objects to Exhibit 2127 to the extent it relies on Exhibits 2132–2136 for
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`the same reasons Yita objects to those documents as provided herein and Exhibits
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`2042 and 2084–2095 which Yita previously objected. See Paper 30.
`
`FRE 401, 402, and 403: Yita objects to Exhibit 2127, including at least ¶¶ 3–
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`18, 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.
`
`FRE 602 and 701: Yita objects to Exhibit 2127, including at least ¶¶ 3–18
`
`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 2127, including at least ¶¶ 3–18, as improper opinion testimony by a lay
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`witness under FRE 701. MacNeil has not established the declarant as an expert
`
`witness in the subject matter discussed in these paragraphs.
`
`
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`Case IPR2020-01139
`U.S. Patent No. 8,382,186
`FRE 702 and 703: Yita objects to Exhibit 2127, including at least ¶¶ 3–18,
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`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.
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Jason A. Fitzsimmons/
`
`Jason A. Fitzsimmons
`Reg. No. 65,367
`Counsel for Petitioner
`
`Date: August 11, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
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`- 5 -
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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 August 11, 2021, upon the following counsel of record
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`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.
`
`/Jason A. Fitzsimmons/
`
`Jason A. Fitzsimmons
`Reg. No. 65,367
`Counsel for Petitioner
`
`Date: August 11, 2021
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005-3934
`(202) 371-2600
`
`
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